In the Will of

[2024] QSC 179

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Ronald Leslie Barnes [2024] QSC 179

PARTIES:

In the Will of RONALD LESLIE BARNES

PAUL DAVID ROY BARNES

(applicant)

FILE NO:

BS 3972/24

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Brisbane

DELIVERED ON:

Orders made on 19 August 2024

Judgment delivered on 23 August 2024

DELIVERED AT:

Supreme Court of Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Freeburn J

ORDER:

1. Pursuant to rule 116 of the Uniform Civil Procedure Rules 1999 (UCPR), the plaintiff has leave to serve the following documents on Margaret Joyce Schultze by complying with paragraph 2 of this order:

(a)   Citation filed 3 April 2024;

(b)  Affidavit of Paul David

(“The Documents”)

2.   The Documents are to be provided to Margaret Joyce Schultze by:

(a)   leaving the Documents in the mailbox at 1/25 George Street, Beenleigh in the State of Queensland, in an envelope addressed to Ms Margaret Joyce Schultze;

(b)  leaving the Documents in the mailbox at 36-38 Faciles Road, Alberton in the State of Queensland, in an envelope addressed to Ms Margaret Joyce Schultze and Ms Darcy Barnes; and

(c)   sending a text message to  Ms Darcy Barnes on the phone number 0432 552 775, stating that court documents have been posted to the addresses set out in the preceding paragraphs that require Ms Schultze attention.

3. Pursuant to rule 116(3) of the UCPR, the Documents are taken to have been served on Margaret Joyce Schultze seven (7) days after compliance with order 2 above.

4.   The applicant’s costs be his costs in the proceeding.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – where there have been three attempts to personally serve the respondent – whether an order for substituted service should be made

SOLICITORS:

I P Phillips (sol), Robbins Watson for the applicant

1. This is an application for substituted service on the respondent, Ms Margaret Joyce Schultze, pursuant to rule 116 of the Uniform Civil Procedure Rules 1999.  The requirements of the rule are that:

   (a)it is impractical to effect personal service; and

   (b)the proposed method of service would be effective to bring the proceedings to the attention of the person to be served.

2. As to the first requirement, the evidence is that Ms Schultze resides at Unit 1/25 George Street, Beenleigh.  However, three attempts to serve her there have been unsuccessful.  On the third occasion, at 7.10pm in the evening of 20 May 2024 there were lights on but there was no response to knocking at the door.

3. A neighbour has confirmed that Ms Schultze resides at the property.  Ms Schultze’s sister, Ms Darcy Barnes, confirmed that also. She stated that she sees Ms Schultze fortnightly and that Ms Schultze has received “court things” from “Paul’s lawyers” and that she is avoiding contact because “the money is theirs”.

4. The evidence supports the proposition that Ms Schultze is deliberately avoiding being served.  That evidence satisfies the first requirement. The impracticality arises because Ms Schultze has successfully avoided personal service and she is likely to continue to do so.

5. As to the second requirement, the proposed method of service has three elements:

   (a)leaving the documents in the mailbox at 1/25 George Street, Beenleigh in the State of Queensland, in an envelope addressed to Ms Margaret Joyce Schultze;

   (b)leaving the documents in the mailbox at 36-38 Faciles Road, Alberton in the State of Queensland, in an envelope addressed to Ms Margaret Joyce Schultze and Ms Darcy Barnes; and

   (c)sending a text message to Ms Darcy Barnes on the phone number 0432 552 775, stating that court documents have been posted to the addresses set out in the preceding paragraphs that require Ms Schultze attention.

6. The two requirements are satisfied. This is an appropriate case for an order for substituted service.