KV Projects Pty Ltd v Regal Bridges Pty Ltd and Ors [2020] QDC 261

[4] That has led to the present application made pursuant to rule 116, which the plaintiff also asks to be decided without an oral hearing. Rule 116 provides:

(1) If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.

(2) The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served.

(3) The court may, in the order, specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.

(4) The court may make an order under this rule even though the person to be served is not in Queensland or was not in Queensland when the proceeding started.

[5] To secure substituted service the plaintiff must show personal service is impractical and that the proposed method of service is likely to bring the proceedings to the attention of the second defendant. Personal service is impractical where it cannot be achieved with reasonable effort by the plaintiff. To prove these matters the plaintiff filed two affidavits in the application. Unfortunately, a substantial part of the information referred to in the affidavit material is not admissible. Rule 430(2) of the UCPR permits an affidavit for use in an application of this kind to contain statements based on information and belief 'if the person making it states the sources of the information and the grounds for the belief'. As was stated by Muir J in A-G v Watego [2003] QSC 367:

The requirements of subsection (2) are not met by a broad reference to unspecified documents and classes of documents. The object of the requirement to disclose the deponent's sources is to provide identification of those sources sufficient to enable the party against whom the evidence is adduced to investigate, assess and, where appropriate, challenge the evidence.[1]

[6] The problems that can arise in circumstances where the sources of the deponent's information are not adequately identified were considered by Porter QC DCJ in Bendigo & Adelaide Bank Limited v Wilkin & Anor [2018] QDC 16. I agree with his Honour's observations generally and specifically with the observation that, even if there is a discretion to admit evidence that does not comply with rule 430(2), it would usually be inappropriate to do so on an ex-parte application decided on the papers.

[7] Fortunately, it is unnecessary further to consider this issue as there is sufficient admissible evidence in the affidavits to justify the order for substituted service. The plaintiff's solicitor deposes that the second and third defendants are in a close personal relationship. Exhibited to the solicitor's affidavit is a copy of a wedding invitation and wedding photographs suggesting the second and third defendants were married in late 2017. According to the affidavit of Andrew Williams, filed on 25 May 2020 (court document 7), the third defendant was personally served at an address in Nundah. Documents exhibited to the solicitor's affidavit shows the registered owner of this address is a Deslee May Watson who appears to be the mother of the third defendant.

[8] The affidavit of Darrin Costello filed on 2 October 2020 deposes to his attempts to serve the second defendant at the address. On five occasions from 15 August to 22 August 2020 Costello attended the address. There were indications of people living in the house and on the last occasion Costello attended he observed a tall male inside the house who hid when Costello knocked and announced himself.

[9] The admissible material leads me to form the following conclusions. The address at Nundah is where the second defendant lives, or at least he has a close connection with that address. The plaintiff knows of no other address where the second defendant might be personally served. The person observed by Costello at the home wanted to avoid conversation with Costello. I infer from that the person wanted to avoid service. It seems likely this person was the second defendant. I am persuaded that the second defendant cannot be personally served with reasonable effort.

[10] I am satisfied as well that the methods of service proposed by the plaintiff will be effective in bringing the proceedings to the attention of the second defendant. Copies of the claim and statement of claim sent by post to the address in Nundah will likely come to the attention of the second defendant. The plaintiff's solicitor deposes that the second defendant is still a director of the first defendant, a company that maintains a website with provision for interested persons to contact the company. Notification of the proceedings sent in this manner may come to the attention of the second defendant. As well the solicitor deposes to conversations with a firm of accountants who stated they act for the first defendant and also forward mail to the second defendant. Notice of the proceedings sent to the accountants for forwarding to the second defendant is likely to bring the proceedings to his attention. In combination the three methods proposed seem likely to be sufficient to make the second defendant aware of the claim.

[11] The plaintiff also seeks an order that the costs of the application be paid by the second defendant on the indemnity basis. In my view the better course is to reserve the costs of the application so that in the event the second defendant enters an appearance he will have an opportunity to make submission about the costs.

[1] At [26] (footnote omitted). I note his Honour was dealing with different, but identical, legislation.