Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 4 – Service
- Part 1--Preliminary
- [100] Definitions for ch 4
- [101] Service not allowed on certain days
- [102] Approved document exchanges
- [103] Service after 4.00p.m.
- [104] Application of pt 2
- [105] Personal service for originating process
- [106] How personal service is performed
- [107] Personal service—corporations
- [108] Personal service—young people
- [109] Personal service—persons with impaired capacity
- [110] Personal service—prisoners
- [111] Personal service in Magistrates Courts proceedings
- [112] How ordinary service is performed
- [113] Service in relation to a business
- [114] Service in relation to a partnership
- [115] Acceptance of service
- [116] Substituted service
- [117] Informal service
- [118] Service on agent
- [119] Service under contract
- [120] Affidavit of service
- [121] Identity of person served
- [122] Special requirements for service by fax
- [124] When service outside Australia permitted
- [125] Service of counterclaim or third party notice
- [126] Setting aside service
- [127] Service of other process by leave
- [128] Order for service outside Australia
- [129] How service outside Australia to be performed
- [130] Service in convention countries
- [130A] Definitions for div 3
- [130B] Provisions of this division to prevail Subdivision 2--Service abroad of local judicial documents
- [130C] Application of sdiv 2
- [130D] Application for request for service abroad
- [130E] How application to be dealt with
- [130F] Procedure on receipt of certificate of service
- [130G] Payment of costs
- [130H] Evidence of service Subdivision 3--Default judgment following service abroad of initiating process
- [130I] Application of sdiv 3
- [130J] Restriction on power to enter default judgment if certificate of service filed
- [130K] Restriction on power to enter default judgment if certificate of service not filed
- [130L] Setting aside judgment in default of appearance Subdivision 4--Local service of foreign judicial documents
- [130M] Application of sdiv 4
- [130N] Certain documents to be referred back to the Attorney-Generals Department of the Commonwealth
- [130O] Service
- [130P] Affidavit as to service
- [130Q] Application of div 4
- [131] Application of div 4
- [132] Orders for substituted service
- [133] Noncompliance with rules
- Division 1--Ordinary service outside Australia
- Division 2--Service in convention countries
- Division 3--Service under the Hague ConventionSubdivision 1--Preliminary
- Division 4--Service of foreign legal process in Queensland other than under the Hague Convention
[100] Definitions for ch 4 go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[101] Service not allowed on certain days go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[102] Approved document exchanges go to top
The Australian Document Exchange Pty Ltd is a document exchange approved for Chapter 4 Part 4 of the Uniform Civil Procedure Rules: Practice Direction (No 18 of 1999); Approval of Document Exchange - [1999] 2 Qd R 381.
[103] Service after 4.00p.m. go to top
In respect of an attempted service by facsimile, service will be taken to have been effected for the purpose of r 103, at the precise time that the transmission was completed: Parklands Blue Metal Pty Ltd v Kowari Motors Pty Ltd [2003] 1 Qd R 140; [2003] QSC 98, [12] (Helman J).
Rule 103 should not be understood as purporting to affect the time for service provided by s 459G(3) of the Corporations Act 2001 (Cth), for an application to set aside a statutory demand served on a company: C & E Pty Ltd v Corrigan [2006] 2 Qd R 399, [29] (Keane JA, Williams JA and Muir J agreeing).
[104] Application of pt 2 go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[105] Personal service for originating process go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[106] How personal service is performed go to top
A failure to comply with r 106 by not serving the document personally means that service of the document is an irregularity rather than a nullity, within the meaning of r 371(1). The question that then arises is whether the court should exercise its discretion to make the step effectual for the purpose of r 371(2): Major v Australian Sports Commission [2001] QSC 320, [25] (Mullins J).
Service by post is not personal service within the meaning of the UCPR, which is dealt with as a different mode of service for the purpose of the Rules: Labaj v Lollo Plumbing Pty Ltd (in Liq) [2005] QCA 86, [2] (Williams and Keane JJA, Holmes J).
Service is not effected for the purpose of r 106(2) by placing a document outside the premises of the person intended to be served, even when that person is identified as being present in the premises, where little is said at the time of service as to what the nature of the documents are: Commissioner for Fair Trading v TLC Consulting Services Pty Ltd [2011] QSC 374, [24] (Phillipides J).
[107] Personal service—corporations go to top
Provided that service of a document is made on the address of a company’s registered office lodged with ASIC, it will be deemed good service for the purposes of r 107, whether or not the office of the company remains, in fact, at that location: Unique Product Marketing Pty Ltd v Bortek Sales Pty Ltd [2000] QDC 314, [25] (Shanahan DCJ, citing with approval Quicksafe Freightlines Pty Ltd v Shell Co of Australia Ltd (1984) 10 ACLR 161; Re Nicholls Pty Ltd (1982) 7 ACLR 76 and Re Richardson Investments and Dewatering (WA) Pty Ltd (1988) 14 ACLR 315).
Rule 107 is to be construed as directing that service on a corporation that comprises a “company” within the meaning of that term in the Corporations Act 2001 (Cth), is to be made in accordance with s109X of the Corporations Act 2001 (Cth): AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 15, [8] (Jackson J).
For a foreign corporation that is not registered under the Corporations Act 2001 (Cth) (and which is not therefore a “company” within the meaning of that Act), service is to be made for the purpose of r 107 in accordance with s 39 of the Acts Interpretation Act 1954 (Qld) unless such service would be contrary to the law of the relevant foreign country: AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50, [11]-[12] (Jackson J).
For the purpose of s109X of the Corporations Act 2001 (Cth), to prove that a document has been served “by posting it to the company’s registered office”, a party must show on proper evidence that the letter was (1) properly addressed, (2) pre-paid, (3) posted as a letter and (4) sent to the registered office of the company: Grant Thornton (Qld) Pty Ltd v Green Global Technologies Limited [2009] QSC 262, pp.1-8 (Daubney J), citing Dwyer v Canon Australia Pty Ltd [2007] SASC 100, [6] (Debelle J).
[108] Personal service—young people go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[109] Personal service—persons with impaired capacity go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[110] Personal service—prisoners go to top
Rule 110(c) “person in charge of the prison”
Personal service on a prisoner can be effected in accordance with r 110(c) of the UCPR by delivering the documents to be served on an officer that is properly authorised to receive documents on behalf of the officer in charge of the prison: JHC v LJC [2011] QDC 26, p.1-4 (Irwin DCJ).
[111] Personal service in Magistrates Courts proceedings go to top
Although the UCPR generally require personal service, r 111 makes special provisions for service of documents in Magistrates Court proceedings. The effect of the rule is that documents required to be personally served may be served by leaving the documents with someone who is apparently an adult, living at the person’s relevant address (per r 112(1)(a)): [2007] 65 ATR 853 [2007] QDC 55, [7] (Alan Wilson SC, DCJ).
[112] How ordinary service is performed go to top
Rule 112 provides the method for service for applications to set aside statutory demands made pursuant to s 459G of the Corporations Act 2001 (Cth): W B Sharpe Constructions Pty Ltd, Re [2001] QSC 253, [12] (Jones J).
Rule 112(1)(d)
Evidence as to likely delivery dates taken from the Australia Post website, is not sufficient to establish “the time at which the letter would be delivered in the ordinary course of post” for the purpose of r 112(1)(d) of the UCPR and s 29(1) of the Acts Interpretation Act 1901 (Cth): The Charan Group Pty Ltd v Kaur [2011] QSC 71, [13] (de Jersey CJ), citing with approval White J in Scope Data Systems Pty Ltd v Goman (as representative of the partnership B D O Nelson Parkhill) [2007] NSWSC 278, [21].
Rule 112(1)(f)(ii)
In the context of an application to set aside a statutory demand, r 112(1)(f)(ii) is not limited to authorising service by facsimile on a solicitor only in cases where the solicitor’s facsimile number is included in the nominated address for service on the creditor in the statutory demand. All that is required for service by facsimile under r 112(1)(f)(ii) is that, as a matter of fact, the solicitor has a fax: Forza Finance Pty Ltd v Vergepoint Sales and Management Pty Ltd [2010] QSC 46, [13] (Daubney J).
[113] Service in relation to a business go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[114] Service in relation to a partnership go to top
A proceeding may be brought against a partnership in the firm name after the dissolution of the partnership. However, in those circumstances a plaintiff, whether or not aware of the dissolution before commencing the proceeding, must serve individually all the partners sought to be made liable: Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287, [49] (Margaret Wilson J).
[115] Acceptance of service go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[116] Substituted service go to top
Object of substituted service
The primary object of substituted service is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings, so that he or she can take such steps as he or she thinks proper to protect his or her interests and rights: Miscamble v Phillips & Hoeflich (No 2) [1936] St R Qd 272, 274 (Starke J, Dixon and McTiernan JJ agreeing) cited with approval in respect of r 116 in Permanent Custodians Ltd v Massey [2009] QSC 4, [6] (Wilson J) and Commonwealth Bank of Australia v Diplock [2010] QSC 146, [7] (Fryberg J).
What must be shown
An alternative method of service that is effective in bringing a proceeding to the attention of a respondent 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: Kendell v Sweeney & Ors [2002] QSC 404, [15]; approved in Embrey v Smart [2014] QCA 75, [27] (Applegarth J, Muir and Morrison JJA agreeing).
The threshold question of whether it is “impracticable” to serve a document requires that an applicant for an order demonstrate more than a mere inconvenience to it, in following the service requirements under the UCPR: Permanent Custodians Ltd v Smith [2006] QSC 333, [4] (McKenzie J).
If the Court is satisfied that personal service is impracticable, then the Court must be further satisfied that service by the substituted means is likely to bring the proceeding to the knowledge of the other party: Permanent Custodians Ltd v Massey [2009] QSC 4, [6] (Wilson J), citing Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272, 274; see also Bunnings Group Ltd v Lockwood [2014] QDC 94, [4] (Horneman-Wren SC DCJ).
No need for originating process to have been filed
The usual course is that an application for substituted service follows failed attempts to effect personal service of a claim or other originating process which has been issued by the Court. But that usual course does not dictate the interpretation of r 116, and the terms of r 116 do not require the document in question to have been first issued by the Court before an order for substituted service may be made: Embrey v Smart [2014] QCA 75, [22], [26] (Applegarth J, Muir and Morrison JJA agreeing).
Method of substituted service
If appropriate, orders can be made permitting service to be effected by an e-mail sent to an address provided, or by way of text message to the known mobile telephone number of the person to be served: Members Australia Credit Union Ltd v Cruickshank [2011] QDC 89, p.1-6 (Judge Robin QC) (email); RHG Mortgage Corporation (Formerly Rams Mortgage Corporation Ltd) v Pang [2012] QDC 58, pp.1-3-1-4 (Judge Robin QC) (text message).
Rule 116(4)
Rule 116(4) was designed to reverse the result of the decision of the High Court in Laurie v Carroll (1958) 98 CLR 310. In Laurie v Carroll, it was decided that under the rules as to service out of the jurisdiction and for substituted service contained in the Rules of the Supreme Court of Victoria, that if a defendant was within the jurisdiction at the time of issue of a writ for service within the jurisdiction but subsequently left the jurisdiction, a foundation for an order for substituted service may exist; whereas if the defendant was not in the jurisdiction at the time of issue of the writ, an order could not be made for substituted service: AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50, [16] (Jackson J).
[117] Informal service go to top
Rule 117 is not intended to resolve difficulties in the manner of service required by the UCPR. Something more will usually be required to justify the exercise of discretion in favour of an order dispensing with the requirements for formal service: AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50, [21], [24] (Jackson J).
For r 117 to apply in a case where service would be effected outside Australia, it is necessary for an applicant to first show that service is authorised under Chapter 4, Part 7 of the UCPR or at least arguably so: AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50, [14] (Jackson J).
The circumstance that the court is exercising jurisdiction under the provisions of Chapter 4, Part 7 over a defendant which has no other apparent ties to the State of Queensland is a relevant factor to take into account in deciding whether, as a matter of discretion, informal service should be ordered under r 117: AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50, [31] (Jackson J).
[118] Service on agent go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[119] Service under contract go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[120] Affidavit of service go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[121] Identity of person served go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[122] Special requirements for service by fax go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[123] Service outside Queensland go to top
Rule 123 Service outside Queensland
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
Division 1--Ordinary service outside Australia
[124] When service outside Australia permitted go to top
When ascertaining whether r 124 is engaged, attention must be focused “upon the nature of the claim which is made”. That is, by asking “is the claim a claim in which the plaintiff alleges that he has a cause of action which according to those allegations, is a cause of action arising in the State?” The inquiry neither requires nor permits an assessment of the strength (in the sense of the likelihood of success) of the plaintiff’s claim: Borch v Answer Products Inc [2000] QSC 379, [9] (Holmes J), citing the majority in Agar v Hyde (2000) 74 ALJR 1219, 1229.
Provided that the elements of a cause of action are pleaded so that an allegation is made that falls within r 124, then the requirements of the rule are satisfied without the need for a plaintiff to comply with other provisions in the UCPR governing the proper way to plead: Borch v Answer Products Inc [2000] QSC 379, [18] (Holmes J).
A proceeding may be “relating to a contract”, within the meaning of r124(1)(g)(ii), when a party seeks to resolve a dispute about the existence of a contract by seeking a declaration that no contract was made: Central Petroleum Limited v Geoscience Resource Recovery LLC [2017] QSC 223 (Bowskill J) at [31].
A proceeding for the purposes of r 124(1)(x) may be served outside the jurisdiction provided that it falls, at least in part, within one of the paragraphs of r 124. There is no further requirement that the balance of the proceeding also fall within those paragraphs: Borch v Answer Products Inc [2000] QSC 379, [27]-[28] (Holmes J).
Rule 129 regulates the authorisation to serve a proceeding outside Australia conferred by r 124: AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50, [5] (Jackson J).
It is sufficient if the allegations made in in the originating process arguably fall within one of the paragraphs of r 124, for service to be permitted in accordance with the rule: AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50, [14] (Jackson J).
Rule 124(1)(i)
A non-exclusive jurisdiction clause contained in a contract that includes a submission to Queensland jurisdiction is sufficient to engage r 124(1)(i): AIG UK Ltd v QBE Insurance (Europe) Ltd [2008] QSC 308, [16]-[17] (Mackenzie J).
[125] Service of counterclaim or third party notice go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[126] Setting aside service go to top
The onus of proving, on an application under r 126, that service of the originating process is not authorised under r 124 lies on the defendant whose application it is to set aside service: Borch v Answer Products Inc [2000] QSC 379, [8] (Holmes J).
[127] Service of other process by leave go to top
The only process that can be served out of Queensland is that expressly permitted by Chapter 4 Part 7 (including r 127): AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50, [3] (Jackson J); cf: contra proposition as to effect of r 127 in Gale v Jione [2002] QSC 261 (Fryberg J).
[128] Order for service outside Australia go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[129] How service outside Australia to be performed go to top
Rule 129(1) establishes the prima facie position that service is to be effected in accordance with the UCPR, wherever service outside Australia takes place. Rule 129(2) does not confer a further jurisdiction to permit a court to allow service in another country to occur because it conforms with the law of that country, in circumstances where that service is not authorised under the UCPR. Rule 129(2) only provides that nothing is required to effect service if doing what would otherwise be required would be in breach of the law of the country in which service is to take place: Crockett v Crockett [2004] QDC 277, pp.2-4 (McGill DCJ).
Rule 129 regulates the authorisation to serve a proceeding outside Australia conferred by r 124: AMCI Pty Ltd v Corcoal Management Pty Ltd [2013] QSC 50, [5] (Jackson J).
Division 2--Service in convention countries
[130] Service in convention countries go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
Division 3--Service under the Hague Convention
Subdivision 1--Preliminary
[130A] Definitions for div 3 go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130B] Provisions of this division to prevail go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
Subdivision 2--Service abroad of local judicial documents
[130C] Application of sdiv 2 go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130D] Application for request for service abroad go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130E] How application to be dealt with go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court..
[130F] Procedure on receipt of certificate of service go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130G] Payment of costs go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130H] Evidence of service go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
Subdivision 3--Default judgment following service abroad of initiating process
[130I] Application of sdiv 3 go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130J] Restriction on power to enter default judgment if certificate of service filed go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130K] Restriction on power to enter default judgment if certificate of service not filed go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130L] Setting aside judgment in default of appearance go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
Subdivision 4--Local service of foreign judicial documents
[130M] Application of sdiv 4 go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130N] Certain documents to be referred back to the Attorney-Generals Department of the Commonwealth go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130O] Service go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[130P] Affidavit as to service go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
Division 4--Service of foreign legal process in Queensland other than under the Hague Convention
[130Q] Application of div 4 go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[131] Application of div 4 go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[132] Orders for substituted service go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[133] Noncompliance with rules go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.