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. Having been unsuccessful in the proceedings against Mr Foot, the claimant has brought proceedings against Mr Ben Calcraft and against Mr Brown. The proceedings are upon separate summonses each of which is returned before the Court on Monday next, 24 September 1989. Mr Calcraft has been served with the summons. Mr Brown has not yet been served. Placed before me In support of the instant application is an affidavit of the claimant. It sets out the attempts which he has made to serve the summons on Mr Brown. Those attempts include an attempt to serve Mr Brown at his home. A conversation is deposed to with a person described as Mr Brown's wife. This person stated that Mr Brown was out of town, that he could not be contacted, although he had told her by telephone that he was due to return on Thursday, that is to say tomorrow. However it was stated that "Then he is going overseas". The duration of his overseas journey was given as two weeks. Mr Ditfort emphasised to this person the importance of bringing the papers to the attention of Mr Brown. However she said that she was not accepting service. 2 UNREPORTED JUDGMENTS Mr Ditfort noted that, in the vicinity of the house, was a motor car with a car telephone installed. He invites me to infer that it was Mr Brown's car. He suggests that from this evidence an inference should be drawn that Mr Brown is evading service of the summons. When on the evening of 19 September 1989 Mr Ditford telephoned Mr Brown, he spoke to the same female person again. He again asked her to get Mr Brown to telephone him. Mr Brown did in fact telephone the claimant on 18 September 1989. A conversation then took place in which the claimant said to Mr Brown "I believe that you are trying to avoid service". Mr Brown denied this. The claimant then put Mr Brown on notice of this intended application for substituted service. Mr Brown said that he would regard a suggestion that he was evading service of a summons as a smirch on his name. He said that he would appoint counsel to rebut any such suggestion on the return of the summons on Monday and seek costs. Mr Brown indicated that he would be out of the country himself on Monday next. That is where the conversation between the claimant and Mr Brown finished. Mr Brown is a solicitor of the Supreme Court. The application before me invokes the jurisdiction of the Court to grant an order for substituted service of the summons. This relief is claimed under Pt9, r10 of the Supreme Court Rules. By that rule, it is provided: "(1) Such an order may be made where it is impracticable, for any reason, to serve the document or to serve it in the manner required by the rules." This rule does not require proof of evasion of the service. I would not, on the present evidence before me, be inclined to draw any such inference against Mr Brown. The rule simply requires proof that it is impracticable for any reason in the circumstances to secure upon personal service. Ordinarily a summons for contempt of court - being in proceedings criminal in nature, must be served on the defendant personally. However, in the circumstances proved I consider that it is appropriate to make an order for substituted service. I am satisfied that it is impracticable to serve Mr Brown personally by reason of the number of the attempts made to serve the precess on Mr Brown personally, the absence of Mr Brown from his home when that attempt was made and his foreshadowed absence from Australia for two weeks which period is to commence tomorrow. Tam not inclined to require Mr Brown to interrupt his overseas journey at very short notice to attend before the Court next Monday. The claimant suggested that that should be done in order that he might adhere to a timetable necessary to have the proceedings disposed of before the end of the year. Clarke JA has indicated that the hearing of the new proceedings should be expedited. The reasons of the Court in the earlier proceedings against Mr Foot indicate some basis for that to be done. However this result can still be secured, notwithstanding a short delay in returning the summons against Mr Brown for a period of two weeks. This is the period, of which, as the Court is on notice, Mr Brown would be out of Australia. I realize that this course will cause a little disharmony between the claimant's proceedings against Mr Calcraft (which is returned before the Court on 25 September 1989) and the proceedings against Mr Brown. They can be brought back into synchronisation ir both proceedings are mentioned before the Court on 9 October 1989. This is the date on which I would intend now to return the summons against Mr Brown. URJ DITFORD v BROWN (Kirby P) 3 Orders The orders that I therefore make are: 1. Ireturn 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. Lorder 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.