Land and Environment Court New South Wales Medium Neutral Citation: Fairfield City Council v Shabaa [2024] NSWLEC 134 Hearing dates: 5 December 2024 Date of orders: 5 December 2024 Decision date: 05 December 2024 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [20]. Catchwords: PRACTICE AND PROCEDURE ­ — Application for substituted service of first respondent in Class 4 proceedings — whether Court should exercise its discretion to make order for substituted service —motion for substituted service granted — no orders for substituted service made in respect of second respondent because second respondent located overseas. Legislation Cited: Land and Environment Court Rules 2007, r 4.1 Uniform Civil Procedure Rules 2005, rr 10.14, 11.1, 11A.1, 11A.3, 18.2 Cases Cited: Hornsby Shire Council v Trives [2014] NSWLEC 41; (2014) 205 LGERA 241 Texts Cited: Perry Herzfeld SC and Thomas Prince SC, Interpretation (3rd ed, Lawbook Co, 2024) DC Pearce, Statutory Interpretation in Australia (10th ed, LexisNexis, 2024) Category: Procedural rulings Parties: Fairfield City Council (Applicant) Retha Shabaa (First Respondent) Haider Al Dhalimi (Second Respondent) Representation: Counsel: L Nurpuri (Applicant) No appearance (First and Second Respondents) Solicitors: Steven Elias Shneider t/a Houstin Dearn O'Connor (Applicant) No appearance (First and Second Respondents) File Number(s): 2024/361283 Publication restriction: Nil Ex Tempore JUDGMENT Fairfield City Council Seeks an Order for Substituted Service 1. By notice of motion filed on 26 November 2024 ("the motion"), Fairfield City Council ("the Council") initially sought orders for substituted service of a summons filed on 30 September 2024 and other material on Retha Shabaa, the first respondent, and Haider Al Dhalimi, the second respondent, pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005 ("UCPR"). Service of documents was to be effected by: 1. serving the documents on any person above the age of 18 years residing at 508 Cabramatta Road, West Mount Pritchard NSW 270; 2. affixing the documents to the wire gate in front of 16 Waterside Crescent, Carramar NSW 2163, and photographing the documents in situ as affixed at that address; 3. sending the documents to Shabaa by email to shabaaretha553@gmail.com; and 4. sending the documents to Al Dhalimi by email to hairder.pca@gmail.com and admin@pdepro.com. 1. During the hearing of the motion, however, the Council was granted leave to amend the notice of motion to strike out the orders for substituted service sought in respect of the second respondent, Al Dhalimi. This was because Al Dhalimi is presently in Iraq and, as the Council conceded, the Court does not have the power to make orders for substituted service on a person located in Iraq. 2. The concession was correctly made. While Pt 11 of the UCPR provides that documents may be served outside of Australia without leave in certain circumstances, by reason of r 11.1(1) of the UCPR Pt 11 only applies to proceedings commenced in the Supreme Court (Hornsby Shire Council v Trives [2014] NSWLEC 41; (2014) 205 LGERA 241 at [21]). 3. Rather, the Court's power to order service of documents outside of Australia arises under Pt 11A of the UCPR, which applies if r 11A.3 is satisfied: 11A.3 Application of Division (1) Subject to subrule (2), this Division applies to service in a Convention country of a local judicial document. (2) This Division does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention. 1. Rule 11A.1 includes the following relevant definitions: Convention country means a country, other than Australia, that is a party to the Hague Convention. … Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965. 1. Part 11A of the UCPR does not apply to the present proceedings because Iraq is not a party to the Hague Convention. That is, Iraq is not a "Convention country". 2. Accordingly, the issues before the Court remaining for determination are whether, in relation to Shabaa: 1. the preconditions for the exercise of the Court's power under r 10.14 of the UCPR are met; and 2. as a matter of discretion, the power is to be exercised so as to order substituted service in the circumstances of this case. 1. I have determined to make the orders for substituted service sought in the Council's amended motion in respect of Shabaa. Legal Principles Applicable to Making an Order for Substituted Service 1. The UCPR applies to Class 4 proceedings in the Court by reason of r 4.1 of the Land and Environment Court Rules 2007. 2. The Court has the power to make an order for substituted service pursuant to r 10.14 of the UCPR: 10.14 Substituted and informal service generally (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. (3A) An application for an order under this rule must be supported by an affidavit by the applicant that includes— (a) a statement as to the applicant's knowledge of the whereabouts of the person to be served, and (b) a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail). (4) Service in accordance with this rule is taken to constitute personal service. Evidence Relied Upon by the Council 1. In support of the motion, the Council read an affidavit of Steven Shneider, the Council's solicitor on record, sworn on 26 November 2024. In that affidavit Shneider relevantly deposed that: 7 Based on the matters deposed in the Affidavits of Mr Gamsby respectively dated 18 November 2024 and 25 November 2024 I state that the documents commencing these proceedings cannot practicably be served on the Respondent's or cannot practicably be served on the person in the manner provided by law. I say this because: … b. It is evident that the First Respondent owns the subject land, does not reside at the subject land, and there is no other address held by the Applicant for the First Respondent; and, c. The subject land, 16 Waterside Crescent Carramar NSW 2163 contains a partially constructed dwelling that appears incapable of being properly occupied. 1. The Council also relied upon an affidavit of Perry Gamsby, sworn on 18 November 2025. Gambsy is a Licensed Process Server. He gave evidence as to his attempts to effect personal service on Shabaa: 5. On 14 October 2024 at 6:45pm, I attended 16 Waterside Crescent, Carramar NSW 2163 ('the Carramar Property'). I found the Carramar Property to be under construction. There were no persons on site. I attempted to make enquiries with neighbours and there was apparently no one in attendance. 6. On 14 November 2024 at 12:12pm, I attended Carramar Property. There were no persons on site. 7. On 22 November 2024 at 1:15pm, I attended Carramar Property. There appeared to be no change since the last attendance. There were no persons on site. I obtained a photograph depicting the Carramar Property, a true copy of which Is annexed hereto and marked with the letter "A". 1. The Council further relied upon a second Shneider affidavit, sworn on 2 December 2024. In his second affidavit, Shneider explained why, if an order for substituted service in the form contained in the amended motion was made, it would result in the proceedings being brought to the attention of Shabaa: 11 I am reliably informed by Mr Milienou and do believe that the Applicant holds an email addressed to the First Respondent and sent by the Director of PDE Certifiers, Qusai EI-Jurf. The email attached the Written Directions Notice. The email was addressed to the First Respondent at shabaaretha553@gmail.com. Annexed hereto and marked with the letter "F" is a true copy of that email sent to shabaaretha553@gmail.com by Qusai EI-Jurf. 12 I am reliably informed by Mr Milienou and do believe that on 31 January 2024 the First Respondent emailed the Applicant purporting to "withdraw" the CDC. The email came from shabaaretha553@gmail.com. Annexed hereto and marked with the letter "G" is a true copy of the email from the First Respondent to the Applicant. 13 I have undertaken a property search for 16 Waterside Crescent Mount Pritchard NSW 2163 which is recorded as being in the name of the First Respondent. I have been unable to locate any alternative address for the First Respondent. 1. Shneider stated that he otherwise has no knowledge of the whereabouts of Shabaa. The Court Ought to Exercise its Discretion to Order Substituted Service in Respect of Shabaa 1. The evidence of Gamsby demonstrates that reasonable attempts have been made to effect personal service on Shabaa on 14 October and 14 and 22 November 2024, at 16 Waterside Crescent Carramar NSW 2163. On each occasion Shabaa was not present which is unsurprising given that the subject land is currently a construction site. 2. I am satisfied that the summons cannot be practicably personally served upon Shabaa and that this precondition to the exercise of the power conferred by r 10.14(1) of the UCPR is met. 3. I am further satisfied that the Council's application for substituted service meets the requirements in r 10.14(3A) of the UCPR insofar as it is supported by Shneider's affidavit evidence deposing to his lack of knowledge of Shabaa's whereabouts, but discloses email communication between Shabaa and the Council post the commencement of the proceedings. 4. I am satisfied that by making the orders for substituted service sought by the Council, the proceedings will be brought to the attention of Shabaa because: 1. Shabaa is the owner of 16 Waterside Crescent Carramar NSW 2163, being the property the subject of these proceedings. Because the property is a construction site, it is likely that either Shabaa, her agents or contractors, will attend it from time to time; and 2. the email address shabaaretha553@gmail.com has been used in email correspondence sent from Shabaa to the Council. 1. Accordingly, I find that the Court ought to exercise its discretion to make the orders for substituted service sought by the Council in its amended motion in respect of Shabaa. Orders 1. In conformity with the reasons given above, the Court makes the following orders: (1) leave is granted to the applicant to amend the notice of motion filed on 26 November 2024; (2) in accordance with r 18.2(c) of the Uniform Civil Procedure Rules 2005 service of the amended notice of motion is dispensed with; (3) pursuant to r 10.14 of the Uniform Civil Procedure Rules 2005, in lieu of personal service on the first respondent, service of the summons filed on 30 September 2024, the affidavit of Grant Milienou, sworn on 30 September 2024 and Exhibits GM01 ("the documents") can be effected by: (4) affixing the documents to the wire gate in front of 16 Waterside Crescent Carramar NSW 2163, and photographing the documents in situ as affixed; and (a) sending the documents to the first respondent by email to shabaaretha553@gmail.com; (b) a copy of the amended notice of motion and any corresponding order must be served along with the documents; (5) service is deemed to have been effected on the first respondent seven days after compliance with order 2; and (6) each party is to bear their own costs of the amended notice of motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2024