Gale v Jione[2002] QSC 261

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

Fryberg J

No 6341 of 2000

BRISBANE

DATE 27/05/2002

ORDER

HIS HONOUR: The plaintiff has applied to the Court for judgment against the defendant pursuant to rule 225 of the Uniform Civil Procedure Rules. When the matter was called on counsel for the plaintiff informed me that in his view this was not a case where judgment was appropriate and did not press for such an order. The reason for that arose out of a series of difficulties that have arisen in serving the defendant with documents.

Instead the plaintiff sought an order,

“1. That the defendant deliver to the plaintiff, in accordance with chapter 7 part 1 of the Uniform Civil Procedure Rules, a list of documents within 21 days of the service of this order;

2. The plaintiff have leave to serve this order upon the defendant;

3. In the event of a default by the defendant with respect to order 1 herein, the plaintiff have leaveto serve an application pursuant to rule 374 of Uniform Civil Procedure Rules and any supportive documents upon the defendant;

4. Costs of and incidental to this application be reserved.”

The material shows quite plainly that this is an appropriate case in which to order the defendant to deliver a list of documents under the rules. Indeed, that order has already been made on a previous occasion.

Unfortunately, the order was in terms for the delivery of the list within 21 days of the date of the order. At the time it was made there was no appearance for the defendant because the solicitor on the record for him up until that time had, on that day, obtained the leave of the Court to withdraw. I assume that the material before the Court showed that the defendant was aware of the application that day.

In the event, the plaintiff was unable to effect service on the defendant prior to the expiry of the 21 days nominated in the order. That was because the defendant had, by that time, moved his place of residence to Fiji. Since then the plaintiff has been wrestling with the rules and had various difficulties which it is unnecessary to relate. The difficulties stemmed from, first of all, the plaintiff's interpretation of rule 992 and, secondly, her interpretation of rule 127.

Rule 992 provides that if a solicitor withdraws from the record the client's residential or business address becomes the address for service until another solicitor is appointed or the client notifies another address for service in compliance with these rules.

The defendant was obliged to provide certain information in his notice of intention to defend by reason of the combined operation of rules 17 and 140. By reason of that operation the notice of intention to defend must show a residential or business address for the defendant.

As a result of discussion today the plaintiff has come to the view that it is fairly arguable that the reference in rule 992 is a reference to that address rather than to the defendant's actual residential address. There seems to be a lot of force in that argument. I need not resolve it today because although today's application has not been served on the defendant in accordance with the rules, I am content to proceed on the basis that such service is dispensed with in the light of the notice which has in fact been given to the defendant.

The other matter which requires attention is the order which the plaintiff seeks. There is, as I have said, a clear case for an order for delivery of a list of documents by the defendant. The plaintiff has however, in addition, sought leave both to serve the order on the defendant and to serve an application pursuant to rule 374 in the event of non-compliance by the defendant with the order. That is sought by reason of the plaintiff's view of rule 127.

As presently framed, rule 127 provides:

“The Court may, by leave, allow service outside Australia of the following:

1. An originating process for a proceeding under an Act if service is not authorised under rule 124;

2. An application, order, notice or document in a pending proceeding.”

The plaintiff is concerned that by reason of that rule the obligation is placed upon her to obtain leave before serving either the order which I propose to make today or a further application for enforcement of it. That reading of the rule surprised me as I had always thought that Court process other than initiating process or its equivalent could freely be served anywhere in the world.

Rule 127 is similar, though not identical, to the provisions of order 11 rule 4A of the Rules of the Supreme Court as they stood at the time of the introduction of the Uniform Civil Procedure Rules. That rule, in turn, was introduced in 1965 in what were colloquially called the Gibbs amendments, a set of amendments most of which were designed to bring the Queensland rules into line with some of the improvements made to the Rules of the Supreme Court in England in 1963.

This rule however does not seem to have been introduced into England at that time. In the time available I have not been able to discover exactly when it found its way into the English rules. It does not seem to have been there in the late 19th Century, at least if the fact that it is not referred to in several of the cases around that time is any guide.

Those cases show that at least on the Chancery side, the Court would not allow service out of the jurisdiction of any process intended to found the commencement of proceedings.

The cases to which I have had quick reference have been Nathan (1887) 35 ChD 1, Re Kings Trademark [1892] 2 Ch 462, Re Cliff [1895] 2 Ch 21 at page 28, and Re Companie Generale Eaux Minerale [1891] 3 Ch 451 at page 456. At least some of those decisions were apparently given under the Chancery court's General Orders which may or may not have differed from the Judicature Act Rules.

In short, what I have said sounds to be correct in principle but there has not been time to thoroughly check the origin of the rule or its applicability either in the late 19th Century or subsequently until it certainly was in force in 1962.

I think that I should proceed on the basis of the law as I have understood it and as it is reflected in those cases. That is, there is no restriction on the service out of the jurisdiction of interlocutory process not intended to found a proceeding. For these purposes I do not regard an application for judgment in default as a proceeding.

That view is reinforced by the fact that the one amendment to rule 127 was effected in a similar sense. Paragraph (a) originally did not contain the words, “an originating process for”. Those words were inserted last year and, to my mind, reinforce the view that the rule is only intended to apply to those cases where service out of the jurisdiction would otherwise be prohibited.

It follows that in the present case it is my view that leave is unnecessary. In my judgment the plaintiff is entitled to serve an order made today upon the defendant and, if it wishes and if there is non-compliance with the order, to bring an enforcement application and serve it without obtaining leave from the Court. Consequently, in my view, the orders sought by the plaintiff in paragraphs 2 and 3 are unnecessary.

…

HIS HONOUR: I think I will do what I just read out and that will be an order in accordance with the draft, initialled by me, and placed with the papers.