Thomas v Yianoulatos

[2010] QDC 67

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 28 of 2010

DEAN RAYMOND THOMAS	Applicant
and
HARRIS JAMES YIANOULATOS JAMES COSTA YIANOULATOS JOHN YIANOULATOS	Respondents

SOUTHPORT

..DATE 22/02/2010

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 116
Service and Execution of Process Act 1992, s 17

Substituted service by newspaper advertisement of criminal compensation application - reliance placed on newspaper article about the relevant offence which described the respondent offenders as from Melbourne

HIS HONOUR: The Court has made an order in terms of an initialled draft providing for substituted service of this application for criminal compensation on the three respondents.

The application is apparently in time, conviction and sentence having occurred in December 2007 in this Court. It has proved impossible to locate the respondents for purposes of service of the originating application, which is listed for hearing on the 15th of March 2010.

They are photographed together with their then solicitor, Mr O'Gorman, in a half page article in the Gold Coast Bulletin of 28th of September 2006. The article highlights that the respondents come from Melbourne. The solicitors who acted in the sentence - it was a plea, I take it?

MR KERRIGAN: Yes, I believe it was, your Honour.

HIS HONOUR: …have indicated they lack instructions to accept service and presumably have declined to identify the whereabouts of the erstwhile clients, assuming that that those are even known. There's been some attempt by use of the telephone directory to trace the defendants using their distinctive surname, but that’s been unavailing.

In the circumstances, an advertisement in a newspaper circulating in Melbourne appears to be a suitable means of bringing an application to the attention of the respondents.

A further complication which strikes me is that given that service is to be effected out of Queensland, the requirements of the Service and Execution of Process Act 1992 will have to be complied with. By section 17, those include a standard period of 21 days be allowed to persons served before anything is required of them. A Judge has the power to shorten the period, which is something that ought to be done, in my opinion, in the interests of preserving the hearing date which I have mentioned.

Pursuant to rule 116 of the UCPR, substituted service by advertisement in a Melbourne newspaper is directed. It's left to the applicant's solicitors to settle the form of advertisement, but a number of details are specified in the order to ensure that essential matters get covered.

I have thought it unnecessary to include some detail such as inclusion in the advertising of reference to the availability of the Form 1, which the Act requires to accompany service. That’s a requirement of the general law, and no doubt the applicant's solicitors will attend to it.

Order as per initialled draft. While acting in reliance on the newspaper article is unusual, it is a reasonable course in the circumstances.

-----

CaseChat Overview and Summary

The case of Thomas v Yianoulatos involved the applicant, Dean Raymond Thomas, seeking substituted service of a criminal compensation application on the respondents, Harris James Yianoulatos, James Costa Yianoulatos, and John Yianoulatos. The matter was heard in the District Court of Queensland by Judge Robin QC. The application was filed in response to an incident that resulted in a conviction and sentence in December 2007. Despite multiple attempts to locate the respondents for service of the originating application, it proved impossible to find them, even after consulting their former solicitor and attempting to trace them through the telephone directory. The respondents were mentioned in a Gold Coast Bulletin article from September 2006, which indicated that they were from Melbourne.

The primary legal issue before the court was whether substituted service of the criminal compensation application could be effected through an advertisement in a Melbourne newspaper due to the impossibility of locating the respondents. Additionally, the court had to consider the requirements of the Service and Execution of Process Act 1992, specifically section 17, which mandates a 21-day period for service out of Queensland. The court had to determine whether it was appropriate to shorten this period to accommodate the scheduled hearing date. The court also needed to ensure that the substituted service complied with rule 116 of the Uniform Civil Procedure Rules.

Judge Robin QC concluded that substituted service via a Melbourne newspaper was a suitable means to notify the respondents of the application given the circumstances. The court found it reasonable to rely on the newspaper article, which had already been used as a basis for locating the respondents. The court directed that the substituted service should be carried out in accordance with the initialled draft, with the form of the advertisement to be determined by the applicant's solicitors. Specific details were provided in the order to ensure that all essential matters were covered, and it was left to the solicitors to handle the general law requirement of including reference to the availability of the Form 1, which accompanies service under the Act. The court granted the order as per the initialled draft, noting that while acting on the basis of the newspaper article was unusual, it was justified in these particular circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established