Catlin v Greenslade [1996] QSC 78

sc q6'/tJ7~ 21307 I/' State Reporting Bureau~..-.· -.,,:. TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CHAMBERS DEMACK J No 20 of 1993 VALERIE MARGARET CATLIN and KEITH EDWARD GREENSLADE ROCKHAMPTON .. DATE 17 /04/96 ORDER Plaintiff Defendant --- ----- ;~ 4th Floor, The .Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3227 4360. Facsimile: (07) 3227 5532 -- 1 of 5 -- 170496 mmb (Demack J) HIS~_HONOUR: The writ in this action was issued on 11 March -~...,,. 1993. It has a general endorsement, "The plaintiff's claim is for a declaration of an interest in land and for an order for sale thereof." The writ was served personally on the defendant at Railway Parade via Cooktown on 28 March 1993. The affidavit of service was filed on 14 April 1993. No appearance was ever entered, however the plaintiff's solicitors arranged for service of a statement of claim on the defendant. By this time the defendant was no long.:iH" at Railway Parade but the police officer who had previously served the writ spoke to a Steven Wendt who was living at the premises at the time. Mr Wendt told the police officer that he was caretaking for the defendant. This assertion 10 coincides with what the plaintiff says the defendant had told her. The statement of claim was then left with Mr Wendt. rt 30 is not clear to me from the papers that i..:i1a L ::, (.a. (.i:;;i,,c::1-. ~ o:: claim is on the file, however that is not of any consequence. On 25 August 1995 another police officer from Cooktown left 40 an amended statement of claim with Mr Steven Wendt. He was then asked, "Do you have contact from time to time with Mr Greenslade?", and he replied, "He contacts me about every three months or so. 11 He was asked, "Will you refer this amended statement of claim and affidavit of Valerie Margaret Catlin to him?", and he answered, "Yes, I will tell him about it when he calls me next, however I have no way of contacting him. 11 The plaintiff has filed a notice of motion for judgment, --· ORDER ---- ~ 2 50 60 -- 2 of 5 -- 170496 mmb (Demack J) however Mr Crow, appearing on that notice, of motion recg_gnised.that the procedures t~at had been.followed were not in accordance with the Rules. Consequently he sougfit orders for substituted service on Mr Wendt of the amended writ. It seemed to me in the course of the chamber day that in this particular case the defendant was probably as well informed as to the nature of the plaintiff's case as he could ever be; However in that state of knowledge he still declined to take any interest in these proceedings. Mr Crow referred me to the decision of Mr Justice Lee •i!!-fl Watson Specialised Tooling Pty Ltd v. Stevens, (1991), 1 Queensland Reports, 85. In the course of a very thorough and helpful judgment His Honour said at page 91: "The Court is careful to ensure that the rights c= ~~~2~t 0~fpnn~nts are properly protected by due notice and the opportunity to oe nearJ., particularly when judgment is sought in terms wider than that endorsed on the writ which was served on them and which contains the only claims of which they had notice at the time judgment was sought." That is a clear statement of principle which has long been part of the Court's practice. Here, of course, as I have said, Mr Greenslade is probably as well informed as to the nature of the plaintiff's claim as he will ever be. However, it seems, according to the various cases to which Mr Justice Lee referred, the Court is careful to ensure that when a defendant does not appear that provisions of its Rules are followed. To some measure this is no doubt due to the fact that a defendant who does not appear may be so familiar with the Rules that when they are not followed that defendant ORDER 3 10 20 30 40 50 60 -- 3 of 5 -- 170496 mmb (Demack J) feels safe in remaining absent. Unlikely as that may seem in mo~_t-cases, that nonetheless is.~ significant reason why the Court insists on its Rules being followed precisely. The other obvious reason is that when a Court establishes its rules and procedures it must ensure that those rules and procedures are followed. Here of course the writ was served which had an endorsement in the most general of terms. It made no reference to the particular land over which the plaintiff claims an interest. If the defendant had appeared, then the statement of claim could properly have enlarg-ed the nature of the declarations and orders sought. However here the defendant did not appear, consequently any proceedings taken by the plaintiff were confined by the nature of the claim in the writ. 10 20 It seems to me that at this stage the only way the matter can 30 proceed according to the Rules is to require ser:v lee u.C l-:iG amended writ which now sets out the various declarations that are sought, particularly in respect of the land over which Mr Wendt is exercising caretaking duties. This can be done by substituted service upon him in view of the information in 40 the plaintiff's affidavit and the evidence of the two police officers who have been involved in serving documents on him. It then is a question of what period should be allowed for effective service. While the evidence in the police officer's affidavit speaks of contact at three monthly intervals, in the circumstances here I am satisfied that 28 days is adequate. After that period has passed then the plaintiff can proceed with the various steps that the Rules allow to obtain judgment in default of appearance if the ORDER 4 50 60 -- 4 of 5 -- 170496 mmb (Demack J) defendant still refuses to appear. ~--···The matter has now been proceeding for some time. Itmay be that what has been happening cannot be regarded as effective steps in the action-for the purposes of Order 90 Rule 9. If this should be thought to be the case I will grant the plaintiff leave to proceed with the service of the amended writ. The plaintiff has leave to proceed with the action. I order that the amended writ be-served on the defendant by •- delivering the same to Steven Wendt at Railway Parade via Cooktown and by serving upon him at the same time a copy of this order and of the reasons given for the making of this order. I order that service of the amended writ upon the defendant be deemed to have been effected 28 days after delivery of the amended writ to Mr Wendt. The notice of motion is adjourned to a date to be fixed. The costs of this application are the plaintiff's costs in the cause. ORDER 5 10 20 30 40 50 60 -- 5 of 5 --