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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Heritage Bank Limited v Gleeson & Anor (No 2)  QDC 36
Heritage Bank Limited (formerly Heritage Building Society Limited) ABN 32 087 652 024
Sheree Amy Taylor
Application (on the papers)
District Court at Brisbane
18 March 2020
18 March 2020
Porter QC DCJ
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – where first and second defendants filed an application – where application was sought to be heard on the papers – where application was not served on the plaintiff
The applicants made written submissions in person
- This is an application on the papers made by the first and second defendant applicants seeking to set aside an order for substituted service made by Her Honour Judge Richards dated 9 November 2018.
- Some background to these proceedings, and to her Honour’s orders for substituted service, is set out in Heritage Bank Limited v Gleeson & anor  QDC 119. By that application, Ms Taylor sought to set aside the default judgment obtained by the Bank against her, inter alia, by challenging the substituted service order made by her Honour. I dismissed her application. That order has never been appealed.
- The applicants filed this application on 11 March 2020, along with supporting affidavits and submissions. The applicants contend that the order ought to be set aside pursuant to rr. 667(2)(b) and 668 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) on the basis that the order was obtained by fraud. The applicants further seek to have the application be decided without an oral hearing pursuant to rule 489 of the UCPR.
- Rule 489 of the UCPR provides the following:
489 Proposal for decision without oral hearing
- (1)A party making an application, including an application in a proceeding, may propose in the application that it be decided without an oral hearing.
- (2)If the applicant proposes the application be decided without an oral hearing, the court must decide the application without an oral hearing unless—
- (a)under rule 491, the court considers it inappropriate to do so; or
- (b)under rule 494, the respondent requires an oral hearing; or
- (c)under rule 495, the applicant abandons the request for a decision without an oral hearing; or
- (d)the Chief Justice or Chief Judge suspends the operation of this rule by direction.
- The UCPR continues as follows:
490 Procedure for making application
- (1)If the applicant proposes an application be decided without an oral hearing, the application must—
- (a)include a notice in the approved form; and
- (b)be accompanied by a draft order and written submission in support.
- (2)The registrar must set a date for deciding the application which is at least 10 days after the application is expected to be served on the respondent.
- (3)If the application is made without notice to a party—
- (a)subrule (2) and rules 492 to 495 do not apply; and
- (b)the registrar must set as the date for deciding the application the first date convenient to the court.
- (4)If the parties resolve all or part of the application before the date for deciding the application, each party must give the court written notice of the extent to which the application is resolved and the orders the parties have agreed to seek.
491 Court may decide that decision without an oral hearing is inappropriate
- (1)The court may decide at any time that an application is inappropriate for decision without an oral hearing.
- (2)If the court decides this before the date set for deciding the application, the court—
- (a)must immediately notify the parties to the application of the decision by telephone or in some other way; and
- (b)may set a date for hearing.
492 Respondent’s response
- (1)If the respondent wishes to present a written submission or evidence, other than oral evidence, the respondent must file and serve on the applicant a response with all relevant accompanying material at least 3 business days before the date set for deciding the application.
- (2)If the respondent has not already filed a document that includes the information required by rule 17, the response must include that information.
- (3)Also, if the respondent does not serve a response or a notice under rule 494 and there is not otherwise material before the court to acknowledge or establish service, the applicant must, before the date fixed for deciding the application, file an affidavit of service of the application.
- Also relevant to any application is r. 27 of the UCPR, which states:
27 Service of application
- (1)An application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application.
- (2)However, the time limit in subrule (1) does not apply if—
- (a)these rules, an Act or another law permit the application to be heard and decided without being served; or
- (b)the applicant proposes in the application that it be decided without a hearing; or
- (c)another time is provided for under these rules or an Act.
- (3)If an application is not served as required by subrule (1), the court must not hear and decide the application unless the court considers it just to hear and decide the application on the day set for hearing and 1 of the following applies—
- (a)the court is satisfied delay caused by giving notice of the application would cause irreparable or serious mischief to the applicant or another person;
- (b)the court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing;
- Nowhere in the materials provided to me by the first and second applicants indicate that this application has been served on the respondent. This would appear contrary to the requirements of r. 27. Sub-rule (2) excludes the application of the time limit, but does not exclude the obligation to serve an application. Accordingly, sub-rule (3) dictates that I must not hear or decide the application unless it is just to do so and if I am satisfied of one or both of the matters in sub-rules 3(a) or (b).
- In their written submissions, the applicants appear to have assumed that the Court would hear their application despite the failure to serve it on the respondent. Their submissions do not address the requirements of sub-rule (3). Further, it is evident that their application, if successful, would cause significant prejudice to the respondent because the respondent would lose the benefit of an order of the Court which has stood since 9 November 2018 and has never been appealed, and a judgment of the Court which has stood for over a year (which has also never been appealed, nor set aside).
- In those circumstances, it also difficult to identify the irreparable or serious mischief to the applicants if the application was served and the respondent given an opportunity to answer the matters put before the Court. Even if such mischief could be identified, no final order would be made in the absence of the respondent.
- It is accordingly contrary to law for this application to be heard without service of the application on the respondent.
- The next question is whether to adjourn the application to permit it to be served, or for the application to be dismissed. I have real concerns that this application raises matters which have already been determined in Heritage Bank Limited v Gleeson  QDC 119. Further, I have real concerns about the prospect of the substituted service application being set aside where the default judgment stands against both parties and has not been appealed nor set aside. However, it seems to me that I should not determine those matters without hearing from both parties, especially as they appear not to have been foreseen by the applicants.
- Accordingly, I order that this application is adjourned to a date to be fixed. I order that any further hearing of the matter be by oral hearing. I order that this application shall not be relisted until at least 5 clear business days after service of the application and supporting material on the respondent.
- Further, the issues raised in the material are such that the matter might take longer than 2 hours to be heard. Accordingly I direct that if the matter is re-listed, it be re-listed in the applications list for mention only. The applications Judge will be in a position to determine how the matter should be listed for hearing thereafter.
- Published Case Name:
Heritage Bank Limited v Gleeson & Anor (No 2)
- Shortened Case Name:
Heritage Bank Limited v Gleeson (No 2)
 QDC 36
Porter QC DCJ
18 Mar 2020