Legal Services Commissioner v Rider-Bell

[2011] QCAT 669

CITATION: Legal Services Commissioner v Rider-Bell [2011] QCAT 669

PARTIES:	Legal Services Commissioner (Applicant)
v
Denise Rider-Bell (Respondent)

APPLICATION NUMBER: OCR154-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON: 20 December 2011

DELIVERED AT: Brisbane

ORDERS MADE:

1.   That the requirement for personal service within 28 days pursuant to r 19 of the Queensland Civil and Administrative Tribunal Rules 2009 be dispensed with;

2.   That the Applicant serve the discipline application on the Respondent by sending a copy of the discipline application by regular mail addressed to the Respondent at the following address:

(a)  Unit 151, 3 Robina Town Centre Drive, Robina, Queensland 4226;

3.   That the Applicant serve the discipline application on the Respondent by sending a copy of the discipline application by email transmission to the respondent at the following address:

(a)  [email protected];

4.   That the respondent is deemed to have been served with the discipline application 14 days after the date of postage in accordance with para 2 of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – SUBSTITUTED SERVICE – where applicant sought to serve respondent with discipline application – where service attempts proved unsuccessful – where applicant sought substituted service – where Tribunal satisfied impracticable to serve documents in the manner envisaged by QCAT rules – where Tribunal satisfied that proposed method of substituted service will bring matter to respondent’s notice

Queensland Civil and Administrative Tribunal Act 2009, ss 36, 37
Queensland Civil and Administrative Tribunal Rules 2009, rr 19, 40

Foxe v Brown (1984) 59 ALJR 186 applied
Kendell v Sweeney & Ors [2002] QSC 404 applied

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. The Legal Services Commissioner has brought a discipline application against the Respondent, Ms Denise Rider-Bell.[1]  On 14 November 2011 the Commissioner filed an application for substituted service under r 40 of the QCAT Rules 2009.

   [1] Pursuant to s 452 of the Legal Profession Act 2007.

2. QCAT is the relevant ‘disciplinary body’ under s 452 of the Legal Profession Act 2007. Under s 36 of the QCAT Act, a proceeding starts when the Principal Registrar of the Tribunal accepts an application. That occurred on 28 July 2011.

3. Under s 37(2) of the QCAT Act the applicant is required to give a copy of the application to each party within a period stated in the QCAT Rules.

4. Under r 19 a copy of the application or referral must be given to the respondent within 28 days.

5. Under r 40 if, for any reason, it is impracticable to give a document in the prescribed way, in the prescribed time, QCAT may make an order substituting another way of giving the document.

6. The Commissioner’s applications seeks substituted service by sending the discipline application by regular mail addressed to the respondent at a home unit in Robina and, also, by email transmission to a nominated email address. 

7. The affidavit filed in support of the application shows that Ms Rider-Bell was advised of the Commissioner’s decision to commence disciplinary proceedings by a letter dated 18 July 2011, and she contacted the Commissioner and informed a staff member that she would provide the Commissioner with details of a legal representative who would accept service of the application on her behalf. 

8. When that did not occur within a reasonable period the Commissioner wrote to her again, on 22 August 2011, seeking details of her representative.

9. In the absence, again, of a response from Ms Rider-Bell the Commissioner then engaged a process servicing agency to serve the discipline application upon her.  The report of the agent is to the effect that attempted service at Ms Rider-Bell’s residence in Robina has been ineffective, as have attempts to contact her by telephone.

10. QCAT Rule 40 is in almost identical terms to Uniform Civil Procedure Rule r 116.  In Kendell v Sweeney & Ors [2002] QSC 404 Justice Margaret Wilson suggested that, in order to justify an order under r 116, it must first be shown that it is impracticable to serve the documents in the manner required by the rules; and, also, that the proposed method of substituted service will bring the proceedings to the respondent’s notice.[2]

    [2]        See, also Foxe v Brown (1984) 59 ALJR 186.

11. I am satisfied that attempts to give the document to Ms Rider-Bell by the means ordinarily envisaged by the QCAT Rules have proved impracticable.  As to the second arm of the test, an affidavit from a senior Commission officer shows that correspondence to her in 2010 and 2011, addressed to the residential address in Robina, has evinced telephone responses from her; and that in May and July 2010, and as recently as 13 October 2011, she has responded to or sent emails from the email address nominated by the Commissioner in the application.

12. I am satisfied, in the circumstances, that the tests implied under the Rule have been met and an order should be made in terms of paragraphs 1, 2, 3 and 4 of the Commissioner’s application filed 14 November 2011.