A District Court judge has urged greater care in the preparation of affidavits after deciding substituted service matters which involved poorly drafted documents.
“While ordinarily I would not publish reasons on a successful substituted service application, the purpose of publishing these reasons is to draw the attention of the profession yet again to the rules of admissibility on these applications. The court expects better,” Judge Porter KC stated in a decision handed down on Monday in Brisbane.
It was one of two published judgments he delivered that day which related to substituted service applications that involved deficient affidavits.
In the first, a bank applying for substituted service relied on an affidavit of a paralegal employed by the bank’s solicitors, and an affidavit of a process server.
Judge Porter stated that the substantive paragraphs of the paralegal’s affidavit were mostly inadmissible, for reasons including that they contained irrelevant opinions and inadmissible second-hand hearsay; and lacked clarity as to the source of the paralegal’s knowledge.
“The whole affidavit discloses a lack of understanding of the law of admissible evidence on information and belief,” he said.
“It is not useful except that it exhibits a title search.
“I am willing to give the applicant the benefit of the doubt that paragraph 12 is admissible (stating the Bank Officer’s last known contact details), though that evidence tells me nothing about whether there is reason to believe they remain relevant.
“The defects in the affidavit are not the fault of the deponent.
“As I have said before, admissibility of affidavits is a matter for an admitted solicitor, not a paralegal.”
He said the affidavit of the process server was for the most part admissible, and the evidence was sufficient to make out that personal service was impracticable.
In the second matter, Judge Porter dismissed an application for substituted service which relied on an affidavit of a solicitor.
“Judges of this court have continually reminded applicants that evidence tendered in substituted service applications must be admissible and, where practitioners seek to rely on Rule 430(2) UCPR, their affidavits must meet the requirements of that rule, as articulated in the authorities,” he said.
He said the solicitor had relied upon evidence of matters seen and heard by an unidentified service agent.
Source documents exhibited in the affidavit were emails which identified the sender but Judge Porter said it was “plain from the emails that he was not the person who did, saw and heard the things described therein”.
“He could not give original evidence of the matters relied on. Consequently, (he) could not be the source for admissible hearsay pursuant to Rule 430(2) UCPR,” he said.
Judge Porter said the statements in the exhibited emails were relied on for the truth of their contents, and they described “numerous comments made from a third unidentified party to the unidentified agent”.
“These statements are hearsay on hearsay,” he said.
He said the solicitor referred to the annexure, then reiterated the contents of the emails documents as conclusory statements.
“The deponent does not state their belief in the truth of the facts asserted,” he said.
“Rather, at paragraph [2] of the affidavit, the solicitor deposes, ‘[w]here I make statements based on information provided to me by others and based on the information obtained, I believe such information to be true’.
“This catchall statement fails to address the above-mentioned deficiencies.”
Judge Porter said the inadmissibility was compounded because “multiple paragraphs of the affidavit rely on facts which assume the truth of statements made by unidentified third parties”.
“As substituted service applications are ex parte applications made to a court, solicitors for the applicant must ensure the matter is conducted fairly to the absent party,” he said.
“In this light, the law of evidence on interlocutory applications must be complied with.
“In this case, it has not. It is the hope of this court that practitioners will review these judgments to gain an appreciation of what is required in properly bringing an application for substituted service.”
Share this article