Service of Process and Documents

LWB433 Civil ProcedureTOPIC: 05 - Service of Process and Documents

SERVICE OF PROCESS AND DOCUMENTS

Why is service necessary?

To formally give notice to the party served;

It is proper service of the document that is essentially the foundation of the Court’s jurisdiction; Laurie v Carroll

Service of Process – Issue One:

Service within Queensland
Interstate service within Australia
International Service

Service within Queensland

Is Personal Service or Ordinary Service Required?

(a) Personal Service is Required When:

Rule 105: An originating process must be served personally

 links with Pleadings – service of claim and application (rules 22 and 27)

Rule 105(2): If a defendant files an unconditional notice of intention to defend, the claim is taken to have been served on the defendant on the day the notice is filed or, if a party proves the claim was served on an earlier day, the earlier day.

Rule 70: added defendant or respondent

Rule 195: third party

Rule 178: counterclaims on new parties

Rule 904: non-money order as a pre-requisite to enforcement by contempt or seizing of property.

(b) Exceptions to Requirements of personal Service

Ex parte applications;
Magistrates Court  see r111 below
Service on Party’s Solicitor;  see r115 below
Where an appearance is entered before service;
where substituted service is ordered;  see heading ? below
where service is by means of a mode specified in an agreement;
where service outside the jurisdiction is in a matter that complies with the local foreign law requirements;  s11ee heading ? below
where there is an action for the recovery of land;
where there is an action in rem against a ship; and
where the Rules or a statute expressly permit other means of service e.g. Corporations Law, SEPA.

Rule 115 - Service on Party’s Solicitor

Rule 115(1) – Personal service not required if solicitor accepts service for a party

Rule 115(2) – Solicitor must make a note on a copy of the document to the effect that the solicitor accepts service for the other person;

Rule 115(3) – Service deemed effected unless it is proved the solicitor did not have authority to accept service for the other person.

Rule 119 – Service under Contract

If a person has agreed that an application or document in the proceeding can be served as specified in the agreement, then the service is okay.

Rule 111 - The Magistrates Court Proceedings

Rule 111 – Relaxation of requirements for personal service in Magistrates Court proceedings.

Can leave with someone else who is apparently an adult living at the address of the defendant;

If no-one at address – may leave it at the address where it is reasonably likely to come to person’s attention;

If address is within a building – by leaving it at the building or area in a position where it is likely to come to the person’s attention;

By post, fax or email

To Solicitor;

Ordinary Service

Documents which are not required to be personally served may be served as “ordinary service”. r.112

The Requirements of Personal Service been fulfilled?

(a) Rule 106 – How it must be performed

Rule 106requires:

The document or a copy must be given to person to be served; Rule 106(1)

“Given” means “left with” not “shown” to the person served.

preferable view: Ainsworth v Redd would still apply

Ainsworth v Redd

person intending to effect service held out the documents to the defendant and advised the defendant that they were for him.
defendant looked at document, but they were taken by another man accompanying the def.
Both men were subsequently observed to be looking at the documents.

HELD:

The originating process had been left with the person to be served.

Clearly a document can be left with a person who does not actually take the document into his physical possession.

If person does not accept – put down in person’s presence and tell him or her what the document is; Rule 106(2)

No need to show original copy Rule 106(3)

this clearly refers to the original sealed copy of the originating process; Queensland Savers Credit Union v Lavaski.

(b) Time Requirements

Rule 24 : claim generally in force for 1 year but can be renewed for further periods by Registrar of Court;

If the document has been renewed, it must be stamped with the Court seal by Court and show the period for which it has been renewed.

Rule 101 – no service on Good Friday or Christmas Day unless the Court otherwise orders.

Rule 103 – document served after 4 p.m. is taken to have been served on the next day.

Have the requirements of Ordinary Service been fulfilled?

Rule 112 – The following are ways by which the document may be served:

the leaving it with someone who is apparently an adult living at the relevant address
if not one at relevant address – leaving it in a position where it is reasonable to come to the person’s attention
posting it to the relevant address
using a fax number if it has been given
using an e-mail if it has been given

Special Parties[if relevant]

Corporations

Rule 107 – a document to be served personally on a corporation has to be served in the way provided for the service of documents under the Corporations Law or another applicable law;

Corporations Law - s109X – can choose to serve at the registered office of the company or delivering a copy of the document personally to a director of the company who resides in Australia or external territory.

s109Y: service by post is effective by properly addressing and posting (under pre paid post) the document as a letter to the last known address of the person to be served.

601CX: a document may be served on a registered body by leaving it at or by sending it by post to the regsitered office of the body.

business – Rule 113

If a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the person’s name and the name is not registered under the Business Names Act and the proceeding is started in the name or style under which the person carries on the business

the originating process may be served by leaving a copy at the person’s place of business with a person who appears to have control or management of the business at the place.

Partners – Rule 114

If people are sued as partners in the partnership name (R82 & 83), can serve either one or more of them personally (Rule 114(1)(a) or you can serve at the principal place of business of the partnership in Queensland by leaving the document with a person who appears to have the control and management of the business at that address.

If the partnership is registered under the Partnership (Limited Liability) Act 1988, then you must effect service at the registered office of the partnership. (Rule 114(1)(c);

If the originating process is served under Rule 114(1), then all of the partners who were partners in the partnership when the originating process was issued and that includes a partner who was outside Queensland at that time is taken to be served. (Rule 114(2)

The process must be served personally on any person that the plaintiff wants to make liable as a partner who was not a partner when the initiating process was issued (Rule 114(3). Covers a situation where the partnership might have been dissolved or partially dissolved.

Spouses

both must be served if both are parties to the proceedings (no special Rule); Johnsen v Duks.

Young people – Rule 108

Young Person is defined in the Supremem Court of Queensland Act 1991 to mean a person under 18 years of age.

Must be served on litigation guardian (R108(1))

If no litigation guardian, then the process is to be served on the young person’s parent or guardian (R108(2)(a)); or

If no parent or guardian – an adult who has the care of the young person or with whom the young person lives (R108(2)(b)).

Persons with impaired capacity – Rule 109

Defined in the Supreme Court of Qld Act 1991 to include a person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an act to be incapable of conducting proceedings.

Served on litigation guardian (R109(a));

If no litigation guardian, then the process is to be served on the person entitled to be the litigation guardian under R94(2) (R109(b)); or

If no-one under (a) or (b) – an adult who has the care of the impaired person (R109(c)).

Proof of Service

If you wish to obtain a default judgment, then you must prove service of the documents.

Rule 120 – Requirements for Affidavit of Service

Must be made by the person who served the document Rule 120(1)(a) – name must be in full R120(1)(a)(i)

the date and time the document was served R120(1)(a)(ii);

the place of service R120(1)(a)(iii);

the name of the person served and how the person was identified (R120(1)(a)(iv)

Rule 120(1)(b) – for ordinary service – based on information and belief.

must state the relevant dates and the facts showing service;

may be made on information and belief of the person causing service;

If made on information given to that person – must state the source of the information.

The Affidavit of Service must do 2 things:-

1)It must have the document filed with it as an exhibit or be written on the document; R120(2)(a) or

2)If the document has been filed – mention the document in a way sufficient to enable the document to be identified R120(2)(b)

Rule 121 – Statement by person of his or her identity or as to holding of office is evidence of the identity or that the person holds the office or position.

This rule arises out of the strict rules of evidence to ensure that you are serving the correct person.

Substituted Service

Rationale

The rules allow some other means of effecting service that the Court is satisfied will still enable the proceedings to be brought to the attention of the defendant.

Procedural Requirements:

An application for substituted service will require:

(a) an application (Form 9), which will be brough ex parte

(b) one or more supporting affidavits

Affidavtis

(a)should refer to the originating process in a way that clearly identifies it

(b)detail the efforts which have been made to service the def. personally, including particulars as to time and place

(c)detail the moethods of service proposed in lieu of personal service

(d)provide information and grounds from which the court may conclude that the methods of service proposed are reasonably likely to bring the origianting process to the attention of the person to be served.

Can the COURT PROSCRIBE PERSONAL SERVICE?

Can only get an order for substituted service if the Court has jurisdiction to proscribe personal service; Laurie v Carroll

Laurie v Carroll, the order allowing substituted service was set aside because the defendant had already left the jurisdiction and the cause of action that was alleged did not come within the rules permitting service outside the jurisdiction.

 see above for rules of personal service etc.

Explanation: Therefore, for substituted service, you cannot avoid the requirements re: jurisdiction by trying to get an order for substituted service. e.g. if the defendant is not in Queensland (then SEPA), but overseas, you can only serve them if there is sufficient nexus that the rules of court allow service out of jurisdiction. You cannot avoid those requirements if you have a defendant out of Australia who does not fall within the rules, you cannot avoid them by getting an order for substituted service on someone who is in the jurisdiction. If the defendant has a spouse in the jurisdiction, you cannot get an order for substituted service on the spouse, if you could not have validly served the defendant who is out of the jurisdiction.

Must have a Court order for substituted service – Rule 116.

It is an ex parte application before the Court.

Grounds for substituted service – Rule 116

What does rule 116 say?

Two Limbs:

Porter v Freudenberg

action brought against an alien enemy resident in an enemy country, who by means of an agent carried on a branch business within the jurisdiction.

Leave was given to the plaintiff to issue a concurrent writ and to make substituted service of a notice of the writ by service of the notice upon the defendant’s agent within the jurisdiction.

The Court held that an order for substituted service should not be made unless it appears:-

1.There is a practical impossibility of actual service;

2.In all reasonable probability, method of service proposed must be likely to bring proceedings to the knowledge of the defendant.

Element One: practical impossibility

Amos Removals & Storage Pty Ltd v Small ;

action in conspiracy to interfere with contractual relations (tort)

plaintiffs sought representative order and interlocutory injunctions against 19 defendants, (committee members of a union).

Leave was granted to effect substituted service by serving a solicitor acting in other litigation on behalf of some of the defendants but who was paid by all of them.

The court was satisfied that in the circumstances of leave having been granted to serve short notice, prompt personal service of the defendants named in the summons was impractical because of:

Cost of service upon 19 defendants (not of weight by itself);
Geographical spread of the defendants as shown by their personal addresses (not of weight by itself);
The short period within which service had to be effected (summons issued on a Thursday and returnable on following Wednesday);

Munkarra v Fischer ;

Pl. suffered personal injuries when struck by the def. motorcycle

The cycle was insured and registered in WA.

The defendant was unable to be located.

The application was refused even though the Solicitors:

caused a field officer of the North Australian Legal Aid Service to conduct enquiries;

requested the Aboriginal Legal Aid Service in Perth to make enquiries

placed advertisements in Northern Territory & WA newspapers

conducted electoral roll searches in NT;

telephone directory searches;

Motor Vehicle Registry search in NT;

Electoral roll searches in both houses of parliament in WA

commonwealth electoral roll searches;

search at Clerk of Court Darwin for any prosecution of Defendant

Refused because there had been no enquiries in other States and Territories of Australia. No searches as to drivers licenses in other States and Territories and whether defendant held a drivers license at German embassy or german clubs.

In Paragon Group v Burnell the English Court of Appeal held that in determining whether service is “impracticable” in a given case, the court must focus on the difficulties in effective service in the prescribed manner, and should not take account of the nature of the relief claimed in the initiating proceedings.

Element Two: the plaintiff’s proposed method of service

Miscamble v Phillips ;

pl. had been allowed in the S.Court of Qld to serve a Writ by substituted service in circumstances where the defendant’s whereabouts had been unknown for 45 years.

Pl. then filed a notice of appeal to High Court and sought leave to serve that notice of appeal by substituted service. The application was refused.

The prime object of substituted service is to bring the proceeding to the knowledge of the person to be served so that person can take appropriate steps to look after their interests. It is not proper to make an order of that nature if there is no belief that the steps taken will bring the proceedings to the knowledge of the person in question.

Chappell v Coyle ;
The order sought was that the authorized insurer in a motor vehicle accident case should be able to be served where the Defendant could not be located. The Court held that it was not appropriate to permit substituted service.

CASE EXAMPLES: Court Declined to make orders for substituted service

Ricegrowers Co-op v ABC /

no attempt had been made to obtain leave to serve the def. outside the jurisdiction, and there was no evidence that to attempt service in accordance with the ulres would obviously be futile.

Mondial Trading v Interocean Marine /

no attempt had been made to obtain leave to serve the defendant outside the jurisdiction as required by the applicable rules of court, and there was insufficient evidence that the plaintiff would be unable, by the exercise of reasonable effort, to effect service upon the defendant outside the jurisdiction

Miscamable v Phillips /

Defendant’s whereabout unknown for 45 years, no belief that the service would bring the proceedings to the knowledge of the def. or any person representing their interests

Simpson v Young /

substituted service had been refused on a def. who had not been heard of for 18year and whose whereabouts was unknown

Bissell v Bissell /

insufficient evidence that any method of substituted service would be likely to cause the writ and petition to reach the defendant or to cause it to come to her knowledge.

O’Kane v Mildenhall /

Def. said to have left jurisdiction 7 years earlier and his whereabouts was unknown.

Usual orders

(a)Service on a person other than the defendant

The Court is satisfied on evidence that that person has contact with the defendant. E.g. the defendant’s;

1) Spouse; Bank of Whitehaven v Thompson

2)Solicitor – Lock v Smith (where the Court assumed there was contact between solicitor and client). Note: if the Solicitor says that he/she will accept service on behalf of the client, there is no need to make application for substituted service.

3)Agent – Hope v Hope

4)Attorneys under a power of attorney - Rosenbaum v Rosenbaum

5)compulsory insurer (this is not permissible where there is no likelihood of the process coming to the defendant’s attention: Chappell v Coyle

(b)Advertising in a Newspaper

(c)By post

Form of Service

Rule 116(2) - If application successful, the Court will specify the form of service to be carried out to bring the action to the attention of the defendant.

proof of service

Application to be supported by Affidavit setting out grounds on which it is made.

Must set out the evidence by which you satisfy the 2 limbs set out in Porter v Freudenberg (i.e. (detail attempts) practically impossible to effect service on the defendant and how you are proposing to effect service and how it is likely to come to the defendant’s attention).

Informal Service – Rule 117

If service not effected as required, but document has come into the possession of the person to be served, the court may order that possession is service for the purpose of the rules on the day of possession or another day stated in the order.

Service Out of the Jurisdiction

1. Interstate Service

Rule 123 – if an originating process is to be served outside Qld but within Australia, then it must be served in accordance with Service and Execution of Process Act (1992) Cth.