Craven & Anor v Djordjevic & Anor [2017] QDC 12

DISTRICT COURT OF QUEENSLAND CITATION: Craven & Anor v Djordjevic & Anor [2017] QDC 12 PARTIES: JANET CRAVEN & GORDON CRAVEN (applicants) V PENELOPE DJORDJEVIC (respondent) FILE NO/S: 3901 of 2016 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 27 January 2017 DELIVERED AT: Brisbane HEARING DATE: 27 January 2017 JUDGE: Reid DCJ ORDER: Adjourn application to a date to be fixed. CATCHWORDS: Application – order for substituted service – whether compliance – whether documents attached to Facebook message – proof of compliance with earlier order SOLICITORS: The applicants were self-represented No appearance for the respondent [1] This is an application for judgment against the first defendant in these proceedings for her default in filing of a defence. [2] The matter is not uncomplicated. It involves a claim by the plaintiffs against the first defendant, their daughter, in relation to allegations that her registered interest in a property was, in fact, held in trust for them. The second defendant is the first applicant’s trustee in bankruptcy and is not involved in the application before me. [3] The matter was commenced by claim and statement of claim. There were difficulties effecting service on the respondent. On 18 November 2016, his Honour Judge Deveraux SC made the following orders: 1. The claim and Statement of Claim filed in this proceeding on 27 September 2016 are to be taken to have been served at the expiry of two days after the happening of the last of the following actions -- 1 of 4 -- 2 (a) The Claim and Statement of Claim are to be served on the First Defendant by an Agent of the Plaintiffs attaching them to a Facebook message sent to the Defendant’s Facebook Account; (b) Sending a text message to telephone 0477 069 912 informing the holder of that telephone number of the action taken in respect of (a) above and that copies of the documents are available at www.pleading.com.au (c) Telephoning 0477 069 912 and leaving a message informing the holder of the number that step (a) has been taken and that copies of the documents are available at www.pleading.com.au 2. That there be liberty to apply. [4] Subsequently, the plaintiffs engaged a private process server, Ewin Grainger, to effect service in compliance with those orders. [5] In a sworn affidavit of the 25th of November 2016 Mr Grainger attests to service of the relevant documents in the following way: 4. On 25th November 2016 at 7.30 am I serve Penelope Djordevic, with the following documents (“the documents”): (a) a Court Order of the District Court of Queensland, Registry Number Brisbane 3901/16, a true copy of which is annexed hereto and marked with the letter “A”: (b) An Originating process document, District Court of Queensland, registry Number BD3901/16, 54 pages, a true copy of which is annexed hereto and marked with the letter “B”; (c) .. 5. I served the documents by electronic means through Facebook messenger and text Message and the Phone Message at the given Facebook address supplied in Annex C. [6] I shall return to the contents of that affidavit in due course. [7] On 29 November 2016 Mr Grainger swore a further affidavit attesting to the fact that on the 25th of November he had served the first defendant with “documents in sworn affidavit of 25th November 2015”. That is a reference to the order of his Honour Judge Deveraux and to the applicant’s Statement of Claim. He then attested to having followed up on the 29 November 2016 with a text to 0477 069 912 stating “You have been served by a licenced processor. Please contact www.pleading.com.au for the documents.” He then said that he had rung that same number and “left a message to collect documents.” [8] Finally, he said in that affidavit that he’d been blocked from the Facebook page of the first defendant after serving documents on the 25th of November 2016. He said that screenshots of “new service request are contained in Annexure A” to that affidavit. [9] During the hearing of the application before me I expressed misgivings about the affidavit of Mr Grainger. It does not persuade me that service has been effected in -- 2 of 4 -- 3 accordance with the order of his Honour Judge Deveraux. Judge Deveraux’s order was clear. A Facebook message was not merely to be sent to the defendant’s Facebook account. The claim and statement of claim were to be served by attaching them to a Facebook message sent to the respondent’s Facebook account advising her of the proceedings. It was only in respect of the text to the mobile number and oral message left on the mobile number that reference was to be made to the fact that copies of the pleadings were available at www.pleading.com.au. [10] Perusal of the attachment, being attachment C to the affidavit of Mr Grainger sworn the 25th of November, does not persuade me that copies of that claim and statement of claim were in fact attached to the Facebook message. Annexure C seems to be a screenshot of the respondent’s Facebook page. On it there is a message to the following effect: Sent to – 0477 069 912 From 0428 865 322 (Shared Number) Message. You have been served by a Licenced processor, On behalf of Gordon James Craven. Please contact www.pleading.com.au for a copy of the documents. [11] Furthermore, consideration of paragraph 5 of the affidavit of the process server sworn the 25 November 2016 shows only that he purportedly served the necessary documents “by Electronic means through Facebook messenger and text Message and Phone Message at the given Facebook address.” [12] It seems to me that the fact that in that paragraph he refers to service on Facebook Messenger and text message and phone message, without differentiating between the way in which service was effected (that is, between the way Judge Deveraux ordered in subparagraph (a) of paragraph 1 of his order, and the way in which he said service was to be made in subparagraphs (b) and (c)) and consideration of the content of the screenshot annexed to the affidavit, means that I cannot be satisfied that, in fact, the claim and statement of claim were attached to a Facebook message sent to the defendant’s Facebook account. That was what the order of 23 November 2016 required. [13] It seems to me very possible that what the process server did was to send a message to the first defendant’s Facebook account advising her that the documents could be obtained at www.pleading.com.au. That was a method of service contemplated in subparagraphs (b) and (c) of his Honour’s order but not in subparagraph (a). In my view, the process server should clearly state, in a further affidavit that in fact, the claim and statement of claim and a copy of his Honour’s order were served on the first defendant by attaching them to a Facebook message sent to the defendant’s Facebook account, or else reserve them in accordance with the order. [14] I appreciate that, in view of the fact that it seems the first defendant has blocked receipt of messages from the mobile phone number used by the process server, that a new number may be required to be used in order to effect such service, I’m sure the ingenuity of the process server will enable that to occur. Alternatively, if he did comply with His Honour’s order, he should clearly say so. [15] In the circumstances, I’ll adjourn the application to a date to be fixed to enable the appellant’s to obtain an affidavit by the process server clearly enunciating compliance -- 3 of 4 -- 4 with the order of Judge Deveraux of the 16th of November 2016, if indeed compliance with that order has already been undertaken or, alternatively, to enable them to now serve copies of those documents in accordance with subparagraph (a) of paragraph 1 of his Honour’s order. [16] In my view, in circumstances where the applicants are self-represented it is vitally important that the process server takes care in ensuring that the affidavit he swears shows strict compliance with his Honour’s order. [17] I order that the application be adjourned to a date to be fixed. -- 4 of 4 --