Gth Accounting Group Pty Ltd v Arundel
[2015] QMC 12
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Gth Accounting Group Pty Ltd v Arundel[2015] QMC 12
- Add to List
Gth Accounting Group Pty Ltd v Arundel[2015] QMC 12
Gth Accounting Group Pty Ltd v Arundel[2015] QMC 12
MAGISTRATES COURT OF QUEENSLAND
CITATION: | Gth Accounting Group Pty Ltd v Arundel & Anor [2015] QMC 12 |
PARTIES: | Gth Accounting Group Pty Ltd (applicant) v Geoff Arundel & Heather Arundel (respondents) |
FILE NO/S: | Q 82/15 |
DIVISION: | Magistrates Courts |
PROCEEDING: | Civil Application |
ORIGINATING COURT: | Toowoomba Magistrates Court |
DELIVERED ON: | 27 July 2015 |
DELIVERED AT: | Toowoomba Magistrates Court |
HEARING DATE: | On the papers |
MAGISTRATE: | G Lee |
ORDER: | The application for substituted service is dismissed. An extension of time to effect service in accordance with the rules is granted to 30 September 2015. |
CATCHWORDS: | Application – substituted service – whether sufficient evidence to prove personal service impractical – whether sufficient evidence to prove proposed method of service will likely come to the attention of the respondents Application – extension of time for service – rules provide for service within 28 days – application made 14 days after filing of original claim – no explanation given as to why this application was brought then – whether relief should be granted Queensland Civil and Administrative Tribunal Act 2009, s 35, s 36, s 37, s 61 Queensland Civil and Administrative Tribunal Rules 2009, r 19, r 38, r 40 Uniform Civil Procedure Rules 1999, r 116. |
CITATIONS: | BOQ Equipment Finance Limited v For Ball Pty Ltd & Ors [2015] QDC 105 Bunnings Group Limited v Lockwood & Anor [2014] QDC 94 Embrey v Smart [2014] QCA 75 ING Bank (Australia) Limited v Clark [2014] QDC 74 Kendall v Sweeney & Ors [2002] QSC 404 Legal Services Commissioner v Rider-Bell [2011] QCAT 669 Suncorp-Metway Ltd v Agnew [2015] QSC 195 |
- [1]On 4 June 2015 the applicant filed an “Application for minor civil dispute – minor debt” (“primary application”) in the Magistrates Court in Toowoomba exercising jurisdiction in the Queensland Civil and Administrative Tribunal (QCAT) claiming $3187.80 from the respondents for accounting services provided. The claim is for a liquidated demand of money so is a minor debt claim as defined[1].
- [2]By covering letter dated 17 June 2015 commercial agents for the applicant (Challenge Commercial Collections) forwarded an application in QCAT’s pro –forma “Form number 42” seeking an extension of time for service of the primary application and an order for substituted service to QCAT in Toowoomba. It was filed 18 June 2015, only 14 days after the filing of the primary application. No other material was filed in support of the application for extension of time and substituted service.
- [3]This application is determined on the papers pursuant to section 32(2) Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
- [4]A proceeding is started once the primary application is accepted by the registrar of the Tribunal: s 35 & s 36 QCAT Act. Section 37(2) QCAT Act provides that the applicant must give a copy of the primary application to each party within 28 days of the registrar’s acceptance of it: rule 19 Queensland Civil and Administrative Tribunal Rules 2009 (QCAT rules). Here, it was filed 4 June 2015.
- [5]Service must be effected by giving the primary application personally to the respondents or otherwise in accordance with QCAT Practice Direction No 8 of 2009: rule 38 QCAT rules.
- [6]Rule 40 QCAT rules provide for substituted service in the following circumstances:
40 Substituted service
- (1)If, for any reason, it is impracticable to give a document in a way provided under an enabling Act or these rules, the tribunal may make an order substituting another way of giving the document.
- (2)The tribunal may, in the order, state the steps to be taken for bringing the document to the attention of the entity to be given the document.
- (3)The tribunal may, in the order, state that the document is to be taken to have been given on the happening of a stated event or at the end of a stated time.
- (4)The tribunal may make an order under this rule even though the entity to be given the document is not in Queensland or was not in Queensland when the proceeding started. (my emphasis)
- [7]The information provided in this application gives the respondent’s address in Part A of QCAT’s pro-forma form as 499 Kearney Road, Oakey Queensland. The full extent of the information in support of this application is contained in Part B of that form cited here verbatim:
1. I want the tribunal to make the following order/s:
- An extension of time for service of the application for minor civil dispute – minor debt
- Permission to serve the defendants by registered post to their postal address of PO Box 344, Oakey Queensland 4401 with tracking to confirm delivery
2 The reasons I consider the order/s sought should be made are:
- We have been unable to serve the respondent’s within 28 day time frame.
- The defendants have left the residential address of 499 Kearney Road Oakey Qld.
- [8]The evidence provided in this application is manifestly inadequate to say the least. In fact there has been no attempt to address the matters required in applications such as this by proper evidence.
- [9]Apart from the bald assertion that the respondents have left the Oakey address, there is no information substantiating that that was their address in the first place and that they have in fact moved on. For example, there is no exchange of correspondence between the parties prior to this dispute arising or documents evidencing when the applicant was engaged by the respondents which may provide some evidence of their address or other contact details. Usually, in cases like this there is a report from a process server annexed to an affidavit stating the number of attempts of service by attending at the premises, leaving calling cards, speaking with neighbours etc. or making contact by phone, email or social media. There is no evidence as to whether any relevant searches have been carried out. Further, there is no evidence to show what other efforts have been made to find out the respondent’s current address so as to support a view that personal service is impracticable: rule 40 (1).
- [10]On the material provided I am not satisfied that personal service is impracticable. This would be sufficient to dispose of the application.
- [11]However, in order for QCAT to make an order for substituted service, it must be also be satisfied that the proposed mode of service will likely bring the proceedings to the attention of the respondents. Here service is proposed by sending the primary application by registered post with tracking to PO Box 344, Oakey Qld 4401. There is absolutely no evidence adduced in this application linking that postal address with the respondents.
- [12]The principles required to be addressed in applications for substituted service have been recorded in many court and QCAT decisions. For example, in Legal Services Commissioner v Rider-Bell [2011] QCAT 669, Wilson J., then President of QCAT, outlined the principles involved. In that case, on the evidence before him, he made an order for substituted service being satisfied of the tests outlined. In observing at [10] that QCAT rule 40 is in almost identical terms to rule 116 Uniform Civil Procedure Rules 1999 (UCPR), his Honour applied those principles to the QCAT matter before him:
QCAT Rule 40 is in almost identical terms to [UCPR] rule 116. In Kendell v Sweeney & Ors [202] QSC 404 Justice Margaret Wilson suggested that, in order to justify an order under r 116, it must first be shown that it is impracticable to serve the documents in the manner required by the rules; and, also, that the proposed method of substituted service will bring the proceedings to the respondent’s notice.
- [13]A recent example of a successful application for substituted service under rule 116 UCPR is Suncorp-Metway Ltd v Agnew [2015] QSC 195 per Jackson J. There the process server had attended the premises 10 times over a three month period. Searches had been conducted and Jackson J. was satisfied on the evidence before him that proceedings would come to the defendant’s notice in the manner sought.
- [14]In BOQ Equipment Finance Limited v For Ball Pty Ltd & Ors [2015] 105, Reid DCJ dismissed an application for substituted service under rule 116 UCPR on grounds not dissimilar to the current one even though more evidence was provided to the court in that case.
- [15]Other recent examples of an unsuccessful application for substituted service include ING Bank (Australia) Limited v Clark [2014] QDC 74 and Bunnings Group Limited v Lockwood & Anor [2014] QDC 94 both per Horneman-Wren SC DCJ. In ING, while his Honour was satisfied that personal service was impracticable, at [15] he refused the application because he was not satisfied the four proposed methods of service would bring the proceedings to the knowledge of the defendant.
- [16]In Bunnings, despite limited evidence from commercial agents to attempt personal service and other inquires being made including a property search, his Honour refused the application not being satisfied of both limbs in rule 116 UCPR.
- [17]In the present case, on the evidence such as it is, I am not satisfied:
- That it is impracticable to serve the respondents;
- That service by the proposed method is likely to bring the proceedings to the attention of the respondents.
- [18]In respect of the application for an extension of time, it was brought only 14 days after the primary application had been filed. If the applicant’s statement in QCAT’s pro-forma form cited at [7] above that “We have been unable to serve the respondent’s within 28 day timeframe” refers to the 28 days provided by QCAT rules, then, as at the date of filing, this is clearly not correct.
- [19]Section 61 QCAT Act does not preclude bringing an application at any time. An order can be made extending time even when the time for complying with the relevant requirement has passed: 61 (2) QCAT Act. In this case it is 28 days from 5 June 2015. It should also be noted that, at least for the UCPR, an order can be made for substituted service of a “document” comprising a draft Claim and Statement of Claim prior to its filing in the court in certain circumstances: see Embrey v Smart [2014] QCA 75.
- [20]No attempt has been made to explain why this application was brought well within the 28 days required by the rules to effect personal service. If there had been some history between the parties prompting quick action as in, for example, Embrey, then this should have been explained. In the absence of any evidence to the contrary and the dearth of evidence in support of this application, this short timeframe supports an inference that little time had been spent in either attempting personal service or ascertaining the respondents’ true whereabouts. If, as is asserted in the application, the respondents’ postal address is at Oakey, efforts should be made, among other things, to establish if they still reside or work in that area.
- [21]This application was listed on 23 July 2015 for hearing on the papers. The 28 days to effect service has well and truly expired. In those circumstances, an extension of time to effect service in accordance with the rules is granted to 30 September 2015.
- [22]Otherwise, the application for substituted service is dismissed.
Footnotes
[1] Queensland Civil and Administrative Tribunal Rules 2009, Schedule “Dictionary”; QCAT Act, Schedule 3.