Magistrates Court (Civil Division) Rules 1998

Magistrates Court (Civil Division) Act 1992

Remess v Rabe [2006] TASSC 105

Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542

Porter v Freudenberg [1915] 1 KB 857

Ricegrowers' Co-operative Ltd Anor v ABC Containerline NV & Ors [1996] FCA 1663; (1996) 138 ALR 480

Expense Reduction Analysts Group Pty Ltd v Armstrong Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303

1. This is an application by the claimant for an order for substituted service of the claim on the defendant by sending it to his email address and mobile phone number.
2. The claim seeks damages of $9,827.65 as a result of a motor vehicle collision which it is alleged was caused by the defendant's negligence.
3. The facts relied on by the claimant to support the order for substituted service are set out in the affidavit of Alexandra Morris, the solicitor for the claimant, affirmed on 10 September 2024. The affidavit of Ms Morris is hearsay to the extent it relies on statements made by the process server. Hearsay evidence is admissible on an interlocutory application: s 75 Evidence Act 2001.
4. The evidence establishes that a process server has been unable to serve the claim personally despite attempts to do so by attending the defendant's residence at 2/10 Burrawong Court, Rocherlea in August 2024.
5. On 10 August 2024 the process server knocked multiple times but believed the defendant was not present. The evidence of that contained in Ms Morris's affidavit is a hearsay recounting of the opinion of the process server. But so long as such evidence is otherwise admissible as an opinion, it is permissible to adduce hearsay evidence of that opinion: Terranora Group Management Pty Ltd v Terranora Lakes Country Club Ltd (unreported NSW SC Austin J, 1 December 1997 BC9706535).
6. That hearsay evidence includes the statement by the process server that on 15 August 2024 a neighbour of the residence confirmed the property was tenanted. That statement is second-hand or double hearsay. However, such hearsay evidence is permitted by s 75 of the Evidence Act 2001: Remess v Rabe [2006] TASSC 105 per Tennent J.
7. Be that as it may, on 16 August 2024 the process server received no response from the inhabitant.
8. On 17 August 2024 the process server observed multiple active security cameras but did not receive a response to knocking.
9. The defendant has previously communicated with the claimant by email on 22 April 2024. The email said, "Hello my name is Christopher brewer parker pls gibe [sic] me a call on 0492034815". It was sent from the email address christopherparker2019@gmail.com.
10. On 4 June 2024 the claimant emailed a demand notice to the defendant at the email address christopherparker2019@gmail.com. The defendant responded saying "I was not at fault so what can we do now?".
11. Before I can make an order for substituted service the claimant must show "proper cause": r 42(2) Magistrates Court (Civil Division) Rules 1998.
12. The courts have developed principles governing applications for substituted service. Proper cause would exist where the requirements for an order for substituted service by application of those principles have been met.
13. Those requirements were expressed by Mason J (as he then was) in Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542 at 546-547 in the following terms.

In general, for an order for substituted service to be made it must be shown: (a) that the plaintiff, using reasonable effort, is unable to effect personal service; and (b) that the method of substituted service requested is one which is likely to cause the writ to come to the knowledge of the defendant (Porter v Freudenberg [1915] 1 KB 857).

[The standard of diligence or effort required of a plaintiff in seeking out a defendant], "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, the plaintiff, using reasonable effort, is unable to serve the defendant personally."

1. If the requirements for substituted service expressed in Foxe v Brown are met, there would be proper cause to order substituted service. However, the expression "proper cause" is a broad expression. It is not, on its ordinary meaning, limited to cases of practical impossibility using reasonable efforts.
2. In Ricegrowers' Co-operative Ltd & Anor v ABC Containerline NV & Ors [1996] FCA 1663; (1996) 138 ALR 480, Tamberlin J considered the meaning of the word "practicable" in the context of a rule granting a power to order substituted service. It was held the word should be given a wide meaning. For similar reasons, in my view the expression "proper cause" should be given a broad meaning in this context.
3. Furthermore, the expression "proper cause" is used in the context of r 4 of the Magistrates Court (Civil Division) Rules 1998 which requires proceedings to be conducted with the least possible delay, in a manner that saves costs and that is proportional to the amount of the claim, the importance or complexity of the proceedings and the financial position of the parties. The claim is also a minor civil claim and is therefore required by s 31AB(1)(f) of the Magistrates Court (Civil Division) Act 1992 to be conducted with as little formality and technicality and with as much expedition as the requirements of the Act, rules of court and a proper consideration of the issues permit. Achieving those purposes may require a more robust and proactive approach so that unduly technical and costly disputes about non-essential issues are avoided: Expense Reduction Analysts Group Pty Ltd v Armstrong Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303.
4. In this case, there is evidence of multiple attendances on the residence of the defendant. The defendant has not answered the door in circumstances where he is clearly aware a claim will be made and he has security cameras which would enable him to observe unknown people who might be process servers and avoid them by not answering the door.
5. Although there is no evidence of attempts to identify other locations, such as a workplace, where the defendant might be served or attempts to keep the defendant under surveillance to catch him leaving from or arriving at his residence, there would be additional cost involved in such steps. I do not have evidence of what that cost might be but in the context of a claim in the order of $10,000.00; it is likely those costs would be significant. Service by emailing it to the email address the defendant has used and the phone number he has given will also be significantly less costly than the additional steps that will be required to serve the defendant personally.
6. It is likely that sending the claim to the defendant at his known email address and phone number would bring it to his attention. There is no evidence of an attempt to serve the defendant by registered post which is permitted by r 40(1)(b) of the Magistrates Court (Civil Division) Rules 1998. But such service requires the defendant to collect the mail containing the claim from the post office. His avoidance of personal service is likely to extend to not collecting mail from the claimant's solicitors or from an unknown sender if it is possible to use registered post anonymously. Requiring that step to be taken now would lead to further delay and it is less likely to bring the claim to his attention than sending it to his email and phone number.
7. Although I am not satisfied the test of practical impossibility has been met, for the above reasons I am satisfied that proper cause has been shown to justify the making of an order. However, in order to achieve greater certainty that the claim will be brought to the defendant's attention, it would also be desirable to send it by ordinary pre-paid post to the defendant's address. Sending it by that means where there is evidence to support an inference that the defendant is avoiding service is more likely to bring it to his attention because it does not involve an active step on his part to collect it. I will therefore also require service by that means.
8. Pursuant to rule 42 of the Magistrates Court (Civil Division) Rules 1998 I therefore order as follows.
9. In substitution for service under rule 40 of the Magistrates Court (Civil Division) Rules 1998, service of the claim will be validly effected by sending a copy of the claim and a copy of this order:
   1. by email to the email address christopherparker2019@gmail.com;
   2. sending them to the mobile phone number 0492 034 815; and
   3. by sending them by ordinary pre-paid post to 2/10 Burrawang Court, Rocherlea, Tasmania 7248.
10. The application also seeks an order that the defendant pay the costs of the application. In my view the question of who should be responsible for those costs, should be dealt with after service is effected. I therefore reserve the question of the costs of this application.