IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Commercial Court
Technology, Engineering and Construction List
S ECI 2020 03554

JIN CHEN	Plaintiff	
		
v		
		
BLOCKCHAIN GLOBAL LIMITED
(ABN 82 601 628 497) and LIANG GUO	Defendants	

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JUDGE:	SLOSS J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	6 November 2020	
DATE OF RULING:	6 November 2020	
CASE MAY BE CITED AS:	Chen v Blockchain Global Limited & Anor	
MEDIUM NEUTRAL CITATION:	[2020] VSC 751	

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PROCEDURE – Application for substituted service of originating process – Use of a process server – After several attempts process server unable to serve - Whether personal service impracticable – Plaintiff proposed several different methods of service – Court satisfied that methods of service proposed, taken together, would be likely to bring the originating process to the notice of the second defendant – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 6.10(1), 6.10(2) - Civil Procedure Act 2010 (Vic) s 7(1), s 59.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Vijayakumar (solicitor)	KCL Law	
			
For the First Defendant	No appearance		
			
For the Second Defendant	No appearance		

TABLE OF CONTENTS

Introduction	1
Substituted service – relevant legal principles	3
Is personal service of the originating process ‘impracticable’	5
Conclusion	6

HER HONOUR:
Introduction
1	This proceeding was commenced by the plaintiff on 10 September 2020, alleging breaches of a Deed of Settlement made on or around 22 June 2018 between parties including the plaintiff, the first defendant and the second defendant.  The plaintiff, Jin Chen, is a former employee of the first defendant, Blockchain Global Limited,  and the second defendant, Liang Guo, sometimes called ‘Allan Guo’, was a director of the first defendant at the relevant time.
2	The plaintiff has made several attempts to effect personal service of the Writ and Statement of Claim on the second defendant, without success. 
3	By summons filed on 27 October 2020, the plaintiff makes application for substituted service of the originating process pursuant to Rule 6.10 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules), in circumstances where he contends personal service of the Writ and Statement of Claim on the second defendant has proved ‘impracticable’.  
4	In the summons, the plaintiff proposes adopting several different methods of service that he submits will, ‘in all reasonable probability, if not certainty’, bring the Writ and Statement of Claim to the knowledge of the second defendant, and accordingly, he seeks to have the Court make the orders sought.
5	The plaintiff has filed a tender bundle of affidavits and material in support of his application (TB) together with a short outline of submissions.   At the commencement of the hearing, the plaintiff sought (and obtained instanter) leave to amend his summons to include a further method of service, whereby the Writ (including the Statement of Claim) will be taken to have been served on the second defendant pursuant to Rule 6.10 by sending the documents to the ‘WhatsApp’ account linked with the second defendant’s mobile phone number.  
6	In essence, the plaintiff contends that the material filed in support of the application reveals that:
(a)	The plaintiff engaged a process server to serve the Writ on the second defendant at what appears to be his last known residential address of # Bribie Way, Point Cook VIC 3030 (see TB 1, 2,7,8, and 78 – 82).  The process server attended the last known residential address on 12 October 2020, when no one was home, and again on 14 October 2020.  The process server deposes that on the latter occasion, in his presence:
(i)	a man, who looked like the second defendant in his LinkedIn photograph, entered the house and refused to answer the door; and
(ii)	five minutes later, a female named ‘Candice’, who claimed she knew the second defendant, arrived at the house.   Candice denied that the male in the house was the second defendant – she said he had moved out in June 2019 but she also confirmed he is the owner of the house and she pays rent directly into his account. 
(b)	Messages left by the process server, and the plaintiff’s solicitor, KCL Law, on a mobile phone believed to belong to the second defendant have failed to result in call-backs to arrange service despite the leaving of four messages (see TB 1, 7 and 108).
(c)	The second defendant has also ignored:
(i)	emails from the plaintiff’s solicitor sent to email addresses believed to belong to the second defendant attempting to bring the Writ to his attention (see TB 7, 43, 45, 48, 50); and
(ii)	a series of ‘WhatsApp’ messages sent to the account associated with second defendant’s mobile phone number enclosing a copy of the Writ (see TB 359, 360, and 614 – 619).
7	The plaintiff has also attempted to bring this application for substituted service to the attention of the second defendant by taking the steps set out in the Affidavits of Benjamin Bajorek and Aanandan Vijayakumar filed on 4 November 2020 (see TB 110 – 112 and 357 – 361).
Substituted service – relevant legal principles
8	Rule 6.02(1) of the Rules requires that the Originating Process, here the Writ (and Statement of Claim), ‘shall be served  personally’ on the second defendant.
9	However, where personal service is ‘impracticable’, r 6.10(1) of the Rules empowers a judge to make orders for substituted service.  Rule 6.10(1) provides:
Where for any reason it is impracticable to serve a document in the manner required by these Rules, the Court may order that, instead of service, such steps be taken as the Court specifies for the purpose of bringing the document to the notice of the person to be served.
10	As Justice Garde noted in Austin v Dobbs, r 6.10(1) has a long history, and ‘[f]or substituted service to be ordered, the rule requires that service of a document in the manner required by the Rules is impracticable.’  What is ‘practicable’ or ‘impracticable’ in any given case, however, is to be determined by reference to ‘the individual circumstances of the case.’  
11	His Honour conveniently summarised the relevant case law concerning the notion of ‘impracticability’, and highlighted the relevance of the Civil Procedure Act 2010 (Vic) in reading and applying r 6.10(1), as follows:
[29]	In Ricegrowers’ Co-operative Ltd & Anor v ABC Containerline NV & Ors, Tamberlin J referred to the interpretation of the corresponding UK rule, to the effect that the word ‘practicable’ should be given a wide meaning.  The simple question was whether it was ‘practicable’ to use one of the prescribed methods.
[30]	Moreover, as Bell J observed in Carter Holt Harvey v David, the expression ‘for any reason’ found in r 6.10(1) is broad and should be given a wide meaning.
[31]	Rule 6.10(1) however, must be read and applied in the context of the Civil Procedure Act 2010 (Vic) (‘the Civil Procedure Act’).  Under s 7(1) of the Civil Procedure Act, the overarching purpose of that Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.  The Civil Procedure Act directs that the construction and application of r 6.10(1) as with other rules of court be undertaken having regard to the overarching purpose.
[32]	Speaking of the equivalent New South Wales Civil Procedure Act, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd, the High Court said that the clear intention and expectation of the Civil Procedure Act is that courts use their broad powers under the Civil Procedure Act to facilitate the overriding purpose.  The High Court said that achievement of the overriding purpose may require a more robust and proactive approach on the part of the courts.  Unduly technical and costly disputes about non-essential issues are to be avoided.  The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs.
[33]	Likewise in Yara Australia Pty Ltd v Oswal, the Victorian Court of Appeal observed that the court was directed to further the overarching purpose by having regard to the objects and matters articulated in s 9 of the Civil Procedure Act.  This includes the efficient use of judicial and administrative resources, and dealings with the proceeding in a manner proportionate to the complexity, and importance of the issues and amount in dispute. 
12	More recently, in Hassan v Noa, Clayton JR endorsed the view expressed by the Court of Appeal in Porter v Freudenberg that in an application for substituted service, the methods of service must ‘in all reasonable probability, if not certainty, be effective in bringing knowledge of the writ to the defendant’.
13	Rule 6.10(2) provides that where the Court makes an order under r 6.10(1), the Court may order that ‘the document be taken to have been served’ either (a) on the happening of any specified event; or (b) on the expiry of any specified time.
Is personal service of the originating process ‘impracticable’
14	The affidavit material filed on behalf of the plaintiff describes the extensive enquiries that have been made to ascertain the residential address of the second defendant, or other locations at which he may be served, such as his work address, and the steps taken to serve him or bring the originating process and this application to his attention.  
15	The Deed of Settlement provides an address for notices to be served on the second defendant as being Level 1, 89 City Road, Southbank  VIC 3006 and an email address: allan.guo@blockchainglobal.com with a copy to Mr Leath Nicholson, at leathn@nrlawyers.com.au.  Mr Nicholson is the solicitor for the first defendant.  The plaintiff’s solicitors have been in contact with the solicitors for the first defendant, whom the plaintiff believed may also be instructed to act on the second defendant’s behalf, but to no avail.  The solicitors for the first defendant have confirmed that they have not been engaged to act on behalf of the second defendant and do not hold instructions to accept service.
16	Personal name searches conducted at ASIC reveal a number of directorships held by the second defendant, all of which show his residential address as # Bribie Way, Point Cook VIC 3030 (see TB 78 – 81).
17	The evidence given by the process server in his affidavit of service serves to confirm that the second defendant continues to have a link to that residential address even if he does not reside there.
18	The mobile phone number believed by the plaintiff to be that of the second defendant, #### ### ###, contains a recorded message or greeting, ‘Hello, you reached Allan Guo …’.  The mobile phone service is operational but requests from the plaintiff’s solicitor for the second defendant to call back have not been responded to.  
19	The plaintiff knows of two email addresses for the second defendant, being allan.guo@blockchainglobal.com and #@hotmail.com.  Emails have been sent to these email addresses on various dates in September 2020.  All of the emails sent to the Hotmail address were delivered successfully and delivery receipts have been received, confirming that the emails have been delivered (see TB 7,44, 47, 52, 358 and 608).
20	Against that background, the plaintiff submits that personal service on the second defendant  is impracticable, particularly as he appears to be avoiding service.  In those circumstances, the plaintiff submits that one or more of the different methods of service proposed will likely be effective to bring the originating process to the attention of the second defendant.
Conclusion
21	Given the steps undertaken to date on behalf of the plaintiff in an effort to effect personal service, I am satisfied that it is impracticable in the relevant sense for the originating process to be served personally on the second defendant.  The material filed in support of the application demonstrates that the plaintiff, using reasonable effort, is unable to serve the Writ and Statement of Claim personally on the second defendant.  Further, the evidence given by the process server concerning his attendance at the residential premises on the second occasion seeking to effect service, conveys the impression that the second defendant does not wish to be served.  Accordingly, I propose to order that personal service of the originating process on the second defendant be dispensed with.
22	The plaintiff proposes that several different methods of service be adopted which together will be taken to effect service, namely:
The Writ will be taken to have been served on the second defendant pursuant to Order 6.10 of the Rules on the happening of the following events:- 
(a)	the posting of the following documents, (collectively, “the Documents”) by Express Post with tracking to Level 1, 89 City Road, Southbank VIC 3006, attention Allan Guo:- 
(i)	a covering letter; 
(ii)	a sealed copy of the order for substituted service; and 
(iii)	a copy of the Writ; 
(b)	by posting the Documents by Express Post with tracking to # Bribie Way, Point Cook VIC 3030, attention Allan Guo; 
(c)	by sending the Documents via email to the second defendant’s email addresses being allan.guo@blockchainglobal.com and #@hotmail.com;
(d)	by sending the Documents via email to Leath Nicholson of the law firm ‘Nicholson Ryan’ at the following email address leathn@nicholsonryan.com.au; 
(e)	by sending the Documents by ‘WhatsApp’ to the account associated with the second defendant’s mobile phone number, being #### ### ### and 
(f)	by advising the second defendant of the steps taken at subparagraphs (a) – (e) above via text to his mobile phone with number #### ### ###.
23	As it is impracticable to serve the originating process personally on the second defendant, I am satisfied that if steps (a), (b), (c), (e) and (f) are carried out then such steps taken together would be likely to bring the originating process to the notice of the second defendant.  In my view, step (d) above is unnecessary, as the solicitors for the first defendant have confirmed that they do not act on behalf of the second defendant.
24	I will hear from the parties on the precise form of the proposed order.