Byrne v Peters

[2010] QDC 520

[2010] QDC 520

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3347 of 2008

PETER ANTHONY BYRNE	Plaintiff
and
ROBERT ST PETERS AND ORS	Defendant

BRISBANE

..DATE 3/12/2010

ORDER

CATCHWORDS

"Uniform Civil Procedure Rules r 69, r 70

Addition of defendants notwithstanding doubt regarding service of application on one of them - plaintiff applicant unsuccessfully sought costs on basis respondents should have consented."

HIS HONOUR:  This is an application by the plaintiff under rule 69 for the addition of two further defendants.  There are no limitations issues.  The proceeding is very much a moveable feast.

The plaintiff seeks to recover, as a debt or damages, an aggregate sum of $130,000, which it's alleged was made available about May 2008 for the purpose of allowing a contract to be completed.

...

HIS HONOUR:  The borrower was the first defendant, the second defendant, John Wayne Massey, was to be guarantor.

...

HIS HONOUR:  The plaintiff developed misgivings on learning the name of Mr Massey - what appeared to be his name appeared in a list of recent bankruptcies, and sought assurance that the person listed was not the intended guarantor.  Those assurances were given.  The realisation that representations to that effect were incorrect seemed to have been slow in coming.

It led to the addition as a party of the fourth defendant on the basis of his association with a law firm identified in under various names, including Stacks//Gray.  The firm represented Mr Massey and provided an assurance to Mr Crilley's firm, which it seems had been brought in by the plaintiff to make inquiries, that their client was not an undischarged bankrupt.  That was good enough to induce Mr Byrne to go ahead.

Mr St Peters hasn't played any active role in the proceeding.  Mr Massey, the second defendant, hasn't even been served.  The third defendant company has been struck off, but the action has been kept alive by the addition of a legal practitioner, and two more are sought to be joined today:

Mr Crilley, on the basis that he ought to have conducted his own inquiries, rather than relying on what came from Stacks//Gray,  and Anthony Eric Smith on the basis that, for relevant purposes, he was Stacks//Gray.

The firm appears to be one which has emanations in both Queensland and New South Wales, or at least relevantly in New South Wales.  There is evidence before the court in the form of information from the Law Society of New South Wales to the effect that Anthony Eric Smith held a practicing certificate entitling him to practise, as of the relevant date - 15th of May 2008 - on his own account or in partnership as Stacks/Northern Rivers.

Mr Crilley and his legal representatives have done the court the courtesy of attending to indicate, through Mr Riley, an attitude of neither consenting or - consenting to, nor opposing the order.  It's difficult to see in the circumstances, how, any other stance could be taken.  But it helps to court to see its way clear to making the order.  The case of Mr Smith is rather different.  Rule 70 requires that an application such as the present be served on all existing parties and on a person proposed to be added as a defendant.

What's being attempted in the case of Mr Smith is to get a firm identified as Stacks Family Law to agree to accept service of relevant documents on Mr Smith.  That's the firm in Murwillumbah.  There's been no response whatsoever to communications by letter and fax to that firm dated November 22nd 2010.

The circumstances are ones in which, for all that appears, Mr Smith would be able to say little against his being joined as a defendant unless there's been some gross mistake in identification or some like unknown circumstance.

Given that the order that will be made today in terms of an initialled draft is made in Mr Smith's absence, if it does involve any injustice to him, he will have the ordinary right of a litigant in such a position to approach the court to seek to have the order changed.

The terms of the court's order, as appearing from the initialled draft, are as follows:

1.  The application be heard notwithstanding that service as referred to in rule 70(2) may not have been effected on Anthony Eric Smith.

2.  Anthony John Crilley be joined in the proceeding as fifth defendant.

3.  Anthony Eric Smith be joined in the proceeding as sixth defendant.

4.  The plaintiff have leave to file an amended claim and an amended statement of claim in or substantially in the forms exhibited to the affidavit of J R Bowers, filed 19 November 2010.

5.  Costs be reserved.

6.  Liberty to apply.

A request was made for an order that the costs by paid be the respondents on the basis that they could have consented to the orders made today.  I'm not persuaded that any of the respondents has been shown to have acted in an inappropriate way, and prefer to reserve the costs.  The order is as per initialled draft.

-----