UCPR: substituted service where document has not yet been filed

Embrey v Smart [2014] QCA 75


Applegarth J delivered the leading judgment with whom Muir and Morrison JJA concurred.

The interpretation of r 116(1)

[21] The terms of r 116(1) require a present impracticability to serve a document in a way required under Chapter 4 of the UCPR. The sub-rule does not refer in terms to “a document which has been filed in the court” or “an originating process which has been issued by the court”. It refers more generally to “a document” and, on a literal interpretation, would apply to an originating process which has been prepared and not yet filed.

[22] The respondent submits that it would be surprising if r 116(1) were to be interpreted so as to permit a substitution order to be made in respect of a document which had not yet been issued as a command of the Court. Such a course may be unusual, but it would not be surprising. 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.

[23] The absence of such a requirement is understandable. One can imagine a case in which a party seeks an urgent injunction to restrain conduct by a respondent who cannot be personally served in circumstances of great urgency. The rules permit an oral application in such circumstances.[5] A judge hearing such an application might make an order under r 116 substituting a way of serving a document which has yet to be issued by the Registry.

[24] A proceeding starts when the originating process is issued by the Court.[6] Before then, a claim or other type of originating process is a “document” within the ordinary meaning of that term, and being an originating process is required to be served personally under Chapter 14.[7] In the kind of urgent case hypothesised above, r 116(1) applies to such a document if it is impracticable to serve the document in the required way at the time the order for substituted service is made.

[25] The primary judge concluded that it is not possible to make an order under r 116 for substituted service of an originating process in anticipation of the relevant originating process being issued by the Court. His Honour emphasised that the pre-condition for the exercise of the discretion under r 116(1) is that “it is impracticable to serve a document in a way required” under UCPR Chapter 4. The respondent submits that the language of the rule does not provide room for a contention that it is enough that, on the evidence, it will be impracticable to serve a document that is “created” at some time in the future. This submission may be accepted. But the claim and the statement of claim to which the order of Martin J referred were not created at some time in the future. Those documents were in the material before Martin J. They had not been issued by the Court so as to commence proceedings. But like other originating process, including the originating application or claim in the case of an urgent oral application for an injunction, the claim was “a document”, and one which r 105 required to be served personally.

[26] An applicant for substituted service must show at the time the order is obtained that it is impracticable to serve the document personally. The rule requires that it is presently impracticable to serve a document. That document may be in the form of a claim or application which the applicant and the Court anticipate will be issued by the Court in the very near future. The terms of the rule do not require the document to already have been issued by the Court.

[27] Next, the respondent points to cases in which judges have emphasised the importance of an applicant for an order for substituted service using reasonable effort to serve a party personally, but being unable to do so.[8] The primary judge cited Kendell v Sweeney[9] in this regard. There is no doubt about the correctness of those authorities, which concerned circumstances in which an originating process had been issued. Proof that there had been attempts to serve a party personally may be part of proof that “at the date on which the application for substituted service is made, the plaintiff, using reasonable effort, is unable to serve the defendant personally”[10] or, in terms of r 116(1), that it is “impracticable” to serve the party personally. Cases such as Kendell v Sweeney in which a party has failed to prove attempts to serve in the usual way do not stand for the proposition that an originating proceeding must first be issued before r 116 may be engaged. Proof that it is impracticable to serve an originating proceeding often may depend on past, failed attempts to serve an originating process that has been issued. But the rule does not require this. The hypothetical injunction case mentioned above provides a reason why r 116 should not be interpreted so as to impose such a requirement.

[28] The primary judge stated that his view of the proper construction of r 116(1) was fortified by reference to r 116(4). His Honour stated:

Rule 116(4) overcomes difficulties previously encountered as a consequence of cases decided under the old rules of court, where issues arose as to whether a writ of summons in the form prescribed for service within the jurisdiction, but issued at a time when the defendant was not in the jurisdiction, could be the subject of an order for substituted service.[11] It is notable for present purposes, however, that r 116(4) is clearly drawn on the assumption that the relevant proceeding has already started when the order for substituted service is made.”[12]

Rule 116(4) refers to the whereabouts of the person to be served “when the proceeding started”. But that reference does not call for a restrictive interpretation of r 116(1). Rule 116(4) clarifies that an order under r 116 may be made in certain circumstances, particularly it may be made even though the person is not in Queensland or was not in Queensland when the proceeding started. It does not imply that an order cannot be made under r 116(1) before a further proceeding is started. Rule 116(4) does not illuminate the present issue which concerns the proper interpretation of r 116(1).

[29] The respondent relies upon the decision of the English Court of Appeal in Bernstein v Jackson[13] which concerned an order for substituted service of a “notice of a writ” in circumstances in which the writ itself had become “stale”. A judge treated the matter as falling under a rule dealing with irregularities. On appeal, the plaintiffs attempted to argue that although a writ which had not been renewed was not valid for service, the same did not apply to a “notice of a writ”. This argument was rejected by both the judge and the Court of Appeal. They ruled that the expression “notice of a writ” refers to a valid writ. The decision concerns the interpretation of English rules, which in a particular context, required the existence of a writ which was valid for service. I do not regard the authority as of any real assistance in determining proper interpretation of r 116(1).

[30] The respondent submits that, in providing for a departure from the requirement of personal service, r 116(1) should be construed to interpret the reference to “a document” as a reference to an originating process which already has been issued. I am unable to agree. Such an interpretation is not required by the terms of the rule and such an interpretation might have unfortunate and unintended consequences in urgent cases in which the originating process has yet to be filed when the application for substituted service is heard.

[31] Finally, the respondent submits that an order which simply permits a document in the form of an originating process, which has yet to be issued by the Court, to be served at some future time would allow the document to be served other than by personal service at a time when it was practicable to personally serve it. But this is not an argument which calls for the words “a document” in r 116(1) to be read as if they said “an originating process issued by the court”. Instead, it may call for conditions to be included in an order for the process to be issued and served forthwith.

[32] In summary, r 116 refers to “a document”. It does not refer to “an originating process issued by the court”. The rule might apply to an originating process which is anticipated to be issued, for instance in circumstances of urgency. The fact that such an originating process has not been filed and issued by the Court does not preclude r 116(1) from applying. I respectfully disagree with the construction of r 116(1) adopted by the primary judge.

Service was effected in accordance with an order of the Supreme Court

[33] The order of Martin J authorised substituted service of the claim and statement of claim, and those documents were served in accordance with the terms of the Court’s order. The order of Martin J was not set aside. More importantly for present purposes, it was not set aside at the time substituted service was effected. The respondent was validly served.

[34] The respondent sought to place some reliance on a distinction noted in Kable[14] between non-compliance with procedural requirements and proceedings which are a “nullity”. But, as in Kable that kind of distinction has no direct application.

[35] The real issue is whether there is any reason to conclude that the order made by Martin J was not a judicial order of a superior court which is valid until set aside.

[36] The order was a judicial order. It was quite unlike the warrant discussed in Love v Attorney-General (NSW)[15] which involved the exercise of a power which was “essentially administrative in nature”. The order, although made ex parte, was made in the course of judicial proceedings, based on evidence and took the form of a court order which relieved the appellant from a procedural requirement to personally serve a document. It accordingly affected the rights of the respondents to the application. It was a judicial order of a superior court of record and was valid until set aside.[16]

[37] I accept the appellant’s argument that, even if the primary judge’s interpretation of r 116 is correct, the order of Martin J was effective to permit substituted service of the claim.

[38] This was not a case in which there was a defect in service of the originating process sufficient to render irregular any judgment subsequently entered in default of appearance. The claim and statement of claim were duly served in accordance with an order of the Supreme Court which had not been set aside.

[39] The judgment obtained on 4 November 2010 was regularly entered following service upon the respondent in accordance with the Court’s order. The orders of Fryberg J and of Clare DCJ which were consequential upon that judgment followed from a judgment which was regularly obtained.


Brisbane Barrister – David Cormack

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