Breach of Employment Contract
An employment contract defines the relationship between employer and employee. What happens when that agreement breaks down?
Substituted service
- Published June 20, 2019
Table of contents
Introduction - service of documents
Typically, courts require that originating court documents (the first document in a court matter e.g., a claim or an originating application) brought against individuals be served on the individuals personally.1 Personal service usually requires someone2 to physically give a copy of the documents to an individual. 3 It isn’t necessary to show the documents to the person.
Substituted service is an important method of serving documents where personal service cannot occur. As the name suggests, it is a way of substituting the strict requirements of personal service of documents, to alternative methods that will likely bring the documents to the person’s attention.
Sometimes, personal service cannot be effected conveniently. This might happen where the party bringing the proceeding cannot locate the defendant, or where the defendant tries to avoid service in order to frustrate the proceedings. This is when a substituted or informal service application becomes appropriate. An application requests that the court waive the usual requirement for personal service. If the documents can be sent to the person via post or electronically, the court might consider that sufficient for service of documents. 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 effected.
Exceptions to personal service
There may be an exception to personal service where, for example, a party’s solicitor accepts service on the party’s behalf,4 or the parties have a contract agreeing to the service of documents.5
There are also some relaxations of the rules of personal service in the Magistrates Court. For instance, you may leave the document with someone who is apparently an adult living at the relevant address,6 or if the party has a solicitor and has instructions to accept service, you may email7 or fax8 the document to that solicitor.
How do courts decide substituted service applications?
Substituted service may apply when it is “impracticable to serve” a document under the usual rules.11 A similar provision exists in all jurisdictions in Australia. “Impracticable to serve” has been interpreted to mean “unable to effect prompt personal service” or “impractical”.
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
The applicant will need to show that they have taken reasonable steps to serve the defendant personally but failed, and that the defendant will be made aware of the court proceeding by other means. The court will consider the most appropriate method(s) of substituted service and need to be satisfied the originating documents will come to the person’s attention before making an order.
Generally, “reasonable steps” will involve numerous attempts at service at the defendant’s known address (business or residential). Evidence should, ideally, be in the form of affidavits sworn by the process server who has made the attempts. Evidence of the defendant’s known addresses, identified through land title searches, ASIC searches, telephone directory searches, electoral roll searches, and contact with any known employer or residents at previous known addresses, should also be provided to the court.
How is substituted service effected?
Substituted service can be effected in many ways, including by:
· regular or registered post to an address or last known address,15 post office box,16 or workplace;17
· text message;18
· facsimile;19
· email;20
· post to the defendant’s solicitor even if they are not retained to accept service;21 or the town agents of a solicitor;22
· service on a person with whom the defendant may be in contact (for example, a liquidator23 or property manager);24 or
· newspaper advertisement.25
The method of substituted service will be dictated by the court order.
Substituted service by social media
Applications for substituted service by social media platforms are being made in Queensland courts, though there are few published decisions. In MKM Capital Pty Ltd v Corbo & Poyser, the Supreme Court ordered substituted service via a private message to the defendants on Facebook. In Citigroup Party Ltd v Weerakoon, the District Court refused an application to serve documents via Facebook because it was not satisfied the Facebook profile belonged to the defendant.
How do you apply for substituted service?
The forms to apply for substituted service are Form 009 – Application and Form 046 – Affidavit. These forms can be found on the Queensland Courts website. They apply only to civil matters that fall within the Uniform Civil Procedure Rules (UCPR). The UCPR covers almost all civil matters in Queensland.
Key takeaways
Substituted service is an important method of serving originating
documents where personal service cannot occur.
The court will consider the best method(s) and whether it
can be satisfied the documents will come to the person’s attention.
The applicant will need to show they have taken reasonable
steps to serve the defendant personally but failed, and that the defendant will
be made aware of the court proceeding by other means.
Noncompliance with procedural rules such as service of
documents can cost you money and delay your matter. If you have any questions
or need help with substituted service, contact Gibbs Wright Litigation Lawyers
on (07)
3088 6364.
[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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The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.
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Gibbs Wright is a Queensland litigation law firm based in Brisbane that exclusively practices in civil and commercial litigation, negotiation and dispute resolution throughout Queensland, Australia.
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