Commonwealth Bank of Australia v Watson

[2011] QDC 155

[2011] QDC 155

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3682 of 2010

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)	Plaintiff
and
ANDREW PHILLIP WATSON	First Defendant

and

LORRETTA KAY WATSON                  Second Defendant

BRISBANE

..DATE 13/07/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules 1999, r 116

Order for substituted service at mortgaged premises, which the court was satisfied were the first defendant's residence - documents to be served and the court record not to reveal the second defendant's address (for her protection)

HIS HONOUR:  This is an application by the plaintiff bank for order permitting substituted service of the claim and statement of claim on the first defendant.  It's proposed that the application be determined without an oral hearing.  The claim is a mortgagee's claim to recover possession of a mortgaged house property and for a substantial sum in excess of $357,000 allegedly due on the mortgage on which interest continues to accrue.

The defendants are spouses, very likely estranged.  The second defendant has been served and confirms, as do other pieces of information including an entry regarding the first defendant in the Australia Business Register that the mortgaged premises are the first defendant's address.  The process server has made contact with the defendant, who indicated on one occasion on the 4th of May this year that he would be at the property on Sunday the 8th of May.

Three times on that day, at 7.12 a.m., 12.37 p.m. and 2.23 p.m., according to the process server's affidavit, he attended the premises but found no-one there, these representing his eighth, ninth and tenth attendances at the property.  The Court is easily satisfied that service of the claim and statement of claim by posting them to the first defendant at that address and by fixing copies of them in an envelope addressed to him on the gate of the premises, together with a copy of this order in each case, would bring the proceedings to his attention.

An unusual feature of the order sought is a direction that the second defendant's address, which is set out in the claim and also pleaded in the statement of claim as a place where a mortgagee's notice was served on her, be concealed on the public record and also in the documents that are to be served on the first defendant.  That's an order which she has sought on the basis that she's fearful of the consequences of the first defendant finding out where she is living. 
She has obtained a protection order against him under the Domestic and Family Violence legislation and considers she'll have to move again should the first defendant find out where she is.

The submissions filed as required by the rules in support of the application refer to J v.  L & A Services Pty Ltd (No.2) [1995] 2 Queensland Reports 2010, as acknowledgement in the Court of Appeal that limited exclusions of or restraint of public access to material on Court files may be appropriate if necessary in the interests of a party or witness in a particular proceeding.  That appears to be the case here.  It's difficult to think of any reason why the interests of the first defendant in relation to the proceeding require that he know what the second defendant's residential address may be or where the bank served a particular notice on her.

Order as per initialled draft.

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