3.26: Time for service of statement of claim
3.27: Extension of time for service
11.28: Substitutional service

Case Summary

The Applicant submitted a without notice Application for substitutional service and an extension of time to serve the Statement of Claim and an Amended Statement of Claim, pursuant to Rules 11.28 and 3.27, respectively. Prior to the without notice Application, the Applicant was granted a first extension to serve the Statement of Claim under Rule 3.26. The Applications Judge denied the without notice Application because there was no authority allowing for a second extension and therefore no basis to permit substitutional service.

In the Application, the Applicant stated that the Statement of Claim and Amended Statement of Claim would be served at the Defendants’ place of work and previous place of work. Applications Judge Summers denied the Application for substitutional service on the grounds that the Applicant’s Affidavit had not specified how substitutional service was more likely to bring the documents to the attention of the persons being served, as required to satisfy Rule 11.28(2)(c). Simply stating that documents would be served at the Defendants’ place of work was not sufficient. The Affidavit needed to specify how the alternative method would get the documents into the hands of the Defendants. Secondly, the Applications Judge stated that the substitutional service could not be accomplished within the service period and an extension would be required, which was not available under the Rules.

The Applicant argued that an extension of time would not prejudice the Respondent, and one could be granted under Rule 3.27(1), relying on subsection (c). Applications Judge Summers noted that evidence of special or extraordinary circumstances was required to satisfy subsection (c). The Applicant had not provided any evidence of delay caused by special or ordinary circumstances resulting solely from the Defendants’ conduct, or the conduct of a person not related to the Action.

For the reasons above, the Plaintiff’s Application was dismissed.  

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