Facts: P (Sheahan) applied to FCA for an order that D (Joye) attend examination about company affairs. The Court issued summons directing Joye to attend examination under s 596B of the Corporations Act on 25 November 1994. On this day, Joye was still in Australia. On December 9, Sheahan’s solicitor faxed Joye’s solicitor, telling them that the summons had been issued and asking whether they had instructions to accept the service on behalf of Joye. The summons were posted and received on 13 December. On 13 December, Joye departed Australia. On 16 December, Joye’s solicitor told Sheahan’s solicitor that they had no instructions to accept the service. On 2 February 1995, Sheahan sought an order for substitute service. On 7 February, Registrar ordered that personal service be dispensed with and that service be effected by posting a sealed copy of summons to Joye’s solicitor and accountants. Joye then applied to have the substituted service order set aside.
Issue: At the date of issue of the summons, D was present in Australia, but personal service was not possible before D left Australia. Could an order be made for substituted service of originating process?
Held: The FCFCA held that Joye was present in Australia when the proceedings commenced and there was a strong suggestion that Joye knew of the summons and left the country to evade service. Therefore, the order for substituted service of the originating process was valid.
Ratio (affirming obiter in Laurie v Carroll): A person who left the place after initiating process was issued and who either knew that process had been issued or who left to evade service of process will be regarded as within the jurisdiction.
Obiter: It was said that mere presence at the time of issue followed by departure without knowledge of the issue of originating process would likely not be enough to warrant an order for substituted service.