DITFORD v BROWN [1989] NSWCA 63

DITFORD v BROWN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 20 September 1989, 20 September 1989

[1989] NSWCA 63

PRACTICE and PROCEDURE — summons for substituted service attempts to serve summons for contempt of court on solicitor defendant at solicitor's home — defendant not present female person declines to accept service — defendant says he is leaving country for two weeks — held: (1) Evasion of service was not proved but was not necessary to secure an order for substituted service; (2) It is sufficient to show that it is impracticable to serve the document as the rules require; (3) Although a summons for contempt must ordinarily be served on the defendant in person in the circumstances proved it was appropriate to order substituted service on any person resident at the defendant's given address.

Supreme Court Rules, Pt9, r10(1).

ORDERS

1. I return the summons in the proceedings of Grant Anthony Ditfort v Graham Vincent Brown before the Court of Appeal in motions on Monday 9 October 1989;

2. I order that service of the summons upon Graham Vincent Brown be effected by substituted service of the same by serving the same upon any person apparently resident at the home address of the said Graham Vincent Brown, namely, 43 Park Road, Sydenham, New South Wales. 3. I order that the costs of this motion be costs in the summons.

Kirby P The motion before me is for an order for substituted service of a summons which the claimant has issued. out of the Court against Graham Vincent Brown. I am dealing with the motion pursuant to a reference from the Registrar and under the powers conferred on me by s46 Supreme Court Act 1970.

The summons claims orders and relief for the alleged contempt of court of Mr Brown. The circumstances which lie behind the summons are complex. Some hint of them is given by the facts recounted in the judgment of the Court of Appeal in Ditford v Foot, unreported, 21 July 1989.