QLD Does Trespass Invalidate Notice Served?

[gordonc]

Thank you Tim,

This is not about court process it is about serving notices under the rules of entry under the Act, which can be served by leaving at the property or by post.

Because the notices were placed on the property by trespass where we would not find them and not posted, we did not receive them. This is more than just service it is about an unconscionable trick performed by 2 process servers.

Also, I am unaware of how a process server has any statutory powers of entry, like a police officer has.

My argument is that if police are liable for common law trespass without express authority by legislation to enter private property, then surely a process server in having no statutory authority at all, is similarly forbidden entry.

As you know firefighters, meter readers, ambulance etc are exempt from from being forbidden. That is not the issue here.

The Plenty and Kuru matters are both under the title, High Court Rulings on Trespass along with others

I am unable to understand how they would not apply to civil matters considering the civil damages awarded and each of the matters listed appear to be civil matters under common law, and where the criminal law comes in is if the police are excused from the common law by legislation.

Perhaps you could explain further.

 

[gordonc]

NSW v IBBETT

‘It is well established that the tort protects the interest of the plaintiff in maintaining the right to exclusive possession of her place of residence, free from uninvited physical intrusion by strangers.”

Tort is specifically mentioned in the context of trespass. A tort is a civil wrong as far as I know.

 

[Tim W]

Because the notices were placed on the property by trespass where we would not find them and not posted, we did not receive them. This is more than just service it is about an unconscionable trick performed by 2 process servers.

This is not something you had previously disclosed.
If you claim you never received them, then perhaps you missed some sort of deadline.
What has happened since?

 

[gordonc]

Thanks Tim,

It wasn't disclosed as the whole matter is quite complicated and I was just unsure of that one issue regarding validity of an RTRA Act notice served by trespass.

Even if the Notice was not invalid I have causes of action that will cover that problem.

One of the notices under the Act was a Form 15 notice Abandonment Notice and the washup was that we lost possession of the property which we had not abandoned, and not received the Notice.

It is too complicated to explain here, but I hope today to put a 40-page draft statement of claim on the internet, and when done I will send you the address. I have done a few of these in the past and believe (and hope) it is pleaded within the Qld UCPR, you may find it interesting.

Seeing that the person responsible is a Trustee in Bankruptcy and pleaded as a person in public office administering the Bankruptcy Act on behalf of the public, I figure that he has a similar liability to trespassing police officers.

I have tried to put the particulars within the body of the pleading in order to elicit admissions, bearing in mind that under UCPR particulars are not required to be pleaded to in a defence.

The substantive issue is that he ripped my wife off.

If you are interested in how this all started, I was sent bankrupt by the subject delinquents

 

[Rod]

Seeing that the person responsible is a Trustee in Bankruptcy and pleaded as a person in public office administering the Bankruptcy Act on behalf of the public, I figure that he has a similar liability to trespassing police officers.

Did he personally serve the documents and trespass or employ someone to serve the documents?

If he employed someone as a process server, and this process person exceeded the bounds of authority given to them, the trustee will not be liable for trespass.

 

[gordonc]

He employed 2 process servers with express authority to do the serving, I have his affidavit giving them authority as his agents. As the process servers saw that there were locked gates and prominent no entry signs, that knowledge was imputed back to the principal.

The pleading has been beefed up around this issue because of the result of my complaint to the licensing authority for process servers, one said that the gates were unlocked. This is a lie, but I now know what will be in the defence.

It's all in the pleading which I am in the process of publishing.

 

[Rod]

that knowledge was imputed back to the principal.

Assuming principal/agency relationship exists, then you are probably correct as the agent would be deemed acting in the scope of his authority.

I'm not confident though the doctrine of imputation is applicable in these circumstances as agency may not exist. You will need to prove the process server was an agent, not an independent contractor. The defendant may well argue he has not given authority to the server to 'act on your behalf' and he has no control over how the independent contractor does his job and is therefore not liable.

Legal definition of agency is important and I'm not sure giving a serving job to a process server counts as agency. Does the trustee intend the process server to create any legal binding agreements with you? I'm not sure he does.

BTW, most people use the term 'agents' in a non-legal sense. You need to prove the legal definition.

 

[Rod]

'act on your behalf'

Soz - should say 'act on his behalf'

 

[gordonc]

Soz - should say 'act on his behalf'

Thank you. Paragraph 61 is amended.

 

[gordonc]

The defendant may well argue he has not given authority to the server to 'act on your behalf' and he has no control over how the independent contractor does his job and is therefore not liable.

His affidavit says,

"On or about Saturday 29 August 2015, a Notice of Termination for
Abandonment was attached to the Coooy property by a Process Server on my
behalf."