Commonwealth Bank of Australia v Diplock
[2010] QSC 146
•11 May 2010
SUPREME COURT OF QUEENSLAND
CITATION:
Commonwealth Bank of Australia v Diplock [2010] QSC 146
PARTIES:
COMMONWEALTH BANK OF AUSTRALIA
ABN 48 123 123 124
(applicant/plaintiff)
v
NORMAN ALLWYN DIPLOCK (ALSO KNOWN AS NORMAN ALLWYAN DIPLOCK)
(defendant)FILE NO/S:
BS 742 of 2010
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
11 May 2010
DELIVERED AT:
Brisbane
HEARING DATE:
Application on the papers
JUDGE:
Fryberg J
ORDERS:
1) Personal service of the claim and statement of claim of Claim No. BS 742/10 on the defendant be dispensed with.
2) Service of the claim and statement of claim, together with copies of this order, upon the defendant Norman Allwyn Diplock (also known as Norman Allwyan Diplock) be effected by:
(a) posting copies thereof by ordinary post addressed to the defendant at 28 Evelyn Street Slacks Creek Qld 4114; and
(b) personally delivering a copy of the documents and the order to the defendant at 28 Evelyn Street Slacks Creek Qld 4114.
3) Such service be deemed to be effected two business days after the posting of the copies.
4) The costs of the plaintiff of and incidental to this application be the plaintiff’s costs in the cause.
CATCHWORDS:
Procedure – Supreme Court procedure – Queensland – Procedure under rules of court – Service – Substituted service – Documents of originating processes – By ordinary post and personal delivery
Uniform Civil Procedure Rules 1999 (Qld), r 116
Miscamble v Phillips & Anor [1936] StRQd 272
SOLICITORS:
Gadens Lawyers for the applicant/plaintiff
Ex parte
FRYBERG J: The applicant commenced proceedings on 22 January 2010 by filing in this Court a claim and statement of claim seeking to recover possession of land pursuant to a loan agreement entered into on or about 23 January 2009. The originating documents have not been served on the defendant and the plaintiff is now applying for substituted service.
Rule 105(1) of the Uniform Civil Procedure Rules provides that originating documents must be served personally. Personal service may be substituted by other means pursuant to r 116, which provides:
“Rule 116. Substituted service
(1) If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.
(2) The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served.
(3) The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.”
Rachel Marcinkus, a paralegal in the employ of the applicant’s solicitors, deposed to the history of attempts by herself and process servers to contact the defendant. On 25 January 2010 the applicant’s solicitors engaged Advance Mercantile and Investigations Pty Ltd (hereafter “Advance Mercantile”) to perform personal service of the originating documents upon the defendant. In two reports provided by Advance Mercantile, there is evidence of the process server attending the defendant’s residence on seven separate occasions between 28 January 2010 and 16 February 2010 but could not serve the originating documents on the defendant due to his absence.
Subsequently, the process server searched the electoral roll and obtained the defendant’s contact phone number. Although the defendant spoke with the process server on the phone twice, he declined to accept service and on one occasion informed the service server that he intended to depart from the property shortly afterwards. He did not do so and a prompt attempt by the process server to serve the documents upon the defendant at his residence was unsuccessful.
Ms Marcinkus deposed that during a telephone conversation with defendant on 24 February 2010 she was informed by the defendant that he intends to travel to Sydney and could not be served with the court documents.
The applicant proposes to effect service by:
(a) sending by ordinary pre-paid post, a copy of the documents and the order to the defendant at 28 Evelyn Street Slacks Creek Qld 4114; and
(b) personally delivering a copy of the documents and the order to the defendant at 28 Evelyn Street Slacks Creek Qld 4114.
The objective of substituted service is to “bring the proceedings to the knowledge of the person in question or of any person representing his interests”.[1]
[1] Miscamble v Phillips & Anor [1936] StRQd 272.
It is clear from the evidence that the defendant is attempting to evade service. The applicant has also demonstrated that it is impracticable to serve the originating documents on him in the way required by the rules.
From a titles search conducted by the applicant’s solicitors and search of the electoral roll by Advance Mercantile it is evident that the defendant is the current registered owner of the property and resides at that address. Therefore by posting and delivering the originating documents to the defendant’s residential address it is likely the defendant will become aware of the documents.
Order
The order of the Court should be:
1. Personal service of the claim and statement of claim of Claim No. BS 742/10 on the defendant be dispensed with
2. Service of the claim and statement of claim, together with copies of this order, upon the defendant Norman Allwyn Diplock (also known as Norman Allwyan Diplock) be effected by:
(a) posting copies thereof by ordinary post addressed to the defendant at 28 Evelyn Street Slacks Creek Qld 4114; and
(b) personally delivering copies thereof to the defendant at 28 Evelyn Street Slacks Creek Qld 4114.
3. Such service be deemed to be effected two business days after the posting of the copies.
4. The costs of the plaintiff of and incidental to this application be the plaintiff’s costs in the cause.
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