Manskie v Anderson[2025] QDC 89

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff sought an ex parte order for substituted service pursuant to Rule 116 Uniform Civil Procedure Rules 1999 (UCPR). The application was primarily based on two secondary reports from a process serving company. The reports do not identify the person or persons who were responsible for the reports. Further, the reports do not identify the process servers who are said to have done the things described therein. The documents also contain secondary recitations of matters that one might think have come from property searches, but that is not specifically stated. 

2. [2]
   Those reports are inadmissible, at least prima facie, for the truth of their contents, though adopted by an affidavit of the solicitor filed in support of the substituted service application. That evidence is inadmissible because the reports do not identify the ultimate source. Nor can it be determined if the evidence is based on secondary hearsay. Nor is it adopted by the deponent on a properly articulated information and belief basis.

3. [3]
   I analysed the law of admissibility for substituted service applications in Bendigo & Adelaide Bank Limited v Wilkin [2018] QDC 16. I will not set out the relevant passages of that judgment again.  That judgment has been applied by me and other Judges of this court on several occasions including Grow Asset Finance Ltd v Bassi [2022] QDC 23 by Judge Byrne KC.  For that reason alone, the application must be dismissed. 

4. [4]
   I am conscious, as I flagged in Commonwealth Bank of Australia Ltd v Mitchell [2025] QDC 6, of the possibility that in some circumstances such reports might be admissible on information and belief under section 92 of the Evidence Act 1977.  It does not look to me like the conditions for admissibility on either head under that section are made out and no submission is advanced to explain how it is. However, for completeness, I am conscious of that possibility. 

5. [5]
   Even if the evidence was admissible, it suffers from this further difficulty. It certainly demonstrates that attempts to serve at what is thought to be the residential address of the defendants have been unsuccessful, but the only basis for believing it to be unsuccessful is that no-one has responded when the process server attended.

6. [6]
   The process server may have been able to provide additional information of the circumstances of the attempts at service at this address, but no such evidence is offered. The fact that an attempt to serve at what is thought to be a residential address is unsuccessful, even if done 50 times, might well be evidence that it is impractical to serve at that address, but it does not mean that service at that address will come to the attention of the parties, even if a registered post device is used.

The obligation is to demonstrate on admissible evidence that there is a very high probability of the documents coming to the attention of the party on service, occurring in the alternative mode proposed.  The purpose of substituted service is not to meet the formal requirements of service, it is to bring the proceedings to the attention of the defendant in a mode other than that provided by the rules.  If there is not a basis to have a high degree of confidence that the document will come to the attention of the party, then it cannot be served.  The application should be dismissed for that reason as well.

7. [7]
   The last point I wanted to deal with is a matter that I raised in Heritage Bank Ltd v Gleeson [2019] QDC 119 at [36]. In accordance with the decision of Justice Newnes in Hall v Hall [2007] WASC, ex parte obligations apply to substituted service applications. This approach has been adopted in at least one other case by another Judge of this court.

8. [8]
   I want to take this opportunity again to emphasise that in the absence of some persuasive argument to the contrary, that is the law. That is important because ex parte applications occur in the absence of the other party.  Substituted service applications, if done on improper or inadequate material, can lead to a well-founded sense of grievance on the part of persons who were served pursuant to them.  It is common for applications like this to be done on the papers and where it may be understandable that a busy Judge might not subject the evidence to the sort of scrutiny required to flush out its inadmissibility or its substantive weakness. 

9. [9]
   It is in a case like that that it is important practitioners carry out their duty to the Court consistent with the onerous requirements applied to ex parte applications. That includes in my view to ensure that Judges are made aware of the potential difficulties in an application (including admissibility of the evidence relied upon).  Further, if the Court must constantly be on its guard to spot applications based on inadmissible evidence or very weak on the merits, it adds to the time taken to consider substituted service applications.  This matter has taken a good deal more of my time than it should have, and it is far from the first time that has happened to me and other Judges of this Court.  

10. [10]
    I urge the profession to take these matters into account when filing substituted service applications. I dismiss the application.