ING Bank (Australia) Limited v Clark
[2014] QDC 74
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- Unreported Judgment
- ING Bank (Australia) Limited v Clark[2014] QDC 74
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ING Bank (Australia) Limited v Clark[2014] QDC 74
ING Bank (Australia) Limited v Clark[2014] QDC 74
DISTRICT COURT OF QUEENSLAND
CITATION: | ING Bank (Australia) Limited v Clark [2014] QDC 74 |
PARTIES: | ING BANK (AUSTRALIA) LIMITED ACN 000 893 292 (plaintiff/applicant) v TODD MATTHEW CLARK (defendant/respondent) |
FILE NO/S: | 4188/13 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 4 April 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 March 2014 (On the papers) |
JUDGE: | Horneman-Wren SC DCJ |
ORDER: |
|
CATCHWORDS: | PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – COMMENCEMENT OF ACTION AND PLEADINGS – where the whereabouts of the defendant in a proceeding are unknown – whether personal service is impracticable – where substituted service is applied for – where the application seeks substituted service by posting a copy to the defendant at his property – where the defendant does not reside at that property – where the application seeks substituted service by posting a copy to the defendant at his property, care of a person renting that property – where that person is unsure of the defendant’s whereabouts – where the application seeks substituted service by email – where there is no evidence establishing the suggested email is the defendant’s email address – where the application seeks substituted service by placing advertisements in the area where the defendant’s property is – where the application seeks substituted service by advertising in a newspaper where the defendant is believed to work – whether these methods would bring the proceeding to the knowledge of the defendant Uniform Civil Procedure Rules 1999 (Qld), r 105, r 106, r 116, r 116(1), r 137, r 283. Churchill & Co v Lonberg [1941] 3 AER 137 Hilaire v Harvie (1951) 68 WN (NSW) 61 Kendall v Sweeney [2002] QSC 404 Members Australia Credit Union Ltd v Cruickshank [2011] QDC 89 Miscamble v Phillips & Hoeflich (No. 2) Porter v Freudenberg [1915] 1 KB 857 |
SOLICITORS: | Gadens Lawyers on behalf of the applicant. No appearance for the respondent. |
- [1]The applicant is the plaintiff in proceedings commenced by claim on 31 October 2013. In its substantive proceedings, the plaintiff claims, as mortgagee, for recovery of property situated at 1 Morgan Place, Emerald (‘the property’) in the state of Queensland. The plaintiff also claims the sums of $104,236.94 plus interest and $480,268.79 plus interest said to be owing pursuant to two loan agreements and mortgages.
- [2]The plaintiff has been unable to effect personal service of the Claim and Statement of Claim. It seeks an order for substituted service pursuant to r 116 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’).
- [3]Before the court can order substituted service it must first be established that personal service is impracticable.[1] An affidavit of Stephanie Michelle Brown has been filed in support of the application. Ms Brown deposes to the various steps which have been taken in an attempt to effect personal service. Those attempts have included licensed commercial agents attending at the property on several occasions in November and December 2013, and February and March 2014. On none of those occasions was contact able to be made with the defendant and service effected.
- [4]On 6 November 2013 the plaintiff’s agent attended at the property and spoke with a male person who identified himself as Bruce Perkins. Mr Perkins said that he boarded at the address and confirmed that he knew the defendant. He said, however, that the defendant had been “in and out of jail” and he was not sure where the defendant was at the moment. He stated that he had not seen him lately and didn’t know when he would be back. He provided a mobile contact number for the defendant. The agent’s attempts to contact the defendant on that number indicated that it had been disconnected.
- [5]On 19 November 2013 the agent again spoke with Mr Perkins at the property who, on that occasion, told the agent that he could not provide any further details on the defendant’s whereabouts.
- [6]On 22 November 2013 the agent again attended the property and spoke with a person who identified herself as being Mr Perkin’s girlfriend. She said that she had moved in with Mr Perkins nearly a year ago. She stated that she had never met the defendant and that he had never been at the address. She thought that he was in prison.
- [7]Enquiries of Queensland Corrections revealed that the defendant was not in custody in Queensland.
- [8]On 6 February 2014 the agent again attended the property and spoke with Mr Perkins who, on that occasion, stated that he rented the property from the defendant who he paid directly. He did not have a formal lease. Mr Perkins stated that the defendant was a self employed diesel fitter working somewhere in the Kimberley in Western Australia. He again provided the same mobile phone number as had previously been provided and which had been found to be disconnected. Mr Perkins said that if the defendant returns from the Kimberley he stays at the address but this may only occur three or four times a year for periods about ten days at a time. He did not know when it was likely that the defendant would return.
- [9]When asked whether documents left with Mr Perkins would “get their way to the defendant” he stated that they would “eventually”. One might infer from that statement that he meant that they would eventually get to the defendant when he came to stay at the property. That is the only inference reasonably open as Mr Perkins had not indicated any other knowledge as to the whereabouts of the defendant. Nor had he indicated any other means of contacting the defendant other than by a telephone number which had been found to be disconnected.
- [10]The agent again spoke to Mr Perkins at the property on 17 February 2014 when he stated that he had no idea when the defendant would be back stating “He’s in another state mate, what don’t you get”.
- [11]The agents have made other investigations, enquiries and searches, none of which have identified an alternative address for the defendant.
- [12]I am satisfied that personal service of the Claim is impracticable.
- [13]The plaintiff seeks an order for substituted service be effected on the defendant by:
- (a)posting a copy by pre-paid ordinary post addressed to the defendant at 1 Morgan Place, Emerald Queensland 4720;
- (b)posting a copy by pre-paid ordinary post addressed to the defendant care of Mr Bruce Perkins at 1 Morgan Place, Emerald Queensland 4720;
- (c)
- (d)placing an advertisement in relation to the making of this order for substituted service in the newspaper which is circulated in the local area where the defendant is believed to reside, being The Central Queensland News, and also in the major West Australian newspaper where the defendant is believed to work, being The Western Australian.
- [14]The plaintiff also seeks an order that service be deemed to be effected four (4) business days after the plaintiff served the defendant in the methods set out above.
- [15]I am not satisfied that service by any of the proposed methods would bring the proceeding to the knowledge of the defendant. In Miscamble v Phillips & Hoeflich (No. 2)[2] the High Court said:
“The object of substituted service, the primary object, is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings, so that he take such steps as he thinks proper to protect his interest and rights. It is not proper to substitute service of process in a court of law where there is no belief that the service will bring the proceedings to the knowledge of the person in question or of any person representing his interests.”
- [16]In my view, that the proceeding may come to the defendant’s knowledge “eventually” upon his return to the Morgan Place address from Western Australia (or from wherever the defendant is) at some unknown time in the future does not meet the primary object of substituted service as set out above. The order which the plaintiff seeks is that service be deemed effected four (4) days after the steps required by the proposed order are taken. The defendant would then have 28 days within which to file a Notice of Intention to Defend.[3] If he failed to do so, then the plaintiff may request judgment by default.[4]
- [17]The filing of a Notice of Intention to Defend is a step which a defendant might think “proper to protect his interests and rights”. The taking of such steps are intended to be facilitated by the proceeding having been brought to the knowledge of the defendant by means of the substituted service. Posting the claim and order to the defendant at the Morgan Place address, on the evidence filed in support of the application, would not bring the proceeding to the knowledge of the defendant.
- [18]So too, posting the documents to the defendant care of Mr Perkins would not bring the proceeding to the defendant’s knowledge. The evidence does not establish that Mr Perkins has any contact with the defendant beyond occasions when the defendant attends at the property. Indeed the evidence establishes to the contrary. Therefore, documents sent to the defendant care of Mr Perkins would come to the defendant’s attention no earlier than documents sent directly to him at the same address.
- [19]Sending an email to the defendant at the email address identified, on the evidence before me, does nothing to advance the prospect of the proceeding being brought to the knowledge of the defendant. Although Ms Brown deposes to a belief that the proceeding will come to the attention of the defendant by sending an email to him at that email address stating:
“The Claim and Statement of Claim and an Order of the District Court of Queensland in proceedings numbered 4188 of 2013 have been posted to 1 Morgan Place, Emerald Queensland 4720”
she deposes to no facts upon which that belief is based. The only reference to the email address in the material is that on 14 November 2013 the licensed agents emailed the defendant at that address. There is no evidence as to how that email address was identified or that it is, in fact, the email address of the defendant. The only evidence is that no response was received to that email. There is no evidence that the email was received. This is not a case in which the evidence establishes that a particular email address is one used by the defendant and at which the court could be satisfied he would receive notice of the proceeding.[5]
- [20]I am also not satisfied that advertising in a newspaper in Central Queensland would assist in bringing the proceedings to the knowledge of the defendant. It is said that “The Central Queensland News circulates, in the local area where the defendant is believed to reside”. The evidence establishes that he only very occasionally “resides” in central Queensland. Continuing to own the property the subject of the proceedings does not establish residence. It is extremely improbable that an advertisement in a central Queensland newspaper would come to his attention.
- [21]I am also not satisfied that advertising in The West Australian will facilitate the proceedings coming to the knowledge of the defendant. The process facilitated by the rules is one of substituted service, not constructive service.[6] There is nothing in the evidence which satisfies me that there is any good reason to believe that such an advertisement will be seen by the defendant. When all that is known of the defendant is that he is a self employed diesel fitter perhaps working in the Kimberley, to permit substituted service by advertisement in a newspaper would, in my view, be a solemn farce.[7]
- [22]I dismiss the application.
Footnotes
[1] Rules 105, 106(1), 116(1) of UCPR; Kendall v Sweeney [2002] QSC 404 at [15].
[2] [1936] St R Qd 272 at 274.
[3] Rule 137 of the UCPR.
[4] Rule 283 of the UCPR.
[5] Compare Members Australia Credit Union Ltd v Cruickshank [2011] QDC 89 where correspondence from the defendant provided both an address and an email address.
[6] Porter v Freudenberg [1915] 1 KB 857; Churchill & Co v Lonberg [1941] 3 All ER 137 at 139.
[7] Hilaire v Harvie (1951) 68 WN (NSW) 61 at 62.