Adams v Carkeet [2010] QDC 495

1-1 [2010] QDC 495 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No 2803 of 2010 DAVID MARK ADAMS Applicant and NATHAN ROBERT CARKEET Respondent BRISBANE ..DATE 29/10/2010 ORDER CATCHWORDS Service and Execution of Process Act 1992 (Cth) Substituted service of application for criminal compensation - telephone contact suggests elusive respondent is aware of application - service on his mother in New South Wales permitted - form of advertisement in newspaper settled - whether separate originating application appropriate -- 1 of 4 -- 1-2 ORDER HIS HONOUR: Before the court is an originating application (2803 of 2010) which is seeking an order permitting substituted service of another originating application (3453 of 2009) in which the applicant seeks criminal compensation against the respondent. It's unfortunate, I think, that the applicant has made a separate application at considerable cost in filing fees which may have been avoided if an interlocutory application had been filed in the 2009 originating application. As to the substituted service, the court has made an order in terms of the initialled draft which approves a newspaper advertisement in terms of Annexure A. Through some confusion, as proposed that would advise a reader that the application was going to be heard on the 29th of October 2010 at 10 a.m. which of course refers to the present originating application. What has had to be done is identify a date when the sentencing Judge who is Judge O'Brien would be able to hear the 2009 originating application. His Honour's Associate has indicated that 22nd of November 2010 at 9.15 a.m. would be an appropriate hearing time and those particulars have now been inserted in paragraph 4 of the proposed advertisement. Also annexed to the initialled order is an appropriate form 1 under the Service and Execution of Process Act 1992 of the Commonwealth. That's required because the place of “substituted service” over and above the newspaper advertisement is the respondent's mother's address which is in New South Wales. -- 2 of 4 -- 1-3 ORDER Ms Cheung, there's another amendment I need to make to paragraph 1(b) so that it makes sense. I don't think the last sentence should be separate. I think instead of the full stop it should just say, “and of the form 1.” See what I'm saying? MS CHEUNG: Yes, your Honour. HIS HONOUR: Because you've got to send that to them as well. That was obviously the intention anyway. The person attempting to effect service and discover the whereabouts of the respondent managed to unearth a good deal of useful information, including a mobile telephone number which appeared to have resulted in direct speaking contact with the respondent but did not yield an address for service. The conversation would, I think, have alerted him to expect this application. In addition to the order in terms of the initialled draft in 3453 of 2009, the file which was brought to court, given that Ms Cheung read and relied on the originating application. In it a separate order ought to be made fixing the hearing date and time as mentioned above. The application, as it presently appears on the court file, indicates that the application would be heard before Judge O'Brien on "DTBF" which would be unlikely to convey anything to the respondent, although a person with relevant expertise might be able to construe it as meaning “on a date to be fixed.” -- 3 of 4 -- 1-4 ORDER ... HIS HONOUR: The order made today in 3453 of 2009 fixing the hearing for 9.15 a.m. on 22 November 2010 before Judge O'Brien is confirmed. ... ----- -- 4 of 4 --