Hire All Pty Ltd v Eastwell

[2015] QMC 16

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Hire All Pty Ltd v Eastwell & Anor [2015] QMC 16

PARTIES:

HIRE ALL PTY LTD A.B.N. 13 148 191 333
  Plaintiff
v

PAUL THOMAS EASTWELL
  First Defendant

and

LEEANNE TRACY EASTWELL
  Second Defendant

FILE NO/S:

M142/15

DIVISION:

Civil

PROCEEDING:

Application for a declaration pursuant to Rule 371(2) (d) of the UCPR

ORIGINATING COURT:

Toowoomba Magistrates Court

DELIVERED ON:

2 November 2015

DELIVERED AT:

Toowoomba

HEARING DATE:

20 October 2015

MAGISTRATE:

Carroll J.D.

ORDER:

Service of the Claim on the first defendant, Paul Thomas Eastwell, is effectual.

CATCHWORDS:

SOLICITOR:

Davidson & Sullivan

THE APPLICATION

1. This is an application by the plaintiff, Hire All Pty Ltd, for a declaration pursuant to Rule 371 (2) (d) of the UCPR that service of a Claim on the first defendant, Paul Thomas Eastwell, is effectual.

1. The application came on for hearing on the 20th day of October 2015.  I allowed the application and made the declaration sought by the plaintiff.  I informed it’s solicitors that I would publish my reasons in due course and they are set out below.

1. I read the following material:-

1.          Application filed 15 October 2015.

2.          Affidavit of Edward Kenneth Orange filed 15 October 2015.

1. The plaintiff filed a Claim and Statement of Claim on 16 June 2015.  The claim is for $149,581.12 plus interest.

1. There has been no defence filed by the defendants and the plaintiff has applied for Summary Judgment.

1. The Registrar referred the matter to me pursuant to Rule 982 of the UCPR. The issue is whether proper service has been effected on Paul Thomas Eastwell. I advised the Registrar that the plaintiff should make this application, which it has done.

1. The present application is made ex parte. Rule 27(1), (2) and (3) of the UCPR are in these terms:

1.          An application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application.

Note –

Under the Acts Interpretation Act 1954, section 38(1) (a), the service day and the hearing day are excluded in the reckoning of time.

2.          However, the time limit in sub-rule (1) does not apply if –

(a)        These rules, an Act or another law permit the application to be heard and decided without being served; or

(b)        The applicant proposes in the application that it be decided without a hearing; or

(c)        Another time is provided for under these rules or an Act.

3.          If an application is not served as required by sub rule (1), the court must not hear and decide the application unless the court considers it just to hear and decide the application on the day set for hearing and 1 of the following applies

(a)        The court is satisfied delay caused be giving notice of the application would cause irreparable or serious mischief to the applicant or another person;

(b)        The court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing;

(c)        The respondents to the application consent to the court hearing and deciding the application on the day set for hearing.

Example of sub rule (3) –

The court may decide sub rule (3) has been satisfied if the application is a cross application by a respondent to another application and it is convenient for the applications to be heard together.

1. In my view the male defendant would not suffer significant prejudice if the Court hears this application in his absence.  Secondly, the annotation at paragraph 27.5 of the Butterworth loose leaf edition, “Civil Procedure Queensland, is in these terms:

“[r.27.5] failure to comply with the rule.  The rule clearly sets out the consequences of the failure to comply with the rule.  While r 371 is not expressly excluded, r 27 appears to “cover the field” in respect of the options open to the court, when it is aware that service has not been properly effected prior to dealing with the application and thus in those circumstances r 371 would not apply.  If service was not properly effected after the court has dealt with an application r 371 would apply.”

1. Accordingly I am prepared to deal with this application on an ex parte basis.

1. Rule 105(1) of the UCPR requires personal service of an originating process which includes a claim.

1. Rule 106 of the UCPR describes how personal service is effected, i.e. by giving the document to the person served (R106 (1)) or, if the person served does not accept the document or a copy, by putting it down in the person’s presence and telling him or her about it (R106 (2)). It is not necessary to show the original document to the person served. (R106 (3)).

1. It is clear that the object of personal service is to bring the document to the knowledge or attention of the person served.  In Ainsworth v Redd (1990) 19 NSW LR78 at 85, Kirby ACJ said; “… the object of personal service is to ensure that originating process in the form of a document will come to the notice of the person named as a party so that any later default in defending his or her position ….. is fairly to be attributed to the decision of that person.  The obligation of personal service thereby removes the risk that the jurisdiction of the court over the person named will be asserted, conclusions reached or orders made, without a proper initial opportunity being given to the person named to appear and defend the proceedings…” cf Hope v Hope (1854); 43ER 534.

1. Likewise, where pursuant to Rule 116, the court is asked to make an order for  substituted service, the applicant must satisfy the court that the proposed method of service will bring the document to the knowledge of the person to be served.  In Miscamble v Phillips and Hoeflich (No. 2) [1936] StR QLD 272 at 274, the High Court said; “The object of substituted service, the primary object, is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings, so that he can take such steps as he thinks proper to protect his interests and rights.   “

1. Rule 111 (1) and (2) of the UCPR are in these terms:

“111      Personal Service in Magistrates Court Proceedings

(1)   All documents in a Magistrates Court proceeding, including a document required by these rules to be served on a person personally, may, unless the court otherwise orders, be served under part 4.

(2)   However, a document required by these rules to be served on a person personally must not be served under rule 112(1) (b), (c), (d), (e) or (g)…”

1. Rule 112 (1) (a) and (b) and (3) of the UCPR are in these terms:

“112How ordinary service is performed     

(1)If these rules do not require personal service of a document, the following are ways by which the document may be served on the person to be served—

(a)       leaving it with someone who is apparently an adult living at the relevant address;

(b)       if there is no one at the relevant address – leaving it at the relevant address in a position where it is reasonably likely to come to the persons attention.

(3)In this rule—

relevant address, of a person to be served, means—

(a)       the person’s address for service; or

(b)       for an individual who does not have an address for service—

(i)the individual’s last known place of business or residence; or

(ii)if the individual is suing or being sued in the name of a partnership—the principal or last known place of business of the partnership; or

(c)for a corporation that does not have an address for service—its head office or its principal or registered office.”

1. In the present case, the relevant parts of the affidavit of service upon Mr Eastwell are in these terms:-

“(a)       On the 22^nd day of August 2015 at 10:30 hrs I served PAUL THOMAS EASTWELL with a Claim and Statement of Claim filed on 16^th June 2015 at Toowoomba Magistrates Court as M142 of 15 by delivering a copy to LEEANNE TRACEY EASTWELL at Platz Oval, Clifton who is the wife of PAUL THOMAS EASTWELL and is apparently an adult who lives at PAUL THOMAS EASTWELL’s last known place of residence.

(b)         I identified LEEANNE TRACEY EASTWELL BY:

i.         Using the attached photo; and

ii.        Asking if she was LEEANNE EASTWELL to which she replied with “yes”.

(c)         LEANNE TRACEY EASTWELL confirmed that she was the wife of PAUL THOMAS EASTWELL and lives with him at his last known residence at 61 Mountain Road, Upper Wheatvale QLD 4370.  She agree to accept the document on his behalf and said “I will give this to him”.

1. The question is whether service of the Claim as outlined above amounts to “leaving it with someone who is apparently an adult living at the relevant address.”

1. The Registrar takes the view that, in order to satisfy Rule 112 (1) (a), service must be effected “at the relevant address”.  He points to the opening words of Rule 112(1) (b), “if there is no-one at the relevant address -…” in support of his view.

1. The method of service adopted here seems likely to be as close as it is possible to effecting personal service on the first defendant.  Were the plaintiff to ask the Court to make an order for substituted service on the first defendant and propose a method of service as has been effected here, it is very likely that the Court would make such an order.

1. In the present matter, as the person served was living with the first defendant at the time and informed the process server that she intended to give the Statement of Claim and the Claim to the defendant it is my view that it is irrelevant that the person served was not at the relevant address at the time of service. Accordingly, if it be the case that service in the present matter on the first defendant is not in compliance with Rule 112 (1) (a) of the UCPR then such service is an irregularity. In the circumstances the court should exercise its discretion and declare, pursuant to Rule 371 (2) (d) of the UCPR, that such service is effectual.

1. Something should be said about Rule 111. In my view it undervalues the importance of litigation in this court. The present matter is a case in point. It is a claim for $149,581.12 yet the plaintiff could enter judgement by default against the first defendant without the court being satisfied that the Claim has come to the knowledge of that defendant. This is contrary to the principles underpinning Rules 105, 106 and 116 of the UCPR. For a substantial matter such as the present, a defendant could suffer a grave injustice notwithstanding the plaintiff having complied with Rule 111.

1. Rule 111 should be amended in two respects. Firstly, it should be limited to claims not exceeding $25,000 which is the jurisdictional money limit of claims in the QCAT Tribunal. Since that Tribunal has come into existence many claims hitherto brought in this Court can and are brought in that Tribunal. Secondly, the amendment should also provide that service of originating process for a claim not exceeding $25,000 may be served in the same manner as QCAT applications are served. In this regard I refer to QCAT Practice Direction Number 8 of 2009, and updated on 20 November 2013. That Practice Direction requires personal service of applications in the manner described in Rule 106 and if that is not possible, in the manner described in Rule 112 (1) (a).

1. Were Rule 111 of the UCPR to be amended as outlined above, that would ensure that there is a uniformity across both jurisdictions for service of originating process of monetary claims not exceeding $25,000.

CONCLUSION

1. I declare that service of the Claim on the defendant, Paul Thomas Eastwell is effectual.