Appealing Against a Finding of Fact | Fox v Percy
The case of Fox v Perry (2003) says that where a Judge relied on the credibility of the witness, you may be entitled to challenge trial conclusion based on such evidence.
Substituted Service
- Published June 20, 2019
Table of Contents
Introduction
Courts require that the originating documents (e.g., a Claim or an Originating Application) in proceedings brought against individuals be served on them personally.1
Sometimes, personal service can’t be affected conveniently. This might happen where the party bringing the proceeding isn’t able to find where the defendant is. Sometimes the defendant might also attempt to avoid service in order to frustrate the proceedings. This is when a substituted or informal service application becomes appropriate.
These applications can allow the Court to waive the usual requirement for personal service. If the documents can be sent to the person via post or some electronic means, the Court might consider that sufficient. If there is evidence that the person already has the documents (even where personal service hasn’t technically occurred) the Court might deem service to have been affected.
What is personal service?
Personal service usually requires someone2 to physically give a copy of the originating documents to an individual.3 It isn’t necessary to show the person the documents.
Like almost anything in law, there are always exceptions, for example:
- If the party’s solicitor accepts service on their behalf;4
- If you have a contract agreeing to the service of documents;5
- If the application only has one party; and
- Several other less common exceptions.
There are also some relaxations of the rules of personal service in the Magistrates Court of Queensland. In addition to physically giving a copy of the original document to an individual, you may also:
- Leave the document with someone who is apparently an adult living at the relevant address;6
- If the person has a solicitor, email it to the solicitor;7 and
If the person has a solicitor, fax it to the solicitor8 (there are several compliance rules in relation to sending faxes;9 email is preferable).
Difficulties with service
If the person knows that service is imminent, they may attempt to avoid service. If service can’t be affected, the proceedings can’t continue. The Courts and the parliament are not blind to individuals trying to avoid service, and as such, substituted service exists to allow a more flexible approach.
As Judge Robin QC of the District Court of Queensland stated:10
“I’ve been struck by experience, particularly in recent months, as to how effective substituted service orders of this kind prove to be in flushing out defendants.” (emphasis added).
How do courts decide substituted service applications?
Substituted service may apply when it is impracticable to serve a document pursuant to the usual rules.11
The Courts do have an overriding obligation to promote justice, and as such, Magistrates and Judges will only allow substituted service if there is a belief that it will bring the proceedings to the individual’s attention. The High Court has stated:
“The object of substituted service, the primary object, is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings, so that he can take such steps as he thinks proper to protect his interests and rights. 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 or of any person representing his interests.” 12
Because of the overriding obligation to promote justice, the Courts will require the person applying for substituted service to give some evidence:
“…of some attempt made to effect service in accordance with the rules, or there should be evidence led that it is so obviously futile as to not warrant an attempt at service.” 13
Each case is different, and accordingly, the obligations of the person serving the originating documents will change. If you know everything about the person, they are your best friend and you see them every day, then you will likely have more of an obligation to comply with the rules then if you don’t know the person or they are avoiding you, in which case you may be able to show:
“evidence… that it is so obviously futile as to not warrant an attempt at service.” 14
Before a Court will make an order for substituted service, the applicant will need to show sufficient evidence that reasonable attempts at service have been made. That evidence should, ideally, be in the form of affidavits sworn by the process server who has made the attempts.
Substituted service may allow you to serve the document in various ways, including one or more of the following ways:
- Post/Registered post to an address or last known address,15 PO Box,16 or place of employment;17
- By sending a text message;18
- By sending a facsimile;19
- By sending an email;20
- Post to the person’s solicitor even if they are not retained to accept service;21 or the town agents of a solicitor;22
- Service on another person the person may be in contact with (for example, the liquidator23 or property manager;24);
- Advertising in the newspaper;25 and
- Other methods as appropriate.
These methods of service are only effective if a Magistrate or Judge says that you can serve a person in this way, and they will need to be satisfied that allowing service in these ways will bring the documents to the attention of the defendant.
Social Media
There is mixed opinion regarding notification of service of documents through Facebook and other social media platforms in other states of Australia. There are very few published decisions in Queensland relating to notification through social media. In practice, however, it is not uncommon to seek substituted service by way of social media even in Queensland Courts.
Ultimately, the Court will consider the best method(s) and whether it is possible to have a belief that the originating documents will come to the person’s attention.
If the person applying for substituted service can show the Court that:
- They have taken reasonable steps to serve the Defendants personally but failed; and
- The Defendants will be made aware of the Court proceeding by other means.
What do you need to do to make an application for substituted service?
You need to make an application to the Court and have an accompanying affidavit with evidence that it is impracticable to serve the other party (for example, your attempts to find them and/or your failed attempts at serving them).
As at the time of writing this article, the correct forms are:
- A Form 009 – Application (UCPR); and
- A Form 046 – Affidavit (UCPR).
[1] Rule 105 of the Uniform Civil Procedure Rules 1999 (Qld)
[2] We recommend a process server, the cost of which is usually around $75 (depending on location) for up to three attempts of service and will almost always include an affidavit to prove service. Costs may be recoverable
[3] Rule 106 of the Uniform Civil Procedure Rules 1999 (Qld)
[4] Rule 115 of the Uniform Civil Procedure Rules 1999 (Qld)
[5] Rule 119 of the Uniform Civil Procedure Rules 1999 (Qld)
[6] Rule 111 and Rule 112(1)(a) Uniform Civil Procedure Rules 1999 (Qld)
[7] Rule 111 and Rule 112(1)(f)(iii) Uniform Civil Procedure Rules 1999 (Qld)
[8] Rule 111 and Rule 112(1)(f)(ii) Uniform Civil Procedure Rules 1999 (Qld)
[9] Rule 122 Uniform Civil Procedure Rules 1999 (Qld)
[10] Adham Park Thoroughbreds Pty Ltd v Stubbs [2011] QDC 188 at 1-4
[11] Rule 116 of the Uniform Civil Procedure Rules 1999 (Qld)
[12] Miscamble v Phillips and Hoeflich (No. 2) [1936] St R Qd 272 at 274; cited in Queensland Construction and Engineering P/L v Wagner [2011] QDC 171
[13] Rice Growers Co-Operative Ltd v ABC Container Line NV (1996) 138 ALR 480 at 482
[14] Ibid
[15] Muir v Hunter [2011] QDC 290 at 1-4
[16] Members Australia Credit Union Ltd v Cruickshank [2011] QDC 89 at 1-6
[17] Ask Funding Ltd v Moshit Rose [2011] QDC 145 at 1-3
[18] Muir v Hunter [2011] QDC 290 at 1-4; Australian and New Zealand Bank Group Limited v Smalley & Anor [2012] QDC 80
[19] Kendell v Sweeney & Ors [2002] QSC 404 at [14]
[20] Members Australia Credit Union Ltd v Cruickshank [2011] QDC 89 at 1-6; Gibbings v McGinn [2013] QDC 217
[21] Ask Funding Ltd v Ligi Lee Chiu [2011] QDC 148 at 1-2; McGary v McDonnell [2011] QDC 189
[22] Babcock & Brown P/L & Ors v Arthur Andersen [2010] QSC 287 [16]
[23] Kendell v Sweeney & Ors [2002] QSC 404 at [14]
[24] Salter v Towler [2012] QDC 77
[25] Symes v Saunders [2011] QDC 217 at 1-9
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