Friday, April 29, 2011

Service in the Magistrates' Court - 'place of residence'

One of the peculiarities of the Magistrates' Court General Civil Procedure Rules 2010 which remains unchanged after this year's substantial amendment is Rule 6.03(1)(b) (previously Rule 5.03(1)(b)), which permits service in the following circumstance:
by delivering a copy of the document to the place of residence of the person to be served to a person apparently above the age of 16 years who resides at that place but when the place of residence is a hotel, boarding house or similar establishment, to some person apparently above that age who is apparently in charge of the establishment or engaged in the office of the establishment...
As the learned author notes in Williams Civil Procedure (at [MC 5.03.0]), this mode of service is peculiar to the Magistrates' Court of Victoria and service in this way would not be valid in the Supreme or County Courts of Victoria unless authorised by an order for substituted service.

Of course, the main problem with this provision is what happens when a person disputes that service occurred at his or her place of residence. For instance, if a defendant is interstate for some time and process is served on a person living at the defendant's home address, does this amount to effective service? What is a person's 'place of residence' for the purpose of Rule 6.03(1)(b)?

There appears to be little reported or published authority on the meaning of 'place of residence' in the context of Rule 6.03(1)(b). The closest thing to this appears to be a case considering the meaning of 'principal place of residence' in the context of wills: In re Hood [2004] VSC 328 (Hood).

In Hood, Hollingworth J of the Supreme Court of Victoria considered a situation in which a will provided for the proceeds from a testatrix's 'principal place of residence' to be distributed amongst two of her grandchildren to the exclusion of other family members. Just before the testatrix died, she was living in an aged care hostel because of her infirmity. However 4 years before she died, she lived at a property in Werribee which she owned (the Werribee property). The testatrix lived at the Werribee property for around 6 months. While the testatrix was in the aged care hostel, the family rented out her Werribee property on short term leases to earn income. There was argument about whether or not the Werribee property was the testatrix's 'principal place of residence' when the she died.

Hollingworth J discussed the qualities of a 'place of residence' and a 'principal place of residence' at [36], [37] and [38] (references omitted):
  1. The ordinary meaning of "residence", according to dictionary definitions, includes "the place of a person's home or habitation; the place where he abides" or "to have one's usual dwelling-place or abode; the circumstance of having one's permanent or usual abode in or at a certain place."
  1. Courts have been required to consider the concept of "residence" in various different contexts. The connotation of some "permanence" or "settled purpose" seems to be inherent in the concept of residence. However, the precise meaning of expressions such as "residence" and "principal residence" must depend heavily on the context in which they are used.
  1. Counsel for the Halls submitted that I would be assisted by a consideration of cases on the meaning of "principal place of residence" or "principal residence" in the context of taxation and other revenue legislation. Various factors are considered in that context, including: whether it is the place the person actually resides; how often the person is present at the premises and spends the night there; whether the premises are used as a business; what connection they have with any other place of residence; where the person "eats and sleeps and has a settled abode"; continuity of living arrangements; use of electricity and services; the presence of furniture. In determining the issue, the Court "has to make a common sense assessment taking into account a number of varying and even conflicting circumstances." In stamp duty cases at least, it appears that the intention of the relevant person is a relevant, although not a dominant, factor in deciding the factual question as to whether or not a place can be described as a person's principal place of residence.
Hollingworth J held that the Werribee property was her 'principal place of residence'. In construing the will and the meaning of 'principal place of residence', Hollingworth J was guided by the intention of the testatrix together with various extrinsic matters such as the presence of her furniture at the Werribee property and the fact that the leases for the Werribee property were for a short term.

So what does this mean for Rule 6.03(1)(b)? Hood is not easy to apply, as it concerns a 'principal place of residence' rather than just a 'place of residence' and its context is totally different. However the discussion at [36], [37] and [38] in Hood includes a useful set of factors to guide whether or not a person resides at a particular location. Also, Hood suggests that the intention of the person, as determined by extrinsic evidence and affidavit evidence, is relevant although not determinative.

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