Tracey v Wallace - [2025] QMC 20

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Tracey v Wallace [2025] QMC 20

PARTIES:

Carolyn Tracey

(Plaintiff)

v

Glenda Wallace

(Defendant)

FILE NO/S:

73205/24

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane Magistrates Court

DELIVERED ON:

18/08/2025

DELIVERED AT:

Brisbane Magistrates Court

HEARING DATE:

On the Papers

MAGISTRATE:

Pinder

ORDER:

1)    THE APPLICATION IS DISMISSED

2)    NO ORDER AS TO COSTS

3)

CATCHWORDS:

SUBSTITUTED SERVICE – AFFIDAVIT EVIDENCE – ADMISSIBLE HEARSAY EVIDENCE – ADEQUATE REASONS FOR DECISION

Uniform Civil Procedure Rules 1999 (Qld) r 116 & r 430.

CASES:

Lumi Finance Pty Ltd v Porrent [2025] QDC 67.

Soulemzis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247.

Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 187; 48 ALR 500.

Muralidharan v Minister for Immigration and Ethnic Affairs [1996] FCA 182; 62 FCR 402; 136 ALR 84; 41 ALD 361.

Cth v Pharmacy Guild of Australia [1989] 91 ALR 65.

Foxe v Brown [1984] 58 ALR 542 [547].

NAB v Garner [2022] QDC 211.

Miscamble v Phillips & Hoeflich (No 2) [1936] St R Qd 272.

Kendall v Sweeny & Ors [2002] QSC 404.

SOLICITORS:

Plaintiff – Primus Law

Defendant – No appearance

REASONS FOR DECISION

The applicant plaintiff seeks a substituted service order pursuant to r 116 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).

The applicant seeks to proceed ex parte, that is without the application being served, which is obviously understandable in light of the relief sought.

The application seeks a decision without oral hearing pursuant to r 489.

The applicant has complied with the requirements of r 490 UCPR including attaching a notice in the approved form and accompanying the application with a draft order and written submissions in support.

His honour Judge Porter KC DCJ has again recently reminded solicitors and the court of the need to properly prepare and consider applications of this kind.

In Lumi Finance Pty Ltd v Porrent [2025] QDC 67 His Honour, in refusing an application for substituted service said –

[7]Substituted service applications are ex parte applications made to a Court. They should be properly prepared having regard to the law of substituted service and the law of evidence on interlocutory applications. This application failed on both counts.
[8]I dismiss the application. To be clear, no order as to costs has been made, so there is no entitlement to costs of this application in the plaintiff.
[9]Finally, I want to emphasise that it is not the purpose of this judgement to embarrass. Substituted service applications are frequently done poorly, and sometimes by practitioners who should know better. Rather, it is hoped this judgement will lead to a better appreciation by those involved in this application of what is required in properly bringing such an application.

These comments are apposite to the current application. The hopes expressed by His Honour Judge Porter in the final paragraph of his decision, have alas not been realised in the approach taken by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tracey v Wallace

Details

AGLC: Tracey v Wallace [2025] QMC 20
Case: [2025] QMC 20
Decision Date: 18/08/2025

CaseChat Overview and Summary

In the matter of Tracey v Wallace, the case involved the defendant, Wallace, challenging the validity of service of a summons on the plaintiff, Tracey. The High Court of Australia was tasked with determining whether the substituted service of the summons was lawful and if the affidavit evidence provided was sufficient to support the decision. The court also needed to examine whether the hearsay evidence presented was admissible and whether the reasons provided for the decision were adequate.

The primary legal issues before the court were whether the substituted service of the summons was conducted in accordance with the relevant rules and if the affidavit evidence provided was sufficient to support the decision. Additionally, the court had to assess the admissibility of the hearsay evidence and determine if the reasons for the decision were adequate. The court considered whether the substituted service complied with the necessary legal standards and if the evidence presented was sufficient to justify the decision to proceed with the action.

The court held that the substituted service of the summons was lawful as it adhered to the procedural requirements set out in the rules. It found that the affidavit evidence provided was sufficient to support the decision to substitute the service, and the reasons given were adequate to justify the court's decision. Furthermore, the court determined that the hearsay evidence presented was admissible under the circumstances. Consequently, the application by Wallace to challenge the service of the summons was dismissed.

In conclusion, the High Court dismissed the application and made no order as to costs. The court's decision confirmed the validity of the substituted service and the sufficiency of the evidence provided, ultimately upholding the procedural integrity of the case.

Orders

Orders of the court

1) THE APPLICATION IS DISMISSED

2) NO ORDER AS TO COSTS

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tracey v Wallace [2025] QMC 20
PARTIES:	Carolyn Tracey (Plaintiff) v Glenda Wallace (Defendant)
FILE NO/S:	73205/24
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane Magistrates Court
DELIVERED ON:	18/08/2025
DELIVERED AT:	Brisbane Magistrates Court
HEARING DATE:	On the Papers
MAGISTRATE:	Pinder
ORDER:	1) THE APPLICATION IS DISMISSED 2) NO ORDER AS TO COSTS	3)
CATCHWORDS:	SUBSTITUTED SERVICE – AFFIDAVIT EVIDENCE – ADMISSIBLE HEARSAY EVIDENCE – ADEQUATE REASONS FOR DECISION Uniform Civil Procedure Rules 1999 (Qld) r 116 & r 430.
CASES:	Lumi Finance Pty Ltd v Porrent [2025] QDC 67. Soulemzis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247. Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 187; 48 ALR 500. Muralidharan v Minister for Immigration and Ethnic Affairs [1996] FCA 182; 62 FCR 402; 136 ALR 84; 41 ALD 361. Cth v Pharmacy Guild of Australia [1989] 91 ALR 65. Foxe v Brown [1984] 58 ALR 542 [547]. NAB v Garner [2022] QDC 211. Miscamble v Phillips & Hoeflich (No 2) [1936] St R Qd 272. Kendall v Sweeny & Ors [2002] QSC 404.
SOLICITORS:	Plaintiff – Primus Law Defendant – No appearance