Middencorp Electric Pty Ltd v Intelligent Infrastructure Solutions Pty Ltd & Ors [2020] QDC 72

(a) An agent of a process serving firm attended on the residential address believed to be the residence of Mr Glenister on 28 October 2019 at 8:10pm in the evening. That person found the property vacant and for sale and was told by neighbours that the house was vacant; and

(b) A process server attended at the offices of MBA on 20 November 2019 at 3:05pm. The process server was told by a person at reception that Mr Glenister was not there and a card was left requesting that Mr Glenister contact that person.

1. There is no evidence of any other attempts at service. There is more relevant evidence however.

1. On the evening of 20 November 2019, a person identifying himself as a Duane from MBA rang the agent. He said he was ringing on behalf of all defendants. He said he was aware of the documents. He said that they were in the process of arranging payment and had been told no further action would be taken. Duane asked if service on Mr Glenister was still required in those circumstances. Giving the timing and content of that conversation, the only reasonable inference is that the documents Duane was referring to were the claim and statement of claim in these proceedings.

1. There is no evidence before me of any further communications with, or attempts to serve, Mr Glenister since that call on 20 November 2019. It is also relevant to note service of the proceedings on the first defendant by post, inter alia, to Mr Glenister's home on 22 October 2019 and that the first defendant, Mr Rowland, was personally served on 28 October 2019.

1. This evidence does not persuade me that it is impracticable personally to serve Mr Glenister. His place of work is known. He has previously responded to an attempt to serve at that address. There is no suggestion on the evidence he is making any attempt to avoid service. Further, on the evidence filed, the last Mr Glenister heard of service of this proceedings (assuming Duane was ringing on his behalf) is that a request for clarification is still outstanding as to whether personal service was still required.

1. This evidence falls far short of sustaining the proposition that it is impracticable personally to serve Mr Glenister. Indeed, as a solicitor of this Court, one could rightly expect that he would make himself available to accept service, or would confirm instructions to MBA to accept service, if he was clearly asked to do so. As an officer of the Court, one might expect him to co-operate in the efficient conduct of proceedings in which he is a defendant, whatever his view of the underlying merits.

1. Further, I am not satisfied in any event that any of the evidence relied upon is admissible. I have previously reviewed the law on the form of evidence admissible on substituted service applications: Bendigo & Adelaide Bank Limited v Wilkin [2018] QDC 16. The evidence filed on this application is inadmissible because:

(a) The failure of the solicitor swearing the affidavit to depose to his belief in the statements he adopts means that the evidence is not properly admissible on information and belief as explained in Wilkin at [14];

(b) All of the evidence is inadmissible hearsay. At best it comprises evidence of what an agent told Ms Keir-Ward told the solicitor who swore the affidavit. Sometimes there is an additional link in the hearsay chain, where the agent swears to what the neighbour or Duane told the agent. Only "first hand" hearsay is admissible under Rule 430(2) UCPR as explained in Wilkin at [15] and [19]; and

(c) The failure to identify the name of the agent relied upon also means that the evidence is not properly admissible on information and belief because it does not properly identify the source of the evidence: Wilkin at [16]

1. These matters cannot simply be ignored, nor non-compliance with the law waived, particularly where the respondent is not present. As I said in Wilkin:

[29] First, the application is brought ex parte. While this particular form of application might not attract the duty of full and frank disclosure (as to which I express no view), it remains the case that the application is brought in the circumstance where the other party is not present. That circumstance calls for care by the Court and solicitors for the applicant to ensure that the matter is conducted fairly to the absent party. Further, in the absence of the other party, it is not possible to conclude that inadmissible evidence is not seriously in dispute.

[30] Second, the effect of the practices evident in this matter is that the forensic discipline imposed on agents which arises from either swearing up to matters personally or being identified properly as a source of facts deposed to, is lost. Issues of service are frequently contentious. They need to be attended to with care and precision. I mean no disrespect to the persons involved in this case, but it seems to me that the consequence of evidence of events involved in service attempts being given in this anonymous and distant manner will be to court the risk of carelessness and imprecision in reports from service agents.

1. As I have said, one might reasonably expect Mr Glenister's firm to receive instructions to accept service if asked (see Rule 115). One might also infer, given the circumstances, that if there was admissible evidence of the call from Duane and evidence that he was indeed from MBA, that Mr Glenister had come into possession of the proceedings in any event by the date of that call (see Rule 117).

1. However, neither basis for service is put forward in this application. Rather substituted service is sought in circumstances where the threshold condition in Rule 116(1) is not made out at all, much less on admissible evidence.