Bunnings Group Ltd v Tropical Island Constructions Pty Ltd & Anor [2023] QDC 61

DISTRICT COURT OF QUEENSLAND CITATION: Bunnings Group Ltd v Tropical Island Constructions Pty Ltd & Anor [2023] QDC 61 PARTIES: BUNNINGS GROUP LTD (Applicant) v TROPICAL ISLAND CONSTRUCTIONS PTY LTD (ACN 645 336 634) (First Respondent) AND BELINDA MARGARET GOODHAND (Second Respondent) FILE NO: BD No 3024/22 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: Brisbane District Court DELIVERED ON: 14 April 2023 DELIVERED AT: Brisbane HEARING DATE: 14 April 2023 (On the papers) JUDGE: Porter KC DCJ ORDERS: 1. Application dismissed 2. No order as to costs CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – SERVICE – IN LIEU OF PERSONAL SERVICE: SUBSTITUTED AND INFORMAL SERVICE – Where there is an application for substituted service – Where the applicant elected to have the application heard on the papers – Whether impracticability of personal service is demonstrated on the evidence LEGISLATION: Uniform Civil Procedure Rules 1999 rr 116, 295, 430(2) CASES: Kendall v Sweeney [2002] QSC 404 -- 1 of 4 -- 2 Foxe v Brown (1984) 58 ALR 542 Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272 SOLICITORS: Bennett & Philp Lawyers for the Applicant [1] The applicant seeks a substituted service order under Rule 116 Uniform Civil Procedure Rules (UCPR) which provides: 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. [2] The threshold condition is that the applicant demonstrate that it is impracticable personally to serve the proceedings on the respondent. These words speak for themselves, though reference is frequently made to the authorities identified in the applicant’s outline. In Kendall v Sweeney [2002] QSC 404, Justice Wilson said at [15]: It may well be that the method of service proposed would be effective in bringing the proceeding to the attention of those respondents. However, that is not enough to justify the making of an order for substituted service. It must first be shown that it is impractical to serve the documents in a way required by chapter 4 of the UCPR. [3] In Foxe v Brown (1984) 58 ALR 542, 547, Justice Mason, in speaking of “the standard of diligence or effort required of a plaintiff in seeking out a defendant in a case where substituted service is sought”, said: That standard, however it is expressed, is one of reasonableness so as to show a practical impossibility of personal service. Furthermore, the question is not whether reasonable effort has been shown by the plaintiff over a particular period but whether at the date on which the application for substituted service is made that plaintiff, using reasonable effort, is unable to serve the defendant personally. [4] Once the threshold condition is established, the Court’s discretion under Rule 116(2) is enlivened. The discretion must be informed by the purpose of substituted service, which is to bring the proceedings to the attention of the other party. Substituted service is not a way to meet the formal requirements of service without effecting actual notice of the proceedings. If a party cannot be found, or if no reliable form of communication of the documents to the defendant is established, then the proceedings cannot progress. [5] There must be a high degree of probability proved on the evidence that the proceedings will come to the attention of the other party by the method of service -- 2 of 4 -- 3 ordered. The case frequently cited is Miscamble v Phillips and Hoeflich (No 2) [1936] St R Qd 272, 274 per Starke J, sitting in the High Court, where his Honour observed: The object of substituted service, the primary object, is to bring to the knowledge of the person in respect of whom substituted service is sought the whole proceedings, so that he can take such steps as he thinks proper to protect his interests and rights. It is not proper to substitute service of process in a court of law when there is no belief that the service will bring the proceedings to the knowledge of the person in question or of any person representing his interests. [6] In this case, the applicant seeks to establish the threshold issue by the following principal submission: The Plaintiff has made significant efforts to serve the Second Defendant at his residential address and there is compelling evidence that the Second Defendant resides at that address and is “keeping house” and avoiding service.1 [7] Those propositions are not sustained by the evidence. [8] First, the applicant has tried to serve the second respondent at 22 Erromango Drive, Jubilee Pocket. There is some evidence that that is her residential address. It is shown as her address on the electoral role and on the credit application of September 2021 she submitted to the applicant. The property is also seemingly a residential property and is registered in her name. However, there is no direct evidence (from the second respondent, an occupier of the house or a neighbour) that she is presently resident at that address. Indeed there is no evidence that anyone lives at that address. A red Mazda was located there on one occasion, but that does not mean the house was occupied, much less by the second respondent. I am not persuaded on that evidence that the second respondent is presently living at 22 Erromango Drive, nor that she was living there between 24 January and 14 February 2023 when attempts at service were made. It is certainly not compelling evidence. [9] Second, the efforts of the applicant to serve at this address cannot properly be characterised as significant. The process server went to the address four times between 24 January and 14 February 2023. On three of those occasions the process server swears that no one was home. On the fourth occasion, on 30 January 2023, the process server swears that a red Mazda was present and “I knocked on the front door, however, could not gain any response from within”. [10] That is not evidence that there was anyone within. I also observe that there is no evidence that the Mazda is linked with the second respondent, nor anyone related to her. So, in fact, there is no evidence anyone was home on any of the four occasions that the process server visited. Further, three of the visits were all around the same time, early afternoon. The other was at 8.36 in the morning. The second respondent could easily have been at work at those times. Visiting a property four times in the above circumstances is not a “significant” effort. The use of an adjective in the submissions does not make it so. 1 Applicant’s outline of submissions dated 6 April 2023 at [9]. -- 3 of 4 -- 4 [11] Third, there is no basis in the evidence to conclude that the second respondent is keeping house and avoiding service. That was an extravagant submission on the evidence already described. Further, the other evidence seems to be that the second respondent did not respond to a card left at the residential address (which might not be hers) and that a call to a mobile number of the second respondent revealed that number was disconnected. There is no basis to conclude that any message left by the process server reached the second respondent. [12] I am not persuaded of as to impracticality of personal service. [13] Further, I am not persuaded that the proposed methods of service would be likely to bring the proceedings to the second respondent’s attention. The applicant proposes service by post and delivery to Erromango Drive, email to a certain email address and a text to certain mobile number. As to that: (a) As I have explained, the evidence does not establish that that residential address is where she is in fact living; (b) That mobile number is disconnected; and (c) There has been no email from the email address identified for five months. [14] The application is dismissed. -- 4 of 4 --