Rule 116 UCPR (QLD): Substituted Service

Relief can be provided to substitute the usual rules of service with an alternative method of service (for example, by post or email) to bring a court document to the attention of the defendant.

A substituted service application may be considered when it becomes ‘impracticable’ to serve a court document pursuant to the Uniform Civil Procedure Rules 1999 (QLD) (UCPR). The question that the Court may ask itself is: “Whether at the date on which the application for substituted service is made the plaintiff, using reasonable effort, is unable to serve the defendant personally.”ⁱ

A Court can order that a court document be served in a different way, however, the Court will not order substituted service if there is no belief that the service will bring the proceedings to the knowledge of the defendant.ⁱⁱ

Substituted service applications are not rubber stamped. Frequent issues that arise include the lack of admissible evidenceⁱⁱⁱ (typically process servers or solicitors impermissibly relying on second hand hearsay) and bringing substituted service applications when it is not impractical (even if inconvenient or expensive) to serve the defendant personally.^iv Applications for substituted service should not be treated lightly.^v

Substituted service applications typically relate to service of an originating process (such as a Claim or Originating Application) because of the requirement to personally serve those types of documents. However, the rule is not exclusive to an originating process, or even to a document that has yet to be filed in the Court.^vi

Substituted service applications are more likely relate to service of an individual because serving a company can be achieved by posting the documents to the registered address pursuant to section 109X of the Corporations Act (Cth). However, if a letter sent to a registered office of a company is returned by Australia Post, or the person that delivered the document to the registered office has actual knowledge that it was not received by the company, the document will not be served,^vii and in those circumstances, a substituted service application may be necessary to serve a company.

The Service and Execution of Process Act 1992 (Cth) continues to apply for service of a defendant outside of Queensland.

Methods of Substituted Service

A non-exhaustive list of potential substituted service methods include:

• regular or registered post to an address or last known address or other specified address;^viii
• leaving the documents at the front door of an address;^ix
• providing the documents to a person who purports to be married to, or otherwise knows the person;^x
• email;^xi
• sending documents through SMS;^xii
• post to the defendant’s solicitor even if they are not retained to accept service;^xiii or the town agents of a solicitor;^xiv or
• service on a person with whom the defendant may be in contact (for example, a property manager^xv).

Courts may also include orders that supplement the service of a document to alert them to service, the order and/or the proceedings, including through text message,^xvi) calling the person,^xvii) sending a letter,^xviii or providing the order of the Court.^xix) However, the process facilitated by the rules is one of substituted service, not constructive service;^xx the document should still be served in a place that it will likely be received by the defendant.

Obtaining Substituted Service

In order for an application for substituted service to be successful, the applicant will need to prove (with admissible evidence) that:

1. At the time the order is obtained that it is impracticable to serve the document personally;
2. The effect of the substituted service order is likely to bring the proceeding to the knowledge of the other party through one or more of the proposed substituted service methods;
3. The Court should exercise its discretion to order substituted service.

Impracticable to serve

Courts have been critical when there have been limited attempts to locate a person,^xxi and a lack of enquiry on the plaintiff’s part may lead the Court to question whether service is impracticable.^xxii

A Court will not require that there be actual impossibility; the threshold is that using reasonable effort, the plaintiff is unable to serve the person personally.^xxiii

Likely to bring the proceeding to the knowledge of the other party

The onus rests with the plaintiff to provide admissible evidence that would satisfy a court that the proposed methods of substituted service would be likely to bring the proceeding to the knowledge of the other party.

It is not proper to substitute service of process in a Court when the service is unlikely to bring the proceedings to the knowledge of the person who has not been served.^xxiv If a party cannot be found, or if no reliable form of communication of the documents to the defendant is established, then the proceedings cannot progress.^xxv

If the defendant owns property, it will not be sufficient that the person is the registered owner of the property; there must be further evidence that the person resides there or regularly receives mail or documents at that address.^xxvi

If an email address is known, it may not be reasonable to assume that a defendant is keeping up with their emails, particularly when there is no evidence from that email address for several months.^xxvii Additionally, an email that bounces back, or otherwise fails to be delivered, may be a difficulty in proving service.^xxviii

For substituted service on an individual who may know the defendant, proof of a familial or personal relationship between that individual and the defendant will be necessary.^xxix

Investigations and evidence

Each case is different, and the options available to a plaintiff for investigations can only be considered on a case-by-case basis.

A list of non-exhaustive of common searches include:

• Electoral roll search;^xxx
• Real property search;^xxxi
• ASIC searches;^xxxii
• eCourts and other Court searches (and subsequently ordering copies of Court documents, when permitted.

These searches should be included in an affidavit along with any further inquiries made.

If the plaintiff has any personal knowledge about the person’s whereabouts, their residential address, business address, postal address, email address, phone number, the vehicle that they drive, their friends and family or anything similar, this should be included in an affidavit along with any further inquiries made.

Inquiries should be made with any family, friends, neighbours or employers about the persons whereabouts. Although some people will refuse to provide any information, the refusal may be sufficient to demonstrate that this line of inquiry has been exhausted, and lead to a finding that it is impracticable to do more in an attempt to personally serve the document on the person.

Consider also potential other searches or inquiries that may assist. These searches may be considered more unreliable:

• Vehicle registration search;^xxxiii
• Social media;
• Google/Google images;
• IP or domain name searches:
  • https://whois.auda.org.au/ (.au domains)
  • https://who.is/
• Searching by name and/or phone number:
  • https://www.australialookup.com/
  • https://www.reverseaustralia.com/
  • https://personlookup.com.au/
  • https://www.whitepages.com.au/residential/

If a phone number of the defendant is known, consider calling and attempting to arrange service. If they do not answer but have a voicemail message, take note about what the voicemail message says, particularly if the voicemail includes the defendant’s name. Leave a message identifying yourself and that you are calling to arrange service of a court document. Record this information accurately to later depose in an affidavit.

If you know the defendant’s email address, consider sending an email, identifying yourself, and explaining that you are attempting to serve court documents on them. You should include this email and any response, or a statement that the person did not respond, in your supporting affidavit. You should include evidence to support that the email address is used by the defendant.

Further, if the person has sent an email, you may be able to identify the IP address and location the email was sent from.

If you have a photograph of the defendant, it should be sent to the process server to assist them in identifying the person. The process server should be able to give evidence that they recognised the defendant from a photograph provided by the plaintiff or the plaintiff’s solicitor, and the plaintiff or the plaintiff’s solicitor can give evidence about how they obtained the photograph and know that to be the person that is to be served.^xxxix

There appears to be a misconception that three or four visits to a person’s residence (or last known place of residence) is enough for substituted service to be issued, but that is untrue. Proof that it is impracticable to serve an originating proceeding may depend on past failed attempts to serve an originating process that has been issued, but the rule does not require this.^xxxv The Court will need to be informed about what other alternatives there may be. Questions to consider include:

• Does the person own any other real property in Australia? If yes, has service been attempted on each of the properties?
• Is the person a director or shareholder in a private company that could be contacted to inquire about the whereabouts or movements of the person?
• If a property is owned by the person, but it is being rented or leased out, are the tenants or the property agent in touch with the person, and have they been asked about the person’s whereabouts or movements?
• Is the person employed? If yes, could service be attempted of the person at their workplace, or does anyone at that place of business know the whereabouts or movements of the person?
• Were there any vehicles in the driveway of a potential residence of the person? If yes, did a vehicle registration search identify if the vehicle is of the person or a known person (which may indicate that the person may have been home but evading service, or forming part of the evidence to establish that it is the person’s residence)?
• If an address is known, do the neighbours know the whereabouts or movements of the person?
• Is the person a director or shareholder of a company? If yes, has the company been contacted to find out the whereabouts or movements of the person?
• Did the process server visit the location at different times of the day and on different days of the week? How much time did they spend at the location to see if the person returned?
• Are there any alternative addresses that should be investigated on the electoral role, registered with ASIC, on social media or otherwise?
• Have any known family, friends or colleagues been questioned regarding the whereabouts or movements of the defendant?

A process server should also consider what they see, for example, a vehicle in the driveway or the lights being on in the building. Lights being on in the building may not, by itself, support an inference that a person was home^xxxvi but could be supported if there is noise coming from inside the house, the defendant’s car in the driveway, or perhaps a smell of cooking, and subsequently, an inference that the defendant is avoiding service.

If you have exhausted your investigations without success, a private investigator may have additional methods to discover a person’s location. It should be noted that Judges have criticised the admissibility of skip trace reports.^xxxvii A solicitor may consider having the investigator swear an affidavit about what avenues they understood to locate the person and to include any source material. This may or may not be admissible for the truth of the contents of the searches but should be admissible evidence about what inquiries the investigator has made in an attempt to locate a defendant. However, such an affidavit is at high risk of containing inadmissible second-hand hearsay.

A plaintiff should demonstrate to the Court that they have undertaken a reasonable investigation as to the whereabouts and movements of the person, and that reasonable attempts to serve the person have been attempted, but have failed, and importantly, that using reasonable effort, the plaintiff is unable to serve the person personally.^xxxviii

Inconvenience, expense and persons living in remote communities are unlikely to persuade a Court to exercise their discretion. Indeed, there is dicta from at least one Judge has indicated that a defendant’s whereabouts is more likely to be found in a small town.^xxxix

Making a substituted service application

A substituted service application is ordinarily an interlocutory application made with a UCPR Form 9, but in some limited circumstances, the application can be made orally. The Form 9 will need to have one or more supporting affidavits.

The application is usually made ex parte and can be decided on the papers.^x However, it does have the result that if the Court has any difficulties with the material or submissions, there is no opportunity for the applicant to seek to address them. Applications on the papers must include a draft order and submissions.^xli

A solicitor’s first duty is to the Court. The Court has been critical of substituted service applications relying on inadmissible evidence, and more care is needed by the profession when making such applications.^xliii

Deemed Service

The Court will typically order that service is deemed four or five days after the last of the methods of substituted service is performed.

Costs

Costs for a substituted service application are not a certainty.^xliv However, the vast majority of successful substituted service applications will have costs ordered in the cause.

Substituted service application decisions

A non-exhaustive list of substituted service decisions is included in the table. It should be noted that published decisions may not reflect the outcome of decisions generally.

Gibbs Wright Litigation Lawyers

Gibbs Wright is a dedicated litigation firm that provides high quality litigation services. If you are a plaintiff who has difficulty serving a defendant, Gibbs Wright Litigation Lawyers can help. We also act as town agent, or can accept referrals.

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i Foxe v Brown (1984) 58 ALR 542, 547

ii Miscamble v Phillips (No 2) [1936] St R Qd 272

iii Bendigo & Adelaide Bank Ltd v Wilkin [2018] QDC 16; Heritage Bank Ltd v Gleeson [2019] QDC 119 [38];

Middencorp Electric Pty Ltd v Intelligent Infrastructure Solutions Pty Ltd [2020] QDC 72 [9] – [10]; KV

Projects Pty Ltd v Regal Bridges Pty Ltd [2020] QDC 261 [5] – [6]; Zurich Capital & Finance Pty Ltd v

Williams [2020] QDC 277 [8] – [23]; Sunshine Phone Systems (in liq) v Martens [2021] QDC 36 [10]; Grow

Asset Finance Pty Ltd v Bassi [2022] QDC 23 [11]; Wickham FV Pty Ltd v Lindeque [2022] QDC 170 [1];

National Australian Bank Ltd v Garner [2022] QDC 221 [16] – [17]; Faranu Pty Ltd v Tropical Island

Constructions Pty Ltd [2023] QDC 107 [10]. See also, similar comments made extra judicially: Judge Ken

Barlow KC, ‘Substituted Service and Similar Applications – What is Admissible Evidence?’ (Speech,

Queensland Law Society Symposium, 10 March 2023); Judge Bernard Porter KC, ‘Evidence on information and belief’

(Speech, Queensland Magistrates State Conference, 26 May 2022)

iv See generally Judge Barlow, ‘Substituted service and similar applications: What is admissible evidence?’ (Speech, Queensland Law Society Symposium, 10 March 2023)

v Sunshine Phone Systems (in liq) and Anor v Martens and Martens [2021] QDC 36 at [18]

vi Embrey v Smart [2014] QCA 75 at [21]

vii Deputy Commissioner of Taxation v Abberwood Pty Ltd (1990) 19 NSWLR 530; Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [9]

viii Commonwealth Bank of Australia v Li [2023] QSC 224

ix Unreported decision of the Supreme Court; orders upheld on appeal Scott & Ors v Colwell & Anor [2016] QCA 39 at [3]

x Commonwealth Bank of Australia v Li [2023] QSC 224

xi Commonwealth Bank of Australia v Liu & Anor [2022] QSC 137

xii Commonwealth Bank of Australia v Li [2023] QSC 224

xiii Ask Funding Ltd v Ligi Lee Chiu [2011] QDC 148; McGary v McDonnell [2011] QDC 189

xiv Babcock & Brown P/L & Ors v Arthur Andersen [2010] QSC 287 at [101]

xv Salter v Towler [2012] QDC 77

xvi Commonwealth Bank of Australia v Liu & Anor [2022] QSC 137; Commonwealth Bank of Australia v Li [2023] QSC 224

xvii Unreported decision of the Supreme Court; orders upheld on appeal Scott & Ors v Colwell & Anor [2016] QCA 39 at [3]

xviii Commonwealth Bank of Australia v Liu & Anor [2022] QSC 137

xix Commonwealth Bank of Australia v Li [2023] QSC 224

xx Porter v Freudenberg [1915] 1 KB 857; Churchill & Co v Lonberg [1941] 3 All ER 137 at 139

xxi Perpetual Limited v Rush [2016] QSC 180 at [11]

xxii Sunshine Phone Systems (in liq) and Anor v Martens and Martens [2021] QDC 36 at [14]

xxiii Foxe v Brown (1984) 58 ALR 542, 547

xxiv Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272, 274

xxv Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [6]

xxvi See for example Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [43]

xxvii Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [49]

xxviii Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [49]

xxix Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [43]

xxx A criticism that an electoral roll search was not conducted was made in Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [38]

xxxi A criticism that a title search was not conducted was made in Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [38]

xxxii See for example: Embrey v Smart & Anor [2013] QSC 241 at [70]

xxxiii A criticism that a registration search was not conducted regarding a subject vehicle was made in Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [40]

xxxiv A criticism that a photograph was not sourced for the process server to identify a person was made in Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [40]

xxxv Embrey v Smart [2014] QCA 75 at [27]

xxxvi Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [41]

xxxvii National Australia Bank Ltd v Garner [2022] QDC 221, [15]; Sunshine Phone Systems (in liq) and Anor v Martens and Martens [2021] QDC 36, [5]

xxxviii Foxe v Brown (1984) 58 ALR 542, 547

xxxix Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [55]

x See r.489 of the Uniform Civil Procedure Rules 1999 (Qld)

xli r.490(1)(b)

xlii Domican v The Queen (1992) 173 CLR 555; Amore v The Queen [1994] 1 WLR 547, 553; Body Corporate for the Groves No. Four Minyama CTS 20785 v Kennedy [2022] QDC 225 at [4]

xliii See for example Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [29]; Judge Ken

Barlow KC, ‘Substituted Service and Similar Applications – What is Admissible Evidence?’ (Speech,

Queensland Law Society Symposium, 10 March 2023)

xliv Clint Ross Hadan and Eva Kot as trustees under instrument 716406838 and instrument 717202530 v Jocksolo Pty Ltd [2023] QDC 237 at [58]