THE LAW
Rule 116 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides that in circumstances where it is impracticable to effect service of court documents in compliance with the regulations, the court may make an order substituting another way of serving the document.
THE FACTS
On 2 August 2023 the Applicant commenced proceedings in the District Court of Queensland against the First Defendant, Jacksolo, for alleged lease-related debts, and the Second and Third Defendants as guarantors of Jacksolo under the lease.
In attempting to effect service of these initiating court documents, the Applicant experienced extensive difficulties:
- Express post – a sealed copy of the claim and statement of claim sent via express post to the First Defendant’s registered office was returned marked ‘RTS’ (return to sender);
- Personal service attempts by the Process Server were plagued by:a. conflicting information about the existence of the Unit in question;
b. uncertainty about the Second Defendant residing at the specified addressed;
c. unsuccessful interactions with occupants; - Mobile phone – no response to voice messages; and
- Email – no acknowledgement of emails sent to the address previously provided.
Owing to these difficulties, the Applicant sought an order for substituted service of the proceedings on all three defendants under rule 116 of the UCPR.
THE DECISION
His Honour Porter KC found that on the whole of the evidence, and having regarding to several steps that had not been taken to locate the Defendants, no inference arose that personal service was impracticable. A corollary of this finding, his Honour was also not satisfied that the alternative methods of service proposed by the Applicant would have a sufficient prospect of bringing the claim to the Defendants’ attention.
KEY TAKEAWAYS
This case serves as a valuable educational tool, highlighting the intricacies and challenges associated with substituted service applications and emphasising the need for meticulous preparation and execution.
Personal Service Not Impracticable
The court scrutinised attempts (or lack thereof), made by the Applicant to locate / verify the location of the Defendants. Specifically:
a. no motor vehicle registration search was undertaken in respect of an Audi which was alleged to link the Second Defendant to a residential address;
b. photographs of the Second Defendant were not provided to the Process Server, which may have facilitated identification of a resident who opened the unit door at the residential address in question;
c. on the evidence before the Court, it appeared that no electoral roll search, title search or other investigation had been made by the Applicant; and
d. Bundaberg is not a particularly large town, such that if the Second and Third Defendants remained in the area, it was likely that reasonable efforts to locate or confirm the residence of the Debtors would be successful.
Substituted Service Must Bring Proceedings to Attention of the Other Party
It is not proper to substitute service of process in a court of law when there is no belief that the service will bring the proceedings to the knowledge of the person in question.[1]
Here, there was evidence before the Court that the email address of the Third Defendant, previously provided to the Applicant in separate legal proceedings, remained functional. Notwithstanding, the Court found that it was not reasonable to infer that a person keeps up to date with messages received in their inbox:
It is notorious that an email address can become flooded with irrelevant messages to the extent where it becomes an ineffective tool of communication.
Accordingly, His Honour was not satisfied that an email sent by the Applicant to this address would come to the Defendant’s attention.
Admissibility and Reliability of Evidence
The judgment identified issues of admissibility, reliability and completeness of information, which could impact the court’s ability to make a well-informed decision:
a. certain evidence relied on by the Applicant contained information from unidentified sources. This lack of identification raised questions about the credibility and reliability of the information provided; and
b. an email exhibit relied on by the Applicant’s solicitor to sustain the relief sought was based on hearsay statements, and was “inadmissible and inherently ambiguous”.
Requirements of an Ex Parte Application
A substituted service application is an ex parte application. That imposes a particular obligation on legal practitioners to ensure admissible evidence is tendered and any submission made is reasonably open on the admissible evidence.
For legal advice on navigating such matters, contact us today.
This article was written by James Tan and Courtney Linton.
[1] Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272, 274.
