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[2023] QDC 107
General information, not legal advice.
District Court of Queensland
2023-06-15
Original judgment source is linked above.
[1] The plaintiff applies, on the papers, for an order for substituted service on the second defendant[1] of the amended claim and statement of claim.
[2] The plaintiff's evidence in support of the application comprises an affidavit of a paralegal employed by the plaintiff's solicitors, in which she deposes that:
(a) in the application for finance by the first defendant and the guarantee of that application by the second defendant, the latter's contact details were said to be at a particular email address, at a physical address in Jubilee Pocket and at a mobile telephone number;
(b) on 2 December 2022, a process server instructed by the plaintiff's solicitors unsuccessfully attempted to serve the second defendant at the first defendant's principal place of business stated in the result of a search of the company in the records of the Australian Securities and Investments Commission (a copy of which is exhibited to the affidavit);
(c) on the same day, the process server also attempted to telephone the second defendant on the number stated in the guarantee, but it "went to a loud beep after three rings then hung up;"[2]
(d) the process serving company then undertook a "skip trace" on the defendant that resulted in information indicating that the second defendant lived at the Jubilee Pocket address;
(e) she purported to exhibit a copy of "the affidavit of attempted service report" received from the service company, from which she quoted passages indicating that "our agent" had attended at the Jubilee Pocket address on two occasions in January and once in February 2023 but found nobody in attendance and, on the latter occasion, the agent also tried telephoning the second defendant on the number provided but it was disconnected;
(f) on 15 February 2023 the deponent sent an email to the address of the second defendant stated in the guarantee and received a delivery report (which she exhibited) "confirming that the address was still actively receiving emails;"
(g) the documents will "in all reasonable probability ... come to the attention of the defendant" if sent by post, with a copy of the court's substituted service order, to the Jubilee Pocket address and to the registered office of the first defendant and by email to the second defendant's email address.
[3] Contrary to the requirement in rule 490(1)(b), the application was not accompanied by written submissions, although it was accompanied by a draft order. Also, contrary to rule 435(1)(c), there is no index to the exhibits to the affidavit. Nevertheless, I have reviewed the application, the evidence and the draft order.
[4] The evidence is inadequate and inadmissible in a number of respects. There is no affidavit from the process server or other person engaged by the process serving company to undertake enquiries into the second defendant's whereabouts. The one report that is exhibited to the affidavit (about the attempted service at the principal place of business and the attempt to telephone the second defendant in December 2022) is simply an email that purports to describe what "our agent" did, without an affidavit from the agent. A copy of an affidavit from a process server referring to those attempts is exhibited to the deponent's affidavit (although that affidavit is not referred to in her affidavit), but the original affidavit has not been filed.
[6] The evidence of the "skip trace" efforts to locate the second defendant is also not in the form of an affidavit by the person who made the enquiries, but is a letter written by a person identified as "Manager/Locations and Investigations" of the process serving company, in which the author refers to enquiries and searches that "we made" without identifying who actually made them, nor attaching the results of the enquiries. For example, it refers to having undertaken a search of Australian Electoral Commission records that revealed that the second defendant is registered at the Jubilee Pocket address and a "property search" that revealed that she is the owner of the property at that address, but neither result is attached to the report or exhibited to the affidavit.
[7] All of these matters make most of the deponent's evidence at least hearsay on hearsay. That in itself makes the evidence inadmissible. But further, there is no attempt to comply with the requirements for hearsay evidence set out in rule 430(2) of the Uniform Civil Procedure Rules 1999.
[8] Even if these evidentiary issues had not arisen, I am not satisfied that it is impracticable, as at the date of the application, to serve the second defendant personally. If the evidence were admissible, it appears that it would demonstrate that, at least in February 2023, she lived at the Jubilee Park address. Although three attempts have apparently been made to serve her there, I do not consider that number of attempts to be sufficient to demonstrate that personal service is impracticable. None of the attempts was made on the weekend. There is no evidence that the process server left a card at the address and asked the second defendant to contact her or him. The plaintiff's solicitors have not written a letter to the second defendant at that address asking her to contact them. Nobody has spoken to a neighbour to ascertain whether the second defendant actually lives at the address. Finally, no attempt has been made to serve her at that address (or anywhere else) since February 2023.
[9] Overall there is little to no attempt to comply with the rules of evidence or to demonstrate the necessary criteria to justify a substituted service order.[4]
[10] In criticising the evidence in this matter, I mean no criticism of the deponent of the affidavit. She is not admitted as a practitioner and clearly has not been given appropriate training by her employer. Nor, it seems, has her work been properly supervised by a practitioner. As I recorded in my article in Proctor and as I and other judges have said in the past, it is a mistake for practitioners not to supervise their junior and unqualified employees in the conduct of proceedings and interlocutory applications. "Matters of admissibility and submission are the responsibility of admitted practitioners. This Court has given several judgments explaining the problems which bedevil substituted service applications."[5] It is about time that solicitors practising in this State took responsibility for their employees' conduct of supposedly simple matters and ensured that the rules of court and the rules of evidence are complied with.
[11] In the circumstances, I consider it appropriate to dismiss the application. If the plaintiff wishes to try again, it might take account of the matters I have raised in these reasons and in the paper to which I have referred. I shall make no order as to costs, but I will indicate that, in the circumstances, I would expect the plaintiff's solicitors not to charge the plaintiff any fees or disbursements for making this application.
[1] The plaintiff obtained default judgment on the first defendant on 25 May 2023, after serving it with the claim and statement of claim at its registered office.
[2] That is not what the report relied on for that evidence, nor the copy affidavit of the process server, actually says: they say that "the call kept ringing and then beeped three times and then disconnected."
[3] Instead, a copy of an affidavit of the attempted service on 2 December 2022 is exhibited at this part of the exhibits to the affidavit.
[4] I have addressed those requirements, including the general uselessness of "skip trace" reports that are not properly proved, in my recent paper, "Substituted service and similar applications: what is admissible evidence?" published in Proctor on 11 May 2023: https://www.qlsproctor.com.au/2023/05/substituted-service-and-similar-applications-what-is-admissible-evidence/
[5] National Australia Bank Ltd v Garner [2021] QDC 221, [21], per Judge Porter QC.
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