Substituted Service in Queensland

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Article Summary

If a defendant is attempting to avoid service, or you are unable to get them served, the Court can order that they be served in another way. This is called substituted service.

To be successful in a substituted service application, the plaintiff / applicant must show:

  1. It is impracticable to serve the documents in the usual way; and
  2. Using the substituted method, the document must come to the knowledge of the defendant.

So, for service to be impracticable it must be reasonably shown that service is not realistic, impossible, not practicable, and that the party has been unable to get the documents served, as required by the UCPR.

An application for substituted service must also provide evidence that the documents (and therefore the proceeding) will likely come to the knowledge and/or attention of the defendant/respondent.

If you need an order for substituted service in Queensland, then contact our lawyers to discuss an application for substituted service.

Substituted service in Queensland litigation lawyers in Qld Noosa and BrisbaneSubstituted service in Queensland is ordered when it is impracticable to serve a document in a way required by the Uniform Civil Procedure Rules 1999 (QLD) (“UCPR”).

Substituted service in Queensland is usually used when a person who needs to be served take evasive measures to ensure that they are not served with documents in civil litigation or commercial litigation.

In these circumstances it is necessary for a Court to make an order for service to be substituted or substituting another way of serving the document.

There are some threshold issues which need to be met:

  1. It must be shown that it is impracticable to serve the documents as prescribed by the rules; and
  2. It must be shown that the method of service proposed would be effective in bringing the proceedings to the attention of those to be so served.

In this article our litigation and dispute resolution lawyers will discuss how the Courts have interpreted these things regarding substituted service in Queensland, and what a party to a proceeding must show to be given an order for substituted service.  Note, this does not apply in QCAT.

If a defendant is attempting to avoid service, or you are unable to get them served, the Court can order that they be served in another way. Contact our lawyers to discuss an application for substituted service in Queensland

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Substituted Service in Queensland

Substituted service in Queensland is prescribed by rule 116 of the UCPR which says:

(1)    If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.

(2)    The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served.

(3)    The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.

(4)    The court may make an order under this rule even though the person to be served is not in Queensland or was not in Queensland when the proceeding started.

Impracticable to Serve the Documents

Rule 116(1) means that the applicant must show that it is impracticable to serve the documents in the usual way under the UCPR.

The Oxford Dictionary defines “impracticable” to mean:

(of a course of action) impossible in practice to do or carry out

In O’Neil v Acott (1988) 59 NTR 1 Asche CJ said:

So, interpreted, there seems nothing to differentiate between the phrase “unable to effect prompt personal service” and the phrase “impracticable to serve”

In Foxe v Brown [1984] HCA 69 the High Court of Australia said:

[The] standard … is one of reasonableness so as to show a practical impossibility of personal service

In Ricegrowers Co-Operative Limited and Seatide Pty Limited v ABC Containerline Nv, Med Containerline Antwerp Nv, Maritime Carriers Luxembourg SA and Den Norske Bank (Luxemborg) SA [1996] FCA 1663 Tamberlin J said:

The expression “not practicable” is in my view essentially identical in meaning to the term “impractical”

So, for service to be impracticable it must be reasonably shown that service is not realistic, impossible, not practicable, and that the party has been unable to get the documents served, as required by the UCPR.

But how does the party (by their lawyers) show that to the Court in an application for substituted service in Queensland?

Reasonable Effort to Serve the Respondent

In Foxe v Brown [1984] HCA 69 the High Court of Australia said:

In general, for an order for service to be substituted to be made under the Uniform Civil Procedure Rules it must be shown (a) that the plaintiff, using reasonable effort, is unable to effect personal service; and (b) that the method of substituted service requested is one which is likely to cause the writ to come to the knowledge of the defendant.

So, the two-pronged test in Foxe v Brown says that it must be shown:

  1. That the plaintiff, using reasonable effort, is unable to effect personal service; and
  2. That the method of substituted service requested is one which is likely to cause the writ to come to the knowledge of the defendant.

I will discuss these issues in relation to substituted service in Queensland further below.

Reasonable Effort to Effect Service

The first part of the test is that the person serving the documents must make reasonable effort to serve the process or document as required by the UCPR.

In Kendell v Sweeney & Ors [2002] QSC 404 Wilson J refused to make an order for substituted service because no attempts made to serve the parties:

It may well be that the method of service proposed would be effective in bringing the proceeding to the attention of those respondents. However, that it not enough to justify the making of an order for substituted service. It must first be shown that it is impracticable to serve the documents in a way required by chapter 4 of the UCPR. This has not been shown – indeed, there does not appear to have been any attempt to serve the respondents in the usual way. In these circumstances I refuse to make orders for substituted service.

Kendell v Sweeney & Ors was cited as correct in Embrey v Smart [2014] QCA 75 where Applegarth J with Muir and Morrison JJA agreeing said:

Proof that there had been attempts to serve a party personally may be part of proof that “at the date on which the application for substituted service is made, the plaintiff, using reasonable effort, is unable to serve the defendant personally” or, in terms of r 116(1), that it is “impracticable” to serve the party personally.

In Ricegrowers Co-Operative Limited and Seatide Pty Limited v ABC Containerline Nv, Med Containerline Antwerp Nv, Maritime Carriers Luxembourg SA and Den Norske Bank (Luxemborg) SA [1996] FCA 1663 Tamberlin J said:

In order to establish impracticality some attempt, at least, should be made to effect service in accordance with the Rules.

In Foxe v Brown [1984] HCA 69 Mason J said:

In the circumstances of the present case I am satisfied that reasonable efforts were made to serve the defendant. The evidence discloses repeated attempts by the plaintiff and his solicitors to locate the defendant.

This means that there is High Court and superior Queensland Court authority which says that there must be some reasonable attempts at service made to be successful in an application for substituted service in Queensland.

Example of a Successful Application

In Suncorp Metway Ltd v Agnew [2015] QSC 195 the applicant had taken the following steps:

  1. Conducted property searches which reveal that the respondent’s address was the address in Boondall Queensland 4034;
  2. Engaged agents to effect personal service of the Claim and Statement of Claim on the respondent.
  3. Attempted service at the respondent’s address on ten separate occasions;
  4. The process server noticed that there was current mail addressed to the respondent in the mailbox;
  5. The process server also spoke with a female neighbour who confirmed that a man named “Wayne” lived at the address;
  6. Conducted a search on the Australian Securities and Investments Commission database;
  7. Made inquiries whether rates notices of the property were sent to the property addressed to the respondent.
  8. The searches confirm the address of the respondent obtained on the title search of the property;
  9. The agents and solicitors have attempted to contact the respondent on a telephone number which went to a voice message for “Wayne”; and
  10. Yellow Pages list a person by the name of “W Agnew” in Boondall with a pest control business under that number.

In this matter the application for substituted service in Queensland was successful and an order for substituted service was made.  Jackson J said:

In my view, the applicant has sufficiently demonstrated that the requirement of personal service under r 105 UCPR should be dispensed with. It follows that substituted service should be ordered in the terms as provided in the applicant’s application

Document must come to the Knowledge of the Defendant

As well as making reasonable attempts to serve the party to be served, an application for substituted service must also provide evidence that the documents (and therefore the proceeding) will likely come to the knowledge and/or attention of the defendant/respondent.

It was said by Judge Dorney, in an application for substituted service in Queensland, in Queensland Construction and Engineer Proprietary Limited and Wagner [2011] QDC 171, relying on the decision of  Miscamble v Phillips & Hoeflich (No. 2) [1936] St R Qd 272 that:

[T]he primary object of substituted service is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings

The Court must be satisfied that the documents will come to the attention of the person who is being served.

Below are some examples of successful applications where the Court was satisfied that the documents will come to the attention of the party.

Substituted Service by Prepaid Post

In ANZ Banking Group Ltd v Smalley & Anor [2012] QDC 80 the defendants were the registered owners of a property, but did not live there.  Evidence was given (and corroborated) that although the defendants did not live there, they did stay there from time-to-time. Judge Robin QC said:

Paragraph two authorises the ordinary arrangement of sending the claim and statement of claim, together with a copy of the court’s order, by prepaid registered post to the address of the mortgaged premises.

In Perpetual Ltd v. Latham & Anor [2015] QSC 190 the Court was provided with evidence that the first defendant was likely living at the address, but was avoiding service.  Jackson J said:

I find that it is more probable than not that if the documents are served by post they will come to the attention of the first defendant … Accordingly, in my view, it is appropriate that the requirements for personal service pursuant to r 105 of the UCPR be dispensed with … sealed copies of the claim and statement of claim together with a sealed copy of this order should be served on the first defendant by post.

Substituted Service on Property Managers

In in an application for substituted service in Queensland, in Salter v Towler [2012] QDC 77 the defendant lived inside a gated closed community.  It was ordered that service be effected by ordinary prepaid post to the defendant at the address.

Also, because the property management company acknowledged that the defendant was still residing there, copies be forwarded by ordinary prepaid post to the property manager of the address.

Substituted Service on Terms of Mortgage Documents

In Westpac Banking Corporation v Stanley [2016] QDC 70 and RHG Mortgage Corporation (Formerly Rams Mortgage Corporation Limited) v Pang & Anor [2012] QDC 58 the respective Courts relied on terms of the mortgage documents which authorised the giving of communications by post to the last address made known to the plaintiff.

To ensure that the defendants in both of the above cases were made aware of the proceeding, text messages were also ordered to the respective defendants, making them aware of the document.

Substituted Service on a Solicitor

In an application for substituted service in Queensland, in  Ask Funding Ltd v Ligi Lee Chiu [2011] QDC 148 the Court order that service upon the defendant’s solicitors, even though the solicitors did not have instructions to accept service.

The same order was made in Capital Finance Australia Limited v Brand [2009] QDC 35 where the solicitor admitted that they acted for the defendant and said that they will not be seeking those instructions.

In Bellino v Douglas [2013] QDC 333 the person to be served was a solicitor who the Court decided had “deliberately, avoided service of the third party notice and third party claim”.  The plaintiff’s solicitor had spoken to the third party’s assistant who said that she would bring the documents to the attention of the third party (solicitor) and there was an acknowledgement by an email of receipt of the third-party notice and third-party claim. In deciding this application Samios DCJ said:

Therefore, I am satisfied that the means identified in this application to bring to the third party’s attention the third-party notice and third-party claim are proper in all these circumstances … Therefore, I am satisfied that there should be an order as per the draft which contains the proposals to bring the proceedings to the attention of the third party.

Substituted Service on Defendants Parents

In Australia and New Zealand Banking Group Limited v Woodman [2010] QDC 440 the Court considered if it is likely that the documents would be brought to the attention of the respondent if copies are posted to his parents.  Reid DCJ said:

From the facts placed before me, I agree that personal service is both impracticable and will likely to be brought to the attention of the Respondent if service is affected in the proposed way.

Unsuccessful Substituted Service in Queensland

There have also been a number of unsuccessful applications to the Court for an order for substituted service in Queensland.

In Bunnings Group Limited v Lockwood & Anor [2014] QDC 94 the Court decided in an application for substituted service in Queensland that there was no evidence to support the threshold issue to make reasonable effort to serve the process or document as required by the UCPR, being no actual attempts at the defendants address (only by telephone), nor at the defendant’s workplace, which was known to the plaintiff.

In their application the defendant used the word “impractical” not “impracticable” to which Horneman-Wren SC DCJ said:

The applicant has failed to establish the impracticability of personal service. Indeed, its submissions appear to proceed on the basis of an incorrect test of impracticality, rather than impracticability … The application for substituted service must be refused.

In Permanent Custodians Limited v. Massey [2009] QSC 4 the Court discussed whether to grant the order for substituted service by email only.  Wilson J said:

Even if I were going to make an order for substituted service by email … there should be more than one mode of substituted service specified – for example, service at an email address or addresses and service by post to the defendant at his last known residential address and or to the defendant c/- his solicitor at the solicitor’s address … In the circumstances the application should be dismissed.

Contrasting ANZ Banking Group Ltd v Smalley & Anor [2012] QDC 80 above, in ING Bank (Australia) Limited v Clark [2014] QDC 74 the Court dismissed an application for substituted service on a tenant living at the address of a defendant.  In this case the person living at the address could not provide any contact details of the defendant, but stated that the defendant did stay there a few times per year.  When asked if the documents would “get their way to the defendant” the tenant said “eventually”.  In the decision Horneman-Wren SC DCJ said:

In my view, that the proceeding may come to the defendant’s knowledge “eventually” upon his return to the Morgan Place address from Western Australia (or from wherever the defendant is) at some unknown time in the future does not meet the primary object of substituted service … I dismiss the application

Substituted Service in Queensland

Gathering as much information about the person to be served will ensure that the application for substituted service in Queensland is successful. The things to try include:

  1. Enabling other people to bring it to the person’s attention making them aware;
  2. Enabling other people to speak to the person’s assistant/family/friends making them aware;
  3. Send an email with a delivered receipt as acknowledgement of the claim;
  4. Get the process server to speak to neighbours to ascertain who is living at the address for service;
  5. Ask the process server to check is anything in plain view at the address make it known that the person to be served is at the address for service;
  6. Search ASIC and online databases, such as the electoral role and directories;
  7. Try to ascertain if the rates notices are addressed to the person to be served;
  8. Telephone the person at the address and/or mobile numbers to ascertain if that is in fact the person living at the address for service.

It is also necessary to prove to the Court that the proposed method of substituted service would bring the document to the attention of the person to be served.  Thorough searches and investigation should be undertaken and annexed to the affidavit in support.

Somewhat similar, this process can be followed in relation to the substituted service of a creditors petition and potentially a winding up application.

If a defendant is attempting to avoid service, or you are unable to get them served, the Court can order that they be served in another way. Contact our lawyers to discuss an application for substituted service in Queensland

DEDICATED TEAM – ACTIVE PROCESSES – PROVEN RESULTS

CONTACT OUR LAWYERS TODAY

OR CALL: 1300 545 133 FOR A PHONE CONSULTATION

Substituted Service FAQ

We get asked some questions in relation to substituted service in Qld.  We have outlined some of the most frequently asked questions below.

What is substituted service?

Substituted service in Queensland is usually used when a person who needs to be served take evasive measures to ensure that they are not served with documents in civil litigation or commercial litigation proceedings.  In these circumstances it is necessary for a Court to make an order for service to be substituted or substituting another way of serving the document.

How do I apply for substitute service Qld?

A person will need to make an application and will be required to prove the following threshold issues which need to be met:

  1. It must be shown that it is impracticable to serve the documents as prescribed by the rules; and
  2. It must be shown that the method of service proposed would be effective in bringing the proceedings to the attention of those to be so served.

What happens after substituted service?

After substituted service is ordered a plaintiff/applicant must serve the documents strictly in accordance with the substituted service order.

Once the documents have been served in that way, the defendant/respondent is taken to have been served.

What happens if you avoid being served court papers Australia?

If you avoid being served court papers Australia a plaintiff/application can make an application for an order for substituted service.

This substituted service order is an order allowing the person to serve the documents in a different way than prescribed in the rules/legislation.

Can someone else accept served papers?

Yes, but only in the Magistrates Court.  Rule 111(1) of the UCPR states that All documents in a Magistrates Court proceeding, including a document required by these rules to be served on a person personally, may, unless the court otherwise orders, be served under part 4.  Part 4 is ordinary service, and rule 112(1)(a) of the UCPR says that if these rules do not require personal service of a document, the following are ways by which the document may be served on the person to be served … (a) leaving it with someone who is apparently an adult living at the relevant address.

What does it mean if you’ve been served?

Being served means that you have been given documents in accordance with the rules of your state or territory.  If you have been “served” then it means that you have officially received the documents.  It is very serious and so if you have been handed Court documents, it is vital that you seek legal advice as soon as possible.

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