Queensland Building and Construction Commission v Rizzo

[2024] QDC 121

DISTRICT COURT OF QUEENSLAND

CITATION:

Queensland Building and Construction Commission v Rizzo [2024] QDC 121

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(Plaintiff/Applicant)

v

ANDREW JAMES RIZZO

(Defendant/Respondent)

FILE NO/S:

BD 1906/23

DIVISION:

Civil

DELIVERED ON:

2 August 2024

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2024 (ex parte application on the papers)

JUDGE:

Barlow 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 – application for substituted service – whether evidence of service should be allowed where it is inadmissible, unreliable and hearsay

Uniform Civil Procedure Rules 1999 r 116

Faranu Pty Ltd v Tropical Island Constructions Pty Ltd
[2023] QDC 107
National Australia Bank Limited v Garner [2022] QDC 221
Zurich Capital & Finance Pty Ltd v Williams [2020] QDC 277

SOLICITORS:

Dentons Australia Limited for the plaintiff

1. The plaintiff applies for an order for substituted service on the defendant of the claim and statement of claim under r 116 of the Uniform Civil Procedure Rules.. The application has been made without an oral hearing. As the defendant has not been served with the originating process, the application is made ex parte.

2. The application is supported by an affidavit by a solicitor in the employ of the firm acting for the plaintiff.  The deponent says, early in the affidavit, that, where a matter deposed to is not within his personal knowledge, he has set out the source of the information, which he believes to be true.

3. The deponent refers to and exhibits, among other things, a number of reports from process service companies and he purports to summarise what he no doubt considers to be the salient facts set out in the reports.  Each of those reports refers to what “our agent” says.  The author of each report is not (except in one report) identified.  The “agent” referred to is not identified.  In a “skip trace” report, it says such things as “we” have undertaken searches, without identifying the person who undertook them, nor attaching a copy of the search results.  On occasions, the author of a report states that the “agent” has been told certain things by another person to whom the “agent” had spoken – and does not even state if and how that person had personal knowledge of the things stated.

4. Simply to summarise the evidence in this way demonstrates that it is not admissible, let alone reliable.  It constitutes hearsay on hearsay and sometimes on further hearsay. 

5. Only one affidavit of attempted service has been filed.  Presumably, the deponent of that affidavit is one of the agents referred to (apparently in the “Further Service Report” referred to by the solicitor).  That is the only credible evidence that that person went to three places to try to locate the defendant, though the basis for going to the third is not stated.

6. In the written submission accompanying the application, the author states that, among the material relied on in support, is an affidavit of a person sworn on 24 May 2024.  That person may be a process server, but no such affidavit is on the file.

7. This court has made it clear on many occasions that applicants for substituted service should not attempt to rely on inadmissible and unreliable evidence such as that relied on here.[1]  As in those cases, overall here there is little to no attempt to comply with the rules of evidence or to demonstrate the necessary criteria to justify a substituted service order.[2]  The attempt to rely on such inadmissible and unreliable evidence fails to meet a solicitor’s high duty to the Court, particularly in an ex parte applications such as this.

   [1]For example, Zurich Capital & Finance Pty Ltd v Williams [2020] QDC 277; Faranu Pty Ltd v Tropical Island Constructions Pty Ltd [2023] QDC 107; National Australia Bank Limited v Garner [2022] QDC 221. See also the comments of Judge Porter KC in Hadan v Jocksolo Pty Ltd [2023] QDC 237, [56] and the cases to which his Honour refers. I concur with that comment and his additional comment, at [57], about applications on the papers.

   [2]I addressed those requirements, including the general uselessness of “skip trace” reports that are not properly proved, in a paper, “Substituted service and similar applications: what is admissible evidence?” published in Proctor on 11 May 2023: >

   Therefore, I dismiss the application.