Kirwan v Schurig [2014] NSWDC 222

Kirwan v Schurig [2014] NSWDC 222

Substituted service was justified because the email address was the address from which the matter complained of was sent, the affidavits established that the defendant resided and worked at the addresses attended by the process server, and the failed attempts at service indicated that the defendant was avoiding service; service by email together with affixing the Statement of Claim to the front door or placing it in the letterbox would be sufficient to bring the proceedings to her attention. As the time for service had expired, it was extended to 5 September 2014.

Jurisdiction
Australia
Judgment Date
29 August 2014
Procedural Posture
Defamation Proceedings / Interlocutory Application for Substituted Service
Outcome
Application for substituted service granted and time for service extended.
Legal Topics
['substituted Service' 'service by Email' 'avoidance of Service' 'extension of Time for Service']
['practice and Procedure' 'defamation'] ['substituted Service' 'service by Email' 'avoidance of Service' 'extension of Time for Service']

Case Brief

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Procedural Posture

Defamation Proceedings / Interlocutory Application for Substituted Service

Legal Issues

  1. 1 ['Whether the Statement of Claim should be served by substituted service instead of personal service under Rule 10.14 UCPR.' "Whether service by email and by delivering or affixing the Statement of Claim at the defendant's residence would be sufficient to bring it to the defendant's attention." 'Whether time for service of the Statement of Claim should be extended under r 6.2(4) UCPR.']

Ratio Decidendi

Substituted service was justified because the email address was the address from which the matter complained of was sent, the affidavits established that the defendant resided and worked at the addresses attended by the process server, and the failed attempts at service indicated that the defendant was avoiding service; service by email together with affixing the Statement of Claim to the front door or placing it in the letterbox would be sufficient to bring the proceedings to her attention. As the time for service had expired, it was extended to 5 September 2014.

Court Disposition

Application for substituted service granted and time for service extended.

Orders

  • ['Pursuant to Rule 10.14 UCPR an order that, instead of personal service, the Statement of Claim filed on 28 July 2014 be served on the defendant by email at the email address [email address] and by delivering a copy to [postal address] and affixing it to the front door at that address, or if that is not possible,...