Litigation & Dispute Resolution Lawyers for Brisbane, the Gold Coast, the Sunshine Coast, Queensland
On 23 May 2025, Judge Porter KC made a ruling in the District Court of Queensland, dismissing an application made by a party for substituted service. The case highlighted the importance of adhering to the procedural requirements for substituted service and the need to exercise caution when seeking such an order from the court. This judgment serves as a reminder of the critical role admissible evidence plays and the high standards required when applying for substituted service.
Under Rule 105 of the Uniform Civil Procedure Rules 1999 (QLD) (UCPR), originating processes, such as claims and statements of claim, generally must be personally served on a respondent or defendant (there are some exceptions to this requirement). This process, known as “personal service,” is essential to notify the respondent or defendant of the legal proceedings against them. Once the respondent/defendant is served, they are required to respond within the specified time frame.
In certain circumstances, personal service may not be possible. In these situations, the Court can allow for an alternative method of delivering legal documents. One of these alternative methods is known as “substituted service.” This can be particularly relevant when serving individuals, as a company can typically be served by post under section 109x of the Corporations Act 2001 (Cth) at its registered office. In Queensland, substituted service is governed by Rule 116 of the UCPR, which allows the Court to make an order for an alternative form of service if personal service is impractical. Rule 116 states:
116 Substituted service
(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.
(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.
(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.
(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.
For a successful application of substituted service, the applicant must demonstrate with admissible evidence that:
Pursuant to rule 116(1) of the UCPR, the applicant must prove that personal service is impractical. In Foxe v Brown [1984] HCA 69, it was emphasised that “[The] standard … is one of reasonableness so as to show a practical impossibility of personal service.” This means the applicant must show efforts to serve the respondent have been unsuccessful despite reasonable attempts.
The applicant must show that they made a reasonable effort to serve the respondent. This involves a variety of actions aimed at locating the respondent and ensuring service. In Kendell v Sweeney & Ors [2002] QSC 404, the application was rejected because no attempts were made to serve the respondent. Thus, evidence of efforts to serve the respondent is essential.
Reasonable efforts can include:
A strong example of reasonable efforts can be seen in the case of Suncorp Metway Ltd v Agnew [2015] QSC 195, where the applicant demonstrated thorough attempts to serve the respondent through multiple methods, including conducting property searches, engaging process servers, and contacting neighbours.
The applicant must provide evidence that the proposed substituted service method will effectively bring the proceedings to the knowledge of the respondent. In Queensland Construction and Engineering Pty Ltd v Wagner [2011] QDC 171, the Court reiterated that the main objective of substituted service is to ensure the respondent becomes aware of the proceedings.
Examples of methods of substituted service include:
It is essential to collect comprehensive information about the respondent and present adequate evidence to the Court.
Service by post to the last known address is a common form of substituted service. In Perpetual Ltd v Latham & Anor [2015] QSC 190, the Court held that service by post is effective if there is evidence that the respondent resides at or regularly receives mail at the address. It is insufficient to merely show that the respondent is the registered owner of the property.
While email service can be an effective method, the Court has been cautious. In Permanent Custodians Limited v Massey [2009] QSC 4, the Court rejected to allow email as the sole method of service, emphasising that it is generally accepted only when accompanied by another method, such as postal service.
The email address must be actively used by the respondent, and the applicant must provide evidence that the email was received. It is insufficient to presume receipt if the email account has not been used in several months, or if the message is returned undelivered or otherwise fails to reach the respondent.
Where service is performed through an individual who may know the respondent, evidence of the personal relationship between the individual and Respondent is necessary.
Based on the applicant’s provision of admissible evidence, the Court will exercise its discretion to order substituted service.
Judge Porter KC’s recent remarks have drawn attention to the growing concern over the improper use of substituted service applications. He warned that these applications are often mishandled, with insufficient effort to serve the respondent personally or to gather appropriate evidence. In many instances, substituted service is sought when personal service is not truly impractical, which can undermine the integrity of the process.
Substituted service can be a vital tool in legal proceedings when personal service is not possible. However, its successful application requires meticulous adherence to the rules outlined in the UCPR. Ensuring that reasonable efforts to serve the respondent are demonstrated and that the proposed method of service is likely to bring the documents to the respondent’s attention are fundamental to a successful application.
For anyone navigating the complexities of substituted service in Queensland, it is essential to ensure compliance with the law and avoid costly mistakes. At Aitken Whyte Lawyers, we stay current with legal developments and have a strong track record of successfully assisting clients with substituted service applications. Our team is committed to achieving the best possible outcomes in the most efficient way.
If you need assistance from our experienced commercial litigation lawyers, please contact us on 07 3229 4459.
Navigating substituted service applications requires in depth knowledge and experience. If you’re dealing with a Respondent who is proving difficult to locate, our lawyers are here to help.
An elusive Respondent holding up proceedings can be frustrating and time consuming. Our team works with experienced process servers and skip trace agents. This allows us to help you take the necessary steps to progress your proceedings.
Aitken Whyte Lawyers Brisbane focuses on achieving results. We assist clients with all steps of litigation. This includes bringing substituted service applications to serve proceedings where necessary.
Contact our litigation lawyers today. Having us prepare your application will give you the best chance of success.
Brisbane
Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000
