Carroll v Thompson (No 2) [2014] NSWDC 97

District Court New South Wales

Medium Neutral Citation: Carroll v Thompson (No 2) [2014] NSWDC 97 Decision date: 11 February 2014 Before: Cogswell SC DCJ Decision: Grant order extending time to serve statement of claim. Catchwords: CIVIL LAW - Interlocutory application - application to extend time to serve defendants - question whether service effected - substituted service. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 1.12, 10.14. Category: Interlocutory applications Parties: Mark Carroll (plaintiff) Stephen Thompson (first defendant) Jeffrey Thompson (second defendant) Representation: Counsel: V Jurisich (plaintiff) File Number(s): DC 2012/00386886

Judgment 1Mark Carroll has sued the landlords of a house he was living in in 2009. He says he fell down some steps and injured himself. He sued them by issuing a statement of claim out of this Court on 13 December 2012. 2The Court rules provide that a statement of claim has to be served within a month of it being issued. In this case that did not happen. 3Mark Carroll, through his solicitors, applied to the Court for an extension of the time within which to serve the defendants. The Court granted the extension. That occurred on 14 June 2013 and the extension was granted retrospectively to 18 March 2013. 4There are two defendants in this case. I understand that they are brothers and they owned the house where Mr Carroll lived. One of them is named Stephen and the other Jeffrey. 5There is an affidavit of service concerning Stephen Thompson. It is sworn by a process server and is annexure C to an affidavit of Mr John Kambas, sworn on 3 October 2013. The process server says that he served Stephen Thompson on 25 March 2013, that is a week after the extended period given by the Court. 6Mr V Jurisich of counsel who appears for Mr Carroll has asked me to further extend the period by a week to validate that service. I propose to grant that application because annexure F to the same affidavit is a letter from solicitors who had limited instructions from the two brothers. The solicitors noted that the statement of claim was filed on 13 December 2012 and that their client, Stephen Thompson, "was only served with the documents on 18 March 2013". I should add that the solicitors clearly take issue with the service of the statement of claim out of time. 7There therefore appears to be a conflict in the evidence between the acknowledgment given by the solicitors for Stephen Thompson that he was served on 18 March 2013 and the affidavit of the process server. There is only a week between the two dates, but given that the solicitors acknowledge that Stephen Thompson has been served with the documents and in order to regularise the service I propose to grant an order extending the time for serving the statement of claim on Stephen Thompson up to and including 25 March 2013. 8Mr Jurisich has also asked for an order that I extend time for serving the other defendant, Jeffrey Thompson. There are three pieces of evidence about attempts to serve him. An attempt was made on 18 March 2013 according to the affidavit of a process server, which is annexure D to Mr Kambas' affidavit. The process server was directed to another address. 9The process server some weeks later on 4 April 2013 attended the address which he had been provided on the earlier occasion. He asked whether Jeffrey Thompson lived there and was told that he did not. He left a copy of the documents in the presence of the person who answered the door, denying that Jeffrey Thompson lived there. 10The last piece of evidence about attempts to serve Jeffrey Thompson is a further affidavit by the same process server, which is annexure D to an affidavit of Pipina Lazaris dated 11 February 2014. That affidavit by the process server says that he went back to the original address and asked a person who answered the door (who, the process server said, was Stephen Thompson) whether Jeffrey Thompson lived there. He was given an affirmative answer. The process server said that Stephen Thompson acknowledged that he too lived at that address. 11There seemed to me to be two problems with service on Jeffrey Thompson. One is that there is a real question as to whether service has been effected. It seems that service of a statement of claim issued out of the District Court must be served personally by delivering it to the defendant in person. There is no evidence that that has yet occurred. 12The second problem is that the time for serving Jeffrey Thompson expired on 18 March 2013 and I do not have any evidence that he was served within that period of time. Therefore Mr Jurisich has applied for an extension of the time to serve Jeffrey Thompson. I can grant such an extension in accordance with Uniform Civil Procedure Rule 1.12. That is a matter within my discretion which I must exercise judicially. It seems to me that there are at least two gaps that need to be explained. 13One gap is between 13 December 2012 and 13 January 2013, which is the month within which the statement of claim ought to have been served. There is very little to explain what happened in that period apart from an assertion by Mr Kambas the plaintiff's solicitor, in his affidavit of 3 June 2013 that the investigator "could not locate the defendants to effectuate personal service within the specified statutory period". I think I would need some more specific evidence than that which might include the efforts that were made to serve the defendants within that period. 14The second gap appears to me to be between 4 April 2013 and 28 November 2013 with which were the second-last and last attempts respectively to serve Jeffrey Thompson. 15Mr Jurisich has also applied from the bar table for substituted service in respect of Jeffrey Thompson. Uniform Civil Procedure Rule 10.14 provides that I may make such an order if the statement of claim either "cannot practicably be served on the person" or "cannot practicably be served on the person in the manner provided by law". There is some evidence about that at this stage but I would expect more evidence explaining why it has not been practicable to serve Jeffrey Thompson or to serve him in the manner provided by law to date. It may be that further enquiries were made by the process server which are not yet in evidence. 16For those reasons I order that time to serve the statement of claim on Stephen Thompson be extended to and including 25 March 2013. 17I adjourn the plaintiff's application to extend time to serve Jeffrey Thompson and his application for substituted service on Jeffrey Thompson to a date to be fixed which we will do now. HIS HONOUR: Does that make sense, does that give you - I direct a transcript of the two judgments which I have delivered today be prepared and made available to me for revision by next Tuesday, 18 February 2014. Once it's revised, Mr Jurisich, if you give your card to my associate or your solicitor's card, I'll revise it and she'll send the judgments to you so that you'll have some - now, when should we bring it back? Or you also want to get - you said you want to get some instructions. You want me to list if-- JURISICH: I can get that in the meantime. Maybe have liberty to apply or get a date to come back and then liberty to apply if something happens. HIS HONOUR: All right. When do you want to come back? When can all this happen by? You probably want to bring it back sooner rather than later. JURISICH: Yes, that's the idea. HIS HONOUR: Yes, I make it clear that the only transcript is of the judgments, not the proceedings today. JURISICH: Yes, your Honour. Thank you, your Honour. Your Honour said next Tuesday? HIS HONOUR: That's for the transcript. DISCUSSION AS TO DATE FOR NEXT HEARING AND WITNESSES TO BE CALLED 18I revise my direction about the transcript for it to be available by this Thursday, 13 February 2014. I stand over the two applications this Friday 14 February 2014 at 2 o'clock. HIS HONOUR: So are we just about there? JURISICH: Yes, your Honour. Did your Honour say the transcripts by the 13th? HIS HONOUR: Yes. So we'll get it hopefully tomorrow or Thursday morning and I'll revise it quickly and my associate will send it on to you. Does that make sense? JURISICH: Yes. HIS HONOUR: Just so you've got the judgment. ADJOURNED TO FRIDAY 14 FEBRUARY 2014 AT 2PM