Commonwealth Bank of Australia v Tidd [2025] QDC 112

• [1] This is an application for substituted service under Rule 116 Uniform Civil Procedure Rules. The issues to be addressed are not complex[1]:

[2] The threshold condition is that the applicant demonstrate that it is impracticable personally to serve the proceedings on the respondent. These words speak for themselves, though reference is frequently made to the authorities identified in the applicant's outline. In Kendall v Sweeney [2002] QSC 404, Justice Wilson said at [15]:

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 is not enough to justify the making of an order for substituted service. It must first be shown that it is impractical to serve the documents in a way required by chapter 4 of the UCPR.

[3] In Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542, 547, Justice Mason, in speaking of "the standard of diligence or effort required of a plaintiff in seeking out a defendant in a case where substituted service is sought", said:

That standard, however it is expressed, is one of reasonableness so as to show a practical impossibility of personal 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 service is made that plaintiff, using reasonable effort, is unable to serve the defendant personally.

[4] Once the threshold condition is established, the Court's discretion under Rule 116(2) is enlivened. The discretion must be informed by the purpose of substituted service, which is to bring the proceedings to the attention of the other party. Substituted service is not a way to meet the formal requirements of service without effecting actual notice of the proceedings. 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.

[5] There must be a high degree of probability proved on the evidence that the proceedings will come to the attention of the other party by the method of service ordered. The case frequently cited is Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272, 274 per Starke J, sitting in the High Court, where his Honour observed:

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.

• [2] An application for substituted service can be made in reliance on evidence given on information and belief under Rule 430(2) UCPR, however to be admissible evidence must comply with that rule.[2]
• [3] The applicant Bank relies on two affidavits, an affidavit of a paralegal employed by the Bank's solicitors and an affidavit of a process server.
• [4] The substantive paragraphs of the paralegal's affidavit are mostly inadmissible:

(a) Paragraph 10 is an irrelevant opinion. It also fails to swear to the list of considerations at paragraphs (a) to (d) on information and belief. The form of this paragraph reflects a lack of understanding of the law in the area.

(b) Paragraph 11 is inadmissible second hand hearsay.[3]

(c) Paragraph 12 in its current form is probably inadmissible given that it is unclear what the source for the paralegal's knowledge might be where "Gadens" is informed. (This also applies to paragraph 11).

(d) Paragraphs 16 and 17 are also irrelevant opinion.

• [5] The whole affidavit discloses a lack of understanding of the law of admissible evidence on information and belief. It is not useful except that it exhibits a title search. I am willing to give the applicant the benefit of the doubt that paragraph 12 is admissible (stating the Bank Officer's last known contact details), though that evidence tells me nothing about whether there is reason to believe they remain relevant. The defects in the affidavit are not the fault of the deponent. As I have said before, admissibility of affidavits is a matter for an admitted solicitor not a paralegal.
• [6] The affidavit of the process server is for the most part admissible. That affidavit deposes, in summary, that:

(a) The process server attempted to serve at the last known address on 12 occasions but visiting only between lunchtime and 5:30pm;

(b) The last known address has a locked front gate and an unrestrained aggressive dog in the yard;

(c) The process server succeeded in contacting the defendant on the mobile number provided by the Bank on one occasion but could not arrange service. The defendant, after identifying himself, later pretended to be someone else during the call; and

(d) A male neighbour confirmed the defendant still resided at the address.

• [7] To this information can be added the fact that the defendant remains the registered proprietor of the address.
• [8] In my view, the process server's evidence is sufficient to make out that personal service is impracticable. While there is no sufficient basis to think the defendant is actively avoiding service, it is plain that he has created a situation at his home where personal service will be very difficult without his co-operation which I infer will not be forthcoming. That is not to say it would be impossible, particularly if an effort were made early in the morning or later in the evening when he presumably would be coming or going to work. However, impossibility is not the test. While I suspect a more imaginative approach might have made service possible, on balance I am satisfied that personal service is impracticable.
• [9] I am also satisfied that service by post on the defendant's home and to his mobile telephone will bring the proceedings to his attention. There is a sufficient basis to conclude he still lives at the address, and a sufficient basis to believe from the process server's evidence that his mobile phone number remains in use. I extend the deeming date to 8 days from posting because of recent experience with substantial delays in the delivery of post.
• [10] The Bank also seeks renewal of the claim. I am satisfied that is a proper order to make. Given the expiry of the existing claim, I make those orders nunc pro tunc.
• [11] I therefore make orders in terms of the amended draft. However, as I am not persuaded that the defendant is avoiding service, I am unwilling to make an order for costs on the indemnity basis. I order the costs be costs in the proceedings.
• [12] While ordinarily I would not publish reasons on a successful substituted service application, the purpose of publishing these reasons is to draw the attention of the profession yet again to the rules of admissibility on these applications. The Court expects better.

[1] Bunnings Group Ltd v Tropical Island Constructions Pty Ltd [2023] QDC 61, [2] - [5]

[2] Bendigo & Adelaide Bank Limited 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, 2023); Judge Bernard Porter KC, 'Evidence on information and belief' (Speech, Queensland Magistrates State Conference, 26 May 2022).

[3] Bendigo & Adelaide Bank Limited v Wilkin [2018] QDC 16 at [12] and [15].