Horne v McMillan

[2014] QCAT 390

CITATION: Horne v McMillan [2014] QCAT 390

PARTIES:	Phillip Vernon Horne (Applicant)
v
Michael McMillan (Respondent)

APPLICATION NUMBER: MCDO48-14

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 25 June 2014

HEARD AT: Southport

DECISION OF: Adjudicator Trueman

DELIVERED ON: 25 June 2014

DELIVERED AT: Southport

ORDERS MADE: 1. That the Application to waive compliance with service of this application is refused.

CATCHWORDS: Minor civil debt – application to waive compliance with service – applicant seeking orders for substituted service – where insufficient evidence – where application refused

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. The Applicant has brought an application for substituted service under rule 40 of the Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules).

2. Under section 37(2) of the QCAT Act the applicant is required top give a copy of the application to each party within a period stated in the QCAT Rules.

3. The tribunal may make an order exempting the applicant from giving a copy of the application to a person if the tribunal is satisfied that the applicant has made reasonable attempts to give a copy to the applicant that has been unsuccessful[1], or if the making and deciding of the application without notice to the respondent would not cause an injustice.[2]

   [1]        Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 37(4)(a).

   [2] Ibid s 37(4)(b).

4. Under r 19 a copy of the application must be given to the respondent within 28 days.

5. The Applicant seeks an order for substituted service by deeming that by leaving the “summons with a person at the respondents office” to be deemed “sufficient service”. The applicant said he had tried to serve the respondent personally “at his office on several occasions and had phoned him on numerous occasions but had been unable to effect personal service”.

6. QCAT Rule 40 is in almost identical terms to Uniform Civil Procedure Rules 2009 r 116.  In Kendell v Sweeney & Ors [2002] QSC 404, Justice Margaret Wilson suggested that, in order to justify an order under r 116, it must first be shown that it is impracticable to serve the documents in the manner required by the rules; and, also, that the proposed method of substituted service will bring the proceedings to the respondent’s notice.

7. I am not satisfied that attempts to serve the documents on the Respondent  by the means ordinarily envisaged by the QCAT Rules and personal service is no more difficult because the respondent works in an office and does not answer his calls or come to the reception when the applicant attends there.

8. The Applicant has not provided sworn affidavit material from either himself or a process server to prove that the Respondent actually works from a particular location in Bundall. I do not accept that the leaving of a document or “summons” allegedly with someone at the respondents offices as deemed sufficient service.

9. The applicant could have sought orders for substituted service by dispensing with personal service and requesting that the respondent be served by mailing to him a copy of the claim to his business address. The applicant must provide evidence and proof as to the business address of the respondent and could have mailed it to him. He did not seek such an order.

10. The applicant did not provide any evidence to identify the actual alleged person that he handed the claim to at the respondents business address nor any evidence that they actually worked for the respondent and if they would provide a copy of the document to the respondent.

11. The tribunal may make an order and state what steps could be taken to bring a documents or claim to the attention of the respondent[3], such order can only be made upon the applicant providing proof of the address or location of the respondent. In this case the applicant failed to provide such evidence.

    [3] Ibid r 40(2).

12. I am not satisfied, in the circumstances that the tests implied under the Rules have been met and an order should not be made in terms of the application by the applicant.