Before the Court is a notice of motion filed by the plaintiff in these proceedings seeking an order for substituted service of a summons filed on 29 June 2020. The summons seeks orders pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ("the cross-vesting legislation) that certain proceedings be transferred to the Federal Court of Australia, as well as an order pursuant to s 140 of the Civil Procedure Act 2005 (NSW) that other proceedings be transferred to this Court. The order for substituted service is sought pursuant to r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW).
The notice of motion is primarily supported by an affidavit of Matthew Gradidge, solicitor, of 13 July 2020 which I have read. However, the plaintiff also read an earlier affidavit of Mr Gradidge of 29 June 2020 which was filed in support of the summons.
The brief background to the present application is as follows.
The plaintiff commenced proceedings against the defendants in the Chief Industrial Magistrate's Court seeking damages arising from her employment with the first defendant, Crinitis Castle Hill Trading Pty Ltd. Those proceedings are the subject of an application for transfer to the Federal Court. The necessity for a transfer has been brought about by the fact that the quantum of damages sought by the plaintiff exceeds the jurisdiction of the Court in which the proceedings have been commenced.
Service of the summons has been effected on a number of the named defendants. However, the plaintiff has encountered difficulty in serving the fifth defendant, Cathy Criniti. Investigations and inquiries undertaken on behalf of the plaintiff establish that Ms Criniti is the subscriber to two email addresses, the first being (xxx) and the second being (xxx).
On 9 July 2020, the plaintiff's solicitor engaged a process server to personally serve Ms Criniti with the summons and the affidavit in support at her last known address. A process server attended premises at West Pennant Hills that day and knocked on the door. There was no response.
The process server then telephoned a mobile telephone number which was the contact number for Ms Criniti nominated in a report provided to the plaintiff's solicitors. That report also included the email addresses to which I earlier referred. When the process server asked if it was Ms Criniti who answered the call, a female replied:
"Yes".
Upon being informed that there were documents which were required to be personally served on Ms Criniti, she responded:
"I don't know what it's about".
The process server then informed Ms Criniti that the documents related to the plaintiff, at which point Ms Criniti replied:
"Oh, I know what that's about".
When the process server told Ms Criniti of the address at which he was at the time, she replied:
"That's not my address".
When she was asked whether she would supply her new address, she replied:
"No, I won't be accepting service of documents. I will be calling my solicitor regarding this matter."
When personal service could not be effected, the plaintiff's solicitor sent an email to Ms Criniti at each of the two email addresses to which I earlier referred, under cover of which he included the summons and the affidavit in support. In that email, the plaintiff's solicitor said:
"We refer to the above proceedings. Please again find attached by way of service the following:
1. Summons filed 29 June 2020; and,
2. Affidavit of Matthew William Gradidge sworn 29 June 2020.
The email also advised Ms Criniti that the proceedings were listed before this Court on 13 July 2020. No response was received by the plaintiff's solicitor to that email.
On 10 July 2020, the plaintiff's solicitor sent a text message to the telephone number which the process server had called to contact Ms Criniti. That text message attached the summons and the affidavit and was generally in the same terms as the earlier email. The plaintiff's solicitor drew Ms Criniti's attention to the fact that the summons and affidavit had also been sent to the two email addresses to which I previously referred. There was no response to that text message.
Rule 10.14 of the Uniform Civil Procedure Rules states, insofar as is relevant for present purposes, the following:
(1) If a document that is required or permitted to be served on a person in connection with any proceedings:
(a) cannot practicably be served on the person, or
(b) cannot practicably be served on the person in the manner provided by law,
the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.
(2) An order under this rule 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 an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.
(4) Service in accordance with this rule is taken to constitute personal service.
The present application is pursuant to r 10.14(3) which effectively empowers the Court to make a retrospective order.
In order to make the order sought, I must be satisfied that the method of substituted service which is sought by the plaintiff is one which will, in all probability if not certainty, be effective to bring the knowledge of the proceedings to the defendant. [1] Such a requirement is fundamental. [2] If I cannot be satisfied that service under the methods to which I have referred would bring notice of the proceedings to the attention of the defendant, then an order for substituted service will not be appropriate.
On the evidence before me, Ms Criniti is connected with and on the face of it the subscriber to, the two email addresses and the mobile telephone number to which I previously referred. In all of those circumstances, I am satisfied that the methods of serving the summons and affidavit by email and via text message were methods of service which will, in all reasonable probability if not certainty, be effective to bring the knowledge of the proceedings to Ms Criniti.
In all of those circumstances, I am satisfied that the order sought should be made.
The plaintiff's solicitor proposed that in those circumstances, the summons be stood over before the Duty Judge until Monday 20 July 2020. Depending upon the response from any of the defendants on that day, the plaintiff will seek to proceed with the hearing of this summons.
In circumstances where one of those orders seeks a transfer of proceedings under the cross-vesting legislation, it would be of assistance to the Judge dealing with the matter on that occasion for the plaintiff's solicitor to provide to him or her a short outline of submissions directing the Court's attention to those authorities which lay down the principles which govern such an application.
For those reasons, I make the following orders:
1. Pursuant to r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW), I direct that the summons filed in these proceedings on 29 June 2020, together with the affidavit of Matthew William Gradidge sworn 29 June 2020, be taken to have been served on the fifth defendant on 10 July 2020.
2. I stand the summons over for hearing before the Duty Judge on Monday 20 July 2020 at 10.00am.
3. I direct the solicitor for the plaintiff to notify the fifth defendant of these orders, firstly by email to (xxx) and (xxx) and secondly, by way of text message to (xxx) by 4.00pm today.
4. I reserve the question of costs of the notice of motion.
5. I direct the solicitor for the plaintiff to provide to the Court, by 5.00pm on Thursday 16 July 2020, an outline of written submissions in support of the orders sought in the summons.
[2]
Endnotes
Porter v Freudenberg [1915] 1 KB 857 at 889.
Chappell v Coyle (1985) 2 NSWLR 73.
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Decision last updated: 14 July 2020