Osmond v Hornibrook Bus Lines Pty Ltd

[2012] QDC 122

[2012] QDC 122

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 613 of 2012

CARLA MARIE OSMOND	Applicant
and
HORNIBROOK BUS LINES PTY LTD AND ALAN WAYNE RENNIE	Respondents

BRISBANE

..DATE 18/04/2012

ORDER

CATCHWORDS
Uniform Civil Procedure Rules r 116

Service of claim and statement of claim authorised on solicitors who had acted for the defendant in pre-litigation processes required by statute notwithstanding their failure to obtain instructions to accept service
HIS HONOUR:  The court makes an order under Rule 116 in terms of the initialled draft authorising substituted service of the claim and the statement of claim on the second defendant by service of them together with a copy of the court's order on a firm of solicitors who have been acting for the second defendant in recent times in relation to the plaintiff's claim.  For example, in the lead-up to and at a compulsory settlement conference held on the 18th of January 2012, the firm acted.  The matter didn't settle, hence the commencement of these proceedings which make serious allegations of sexual harassment against the second defendant.  The first defendant is his employer.  The gentleman seems to have disappeared.  So far as the solicitors who've been looking after his interests are concerned, the first defendant’s will not or cannot help with advice as to his whereabouts; nor will his own solicitors, understandably.  Communications have gone to and fro between the applicant's solicitors and those other solicitors regarding their seeking instructions to accept service which include the other firm's advising that they would take instructions on the matter.  In the end, those instructions were not forthcoming.

These are circumstances in which the court can be confident that service of proceedings on the solicitors will bring the proceedings to the second defendant's attention.  He must already have a very good idea that they are likely to exist.  The contention made on behalf of the plaintiff that he is avoiding service appears to be borne out by the way in which letters sent to him at the address where he is believed to be living at an address to which Australia Post has been redirecting mail have been marked "returned to sender" and ultimately returned to the plaintiff's solicitors by the post office.  Notwithstanding that, I'm not persuaded that matters got to the stage where the second defendant ought to be responsible for paying the costs.  They ought to be part of the plaintiff's costs if she succeeds against him.  As so often is encountered, the second defendant is not on the electoral roll.

Order as per initialled draft.

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