H v C

[2011] QDC 73

[2011] QDC 73

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2018 of 2010

H	Applicant
and
C	Respondent

BRISBANE

..DATE 28/03/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 116
Property Law Act 1974 Part 19

Concern that when the respondent's father was served he was not given a copy of the court's earlier order for substituted service, and he state "This has nothing to do with me." - subsequent solicitor's letter tendered to address the concern - direction made for further conduct on the proceeding accompanied by provision for substituted service

HIS HONOUR: This is an application by Mr H, who's seeking from his former partner relief under part 19 of the Property Law Act 1974 and specifically relief in terms of the awarding of an interest in a jointly owned home in this jurisdiction.

The property is, according to material before the court, owned in her name but, according to the applicant, morally, if not pursuant to specific arrangements made between them, a property which belongs to both equally. 

The application at this point leaves it unclear what specific provision the applicant seeks, although an affidavit indicates his view that there ought to be a 50/50 division.  It's proposed that he file and serve an amended application making that clear so that the respondent knows what she faces.  She hasn't appeared when called today, which is the occasion of a request made by Mr H's solicitor, Mr Parker, not for final relief but for further directions to advance the application towards a hearing.

The respondent is believed to be working at a hospital in Saudi Arabia.  Repeated contacts with that institution by telephone have elicited responses that no-one of her name works there.

Substituted service was ordered on the 7th of February 2011 in the form of a direction "that physical service on the respondent of the originating application and supporting documents filed 14th July 2010 be dispensed with and that substituted service be effected by serving Ms C through Ms C's father (Mr C) at his address of 4 [-] Street, Port Kembla, New South Wales, pursuant to rule 116 of the Uniform Civil Procedure Rules." His Honour no doubt made the direction that was requested on that occasion.

I've been critical today of the omission from the order of a specific requirement that the document to be served be accompanied by a copy of the court's order authorising substituted service.  Indeed, when service on Mr C was effected by process servers engaged (according to the affidavit of service which unfortunately was supplied to Mr Parker in the inappropriate Family Court form).  After Mr C had acknowledged who he was, service was effected and "to which the person accepting service replied, 'Yes, these have nothing to do with me.'  I then served the documents."

Mr Parker has had some telephone communications with Mr C and provided the court the comfort of an assurance that he appears to be a proficient user of the English language.

In ordinary circumstances I would have misgivings about accepting service being effected in the scenario outlined above. However, Mr Parker, in a covering letter addressed to the gentleman, which was served, notified him of the order for substituted service dispensing with the need for his daughter to be personally served and a substitution requiring or permitting "all such documents to be served upon you pursuant to rule 116 of the Uniform Civil Procedure Rules." That may go a little further than his Honour's direction which, read strictly, didn't necessarily go beyond providing a means of service of the original application and supporting material. It may well be that other means of service become appropriate for documents subsequently used in the proceeding.

Mr Parker's letter gave formal notice that Mr H's application would be advanced by the bringing of an application for "default orders pursuant to our client's initial application." 

The adjournment of the matter until this day was advised.

There's no immediately important concern that Mr C might have been misled by that letter.  However, I'm of the firm view that the court's order today ought to make it clear that what the letter advised is in accord with the court's orders, also confirming that a copy of today's order, with a copy of the order of the 7th of February 2011, ought to be provided to the respondent care of Mr C.

I've considered it appropriate to allow rather longer times than Mr Parker proposed for steps to be taken.  If the sensible advice in the letter that she obtain legal representation is to be followed up, there may be difficulties in that being achieved quickly given the respondent's present location.

I express no view as to the likelihood of what's described as a default judgment being available to Mr H, but in the circumstances am content to establish a timetable which will give Mr H another day in court before the winter vacation.

The orders today are as follows:

1.That, the court being satisfied that service by way of substituted service pursuant to the order of his Honour Judge Koppenol on 7 February 2011 from the respondent, was effected on 15th of March 2011, on or before the 11th of April 2011, the applicant file and serve an amended application setting out the detail of relief sought by him and supporting affidavit.  Service of such is to be effected by way of substituted service by posting such documents by certified mail to Mr [M. C.] of 4 [-] Street, Port Kembla, New South Wales, 2505, together with a copy of that order of the 7th of February 2011, and a copy of this order.

2.That on or before the 25th of May 2011 the respondent shall file and serve her statement of financial circumstances and affidavit or other material setting out her response to the application and any relevant evidence.

3.That in the event that the respondent fails to comply with order 2 herein, pursuant to rule 374 of the Uniform Civil Procedure Rules, the applicant be at liberty to seek judgment in terms of the amended application and failing a show of cause, orders in terms of the amended application being made by default on the next court date. Any such application by him to be served no less than 28 days in advance in the way described in paragraph 1 above.

MR PARKER:  Your Honour, my only concern with that time frame‑‑‑‑‑

HIS HONOUR:  Yes.

MR PARKER:  ‑‑‑‑‑and I appreciate what you're trying to assist me with, but is that if she only were to file her documents on the 23rd of May‑‑‑‑‑

HIS HONOUR:  Yes.  You've got to do it straight away, that's the trouble.

MR PARKER:  ‑‑‑‑‑I'd have to file it effectively the same day.  That's right.  So if she's served earlier I'd have no trouble, but if she left it to the last minute, I might struggle to - well, I suppose I could - as long as I file on the same day.

HIS HONOUR:  I think you could have it ready.  You can have it ready, can't you?

MR PARKER:  Yes.

HIS HONOUR:  Because all you've got to say is she still hasn't done anything‑‑‑‑‑

MR PARKER:  Yes, I know.

HIS HONOUR:  ‑‑‑‑‑isn't it?  I mean, you don't have an opportunity to add to your evidence‑‑‑‑‑

MR PARKER:  No.

HIS HONOUR:  ‑‑‑‑‑on the merits, so‑‑‑‑‑

MR PARKER:  I'm just amending the application further in effect seeking‑‑‑‑‑

HIS HONOUR:  You go home this afternoon and do it.

MR PARKER:  Yes.

HIS HONOUR:  Or go, I'm sorry, back to the office.

MR PARKER:  Yes.  No.  True.

HIS HONOUR:  4. The application will be adjourned to 24th of June 2011 at 10 a.m.  5.  Liberty to apply.

Have you got all of that?

MR PARKER:  Yes, thank you, your Honour.

HIS HONOUR:  I'll write out a fairer copy than the one that exists at the moment, but for the moment it's order as per initialled draft.

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