Commonwealth Bank of Australia v Thomson & Philp

[2012] QDC 224

[2012] QDC 224

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3443 of 2010

COMMONWEALTH BANK OF AUSTRALIA

Plaintiff

and

TIMOTHY EDWARD THOMSON

And

DEBRA LYDIA PHILP

First Defendant

Second Defendant

BRISBANE

..DATE 17/08/2012

..DAY 1

ORDER

CATCHWORDS
Uniform Civil Procedure Rules 1999, r 116, r 375, r 377
Service of amended (and renewed) claim

HIS HONOUR:  This is an application, "on the papers", for authorisation of substituted service of "amended claim and amended statement of claim number 3443 of 2010" on each of the first and second defendants under Rule 116.

Although the application seeks that personal service be dispensed with, the proposed draft order refers only to service of the amended claim.  Curiously, the application itself sought a positive order for substituted service only in respect of the amended claim.

The order proposed has been amended to include within its purview, which is limited to the authorisation of substituted service, the statement of claim as well as the claim now amended.

The draft has been amended in other respects as well with a view to making it more comprehensible.  The principal mode of service proposed is by post to the large rural property whose address is given as 535-631 Fire Creek Road, Raglan.

Provision is also made for the sending of text messages to the defendants, advising them that documents have been posted to the address or addresses indicated.  I thought it appropriate to add to those provisions the words "with the Court's authorisation to” underline the seriousness of the step taken.
In respect of the second defendant, in addition to service by post to the property address, there is also required service by post on the manager of a hotel where the second defendant has worked in circumstances where events that have transpired there involving current staff strongly suggest they are in contact with her.

The process servers’ difficulty is that the large property is one to which they cannot gain access because the gate is padlocked.  Observations of the property show cattle there in good condition, which are obviously being cared for.  Advice from local people suggests that the defendants are often there.

The number of the proceeding indicates that the claim would ordinarily have expired so that the Court might not be justified in making orders about service of it.  However, reference to the original on the file shows that, on the 12th of January this year, the claim was renewed for 12 months from the 22nd of November 2011 when it was filed.

The proceeding now involves an amended claim which was filed on the 1st of August 2012.  The effect of the amendments, also reflected in the amended statement of claim, is to delete reference to one of two lots whose real property description is given, and to reduce the amount of the money claim from "$551,728.79 calculated as at 11 November 2010” to “$455,726.91 calculated as at 27 July 2012".  There's also change to the plaintiff's solicitor's address.

The filing system employed by the court has the vice that holes punched through the left-hand margin of documents do permit their being fixed in the file obliterate significant marginal notes.

In this case, what's obliterated is reference to the rule.  In fact, for purposes of making the amendment, one can work out, in respect of the claim, that it is rule 377(1)(b) which applies where the originating process has not been served.

It's perhaps a matter of presumption that the other conditions mentioned there are satisfied, it not appearing that the Court has been involved in the amending exercise at all. 

Again, one is left to guess that the rule used for amending the statement of claim is rule 375.  Orders made in terms of the initialled draft. 

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