Bottrill v Graham [2024] NSWDC 566

Bottrill v Graham [2024] NSWDC 566

Although the second defendant was not personally served, the combination of delivery at her family home, regular visitation, notice of the Concerns Notice, and association with the first defendant meant she was aware of the proceedings. This satisfied the requirements for service under relevant procedural rules and case law. Application to set aside service refused; costs awarded in light of unsatisfactory evidence of service.

Parties
Plaintiff: David Bottrill; First Defendant: David Michael Graham; Second Defendant: Cathryn Gale Gibson
Jurisdiction
Australia
Judgment Date
28 November 2024
Procedural Posture
Civil / Interlocutory Application (service Challenge and Costs)
Outcome
Second defendant's application to set aside service refused; costs partially in her favour; case to continue with extended time for defences.
Legal Topics
Personal Service, Costs in Interlocutory Applications, Extension of Time for Filing Defence, Pro Bono Legal Assistance, Concerns Notice Requirements in Defamation
Practice and Procedure Defamation Personal Service Costs in Interlocutory Applications Extension of Time for Filing Defence Pro Bono Legal Assistance Concerns Notice Requirements in Defamation

Case Brief

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Parties

David Bottrill

Plaintiff

David Michael Graham

First Defendant

Cathryn Gale Gibson

Second Defendant

Procedural Posture

Civil / Interlocutory Application (service Challenge and Costs)

Legal Issues

  1. 1 Whether the statement of claim was validly served personally on the second defendant under the UCPR
  2. 2 Whether the proceedings should be summarily dismissed for failure to effect personal service
  3. 3 Appropriate costs order given contradictory service evidence

Ratio Decidendi

Although the second defendant was not personally served, the combination of delivery at her family home, regular visitation, notice of the Concerns Notice, and association with the first defendant meant she was aware of the proceedings. This satisfied the requirements for service under relevant procedural rules and case law. Application to set aside service refused; costs awarded in light of unsatisfactory evidence of service.

Court Disposition

Second defendant's application to set aside service refused; costs partially in her favour; case to continue with extended time for defences.

Orders

  • The second defendant's application to set aside service of the statement of claim is refused.
  • Plaintiff to pay second defendant's out-of-pocket expenses ($100) within 14 days.