Tracey v Wallace[2025] QMC 20

MAGISTRATES COURTS OF QUEENSLAND

REASONS FOR DECISION

1. [1]
   The applicant plaintiff seeks a substituted service order pursuant to r 116 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

2. [2]
   The applicant seeks to proceed ex parte, that is without the application being served, which is obviously understandable in light of the relief sought.

3. [3]
   The application seeks a decision without oral hearing pursuant to r 489.

4. [4]
   The applicant has complied with the requirements of r 490 UCPR including attaching a notice in the approved form and accompanying the application with a draft order and written submissions in support.

5. [5]
   His honour Judge Porter KC DCJ has again recently reminded solicitors and the court of the need to properly prepare and consider applications of this kind.

6. [6]
   In Lumi Finance Pty Ltd v Porrent [2025] QDC 67 His Honour, in refusing an application for substituted service said –

7. [7]
   Substituted service applications are ex parte applications made to a Court. They should be properly prepared having regard to the law of substituted service and the law of evidence on interlocutory applications. This application failed on both counts.
8. [8]
   I dismiss the application. To be clear, no order as to costs has been made, so there is no entitlement to costs of this application in the plaintiff.
9. [9]
   Finally, I want to emphasise that it is not the purpose of this judgement to embarrass. Substituted service applications are frequently done poorly, and sometimes by practitioners who should know better. Rather, it is hoped this judgement will lead to a better appreciation by those involved in this application of what is required in properly bringing such an application.

7. [7]
   These comments are apposite to the current application. The hopes expressed by His Honour Judge Porter in the final paragraph of his decision, have alas not been realised in the approach taken by the applicant’s solicitor, for the reasons that follow.

PREVIOUS APPLICATION

8. [8]
   This is in fact the second attempt by the plaintiff to obtain an order for substituted service.

9. [9]
   The plaintiff has filed an application on 11 October 2024 (an application sought also to be decided without oral hearing).

10. [10]
    That application was supported by –

1. –Affidavit of Lina Rahim filed 11 October 2024.

1. –Affidavit of Mathew Winley (as to attempted service) filed on 16 August 2024.

11. [11]
    That application was considered by Magistrate Cameron McKenzie who made orders on 14 January 2025 that ‘the application for substituted service is dismissed with no order as to costs.’

12. [12]
    His Honour did not give reasons for that decision. The reasons, to the extent they are capable of being considered such were, in their totality, in these terms –

I consider the affidavit of Ms Rahim in support of the application for substituted service and am not satisfied it provides for a means by which the claim and statement of claim will come to the attention of the defendant.

13. [13]
    There is an obligation on courts when deciding matters, including applications without oral hearing, to give adequate reasons. A long line of authorities speak to the need to give adequate reasons.

14. [14]
    That requirement that reasons be given was, in my respectful opinion, well expressed by McHugh JA in the following passage in Soulemzis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 –

When parties submit their dispute to a tribunal for adjudication, they do so on the assumption that the dispute will be decided in accordance with rules. They assume that the adjudicator will decide the dispute according to the rules or principles which governed their conduct and that he will ascertain, so far as he reasonably can, what are the facts of the dispute. To give effect to these assumptions a judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles. A decision which is made arbitrarily cannot be a judicial decision; for the hallmark of a judicial decision is the quality of rationality: cf Lord Denning, Freedom Under the Law (1949) at 91. However, without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as ‘a necessary incident of the judicial process’ because it enables the basis of the decision to be seen and understood both for the instant case and for the future discretion of the law.

15. [15]
    In expressing the rationale underlying the statutory duty to give reasons, adopting the language used by Woodward J in Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 187; 48 ALR 500 with reference to the unsuccessful party who is appraised of the reasons given –

Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error or law which is worth challenging.

16. [16]
    The Full Court in Muralidharan v Minister for Immigration and Ethnic Affairs [1996] FCA 182; 62 FCR 402; 136 ALR 84; 41 ALD 361 also referred with approval to observations of Sheppard J in Cth v Pharmacy Guild of Australia [1989] 91 ALR 65. There, Shephard J said –

A purpose of requiring reasons is to enable the question whether legal error has been made by the tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the tribunal’s reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration…

17. [17]
    The reasons for dismissing the plaintiff’s application on 14 January 2025 do not assist in ascertaining the basis for the refusal and when considering this second application, to assist to discern what in fact has changed.

SUBSTITUTED SERVICE

18. [18]
    The application is pursuant to r 116 UCPR which provides:

1. 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.

1. 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.

1. 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.

1. 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.

19. [19]
    The threshold question is that the applicant demonstrate that it is impractical to personally serve the proceedings on the defendant.

20. [20]
    That test has been described in these terms –

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 the plaintiff, using reasonable effort, is unable to serve the defendant personally.^[1]

21. [21]
    Once the threshold question is established, the courts discretion under r 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 parties. Substituted service is not a way to meet the formal requirements of service without affecting 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.^[2]

22. [22]
    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 method of substituted service order.

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 any person representing his interest.^[3]

ADMISSIBLE HEARSAY – RULE 430

23. [23]
    Rule 430 provides as follows –

1. 1)
   Except if these rules provide otherwise, an affidavit must be confined to the evidence the signatory for the affidavit could give if giving evidence orally.

1. 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 signatory for the affidavit states the sources of the information and the grounds for the belief.

24. [24]
    The requirements of the rule are –

1. i)
   The source of the statement must be able to give admissible original evidence of the fact asserted.

1. ii)
   The deponent must sufficiently identify the source of the statement.

1. iii)
   The deponent must state their belief in the statement.

25. [25]
    In respect of the affidavit of Ms Hodgson, key parts of the evidence relied upon on this application are inadmissible including upon the basis that –

1. –The deponent fails to properly identify the source of much of his evidence.

1. –Either because the source is not properly identified or even allowing for identity of the source, the evidence appears to be hearsay from that source.

THE APPLICANT’S EVIDENCE

26. [26]
    The applicant has filed and relies upon the following affidavit –

1. –Ms Sarah Hodgson filed 15 July 2025

27. [27]
    The plaintiff’s submission (also filed 15 July 2025) seeks to identify the material read (to be relied on) as ‘Affidavit in support (form 46).’ It does not identify the deponent nor a filing date. I presume this to be a reference to the affidavit of Ms Hodgson above.

28. [28]
    The affidavit of Ms Hodgson purports to rely on evidence in this substituted service application which has been given on an information and belief basis (that is evidence comprising admissible hearsay evidence from the deponent).

29. [29]
    There are no affidavits as to attempted service.

30. [30]
    Ms Hodgson does not evince any evidence of an address for service for the defendant. In paragraph 2 of her affidavit, she purports to set out the source of knowledge, outside her personal knowledge. However, paragraphs 3 and 4 do not comply with the requirements of r 430(2). In paragraph 5, she deposes to ‘primus law’ calling the defendant and conducting an ‘online’ search. Again, the source of the knowledge or the grounds for the belief are not identified. Whatever a ‘CASPAR search’ is, is not identified. The deponent purports to rely on and include a report and on the face of that document it is unclear how it is admissible for the truth of its content.

31. [31]
    Rule 430(2) UCPR permits such evidence to be adduced but only if certain requirements pursuant to the rule are met.

32. [32]
    Indeed, Ms Hodgson’s affidavit is in effect, evidence of nothing.

33. [33]
    Ms Hodgson, it appears, seeks to refer to prior attempts at personal service upon the defendant by annexing the earlier and same affidavit of Mr Winley. Paragraphs 5(a) and 5(b) are inadmissible. A deponent cannot annex an affidavit of another to seek to prove a fact. There is also not, even taking the plaintiff’s position at its highest, any recent evidence demonstrating an attempt to personally serve the defendant. The attempts of Mr Winley were now more than one year ago. There is not any admissible evidence to establish that it is impracticable to personally serve the defendant.

34. [34]
    As Wilson J said in Kendall v Sweeny & Ors [2002] QSC 404 –

10. [10]
    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 impracticable to serve the documents in a way required by chapter 4 of the UCPR. This has not been shown – indeed, there does not appear to have been any attempts to serve the respondents in the usual way. In these circumstances I refuse to make orders for substituted service.
11. [11]
    The interlocutory application is dismissed. There is no reason why costs ought not follow the event.

35. [35]
    There is no admissible evidence in the affidavits relied upon by the applicant to satisfy the threshold condition, that is that the applicant can demonstrate that it is impracticable to personally serve the proceedings on the defendant.

36. [36]
    The application for substituted service must therefore fail and is dismissed.

37. [37]
    There is no order as to costs.

38. [38]
    This is now the second failed attempt by the plaintiff’s solicitors to obtain an order for substituted service. By publishing what are hopefully adequate reasons on this occasion, the wish expressed by Porter KC DCJ above that ‘it is hoped this judgement will lead to a better appreciation by those involved in this application of what is required in properly bringing such an application’ will be achieved, such that any further such application will enliven the proper exercise of the court’s discretion.

Magistrate J N L Pinder

18/08/2025