Substituted service is used sometimes when a person who needs to be served know that they need to be served and take evasive measures to ensure that they are not served.
In certain circumstances it is necessary for a Court to make an order for service to be substituted or substituting another way of serving the document.
- 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.
- 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.
- 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.
- 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.
Substituted Service in Queensland
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.
That standard, however it is expressed, is one of reasonableness so as to show a practical impossibility of personal service to be able to use Substituted Service. Furthermore, the question is not whether reasonable effort has been shown by the plaintiff over a particular period but whether at the date on which the application for substituted or alternative service is made, the plaintiff, using reasonable effort, is unable to serve the defendant personally.
The Court in this matter 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 during 1983 and the early part of 1984 which I regard as appropriate having regard to the distances involved … and I can see no appreciable prejudice to the SGIO.
It must first be shown that it is impracticable to serve the documents in a way required by chapter 4 of the UCPR before an order for Sub Service will be made. 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 service to be substituted.
The respondent points to cases in which judges have emphasised the importance of an applicant for an order substituting service using reasonable effort to serve a party personally, but being unable to do so. The primary judge cited Kendell v Sweeney in this regard. There is no doubt about the correctness of those authorities, which concerned circumstances in which an originating process had been issued. 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 this case, the submission made by the applicant is that in the case where substituted service is sought, the Court provided that the applicant must show reasonableness in their attempts of service, enough to show a practical impossibility of personal service. I am satisfied, on the evidence before me, that the applicant has acted reasonably and has exercised the standard of diligence or effort required of an applicant to seek out the respondent, that is, the third party. The third party is a legal practitioner and I conclude on the evidence that, despite several requests to do so, he has refused to accept service. Despite significant effort by the defendant, personal service has been unable to be effected on the third party in able to ensure substituted service.
Many efforts have been made to personally serve the third party. I’m satisfied on the evidence that he is aware of the claim. People who, it can be accepted, are likely to have brought to the third party’s attention the proceedings told those acting for the applicant that they would bring the third party notice and third party claim to his attention. Further, Ms Kershaw, who acts for the applicant, spoke with the third party’s assistant on another occasion and was advised by that assistant she would bring the third party notice and third party claim to his attention. There is also an acknowledgement by an email of receipt of the third party notice and third party claim. There have also been other discussions with assistants to the third party to the effect, again, that the proceedings would be brought to the third party’s attention.
In this hearing:
- Other people brought it to the person’s attention making them aware;
- People spoke to the person’s assistant making them aware; and
- An email receipt as acknowledgement of the claim.
This matter was referred to as authority in the Brisbane Magistrates Court case of Gth Accounting Group Pty Ltd v. Arundel & Anor  QMC 12 as an example of a successful application under r119(1) at 13.
 The applicant has conducted property searches which reveal that the respondent’s address is 12 Bushland Street, Boondall Queensland 4034. The applicant engaged agents to effect personal service of the Claim and Statement of Claim on the respondent. The agents attempted service at the respondent’s address on ten separate occasions.
 The evidence suggests that the respondent lives at the address. The applicant’s first process server, Mr Glen Harvey, noticed that there was current mail addressed to the respondent in the mailbox. Mr Harvey also spoke with a female neighbour who confirmed that a man named “Wayne” lived at the address.
 The applicant has conducted a search on the Australian Securities and Investments Commission database and made inquiries whether rates notices of the property were sent to the property addressed to the respondent.
 These searches confirm the address of the respondent obtained on the title search of the property.
 Further, the applicant’s agents and solicitors have attempted to contact the respondent on a telephone number which went to a voice message for “Wayne”. The Yellow Pages list a person by the name of “W Agnew” in Boondall with a pest control business under that number.
In this matter sub service was ordered.
Substituted Service Conclusion
Gathering as much information about the person to be served will ensure that the application for substituted service is successful. The things to try include:
- Enabling other people to bring it to the person’s attention making them aware;
- Enabling other people to speak to the person’s assistant/family/friends making them aware;
- Send an email with a delivered receipt as acknowledgement of the claim;
- Get the process server to speak to neighbours to ascertain who is living at the address for service;
- 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;
- Search ASIC and online databases, such as the electoral role and directories;
- Try to ascertain if the rates notices are addressed to the person to be served;
- 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.