Westpac Banking Co v Milafield Pty Ltd & Pollard

[2011] QDC 49

[2011] QDC 49

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 557 of 2010

WESTPAC BANKING CORPORATION

Plaintiff

and

MILAFIELD PTY LTD

and

RICHARD POLLARD

First Defendant

Second Defendant

SOUTHPORT

..DATE 11/04/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 116, r 119

HIS HONOUR:  This is an “application on the papers”, number 557 of 2010.  It seeks an order for substituted service of the claim and statement of claim.  It has been thoroughly prepared and I determined, having perused the papers prior to coming into Court, that the order sought ought to be made.  There is a relatively strong case that the second defendant, Mr Pollard, is aware of the plaintiff's attempts to effect service on him and is making that difficult.

The plaintiff, on the material before the Court, has identified the correct address for the defendant.  In addition to those circumstances, which are common, the plaintiff has the advantage of rule 119 and contractual arrangements which identify an address for service of demands and notices, culminating in the sentence, "The lender may serve Court documents on you in the same way".  It might be conceded that one comes upon the “agreed” address by a somewhat circuitous route.

The means of service approved in the order involve use in three different ways of two different addresses, which, in the circumstances, gives the Court reasonable assurance that effective service can be achieved. 

I am marking Exhibit 1, and placing with the papers, an email communication to the Judges' secretary in the District Court here at Southport, which came in at 1 p.m. today.  That corrects, by reference to subsequent events, what turned out to be an erroneous statement in the affidavit of Mr Russo, to the effect that a particular letter sent to the defendant hadn't been returned to sender.  In fact, four days afterwards, on 25th March 2011 the letter referred to was returned to the sender as "unclaimed", by Australia Post.

I agree with the suggestion made in the email that this acknowledgment doesn't substantially affect the evidence before the Court.  The email also reports the realisation that a document attached to Mr Russo's affidavit entitled, "Advice Receipt", from the Post Office in relation to a particular letter was inadvertently attributed, as has now been confirmed, to a different one.

It is not surprising, in the circumstances, as the Court apprehends them to be, that Mr Pollard may be declining to claim mail which he is advised is available for him. 

There will be an order in terms of the initialled draft.

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