47 The rules governing the Supreme Court in relation to service outside Australia are, as observed by the Full Bench in Bell v Macquarie Bank Limited (No.4) (1999) 93 IR 191, different in a number of respects to that applying to the Commission in Court Session and care must be taken in simply following decisions of the Supreme Court in this area of practice and procedure. However, we consider the judgment of the Court of Appeal in Castagna & Anor v Conceria Pell Mec SpA (unreported, BC9601018, NSWCA, 15 March 1996) is directly relevant to the issue we are called upon here to decide. Although this judgment was expressly relied on by the appellant at first instance, there is no reference to it in the judgment under appeal. In Castagna the Court of Appeal considered whether leave should have been granted at first instance to proceed against the appellant. The question arose on appeal as to the effectiveness of service on the appellant in the United States of America in the state of California. There were irregularities in the purported service of a summons described by Handley JA at 3-4 thus:
The difficulty in sustaining the order granting leave to proceed lies in the very terms of the affidavit of Steven Tso on which the plaintiff relied. This, so far as relevant, stated: "On the 29th day of January 1992 at 10.30 o'clock in the forenoon I duly served the co-defendant, Anthony Castagna, with a sealed copy of each of the following documents annexed to this affidavit and labelled A, B and C respectively, namely an amended summons, notice to defendant served outside Australia and letter addressed to the co-defendant stating the time and date for the Court hearing by delivering them to a female person over the age of 16 years and employed at the co-defendant's usual place of employment at 766 Palomar Avenue, Sunnyvale, California".
Annexure A comprised the amended summons with its expired return date of 29 November 1991, which was indeed sealed with the seal of the Court. Annexure B was the notice to absent defendant which was not sealed with the seal of the Court or signed. Annexure C, described as letter addressed to the co-defendant stating the time and date of the Court hearing, bore the date 28 February 1992 and stated that the date for hearing was 14 February 1992 at 10.30 am. Annexure C therefore purports to be dated 28 February and to notify a hearing date on 14 February, but according to the affidavit was served on 29 January. The letter therefore contains a fundamental internal contradiction and there is a similar contradiction between it and the affidavit. The letter was neither signed nor sealed.
These inconsistencies were not drawn to the attention of the trial Judge and were not noticed by him. They were apparently also overlooked by the plaintiff's legal advisers. However, now that they have been drawn to the Court's attention, it is clear in my opinion that the service and the evidence of service were fundamentally irregular. Had these matters been drawn to the attention of Cole J or had his Honour noticed them, he would have been bound to refuse leave to proceed.