Queensland Construction and Engineering P/L v Wagner
[2011] QDC 171
•26 August 2011
DISTRICT COURT OF QUEENSLAND
CITATION:
Queensland Construction and Engineering P/L v Wagner [2011] QDC 171
PARTIES:
QUEENSLAND CONSTRUCTION AND ENGINEERING PTY LTD (ACN 071 651 995)
(Plaintiff)v
MICHAEL JAMES WAGNER
(Defendant)FILE NO/S:
BD2357 of 2011
DIVISION:
Applications
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
26 August 2011
DELIVERED AT:
Brisbane
HEARING DATE:
On the papers
JUDGE:
Dorney QC DCJ
ORDER:
Order as per Amended Draft initialled by me and placed with the papers
CATCHWORDS:
Substituted service
Foxe v Brown (1985) 59 ALJR 186
Miscamble v Phillips & Hoeflich(No. 2) [1936] St R Qd 272Uniform Civil Procedure Rules 1999 r 116
SOLICITORS:
Forbes Dowling Lawyers for the applicant/plaintiff (ex parte)
Background
The plaintiff, as applicant, applies to this Court ex parte and without a hearing for orders concerning service pursuant to r 116 of the Uniform Civil Procedure Rules 1999 (“UCPR”).
The application was filed on 19 August 2011.
The underlying Claim and Statement of Claim were filed on 30 June 2011.
Between those two dates, attempts have been made by the legal representatives of the plaintiff to cause the defendant to be served in accordance with the appropriate rules under the UCPR, but to no present avail.
Requirements of r 116 of the UCPR
Rule 116(1) states that if, for any reason, it is “impracticable” to serve a document in a way required under Chapter 4 of the UCPR, the court may make an order substituting another way of serving the document. Rule 116(2) then states that the court may, in the order, specify the steps to be taken, instead of for service, “for bringing the document to the attention of the person to be served”. By r 116(3), the court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event, or at the end of a specified time. Finally, r 116(4) states that the court may make an order under r 116 even though the person to be served is “not in Queensland”, or was not when the proceeding started.
As stated by the High Court in Miscamble v Phillips & Hoeflich(No. 2) [1936] St R Qd 272, the primary object of substituted service is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings, so that he or she can take such steps as he or she thinks proper to protect his or her interests and rights, noting that it is not proper to substitute service of process in a court of law when there is no belief that the service will bring proceedings to the knowledge of the person in question, or of any person representing his interests: at 274.
As to the meaning of “impracticable”, although not considering that actual word, Mason J in the High Court in Foxe v Brown (1985) 59 ALJR 186 held that the standard of diligence or effort required of a plaintiff in seeking out a defendant in the case where substituted service is sought is one of reasonableness “so as to show a practical impossibility of personal service”: at 188. Furthermore, Mason J held that the question is not whether reasonable efforts have been shown by the plaintiff over a particular period but whether “at the date on which the application for substituted service is made”, the plaintiff, using reasonable effort, is unable to serve the defendant personally: at 188-189.
Impracticability?
In support of the application for substituted service, the applicant/plaintiff relies upon the affidavit of Robert James Grealy. He is a solicitor in the employ of the solicitors for the plaintiff. He deposes:
§ that ASIC searches that he caused to be made showed that the defendant had over time resided at four specific addresses in the State of New South Wales;
§ that attempts to serve personally the defendant with court documents in respect of another action at 88 Redfern Street, Wetherall Park in the State of New South Wales failed, with the designated process server informing him that the defendant appeared to have vacated that address;
§ that, after instructions to a process server to attempt to locate the defendant, a report was provided containing a confirmed address at Unit 424, 2 Lachlan Street, Waterloo, Sydney in the State of New South Wales resulting from a positive response as to the defendant’s tenancy from a telephone call made to the front desk of the gated community;
§ that he then caused instructions to be given to the process server to serve the defendant at the Waterloo address with the Claim and Statement of Claim in this proceeding;
§ that, on or about 9 August 2011, he received an Affidavit of Attempted Service sworn by Andrew Ng-Saad, a Licensed Commercial Agent, detailing unsuccessful attempts to serve the defendant at Unit 424, 2 Lachlan Street, Waterloo, Sydney in the State of New South Wales on 10 July 2011, 12 July 2011, 15 July 2011 and 17 July 2011; and
§ that he is informed that the licensed commercial agent had been unable to affect personal service due to the address being located within that gated community in Waterloo.
Furthermore, that affidavit of Mr Ng-Saad deposes to having a conversation with a male person through the security intercom at the Waterloo residence. In that conversation the person admitted that his name was Michael James Wagner; but once he was informed that the document delivery was legal papers from the District Court of Queensland from the plaintiff he stated that he was not interested in them and would not accept them.
Having considered the material relied upon by the applicant/plaintiff, I am of the view that there has been shown a practical impossibility of a personal service (namely, that the plaintiff, using reasonable efforts, has been unable to serve the defendant personally) and that that has been shown at the date on which this application for substituted service has been made.
Primary Object of Service
Additionally, from the evidence led on this application and, in particular, from those matters already canvassed in the previous section, I accept that the steps (included in the draft order) which the applicant/plaintiff has indicated would be made will be effective in bringing the proceeding to the attention of the defendant.
Orders
Consequently, I am satisfied that the requirements of r 116 of the UCPR have been met and the orders that I intend to make which have been provided to me in draft form satisfy that particular rule. As earlier noted, even though the defendant is to be served in New South Wales, the rules provide for that eventuality.
As for costs, the present time is not a time for ruling on whether Clause 4 of the Deed of Guarantee and Indemnity (alleged to be signed, sealed and delivered under the defendant’s hand) is binding on the defendant. Of course, it may well be; but this is not the time to decide that.
Consequently, in substitution for the draft order as to costs I will order that the costs of and incidental to this application be reserved, in order that the plaintiff have the opportunity, at a later date, to argue the issue of indemnity costs.