Zurich Capital & Finance Pty Ltd v Williams [2020] QDC 277

(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.

• [2] The application identified on its face that it was to be heard without an appearance, but no submissions or draft order was filed with the application or subsequently.
• [3] To make the order, the applicant must establish two matters:

(a) That personal service is impracticable; and

(b) That it is highly likely that the proposed method will bring the proceedings to the attention of the defendant.

• [4] The proposed method to bring the proceedings to the attention of the defendant is to post the claim and statement of claim by ordinary pre-paid post to the Defendant's residential address in Bamaga, QLD 4878 in lieu of personal service.
• [5] The applicant relies on its solicitor's affidavit. As to the former precondition, that service is impracticable, Mr Pomaroff swears the following:

I am informed by Sue Stevens, legal team leader at Mendelsons Lawyers, and verily believe on the 13 February 2020, she called Scott Griffiths Court bailiff for Bamaga QLD 4876. He advised that he only attended the area once a year and happened to be there on that day but had no facilities to print out the Court documents.

• [6] As to the latter precondition, that it is highly likely that the proposed method will bring proceedings to the attention of the defendant, Mr Pomaroff swears the following:

I am informed by IdentiSearch, and verily believe they organised a skip trace on the defendant, they called the local BP petrol Station and spoke with a male who confirmed the defendant resides in Lui Street, Umagico QLD. A call was made to [telephone number], the number listed under the name Reginald and Jean Williams, the call was answered by a male, the agent asked to speak to Reginald the phone was handed over to a male who confirmed he was Reginald and confirmed address as 70 Lui Street, Bamaga.

The source of my knowledge is a report from IdentiSearch dated 5 May 2020. Now produced and shown to me marked "JTP-2" is a copy of the report from IdentSearch [sic] dated 5 May 2020.

• [7] The report attached to Mr Pomaroff's affidavit, dated 5 May 2020, details the relevant steps taken by an unidentified person apparently identifying the defendant's whereabouts. Relevantly it states:

Agent called BP Petro [sic] Station Lui St, Umagico QLD 4876 [telephone number] and spoke to a male who confirmed subject resides in Lui St Bamaga Qld 4876. He was unable to confirm the street number but advised the property was 4 houses closer to Sagaukaz St after the Police Station. He also advised that the subjects Wife Jean runs the local Post Office.

Agent conducted searches and on Maps was able to confirm that the property is the 2 houses back from Little Lui st Bamaga Qld 4876.

Agent called Williams, Reg Royston 70 Lui St Bamaga QLD 4876 [telephone number] Mar 2020 and call as answered by a male. Agent asked for subject and call was handed over to subject who confirmed his identity and address.

• [8] A substituted service application is an interlocutory application. Evidence on the so-called "information and belief" basis can be adduced on interlocutory applications. That principle is stated, relevantly for this application, in r. 430 UCPR:

(1) Except if these rules provide otherwise, an affidavit must be confined to the evidence the person making it could give if giving evidence orally.

(2) However, an affidavit for use in an application because of default or otherwise for relief, other than final relief, may contain statements based on information and belief if the person making it states the sources of the information and the grounds for the belief.

• [9] It can be seen that this rule permits hearsay evidence so long as three conditions are met:

(a) For each statement based on information and belief contained in the affidavit:

(b) The deponent must state the source of the information; and

(c) The deponent must state the grounds for the belief.

• [10] Mr Pomaroff attempts to address these conditions by references to various sources in his affidavit and then by this catch all statement articulates his belief:

On the basis of the matters deposed to herein, I verily believe that the Defendant resides at 70 Lui Street, Bamaga QLD 4876 and due to the remoteness of the area it is difficult to serve personally. I also verily believe that if the Claim and Statement of Claim are posted by ordinary pre-paid post to 70 Lui Street Bamaga QLD 4876 the documents will be brought to the Defendant's attention.

Evidence comprises not confined to first-hand hearsay

• [11] Although not self-evidently contained in the text of r. 430, the source of the statement must itself comprise original evidence if adduced from the source. That is to say, only first-hand hearsay is admissible. The starting points for an analysis of this proposition is Savings & Investment Bank Ltd v Gasco Investments (Netherlands) B.V. (1984) 1 WLR 271 at 282. There the Court was dealing with a rule in analogous terms to r. 430(2). The Court held that the cognate rule should be limited to sources which were admissible because the purpose of the rule was to facilitate proof, by a less rigorous method, of what could be proved at trial.

• [12] That approach was applied to O. 41 r 3 Supreme Court Rules (the predecessor to r. 430(2)) by the Court of Appeal in Deputy Commissioner of Taxation v Ahern (No. 2) [1988] 2 Qd R 158 in a plenary way.[1] It was not limited to the situation where the evidence related to issues which would be proved at trial. Although r. 430(2) is formulated in slightly different terms to the provision considered in Ahern, the requirements for evidence given on an information and belief basis identified in Ahern have been applied by the Court of Appeal to affidavits which rely on other rules and statutory provisions using the same language as r. 430(2).[2]

• [13] Mr Pomaroff's affidavit does not comply with this first-hand hearsay rule. For example, Mr Pomaroff swears that he was told by Ms Stevens that she called and spoke (first-hand hearsay) to Mr Griffiths who stated that he was only in the area once a year and did not have the facilities to produce the documents (second-hand hearsay). Given Mr Griffiths evidence is relied on testimonially, his evidence cannot be given on information and belief by Mr Pomaroff.

• [14] Another example is Mr Pomaroff's statement that he was informed by an unidentified person signing as "Administration Support" for IdentiSearch (first-hand documentary hearsay) that they were told by one of IdentiSearch's unidentified agents (second hand hearsay) that he/she spoke to an unidentified male at the local BP petrol station who confirmed the street name at which the defendant resides (third-hand hearsay). Further, Mr Pomaroff's was informed by unidentified administrator he or she was told by one of IdentiSearch's unidentified agents that he or she called the defendant's telephone number and was told by the person who answered that that person's name and address was the name and address believed to belong to the defendant.

• [15] None of this evidence is admissible to prove the relevant facts relied upon, being the actual activities of the Mr Griffiths and the fact that the defendant can be located at his home address.

Evidence fails properly to disclose the source

• [16] Another purpose of the hearsay rule is to expose those whose statements are relied upon in testimony to scrutiny or cross examination. That rationale is also relevant on substituted service applications. It is reflected in the requirement in r. 430(2) that the source of information must be stated by the deponent to the affidavit. If the source is not sufficiently identified, the evidence is not admissible under r. 430(2). The point was made in Savings & Investment Bank Ltd v Gasco, and adopted in Ahern. It was applied in A-G v Watego [2003] QSC 367. There Justice Muir explained that:

[26] 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.

[27] To allow evidence of the nature of that contained in Dr Kar's report, to use the words of Thomas J in Deputy Commission of Taxation v Ahern, "would virtually permit trial by assertion in circumstances where no real check was available upon facile or erroneous assertion".

• [17] This reasoning applies to a substituted service application. Though it is not served, it must be open to the defendant to test the validity of the sources of the information relied upon. The point also has significance for me hearing this application, as I must form a view as to the weight to be given to the hearsay evidence. A factor might often be the apparent reliability of the source. Not only must the source be identified, but of course it must be the source from whom original evidence of the fact could be led.[3]
• [18] Mr Pomaroff's affidavit fails in this respect also. It relies on hearsay statements from unidentified persons who speak to matters of substance relevant to this application. Both the administrator, the IdentiSearch agent/s and the BP Petrol Station employee relied upon are unidentified.

Can and should the Court act on inadmissible evidence?

• [19] Despite the clear inadmissibility of the evidence contained in Mr Pomaroff's affidavit, there are circumstances in which the Court may nevertheless permit the adducing of evidence which is inadmissible.[4] In civil as a general rule, evidence which is admitted without objection goes in for all purposes.[5] Where an application is brought ex parte, however, there is no opposing party to consider objecting. I have not identified any lawful basis that inadmissible evidence may be lawfully adduced in substituted service applications. On that basis, I do not intend on acting on the inadmissible evidence identified above on this substituted service application.
• [20] In the event I am wrong about this, I do not think the Court should act on the inadmissible evidence tendered in this matter in any event.
• [21] First, in most substituted service applications, the applicant brings the application at its leisure. There is rarely any particular reason other than sloppiness and lack of attention to detail why the evidence could not be put in an admissible form. This case seems no different.
• [22] Second, inadmissible can be inaccurate. And the sloppier the application of the law becomes, the more likely it might be that inaccurate evidence will be tendered. While there will always be exceptions (if there is a lawful basis to act on inadmissible evidence on this application), I can see no reason why the policy of encouraging disciplined and admissible evidence should be set aside here.
• [23] Third, I have previously held that substituted service applications attract a duty of full and frank disclosure.[6] It does not seem to encourage compliance with that legal and ethical duty to ignore an utter failure to tender admissible evidence without drawing the Court's attention to that consideration.

Evidence does not sustain the application in any event

• [24] However, even if I was willing and able to rely on the inadmissible evidence, it does not establish that a substituted service application is justified. While it seems that the proposed method would bring the proceedings to the defendant's attention, I am nevertheless unsatisfied of the first precondition: that personal service is impracticable.
• [25] True it is that Bamaga is in a remote part of the country. However, the only evidence deposed to in Mr Pomaroff's affidavit is the statement attributed to the Bamaga Court bailiff that he "only attended the area once a year and happened to be there on that day but had no facilities to print out the Court documents".
• [26] It is unclear what "that day" Mr Pomaroff is referring to. This discloses an oddity in the affidavit. It may be "that day" was 13 February 2020, which is the date mentioned in the preceding sentence in which Ms Stevens was said to have called Mr Griffiths. If this is the case, I am uncertain how they would have been able to serve the defendant in any event on that day, as the defendant's address was seemingly unknown to the parties at this date. The skip tracing report of IdentiSearch was not complied until almost 3 months later, at which point they allege they have tracked down his address. Thus, I am uncertain that Mr Griffiths would have known where to serve the documents in the first place. Putting that to one side however, the evidence is inadequate to establish that it is impracticable to serve the defendant personally.
• [27] First, there is no suggestion in any event that the defendant is avoiding personal service. No such evidence is deposed to in Mr Pomaroff's affidavit. The plaintiff alleges that they now know of the defendant's address and phone number. Yet, no evidence is led of actually attempting to serve the defendant at this address, or even contacting the defendant via telephone to ask if he will accept informal service of any kind.
• [28] Second, notwithstanding the remote location of Bamaga, I am unpersuaded on the current evidence that it is of such a remoteness so as to render personal service impractical. There is no evidence that the plaintiff has attempted to contact process servers or similar agents in the area, such as Weipa or Thursday Island, nor that it would be exorbitantly expensive to arrange personal service (even if that is sufficient to make service impracticable), nor that access to Bamaga is difficult other than the requirement to drive for a few hours.
• [29] Third, there is not even a sufficient basis to conclude that it is impracticable to rely on Mr Griffiths to serve the document. No evidence is led as to when he might be returning to Bamaga, nor whether he would make a trip there to attend to service of the proceedings. If he was present last February, perhaps he will be there again in three months' time.
• [30] For the above reasons, the application is dismissed with no order as to costs.

[1] See Thomas JA, with whom Ryan and de Jersey JJ agreed at 163.

[2] A-G Qld v Watego [ 2003] QCA 512 at [8] dealing with s. 7 Dangerous Prisoners Act 2003 in the same terms relevantly as Rule 430(2); Hanson Construction Materials P/L v Davey & Anor [2010] QCA 246 at [32] dealing with Rule 295(2) which is also relevantly in the same terms.

[3] Savings & Investment Bank Ltd v Gasco Investments at 283

[4] See, e.g. s. 129A(1)(b) of the Evidence Act 1991 (Qld)

[5] There are of course conditions and limitations on that broad proposition.

[6] Heritage Bank Limited v Gleeson [2019] QDC 119 following Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639 at 648 (in obiter); Hall v Hall [2007] WASC 198 at [31]