This concerns an application by Steel Pty Ltd and Craig George made 12 October 2016 (the Applicants) for an Order for substituted service of a Summons addressed to Mr Moe Orfali to attend and give evidence before the Tribunal on 7 November 2016 at 9.15am.
[2]
Jurisdiction
The Tribunal has jurisdiction pursuant to the Civil and Administrative Tribunal Act (CATA) s48 (Issue of summons) to issue a Summons addressed to a person to attend and give evidence.
[3]
Facts
The material facts (as defined by the Courts) are set out in the following paragraphs.
The Applicants are the respondents to an application brought by Mr Carbone concerning a contested home building dispute which has been set down for a two day hearing commencing 7 November 2016. Steel Pty Ltd is also an applicant in its application against Mr Carbone for payment.
The Applicants contend there was building work done at Mr Carbone's premises which were certified by an accredited private certifier Mr Mohamad Orfali, who is also known as Moe Orfali, and that Mr Orfali can give evidence relevant to the matters in dispute.
Mr Orfali is a Certifier registered with the Building Professionals Board of NSW, whose contact details were on 16 September 2016 shown as Fairfield City Council with contact details including a phone number at that Council, a mobile number, and an email address at that Council.
On 16 September 2016 the Tribunal issued at the request of the Applicants a Summons addressed to Mr Orfali at his business address at Fairfield City Council requiring his attendance before the Tribunal to give evidence. The Summons also contained information for Mr Orfali and a warning: "IF YOU FAIL TO ATTEND a warrant may be issued for your apprehension."
Between 21 September 2016 and 27 September 2016 the Applicants have by Mr Lachlan McAuley, attempted personal service on Mr Orfali at the address for Mr Orfali at Fairfield City Council, and later from 23 September 2016 at a new address shown by the Building Professionals Board as being at Liverpool City Council.
On 10 October 2016 the Applicants have telephoned Mr Orfali on the mobile number provided on the Building Professionals Board as his contact number [number redacted, ending in 520], left a message asking Mr Orfali to return the call, but have received no reply. In addition, they have spoken to a person apparently employed at Liverpool City Council and left a message asking Mr Orfali to call back, but have received no reply. Letters have also been sent to the Councils.
All practicable attempts at personal service on Mr Orfali have been unsuccessful.
[4]
Law
CATA s48 (Issue of summons); and CATRules 2014 Rule 34 (Issue of summons) gives the Tribunal power to issue a summons to attend and give evidence. CATR 15 (Substituted and informal service generally) and NCAT Procedural Direction No 2 (Summonses) 7 February 2014 also apply.
The summons to Mr Orfali has been issued under CATA s48 and CATRule 34.
CATR r34(2) provides that the summons "must be served on the person named in the summons", which in my opinion requires personal service, although the words of the rule are not stated as clearly as in the Uniform Civil Procedure Rules r33.5(1): "A subpoena must be served personally on the addressee".
CATR R13 (Service, giving and lodgment of notices or documents) is concerned generally with service of notices and documents, and Procedural Direction No 2 extends the application of r13 to service of a summons.
CATR R13(2) relevantly provides:
(2) Means for service or giving of notices and documentsA notice or document may be served on or given to a person or body:
(a) by means of personal service, or
(b) by posting a copy of the notice or document, addressed to the person or body:
(i) to the person's or body's address for service, or
(ii) if the person or body does not have an address for service, to the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), or
(c) by leaving a copy of the notice or document, addressed to the person or body:
(i) at the person's or body's address for service, or
(ii) if the person does not have an address for service, at the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document), …
Procedural Direction No 2 sets out how a summons may be served, relevantly including:
(a) on a person (including an individual, a corporation or Government Department) by sending the document (addressed to the person) to the address for service of the person;
(b) on a person (including an individual, a corporation or Government Department) by sending the document (addressed to the person) by fax, email or other electronic means to the person if the person has consented to receiving documents by these means;
(c) on an individual by posting the document (addressed to the person) to, or leaving it at, the person's business or residential address last known to the person serving the document…
However, a summons for attendance imposes a personal obligation on the person to whom it is addressed (as does a subpoena), and non-compliance by the addresses has a serious consequence which may result in a warrant being issued for that person's apprehension; imposition of a maximum penalty of $11,000: see CATA s77(3); and proceedings for contempt, CATA s73.
Although personal service of a summons or subpoena is usually required, an order for substituted service of a summons or subpoena may also be made: Sleiman v Afeich & Anor [2005] NSWSC 992 in respect of a Court issued subpoena pursuant to the Civil Procedure Act s14 dispensing with a requirement of the rules and an order made for substituted service under UCPR r10.4.
In this Tribunal substituted service is also available under CATA Regulation 15 (Substituted and informal service generally) which relevantly provides:
(1) If a document that is required or permitted to be served on a person in connection with any proceedings before the Tribunal:
(a) cannot practicably be served on the person, or
(b) cannot practicably be served on the person in the manner provided by law,
the Tribunal or a registrar may direct that, instead of service, such steps be taken as are specified by the Tribunal or registrar for the purpose of bringing the document to the notice of the person concerned.
(2) The Tribunal or a registrar may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.
(3) If steps have been taken, otherwise than under a direction under this rule, for the purpose of bringing the document to the notice of the person concerned, the Tribunal or a registrar may direct that the document be taken to have been served on that person on a date specified by the Tribunal or registrar.
An application for an order for substituted service is made supported by evidence setting out why service by the usual means is not practical : Ricegrowers Co-op Ltd & Anor v ABC Containerline NV & Ors [1996] FCA 1663; (1996) 138 ALR 480 where there was an order made for service on solicitors acting for the party who were appearing in related proceedings; setting out the history for unsuccessful attempts at service, and how the substituted or informal service is likely to come to the attention of the addressee.
I am satisfied on the evidence of Mr McAuley, that the Applicants have made reasonable attempts to practicably serve Mr Orfali personally; Mr Orfali is aware of the attempts to serve him personally; but Mr Orfali has failed to make himself available for service or to respond to service effected to date.
An order for substituted service may be made where the interests of justice require such as order.
In considering how substituted service is to be effected, there is no requirement for certainty of service: Atkinson v Crowley [2011] NSWCA 19.
The methods of substituted service are set out in the Tribunal's rules: CATR 14 (Substituted and informal service generally); and the principle is that notice should be given in a manner so that Mr Orfali should at least be made aware of and relevantly, given an opportunity to resist the Order in the Summons, and for Mr Orfali to move to have the Summon set aside, if that is what he wishes to do. See Spencer v Bamber [2012] NSWCA 274 at [196] per Campbell JA:
"[196] In Hope v Hope [1854] EngR 805; (1854) 4 De GM & G 328; 43 ER 534 Lord Cranworth LC considered the court's justification for making orders for substituted service, in the course of which he said, at 342, 539-540:
"The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.""
Orders for substituted service have been made by Tribunals for service by email, fax, mobile phone and SMS, and where no address or contact details are known, substituted service can be given by newspaper advertisement in a public notice, being means by which the contents of the document is likely to come to the attention of the person to be served, as discussed in Spencer v Bamber [2012] NSWCA 274 per Campbell JA at [196] to [202] reviewing the authorities.
A practicable manner of service by email is provided under the Electronic Transactions Act s13A is given effect by CATRule 13(4) When notice or document taken to be served, given or lodged, (d) which provides:
If the notice or document that is served has been filed in, or issued by, the Tribunal by means of an ECM system referred to in Part 3 - at the time provided by clause 13 of Schedule 1 to the Electronic Transactions Act 2000, or
(ii) if the notice or document that is served has not been filed in, or issued by, the Tribunal by such means - at the time provided by section 13A of the Electronic Transactions Act 2000.
The test is whether the document served is likely to come to the attention of the addressee, and the test does not require certainty that it will.
In all the circumstances I am satisfied that service of the Summons, by the means in the Orders, is likely to come to the attention of Mr Orfali and it is appropriate to make an order for substituted service.
Mr Orfali, should, if he wishes, promptly file any application and supporting evidence to have the summons set aside.
[5]
Conclusion
The Order is made in the interests of justice to determine the application.
J Levingston
General Member
NSW Civil and Administrative Tribunal
21 October 2016
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 01 December 2016