Body Corporate for the Groves No. Four Minyama CTS 20785 v Kennedy [2022] QDC 225

DISTRICT COURT OF QUEENSLAND CITATION: Body Corporate for the Groves No. Four Minyama CTS 20785 v Kennedy [2022] QDC 225 PARTIES: BODY CORPORATE FOR THE GROVES NO. FOUR MINYAMA CTS 20785 (applicant) MURIEL KENNEDY (respondent) FILE NO/S: D115/2022 DIVISION: Civil PROCEEDING: Application DELIVERED ON: 7 October 2022 DELIVERED AT: Maroochydore HEARING DATE: Decided on the papers without oral hearing JUDGE: Cash DCJ ORDERS: Order as per draft CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE Uniform Civil Procedure Rules 1999 (Qld), r 116 COUNSEL: No appearance. Decided without oral hearing. SOLICITORS: Barry.Nilsson for the applicant No appearance for the respondent [1] This is an application for substituted service of an originating application. The background to the application is as follows. The respondent resides at a multi-unit development in Minyama. She alleges that she suffered injury, and is entitled to damages, because of a fall on common property in September 2018. On 1 April 2019 she gave notice of her claim against the present applicant in the form required by the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). No claim has yet been filed in court. The solicitors engaged by the applicant’s insurers have exchanged much correspondence with the respondent, who is not represented by lawyers. Efforts to progress the matter and to arrange a conference between the parties have so far been unsuccessful. The result has been an application for orders that would compel the respondent to attend a conference or, alternatively, for the respondent to be examined -- 1 of 3 -- 2 by an orthopaedic surgeon and a psychiatrist.1 The applicant has been unable to serve the respondent with this originating application. It is in relation to this originating application that orders are sought for substituted service. [2] The applicant has asked for the matter to be decided without an oral hearing, relying upon rule 490 of the Uniform Civil Procedure Rules 1999 (Qld). The applicant has complied with the conditions of rule 490, and the matter is not inappropriate for a decision without oral hearing. I must therefore decide the matter without an oral hearing, and I will provide reasons so they may be given to the parties in accordance with rule 498. [3] Rule 116 deals with substituted service. It provides: 116 SUBSTITUTED SERVICE (1) If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document. (2) The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served. (3) The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time. (4) The court may make an order under this rule even though the person to be served is not in Queensland or was not in Queensland when the proceeding started. [4] To secure substituted service the plaintiff must show personal service is impractical and that the proposed method of service is likely to bring the proceedings to the attention of the second defendant. Personal service is impractical where it cannot be achieved with reasonable effort by the plaintiff. To prove these matters the applicant relied upon the affidavits of Peter Murdoch,2 a solicitor for the applicant, and Gordon Medley,3 a process server. I should note as well that I have had regard to the affidavit of Mr Murdoch sworn on 15 August 2022 (court document 2) in support of the originating application. [5] The affidavit material establishes the following matters. The home address nominated by the respondent on the notice of claim of 1 April 2019 was 208/26 St Vincents Court, Minyama, Qld, 4575. This address was repeated many times in correspondence sent by the respondent. It is confirmed by the records of the Australian Electoral Commission. As recently as 29 July 2022 the respondent emailed Mr Murdoch from the address “[email protected]”, writing To remove any doubt, my contact address and method of contact is unchanged being in hard copy format to Ms Muriel Kennedy, 208/26 St Vincents Court, Minyama, Qld, 4575 and I repeat that I do not receive emails sent by Barry.Nilsson.LAWYERS via email to “[email protected]”. 1 Amended originating application (court document 3). I consider the District Court has jurisdiction to entertain the originating application on the basis that PIPA permits a “court” to make the orders sought and “court” is defined in PIPA (Schedule 1) as including, “if no proceeding based on the claim has been started – a court with jurisdiction to hear the claim”. 2 Affidavit of Peter Matthew Murdoch, sworn 15 September 2022 (court document 5). 3 Affidavit of Gordon David Medley, sworn 8 September 2022 (court document 6). -- 2 of 3 -- 3 [6] On 18 August the applicant’s solicitors engaged a process server to serve the originating application on the respondent at her address at Minyama. The process server, Mr Medley, attended the address six times between 24 and 29 August 2022. On the first occasion Mr Medley heard movement inside the dwelling but no one responded to him. On the second occasion he saw lights on inside the dwelling but again could raise no response. Mr Medley left a calling card. On the third occasion he attended Mr Medley noted his calling card remained where he had left it. No one answered his repeated knocking at the door. On the fourth and fifth occasion he attended Mr Medley could not locate any people at the dwelling. On the final occasion, Mr Medley heard movement inside the dwelling but his persistent door knocking raised no response. [7] These matters persuade me that the respondent is resident at 208/26 St Vincents Court, Minyama, Qld, 4575, has access to and uses the email address “[email protected]” and is deliberately avoiding service. I have no doubt that personal service is impracticable according to the terms of rule 116. [8] The proposed methods of substituted service are: (a) Leaving the relevant documents at the front door of 208/26 St Vincents Court, Minyama, Qld. (b) Posting them by express post to 208/26 St Vincents Court, Minyama, Qld. (c) Emailing a copy of the documents to [email protected]. [9] As the respondent undoubtedly lives at the address and uses the email address (despite her protestation that she does not “receive” emails from Barry.Nilsson at that address), I am satisfied that these methods are likely to bring the originating application to her attention. The material to be served by these methods will include a copy of the orders made today. Those orders include an order adjourning the hearing of the amended originating application to 4 November 2022. This will likely give the respondent sufficient notice of the application so she may appear at the hearing if she wishes. [10] There will be an order as per the draft. -- 3 of 3 --