Nash v Stewart [2010] NSWSC 513

Nash v Stewart [2010] NSWSC 513

The Uniform Civil Procedure Rules 2005 require personal service of subpoenas to attend and do not allow substituted service, as substituted service is not contemplated or authorized by the relevant rules for subpoenas requiring personal service. The power to dispense with rules does not extend to rewriting them to authorize alternative methods of service in such penal situations.

Parties
First Plaintiff: Gregory Dennis Nash; Second Plaintiff: Gregory Dennis Nash atf Newstart Superannuation Fund; First Defendant: John Thomas Stewart; Second Defendant: John Frederick Lord; Third Defendant: Premium Collections Pty Ltd; Fourth Defendant: Premium Advisory Pty Ltd; Fifth Defendant: Rowan McCoy atf The STO Trust; Sixth Defendant: J & L Marine Pty Ltd
Jurisdiction
Australia
Judgment Date
24 May 2010
Procedural Posture
Equity (corporations List) / Interlocutory Application for Substituted Service of Subpoena (procedural Ruling)
Outcome
Order for abridgment of time for service of subpoena; otherwise notice of motion for substituted service dismissed.
Legal Topics
Service of Subpoenas, Substituted Service, Personal Service, Uniform Civil Procedure Rules, Dispensing With Rules
Civil Procedure Service of Subpoenas Substituted Service Personal Service Uniform Civil Procedure Rules Dispensing With Rules

Case Brief

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Parties

Gregory Dennis Nash

First Plaintiff

Gregory Dennis Nash atf Newstart Superannuation Fund

Second Plaintiff

John Thomas Stewart

First Defendant

John Frederick Lord

Second Defendant

Premium Collections Pty Ltd

Third Defendant

Premium Advisory Pty Ltd

Fourth Defendant

Rowan McCoy atf The STO Trust

Fifth Defendant

J & L Marine Pty Ltd

Sixth Defendant

Procedural Posture

Equity (corporations List) / Interlocutory Application for Substituted Service of Subpoena (procedural Ruling)

Legal Issues

  1. 1 Whether court can order substituted service of a subpoena to attend under Uniform Civil Procedure Rules 2005
  2. 2 Whether the court can dispense with personal service requirement for subpoenas to attend

Ratio Decidendi

The Uniform Civil Procedure Rules 2005 require personal service of subpoenas to attend and do not allow substituted service, as substituted service is not contemplated or authorized by the relevant rules for subpoenas requiring personal service. The power to dispense with rules does not extend to rewriting them to authorize alternative methods of service in such penal situations.

Court Disposition

Order for abridgment of time for service of subpoena; otherwise notice of motion for substituted service dismissed.

Orders

  • Time for service of subpoena for attendance upon James Michael Douglass is abridged to 5 pm on 25 May 2010.
  • Notice of motion otherwise dismissed.