McGary v McDonnell

[2011] QDC 189

[2011] QDC 189

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2881 of 2011

TIMOTHY JAMES MCGARY	Plaintiff
and
KEITH McDONNELL	Defendant

BRISBANE

..DATE 12/8/2011

ORDER

CATCHWORDS
Uniform Civil Procedure Rules r 116

Substituted service of claim and statement of claim in a defamation claim - proceeding is a pre-emptive one, plaintiff facing an imminent proceeding by the defendant (said to be in China for an indeterminate

period) claiming moneys which the defendant has allegedly described in defamatory utterances as misappropriated
HIS HONOUR:  The court makes an order in terms of the initialled draft for substituted service of a claim in defamation.

The circumstances are unusual.  Service is impractical because, according to his lawyers, the defendant is in China.  It is not known when he will return.  Service is proposed and authorised in the order in a number of ways, being by email to the individual lawyer who is known to be the defendant's solicitor, by service on that lawyer's firm of hard copies in the ordinary way, by posting to what appears to be the defendant's last known residential address and by email to his email address, in each case accompanied by a copy of the order.

The involvement of the lawyers is known because they have threatened imminent legal proceedings against the present plaintiff.  Indeed, the apprehended basis of the present defendant's claim is the same set of facts as underlie the claim in this proceeding.  The defendant proposes in his proceedings seeking monies which amount to $750,000.  The defamation claim is based on publications that have supposedly been made by Mr McDonnell to the effect that the amount of money he claims have been stolen or misappropriated.  It is easy to say that the plaintiff could wait until he faces his own proceeding and counter-claim in it but one can understand from his point of view the urgency of doing something to protect his reputation as quickly as possible, rather than await Mr McDonnell's convenience.

The court can be comfortably satisfied the modes of service proposed will bring the proceeding to Mr McDonnell's attention.

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