Westpac Banking Corporation v Rabah
[2024] QDC 12
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- Unreported Judgment
- Westpac Banking Corporation v Rabah[2024] QDC 12
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Westpac Banking Corporation v Rabah[2024] QDC 12
Westpac Banking Corporation v Rabah[2024] QDC 12
DISTRICT COURT OF QUEENSLAND
CITATION: | Westpac Banking Corporation v Rabah & another [2024] QDC 12 |
PARTIES: | WESTPAC BANKING CORPORATION (ABN 33 007 457 141) Plaintiff v SAMER RABAH AND ANIN RABAH Defendants |
FILE NO: | BD No 213/23 |
DIVISION: | Civil |
PROCEEDING: | Applications on Papers |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 19 February 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 January 2024 (On the papers) |
JUDGE: | Porter QC DCJ |
ORDER: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – whether impracticability of personal service is demonstrated on the evidence – whether the proposed method of service is likely to bring the proceeding to the attention of the defendants. |
LEGISLATION: | Uniform Civil Procedure Rules 1999 (Qld) r 116 |
CASES: | Hadan v Jacksolo Pty Ltd [2023] QDC 237 |
SOLICITORS: | MinterEllison for the Plaintiff |
- [1]The applicant bank seeks orders for substituted service on the second defendant. The principles are not in doubt and are set out, inter alia, in Hadan v Jacksolo Pty Ltd.[1]
- [2]I am not persuaded that it is impracticable to serve the second defendant personally. It is true that the second defendant has cut his ties with the secured property address and that the bank can locate no other residential address. The second defendant works as a long-distance truck driver. He does respond on occasion to his mobile but has not been willing to make arrangements to facilitate personal service. That does not mean in my view that one can conclude he is evading service. There is no suggestion he is keeping house or going out of his way to avoid a process server. I am unaware of any obligation that a person has to facilitate service by a plaintiff, such that choosing not to do so is evading service. All that can be said on the evidence is that he is not willing voluntarily to make arrangements that suit the bank’s convenience.
- [3]More importantly as to impracticabliity, he has told the process server where he works. The address is near Slack’s Creek, not an obscure or difficult location to attend. No attempt has been made to investigate service at that location.
- [4]Before leaving impracticability, the deponent opines that the second defendant is evading service. I frequently see affidavits in support of substituted service where a deponent (usually a paralegal not a solicitor) expresses the opinion that a person is evading service, where that inference is not a reasonable one or is drawn without a proper basis. Not only is that unfair to the defendant so described, it is also irrelevant. The opinion of a deponent on that matter is not evidence of the fact. Whether a person is evading service is an inference which the Court might draw from the admissible evidence. Deponents should stop swearing to such issues. It is a matter for submission.
- [5]Futher, I am not persuaded that I ought to make the form of order for substituted service which is contended for by the bank. The bank seeks an order that the claim and statement of claim be served on a person who I will refer to as Ms N. The evidence does not explain what profession or job Ms N is engaged in. I infer she is some kind of financial adviser. She is described by the bank as an ‘authorised third party’ for the second defendant. That evidence is probably inadmissible in the form it was tendered and, ignoring that point, tells me nothing about the basis or scope of any such authority.
- [6]True it is that Ms N in response to bank communications confirms that she acts on behalf of the second defendant and seemingly spoke to a bank officer about his affairs. She also expressly confirmed on 8 December 2023 that she would pick up the claim and statement of claim if the bank told her when that could be done.
- [7]That material might be thought to establish that, as at 8 December 2023, documents served on Ms N would come to the attention of the second defendant. I have some reservations about though. There is no clarity as to the scope and nature of Ms N’s authority to act for the second defendant. That reservation is added to by the fact that there is no evidence from the second defendant that Ms N has his authority to receive documents nor indeed that Ms N has any authority to do so. An agent cannot give themselves authority to act for a principal.
- [8]It must be recalled that the effect of the substituted service order sought is that the documents are taken to have been served on the second defendant within a certain period after they are served on Ms N. It provides a foundation for default judgment to be entered. The consequences of that can be significant, even if it is later set aside. The premise of the order sought by the bank is that Ms N could and would communicate the claim and statement of claim to the second defendant.
- [9]If she has lost contact with him, or if she forgets or if she takes some other unforeseen step, it will not come to his attention.
- [10]Despite those matters, I might have been persuaded on this issue except for one point: there has been no contact with Ms N since early December last year. She was not given notice of this application nor of the obligation which impliedly would be assumed by the making of the order. Circumstances might have changed since early December. That is important because the bank has to make out its case for substituted service as at the date of the application. I add that the bank could of course have taken up Ms N on her offer to collect the documents and see how that progressed before bringing this application.
- [11]Bearing all the above matters in mind, I am not persuaded to make the substituted service orders sought by the bank. The above points might have been able to be addressed in oral submissions but the bank chose to bring the matter on the papers.
Footnotes
[1] [2023] QDC 237 at [4] to [7]