Bellino v Douglas [2013] QDC 333 (28 October 2013)

Last Updated: 17 February 2014

DISTRICT COURT OF QUEENSLAND

CITATION:	Bellino v Douglas [2013] QDC 333
PARTIES:	ANTONIO BELLINO (Plaintiff) v HUGH WILLIAM DOUGLAS (Defendant)
FILE NO/S:	1609/2013
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVERED ON:	Ex tempore 28 October 2013
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2013
JUDGE:	Samios DCJ
ORDER:	1. Order as per draft. 2. Third party to pay the applicant’s costs of the application
CATCHWORDS:	PRACTICE - service - substituted - third party notice - where the defendant applied for an order for substituted service pursuant to rule 116 of the Uniform Civil Procedure Rules 1999 (Qld) - where the court has a discretion to make an order for substituted service if the court is satisfied that it is impractical to serve a document in the way required under chapter 4 of the Uniform Civil Procedure Rules 1999 (Qld) - where the applicant must show reasonableness in their attempts of personal service enough to show a practical impossibility of personal service - whether the applicant has acted reasonably and has exercised the standard of diligence or effort required of an applicant to seek out the respondent, that is, the third party in these proceedings - whether the third party notice and the third party claim were brought to the attention of the third party - whether the means identified in this application to bring the third party notice and the third party claim to the third party’s attention were proper in all circumstances Legislation Uniform Civil Procedure Rules 1999 (Qld), rule 116 Cases Miscamble v Phillips & Hoeflich (No. 2) [1936] St R Qd 272 Queensland Construction and Engineering P/L v Wagner [2011] QDC 171
COUNSEL:
SOLICITORS:	Ms Kershaw for the defendant

[1] HIS HONOUR: This is an application by which the defendant applies for an order for substituted service, pursuant to rule 116 of the UCPR, to serve the third party with the third party notice and third party statement of claim. The plaintiff was the lessee of commercial premises; the defendant was the lessor. There appear to have been disputes between the plaintiff and the defendant. The third party is alleged to be the solicitor of the defendant. Basically, the defendant claims the third party, as his solicitor, did not look after him in terms of acting for him as lessor of the premises to the plaintiff, as lessee. Clearly, the court has a discretion to make an order for substituted service if the court is satisfied that it is impracticable to serve a document in the way required under chapter 4.

[2] As was noted by his Honour, Judge Dorney, in Queensland Construction and Engineer Proprietary Limited and Wagner [2011] QDC 171, relying on the decision of Miscamble v Phillips & Hoeflich,[1] where it was said, “The primary objective of substituted service is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings, that he or she can take such steps as he or she thinks proper to protect his or her interests and rights.” The applicant accepts that the meaning of “impracticable” – “impractical”, I should say, is “the standard of diligence or effort required of an applicant in seeking out a respondent”. Authority is cited for that proposition.

[3] The submission made by the applicant is that in the case where substituted service is sought, the Court provided that the applicant must show reasonableness in their attempts of service, enough to show a practical impossibility of personal service. I am satisfied, on the evidence before me, that the applicant has acted reasonably and has exercised the standard of diligence or effort required of an applicant to seek out the respondent, that is, the third party. The third party is a legal practitioner and I conclude on the evidence that, despite several requests to do so, he has refused to accept service. Despite significant effort by the defendant, personal service has been unable to be effected on the third party.

[4] Many efforts have been made to personally serve the third party. I’m satisfied on the evidence that he is aware of the claim. People who, it can be accepted, are likely to have brought to the third party’s attention the proceedings told those acting for the applicant that they would bring the third party notice and third party claim to his attention. Further, Ms Kershaw, who acts for the applicant, spoke with the third party’s assistant on another occasion and was advised by that assistant she would bring the third party notice and third party claim to his attention. There is also an acknowledgement by an email of receipt of the third party notice and third party claim. There have also been other discussions with assistants to the third party to the effect, again, that the proceedings would be brought to the third party’s attention.

[5] Therefore, I am satisfied that the means identified in this application to bring to the third party’s attention the third party notice and third party claim are proper in all these circumstances. I do conclude the third party has, seemingly deliberately, avoided service of the third party notice and third party claim. Therefore, I am satisfied that there should be an order as per the draft which contains the proposals to bring the proceedings to the attention of the third party. For the reasons I have set out above, I am also satisfied that those reasons justify, in this case, making an order that the third party pay the applicant’s costs of the application. And therefore, there’ll be an order as per the draft left with the papers. Yes. Thank you. Anything further?

[6] MS KERSHAW: No. They’re my matters this morning, your Honour.

[7] HIS HONOUR: Yes. Order as per draft.

[8] MS KERSHAW: Thank you.

---

[1] Miscamble v Phillips & Hoeflich (No. 2) [1936] St R Qd 272.