Perpetual Limited v Rush

[2016] QSC 180

SUPREME COURT OF QUEENSLAND

CITATION:

Perpetual Limited v Rush [2016] QSC 180

PARTIES:

PERPETUAL LIMITED ACN 000 431 827

(plaintiff)

v
ROSALINE RUSH
(first defendant)

AND

KEVIN JAMES RUSH

(second defendant)

FILE NO/S:

BS No 6282 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application on the papers without oral hearing

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers.

JUDGE:

Peter Lyons J

ORDER:

The application be dismissed.

CATCHWORDS:

PROCEDURE – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – where the second defendant is sued by the plaintiff for a debt and for recovery of possession of premises – where r 105 of Uniform Civil Procedure Rules 1999 (Qld) requires the plaintiff to serve the Claim and Statement of Claim personally on the second defendant – where second defendant residing at undisclosed location – where evidence suggests that second defendant is suffering from dementia – where plaintiff applies under r 116 for an order allowing substituted service – where r 109 provides that a document required to be served personally on a person with impaired capacity must be served instead on the person’s litigation guardian, or a person who is entitled to be that person’s litigation guardian – whether applicant has shown that it is impracticable to effect personal service of the Claim and Statement of Claim on the second defendant

Uniform Civil Procedure Rules 1999 (Qld), r 94, r 96, r 105, r 109, r 116

Powers of Attorney Act 1998 (Qld)

SOLICITORS:

HWL Ebsworth Lawyers for the plaintiff

No appearance for the first defendant or second defendant

1. The second defendant is sued for a debt consequent on a loan; and for recovery of possession of premises at 13 Fuller Street, Heatley, mortgaged to the plaintiff to secure repayment of the loan.  The plaintiff seeks an order for substituted service of the Claim and Statement of Claim on the second defendant.

2. The application is made under r 116 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR). Although personal service of originating process is required under r 105 of the UCPR, it is submitted that relief is available under r 116, because it is impracticable to effect such service on the second defendant.

3. In support of the contention that it is impracticable to effect personal service on the second defendant, the plaintiff relies upon evidence from its solicitor, Ms Lawrence.  Ms Lawrence gave evidence that she spoke to a Mr John Dale by telephone on 23 June 2016, who said that he was the second defendant’s “Power of Attorney”; and that the second defendant was in hospital in Mt Isa with dementia and was very unwell.  Mr Dale said he would accept service of documents on behalf of the second defendant.

4. Shortly afterwards, Mr Dale sent an email to Ms Lawrence which enclosed a copy of an Enduring Power of Attorney, apparently of the second defendant, in favour of Mr Dale.  That document was executed under the Powers of Attorney Act 1998 (Qld), and it appointed Mr Dale as the attorney of the second defendant for financial and personal/health matters. The document was dated 5 May 2014, and stated that it was to take effect immediately.

5. On 8 July 2016, the plaintiff’s solicitor sent to 118 Abel Smith Parade, Mt Isa, a letter addressed to the second defendant, advising that the Claim and Statement of Claim had been filed, and asking him to contact the plaintiff’s solicitors to make arrangements for service.  A copy of the letter was sent to the email address for Mr Dale.

6. On 1 August 2016, Ms Lawrence spoke by telephone to Mr Dale.  Mr Dale stated that the second defendant had recently been discharged from Mt Isa Hospital, and was currently residing in a hostel, the details of which Mr Dale would not disclose.  Mr Dale said that the second defendant “is very unwell and is suffering from dementia”; and that he thought the second defendant’s health would deteriorate if he were approached by someone serving documents.

7. In its initial written submissions, the plaintiff submitted that the evidence demonstrated that it was impracticable to effect personal service of the Claim and Statement of Claim on the second defendant, and that service as proposed by the plaintiff would be effective in bringing the Claim and Statement of Claim to the notice of the second defendant.  The proposed method of service was by emailing the documents to Mr Dale’s email address, and sending a text to Mr Dale’s mobile phone number, addressed to the second defendant care of Mr Dale, stating that important documents had been served at Mr Dale’s email address.

8. The solicitors for the plaintiff were referred to the provisions of r 96 and r 109 of the UCPR. A further affidavit of Ms Lawrence was provided, in which she deposed that Mr Dale had promised to send a copy of a doctor’s report relating to the second defendant’s health, but had failed to do so. In further submissions it was contended that the second defendant was not a person under a legal incapacity for the purposes of r 96, and was not a person with impaired capacity for the purposes of r 109, and accordingly the orders sought for substituted service should be made.

9. The starting point for the consideration of this application is r 105, which requires the plaintiff to serve the Claim and Statement of Claim personally on the second defendant. Under r 109, a document required to be served personally on a person with impaired capacity must be served instead on the person who is that person’s litigation guardian for the proceeding, or if there is no litigation guardian, then a person who is entitled under r 94(2) to be that person’s litigation guardian for the proceedings. Under r 94(2) a person authorised by or under an Act to conduct legal proceedings in the name of or for a person with impaired capacity is, unless the Court orders otherwise, entitled to be the litigation guardian of the person with impaired capacity.

10. For the plaintiff it is submitted that the evidence does not demonstrate that the second defendant is a person with impaired capacity for the purposes of r 109, nor a person under a legal incapacity for the purposes of r 94. That may be so. However, the issue is whether the plaintiff has demonstrated that it is impracticable to effect personal service of the Claim and Statement of Claim on the second defendant.

11. The material on which the plaintiff relies raises a real question as to whether the second defendant is a person of impaired capacity.  If he is, then the plaintiff is required to effect personal service of the Claim and Statement of Claim on the second defendant by serving the documents on the second defendant’s litigation guardian, or a person who is entitled to be appointed to that position.  The plaintiff has not attempted to establish either that the second defendant is not a person of impaired capacity, or that it is impracticable to effect service on a person who is entitled to be appointed to be the second defendant’s litigation guardian.  Moreover, the material demonstrates only a very limited attempt to locate the second defendant.  For example, nothing is said about the making of searches with a view to determining his whereabouts.  If the plaintiff were to establish that the second defendant is not a person of impaired capacity, the material which has so far been provided does not establish that it is not practicable to effect personal service on him.

12. Accordingly, I propose to dismiss the application. Both because the application was unsuccessful, and because insufficient attention has been paid in its preparation to the relevant provisions of the UCPR, I propose expressly to record that there be no order as to costs.