Application For Substituted Service In Legal Proceedings Against Croc Bait 27 Pty Ltd

Part 1 A

This is part of the continuing story of Fidel “Foxy” Canaris, his company Croc Bait 27 Pty Ltd trading as Close Encounters of the Risky Kind, and Supreme Court legal proceedings against the company commenced by a very recently retired footballer named Rocky Bilboa for serious personal injuries sustained in a tragic incident at the Close Encounters tourist attraction on Mitchell Street, Darwin.

Rocky commenced proceedings against Croc Bait 27 Pty Ltd in late 2017.

Assume for present purposes that you are the solicitor acting for the defendant Croc Bait 27 Pty Ltd trading as Close Encounters of the Risky Kind. On the instructions of its sole director Mr Canaris you have filed a Third Party Notice for Croc Bait 27 Pty Ltd against Dr Gordon Wallace, a world-renowned crocodile expert, seeking indemnity for any damages that may be awarded to Rocky Bilboa. The Third Party Notice is dated 1 March 2018. You are instructed that prior to the completion and opening of Close Encounters your client engaged Dr Wallace as a consultant to ensure that the crocodile attractions were constructed and operated in accordance with world’s best practice and were completely safe for the tourists coming to the complex.

You are not required to draft the Third Party Notice itself or the statement of claim endorsed on it.

1. You engaged Fred Flatfoot, a licensed process server, to serve the Third Party Notice on Dr Wallace. You provide him with all the details you know about Dr Wallace to assist with service, including a fairly recent photo of him given to you by your client.

2. Dr Wallace’s last known residential address is 13 Seale Street, Fannie Bay NT 0820.

3. Dr Wallace previously traded under a corporate entity named Sage Saurian Services Pty Ltd, but a recent ASIC search shows that it has been struck off as a defunct company. Its previous business premises are vacant and deserted.

4. Dr Wallace did not issue an invoice to Croc Bait 27 Pty Ltd for his consulting services. You client instructs it was a cash deal and that Dr Wallace did not want it going through his company because he wanted to keep the proceeds away from pressing creditors.

5. Fred Flatfoot attended at 13 Seale Street, Fannie Bay at around 5 pm on 3 successive Thursdays: 8, 15 and 22 March 2018. On the first occasion no-one answered the door, but Fred saw a mysterious man wearing an Akubra Hat and croc skin RM Williams boots climbing over the back fence shortly after he began knocking on the front door. He suspects it was Dr Wallace but can’t be sure because it was raining and the fleeing figure had his hat pulled down over his face. On the second occasion Fred attended at the property a teenage girl answered the door and told him that Dr Wallace wasn’t home. On the third occasion a middle-aged woman, who Fred suspects is Dr Wallace’s wife, answered the door and told him that she was the new tenant and that the Wallace family had moved out and not left a forwarding address.

6. You have ascertained that Dr Wallace apparently maintains a Facebook page and is quite active on social media. His most recent post/status update was on 1 April 2018 and showed him posing with a large dead crocodile, apparently by a billabong somewhere in Kakadu National Park. There are numerous subsequent comments from his Facebook friends, and replies from Dr Wallace posted as recently as 30 July 2018.

(a) Draft an application by summons seeking an order for substituted service of the Third Party Notice by whatever means you assess as appropriate;
(b) Draft all necessary supporting affidavits including, if you assess this as needed, by yourself, Mr Canaris and the process server Fred Flatfoot.
(c) Prepare a brief outline of argument for the setting out the Rules, principles and case law relevant to orders for substituted service of proceedings in th context of the fact situation outlined above.

You may omit the formal parts of all court documents, and you may invent any additional facts you consider may be necessary for success in the application, as long as they are consistent with the facts given above.

To

The Registrar

Dear Madam/Sir

The statement of claim in relation to this case has been submitted on 1^st March 2018. I did not have the capacity of serving the statement by post or personally. This is the reason why I seek to make an application for a substituted service order.  I would be grateful if you make order through which the statement of claim can be served via sending it to Dr Wallace at any other place. This is because Under rule 116 of Uniform Civil Procedure Rules it is stated that in case it is not practicable to serve a document in a manner provided by the chapter the court can order substitution of the way in which the document is to be served by another way. In the case of Foxe v Brown (1984) 58 ALR 542 it had been stated by the court that the plaintiff has to be able to provide before the court that at the time when he or she has made the application for substituted services before the court that reasonable effort has been utilized by the plaintiff to serve the document to the plaintiff in personal capacity but such attempts have failed. We have made all possible attempts in this situation to serve the documents to him in his personal capacity which have failed.

Along with this letter I have also endorsed an affidavit which would provide support to my application for substituted services order.

Yours faithfully

AFFIDAVIT

COURT DETAILS

COURT – LOCAL COURT

DIVISION -SMALL CLAIMS

CASE NUMBER – XXXXXX

Title of Proceedings

Plaintiff-   Croc Bait 27

Defendant – Dr Wallace

Filed for - Croc Bait 27 plaintiff

Contact and Telephone – XXXXXXX

Name - Croc Bait 27

Address – xxxx

Occupation – Company

Date – 24-10-2018

I affirm that

1. I am the above mentioned plaintiff
2. The statement of claim in relation to the matter has been submitted in 1^st March 2018
3. The statement of claim had been posted to the defendant in form of a sealed copy
4. The address which has been mentioned above by me is true
5. The statement of claim had not been received by the defendant
6. On several attempts we have failed to successfully serve the statement of claim to the defendant personal.
7. We have come to seek the order of substituted services from the court only because all the attempts which have been made by use to personally sever the statement of claim to the defendant as required under the civil procedure code have failed
8. We confirm that all details provided by use are true to the best of our knowledge
9. All documents which would be required to prove our failed attempts of delivery have been accompanied with this affidavit.

SWORN at --------

Signature of Deponent -------

Witness Name -----

Witness Address -----

Witness Capacity --------

I saw the deponents face

I have confirmed the identity if the deponent through the use of identification documents.

Outline of arguments for the court with respect to rules and case laws regarding orders for substituted services

Under rule 116 of Uniform Civil Procedure Rules it is stated that in case it is not practicable to serve a document in a manner provided by the chapter the court can order substitution of the way in which the document is to be served by another way.

In the case of Foxe v Brown (1984) 58 ALR 542. it had been stated by the court that the plaintiff has to be able to provide before the court that at the time when he or she has made the application for substituted services before the court that reasonable effort has been utilized by the plaintiff to serve the document to the plaintiff in personal capacity but such attempts have failed. Substituted services involves the situation here the court may allow us to indirectly sever the document to another related person of the defendant which has been approved by the court or through the public publication of the document or by sending it through mail or dropping it to the workplace. We would like to inform the court that on several attempts we have failed to successfully serve the statement of claim to the defendant personal. This is the sole reason for which we are opting for substituted services. In the light of the rules provided through the case of Foxe v Brown we should be provided with an opportunity to avail the services in light of the facts.

In order to seek help under this procedure we are aware about the fact that we need to provide evidence before the court that we are not able to reach the defendant and all efforts which have been made by us to contact the defendant have failed. We are ready to provide the court with such evidence in form of an affidavit. This rule is provided under the case of Embry v Smart [2014] QCA 75. Therefore as we are provide the court with adequate evidence which showcases that we are not able to reach the defendant and all efforts which have been made by us to contact the defendant have failed there should not be any doubt in relation to the fact that we should be allowed to seek help via substituted services in order to serve documents to the defendant.

We would also like to bring to the notice of the court the rules provided in the case of Ricegrowers Co-operative Ltd & Anor v ABC Container Line (1996) 138 ALR 480. In this case it had been ruled by the judges that evidence must be “so obviously futile as not to warrant an attempt at service". In the light of these rules we would like to bring to the attention of the court that we have not once but on several occasions made an attempt to serve document to the defendant personally. This may clear all doubts that we have not made an attempt.

Embry v Smart [2014] QCA 75

Foxe v Brown (1984) 58 ALR 542

Ricegrowers Co-operative Ltd & Anor v ABC Container Line (1996) 138 ALR 480

Uniform Civil Procedure Rules