Judge warns about lack of proper care

A District Court Judge has issued a reminder to practitioners about the need to pay proper attention to substituted service applications.

In a decision delivered last Friday in Brisbane, Judge Porter KC dismissed such an application, made by a national firm, after finding it was not properly prepared having regard to the law of substituted service and the law of evidence on interlocutory applications.

He said “very little of the evidence relied upon is admissible even allowing for the effect of Rule 430(2) of the Uniform Civil Procedure Rules 1999 (Qld)”.

“This court has explained the construction of that rule in the context of substituted service applications in previous judgments,” he said.

“It will be a salutary experience for the solicitor responsible for the application to find those judgments, read and apply them.”

Judge Porter said even if the inadmissible evidence was considered, the applicant did not make out the threshold condition under Rule 116 of the UCPR, that it had been impracticable personally to serve the claim.

“The deponent of the affidavit asserts his belief that (the plaintiff) has made reasonable efforts personally to serve. His belief about that is irrelevant opinion. He also cites the wrong legal test,” he said.

“Further, the inadmissible evidence shows that the (unnamed) process server went to the address on only three occasions; twice around lunchtime on a workday and once at 5.22pm on a workday.

“A person who works would be unlikely to be at home at those times. That evidence, even if put in admissible form, falls very far short of establishing that personal service is impracticable.”

Judge Porter said the deponent also irrelevantly asserted a belief that the defendant was avoiding personal service.

He said this was a submission, not a matter which should be in an affidavit, but in any event, there was “very little in the inadmissible evidence to suggest that the defendant was keeping house”.

“True it is that the solicitors for the defendant do not have instructions to accept service, but a defendant has no obligation to make themselves available to be served,” he said.

“The fact that the three attendances at the house have been unsuccessful does not suggest evasion of service.

“Although evasion of service is not an offence, it can be harmful to a person’s reputation and care must be exercised in making the allegation.”

Judge Porter pointed out, however, that the purpose of the judgment was not to embarrass.

“Substituted service applications are frequently done poorly, and sometimes by practitioners who should know better,” he said.

“Rather, it is hoped this judgment will lead to a better appreciation by those involved in this application of what is required in properly bringing such an application.”