National Australian Bank Limited v Garner
[2022] QDC 221
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- Unreported Judgment
- National Australian Bank Limited v Garner[2022] QDC 221
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National Australian Bank Limited v Garner[2022] QDC 221
National Australian Bank Limited v Garner[2022] QDC 221
DISTRICT COURT OF QUEENSLAND
CITATION: | National Australian Bank Limited v Garner [2022] QDC 221 |
PARTIES: | NATIONAL AUSTRALIAN BANK LIMITED ACN 004 044 937 (Plaintiff/ Applicant) v DARREN GARNER (Defendant/ Respondent) |
FILE NO: | 695/22 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane District Court |
DELIVERED ON: | 21 October 2022 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 October 2022 (On the papers) |
JUDGE: | Porter KC DCJ |
ORDERS: |
|
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE – SUBSTITUTED AND INFORMAL SERVICE – Where there is an application for substituted service – Where the applicant elected to have the application heard on the papers – Where evidence is inadmissible – Where impracticability of personal service not demonstrated in any event. |
LEGISLATION: | Uniform Civil Procedure Rules 1999 rr 116(2), 295, 430(2) |
CASES: | Kendall v Sweeney [2002] QSC 404 Foxe v Brown (1984) 58 ALR 542 Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272 Bendigo & Adelaide Bank Limited v Wilkin [2018] QDC 16 Sunshine Phone Systems (in liq) v Martens and Martens [2021] QDC Grow Asset Finance Pty Ltd v Bassi & Anor [2022] QDC 23 |
SOLICITORS: | TG Legal + Technology for the Plaintiff |
- [1]The applicant (the Bank) seeks a substituted service order under Rule 116 Uniform Civil Procedure Rules (UCPR) which provides:
116 Substituted service
- (1)If, for any reason, it is impracticable to serve a document in a way required under this chapter, the court may make an order substituting another way of serving the document.
- (2)The court may, in the order, specify the steps to be taken, instead of service, for bringing the document to the attention of the person to be served.
- (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 threshold condition is that the Bank demonstrate that it is impracticable personally to serve the proceedings on the defendant. These words speak for themselves, though reference is frequently made to the authorities identified in the Bank’s outline. In Kendall v Sweeney [2002] QSC 404 Justice Wilson said at [15]:
It may well be that the method of service proposed would be effective in bringing the proceeding to the attention of those respondents. However, that is not enough to justify the making of an order for substituted service. It must first be shown that it is impractical to serve the documents in a way required by chapter 4 of the UCPR.
- [3]In Foxe v Brown (1984) 58 ALR 542 at 547, Justice Mason, in speaking of “the standard of diligence or effort required of a plaintiff in seeking out a defendant in a case where substituted service is sought”, said:
That standard, 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 that plaintiff, using reasonable effort, is unable to serve the defendant personally.
[underlining added]
- [4]Once the threshold condition is established, the Court’s discretion under Rule 116(2) is enlivened. The discretion must be informed by the purpose of substituted service, which is to bring the proceedings to the attention of the other party. Substituted service is not a way to meet the formal requirements of service without effecting actual notice of the proceedings. If a party cannot be found, or if no reliable form of communication of the documents to the defendant is established, then the proceedings cannot progress.
- [5]Bearing that in mind, it is unsurprising that the cases emphasise that there must be a high degree of probability proved on the evidence that the proceedings will come to the attention of the other party by the method of service ordered. The case frequently cited is Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272 at 274 per Starke J, sitting in the High Court, where his Honour observed:
The object of substituted service, the primary object, is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings, so that he can take such steps as he thinks proper to protect his interests and rights. It is not proper to substitute service of process in a court of law when there is no belief that the service will bring the proceedings to the knowledge of the person in question or of any person representing his interests.
- [6]Substituted service applications are common. Evidence on a substituted service application may be given on an information and belief basis. In broad terms, evidence on information and belief comprises admissible hearsay evidence from the deponent. Such evidence may be adduced if certain requirements are met. Those requirements are stated[1] in Rule 430(2) UCPR as follows:
430 Contents of affidavit
- (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.
[underlining added]
- [7]This Rule permits statements to be given on information and belief by a deponent where three conditions are met.[2]
- (a)The source of the statement must be able to give admissible original evidence of the fact asserted;
- (b)The deponent must sufficiently identify of the source of the statement; and
- (c)The deponent must state their belief in the statement.
- (a)
- [8]As the cases referred to in the footnote indicate, it is very common for these requirements for admissible evidence not to be met on substituted service applications.
- [9]Key parts of the evidence relied upon on this application are inadmissible. An inexhaustive list is as follows.
- [10]First, the deponent fails properly to identify the source of much of her evidence. The plenary statement in paragraph 2 is inadequate to meet the requirements of Rule 430(2). There, the deponent states:
Apart from the matters in which I was directly involved, as appears from this affidavit and the matters deposed to by me in this affidavit are taken from the file held by TG Legal + Technology and I believe them to be true.
- [11]In A-G v Watego [2003] QSC 367, 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
- [12]A fortiori where the reference is to an a “the file held by” the deponent’s firm. Further, the deponent’s plenary statement makes it impossible to tell if the matters alleged taken from the file are themselves admissible from that source. Similar vices are evident from paragraph 7 in the affidavit, where the reference is to unspecified “plaintiff’s records”.
- [13]Second, the evidence sworn to by the deponent of efforts of service on Hamilton Island in paragraphs 8 to 18 is almost entirely inadmissible, either because the source is not properly identified (“Probe informed our office”) or even allowing for Probe as the source, the evidence appears to be hearsay from “Probe”.
- [14]As to the latter, see the statements in exhibit C to this effect: “Our agent made discrete inquiries with neighbours who confirmed that the customer resides at the address.” This evidence is inadmissible for its truth coming from “Probe”. It is hearsay on hearsay (at the least).
- [15]Third, it is common to include a “skip trace” report in affidavits in support of substituted service applications as if a skip trace is a document self-evidently admissible for the truth of any statement contained in it. One such report appears in exhibit “B”. On the face of this document it is unclear how it is admissible for the truth of its contents.
- [16]Of course, some of the evidence of attempts at service in the affidavit of Mr Hendrick is admissible. However, it is not the Court’s job to try to winnow from the material relied upon the Bank what is, or is not, sufficient to make out the entitlement to substituted service, where much of that evidence is inadmissible and the Bank in its written submissions had failed to do that work.
- [17]These evidentiary matters are important, as this Court has repeatedly made clear. There are at least two reasons:
- (a)First, this Court has no power simply to dispense with the rules of evidence for the convenience of parties seeking substituted service orders on inadmissible material; and
- (b)Second, there is authority in superior Courts in Australia that a substituted service application is an ex parte application which attracts the general duty on such applications.[3] That duty arguably extends to ensuring admissible evidence is adduced or at the least to alerting the Court to the deficiencies in that evidence.
- (a)
- [18]Further, although it is a small matter, I do not know what the relevance is of the personal opinion of the deponent stated in paragraph 22 of the affidavit. Finally, I note that the affidavit is defective in form by failing to include an index to the exhibits. Another small matter but annoying to a busy Judge trying quickly to resolve an application brought on the papers.
- [19]Even if the evidence adduced was admissible, however, it demonstrates that the Bank has identified where the defendant lives and that he is almost certainly located on Hamilton Island on a daily basis working around the island. No effort to serve him at his unit on going to work or coming home appears to have been made beyond waiting at his apartment (assuming he does live there) until 5.05pm on one occasion. This is despite evidence from a neighbour that the defendant usually got home around 6pm. There is no reason why personal service could not occur if that is true. The Bank appears to know where the defendant lives and when he is likely to be arriving home. In those circumstances, to adopt Mason J’s words, at the date of this application for substituted service, it is difficult to conclude that plaintiff, using reasonable effort, is unable to serve the defendant personally.
- [20]The deponent’s statement that Hamilton Island is a “remote island” is not credible. Not many remote islands have their own airport which can accommodate the Boeing 737 and the Airbus A320.[4] Further, the fact that service might add to recovery costs of itself is not in my view a matter which, in this case at least, makes service impracticable. Even ignoring the admissibility issues, I am not satisfied that the Bank has made out that it is impracticable personally to serve the proceedings.
- [21]This application was not properly prepared or presented. That is not intended to be a criticism of the deponent, who is identified as a paralegal employee. Matters of admissibility and submission are the responsibility of admitted practitioners. This Court has given several judgments explaining the problems which bedevil substituted service applications. The Bank is a litigant well able to ensure matters are properly prepared. The application is dismissed with no order as to costs.
Footnotes
[1] For summary judgment the rule is restated in Uniform Civil Procedure Rules 1999 r 295
[2] Bendigo & Adelaide Bank Limited v Wilkin [2018] QDC 16 at [10] to [18] Sunshine Phone Systems (in liq) v Martens and Martens [2021] QDC 36 at [10]; Grow Asset Finance Pty Ltd v Bassi & Anor [2022] QDC 23 at [11]
[3] In Victoria, Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639 at 648 (though obiter); In WA, Hall v Hall [2007] WASC 198 at [31]
[4] https://www.hamiltonisland.com.au/airport/operations