Substituted Service: When Normal Service Is Impractical

In theory serving Court documents is a pretty simple process. In practice at times the process of serving Court documents can be anything but simple. On such occasions practitioners might look to an application for substituted service as a possible resolution for their service difficulties.

Substituted Service
Rule 116 of the Uniform Civil Procedure Rules 1999 (Qld) (“the Rules”) permits substituted service.

Where Ordinary Service Is Impracticable
If it is impracticable to serve a document in a manner required by the Rules, the Court may make an order for substituted service.  Such order may be in respect of Originating Process documents and other documents. It can even extend to documents for which personal service is not required.

Mode of Service To Be Specified
In ordering substituted service, the Court must specify a mode of service it considers reasonably likely to bring the document to the notice of the party being served, if practicable.

An order for Substituted Service may specify that the document is taken to be served on the happening of an event or at the end of a specified time.

Substituted Service applies to service outside the jurisdiction, as well as inside the jurisdiction.

What The Applicant Must Show
In order to be successful the Applicant / Plaintiff must show that:

• There was a reasonable attempt to serve the Respondent / Defendant in the usual way under the Rules;
• It is impracticable or practically impossible to effect service in the way required in Chapter 5 of the Rules;
• Using those reasonable efforts the Applicant / Plaintiff is unable to serve the Defendant / Respondent personally at the date on which the application for substituted service is made;
• The proposed mode of substituted service is reasonably likely to bring the document/s to the attention of the Respondent / Defendant; and
• The circumstances justify an order for substituted service.

Facebook
Where substituted service of a sealed copy of the relevant documents is sought to be effected by being sent by private message or email to the Facebook page of the Defendant / Respondent on the Internet, the Applicant must bear in mind:

• The uncertainty of Facebook pages, and
• The fact that anyone can create an identity that could mimic the true identity of the subject person.

Accordingly the evidence before the Court must show with real force that:

• The person who created the Facebook page is indeed the Defendant / Respondent;
• The Facebook profile was in fact the profile of the Defendant / Respondent;
• The Defendant / Respondent was regularly accessing his Facebook account; and
• The Defendant / Respondent would reasonably get notice of the relevant document/s, if a private message or email was sent to his account.

Conclusion
Whilst strict adherence must be had to the law, an application for substituted service is a largely evidence driven application and each case will be determined by its own unique facts and circumstances.  Preparation is key. The supporting affidavit material must address all of the relevant criteria that need satisfying or the Court will have no evidence before it upon which to base the requested order.

Judgment satisfaction can never occur if proper service is never effected. Invest wisely in your application for substituted service. It may be the only way you can put your client on the path to achieving judgment satisfaction.