Article Summary
Informal service in Queensland pertains to the delivery of legal documents in a non-standard manner that does not strictly follow formal service regulations.
This approach is recognised when ensuring the recipient's awareness of the documents and legal proceedings is more crucial than the method of delivery.
Informal service is governed by section 117 of the Uniform Civil Procedures Rules 1999 (UCPR).
- Informal service occurs when legal documents are delivered in an unconventional manner, ensuring the recipient is aware of the proceedings despite not following formal protocols.
- Essential for maintaining fairness by allowing the recipient to form a defence and seek legal assistance.
- Section 117 of the UCPR permits the court to validate informal service if there is evidence that the recipient received the documents.
- The court can declare the date of possession as the effective service date, facilitating timely legal proceedings.
- Common methods include email, mailing to the last known address, and leaving documents at a known address.
- These methods require proof that the recipient received and acknowledged the documents.
- Proof of service can include email receipts, mail tracking, witness statements, and follow-up communications.
- Robust evidence is crucial to demonstrate that the recipient was aware of the documents, meeting the court's requirements for validating informal service.
In this article, our litigation solicitors explain the process of informal service.
What is Informal Service?
Informal service occurs when a legal document is delivered to an individual in an unconventional manner under the regulations of service. This means that someone is made aware of the document and that it is being served to them, but it is not served to them formally or in a way that follows the rules of serving documents in civil proceedings.
When someone is being sued, it is often essential that they are made explicitly aware of the proceedings and the claims the other side is making against them. This allows them to form a case and seek legal guidance and assistance if they wish, giving them a fair opportunity to defend their case in the matter.
As a result, Queensland formed regulations for how a party should be served important legal documents to ensure they physically receive notice that they are sued.
However, informal service can occur when these regulations are not met but the court recognises reasonable service of documents, generally when a party recognises that they have received the documents and are aware of the proceedings.
The key consideration made by the court in cases of informal service is whether the document has effectively come to the attention of the person being served, rather than whether the service strictly adhered to the service regulations.
Avoidance of service to evade the lawsuit is common, so informal service rules recognise the need for justice to be administered in cases where physical service of documents may not be reasonable.
What Does the Law Say about Informal Service?
As we discussed previously, the law allows for some forms of informal service in certain circumstances. This is established under section 117 of the Uniform Civil Procedures Rules 1999 (UCPR), which states:
"If—
1. for any reason, a document is not served as required by this chapter but the document or a copy of it came into the possession of the person to be served; and
2. the court is satisfied on the evidence before it that the document came into the person's possession on or before a particular day;
the court may, by order, decide that the possession of the document is service for these rules on the day it came into the person's possession, or another day stated in the order."
Methods of Informal Service in Qld
There are several ways that informal service can occur. Under general regulations in Queensland, the formal way to serve someone to start court proceedings (debt recovery proceedings, for example) is either physically handing them the documents in person or, if they refuse to take the documents, leaving them in their presence and explaining what they are.
However, provided the court finds there is sufficient evidence that the other side received the documents, there are several methods of informally serving them. They include:
- Email: A common form of informal service is email delivery. Sending the claim or other documents to the other side using a known email can be an effective method of informal service. It is important to ensure the email is correct and the other side receives and acknowledges the email, however.
- Mail: Posting the documents to the other side's last known home address or place of business is another option for informal service. Express or tracked post is advised if important documents are being delivered through the mail.
- Leaving Documents to a Known Address: Leaving the documents at the other side's last known address or place of business can be another method of informal service. Contrary to mailing, the serving party will personally visit the address and deliver the documents. This means that it's crucial to log this deliverance in some way, as the previous methods have inherent methods of tracking.
Proof of Informal Service
If a party denies service, proving it has occurred can be a challenge. It's essential to collect evidence of service to present to a court if the other side denies receiving the court documents. There are several key elements of evidence, including:
- Document Delivery: To prove the informal service of court documents, it's crucial to document the method and the time that the documents were delivered. This may be in the form of email receipts, mail tracking confirmation, text message logs, or a witness statement if the document was physically delivered to an address on the other side.
- Show the recipient awareness: Once the documents have been delivered, it's crucial to show evidence that the recipient is aware of the documents. This may be an email response, return letter, text, or verbal acknowledgement.
- Follow-up Communication: If there has been any follow-up communication from either side, this may also be accepted as proof of informal service. If the other side has been in contact regarding the proceeding after its acknowledgement or if the party that served the documents follows up requesting confirmation or other contact, the court may consider this evidence.
- Alternative Attempts: It is never ideal to serve a party informally. A reason for informal service must be presented and justified. Providing evidence of alternative attempts to serve the defending party, such as proof of refusal of service, can be used as evidence by the suing party to justify the informal service.
Informal Service Case Law
The case law shows that the plaintiffs must make considerable efforts to serve documents and information in accordance with formal rules before resorting to informal service. Courts often find that more effort is required before informal service can be considered valid.
Courts have validated plaintiffs' attempts at substituted service through multiple means, including contacting the defendant by phone and publishing a notice in a newspaper, illustrating the need for thorough attempts at formal service before seeking court approval for substituted service.
The court acknowledges thorough attempts to serve the defendant, including through social media and personal communication, validating the informal service and emphasising the importance of persistent efforts.
Courts require sufficient evidence that the defendant was aware of the proceedings through informal service. Robust evidence is necessary to show that the documents reached the defendant and they were aware of the proceedings.
Courts accept that documents left at a new address were effectively served when the defendant confirmed their identity but then tried to evade service. This demonstrates the court's willingness to validate service when there is clear evidence the defendant received the documents.
The cases emphasise that if it is uncontested that a party received the documents, the court may permit informal service. Courts commend the initiative shown in using unconventional methods like social media to inform the defendant, highlighting the importance of creativity and persistence in ensuring service.
D'ath v TNT Australia Pty Ltd [1992] 1 Qd R 369
The purpose of all service is to notify the concerned party, and it's undisputed that the third party has received the amended documents. In D'ath v TNT Australia Pty Ltd [1992] 1 Qd R 369, Master White (as she was then) said:
It was further submitted that the object of all service is only to give notice to the party concerned and it is uncontested that the third party has received the amended third party documents.
So, consistent with rule 117, if a person can show that a document was given to the person to be served, and it is uncontested that the person received the document, then the Court may make an order for informal or substituted service.
AMCI P/L v Corcoal Management P/L & Ors [2013] QSC 50
In AMCI P/L v Corcoal Management P/L & Ors [2013] QSC 50, the plaintiff sought an ex parte order to authorise informal service of the originating proceeding on the third defendant, a corporation registered in the Ajman Free Zone in the United Arab Emirates.
The plaintiff emailed the claim to the third defendant, where it was received and acknowledged by a director of the business. The reason the plaintiff served the defendant informally was due to the difficulties associated with serving a company in the United Arab Emirates.
They claimed there were legal difficulties, stating "the United Arab Emirates is not a convention country within the meaning of UCPR 130 and UCPR 140 and is not a Hague Convention country for the purposes of div 3 of ch 4 pt 7 of the UCPR".
The court found that there were various ways to mitigate the difficulties (e.g. legal firms/accounting offices in the UAE) and found that the plaintiff should have tried "a little harder" to serve the defendant formally, saying at [30]:
In general, it seems to me that a plaintiff should try a little harder to effect service in accordance with ch 4 pt 7 than has occurred to date in this case, at least on the evidence before me, before falling back on the power under UCPR 117 to dispense with compliance with the requirements that usually apply.
The application was adjourned to a date to be fixed. The court highlighted that the plaintiff needed to make more effort to serve according to the rules before resorting to informal service.
This illustrates that some good attempts must be made to effect service in the usual way under the rules should be attempted before attempting to make this application.
Note – perhaps obtain an affidavit of attempted service from your process server and ensure that all the attempts by you are documented in your affidavit.
Casburn v Dick [2021] QDC 336
In Casburn v Dick [2021] QDC 336, the court considered whether the defendant of the case, who was not present in the court during the proceeding, was made sufficiently aware of the proceedings under informal service rules.
The plaintiff emailed the application and her affidavit to the defendant at his email at the Australian Taxation Office. She received an automatic reply, stating the defendant was out of office.
The court found that there was no satisfactory evidence that the defendant was informally served and that he was aware of the proceedings, finding informal service did not apply, finding:
I am not satisfied, on the basis of the evidence, that the originating application or the other documents – in particular, the applicant's affidavit – have come into the possession of the respondent even though they may have come into his inbox and he might, in some circumstances, have had the opportunity to see them in his inbox, and even though it is possible that his executive assistant has drawn them to his attention. There is no evidence of any follow-up phone call or email to his executive assistant to find out whether she has, in fact, been able to draw the documents to his attention, nor is there any other evidence on which I can conclude that the respondent has seen the documents and has them in his possession.
The outcome of this case was that the court extended the limitation period for the defamation action but did not conclusively accept that the informal service under rule 117 was valid due to insufficient evidence of the defendant's possession of the documents.
This illustrates that some good evidence of the attempts to ensure that that the documents have come into the possession of the person to be served is required to meet the threshold issues.
Murphy v Green [2002] QDC 010
In Murphy v Green [2002] QDC 010, the plaintiff was unable to physically serve the respondent with the correct information and made efforts to serve the documents through several means.
The plaintiff contacted the Rockhampton Prison and spoke with a person who identified himself as the respondent. The plaintiff also delivered the documents to an address provided by the respondent.
The court decided that the steps taken by the plaintiff substituted service of the application and supporting documents, and the respondent was taken to have been served upon the date of publication of the advertisement in the Rockhampton Morning Bulletin.
The applicant took the following steps:
- Initial Attempt at Personal Service – The applicant's representative, Mr. Keith Stubbins, visited the last known address of the respondent (281 Campbell Street, Rockhampton) on 5 December 2001. He was informed by a male occupant that the respondent no longer resided there and had been recently imprisoned.
- Contact with Correctional Facility – Mr. Stubbins contacted the Rockhampton Prison to locate the respondent but was informed that the respondent was no longer an inmate.
- Telephone Communication – Mr. Stubbins later received a telephone call from an individual identifying himself as the respondent, Kerry Green. The respondent requested Mr. Stubbins to mail the documents to 281 Campbell Street, Rockhampton, ensuring that he would be able to collect them despite not residing there.
- Delivery of Documents – Mr. Stubbins delivered the originating application and supporting documents to 281 Campbell Street, Rockhampton, with a note asking the respondent to contact the applicant's solicitors. He spoke to another occupant, Chris Hill, who promised to hand over the documents to the respondent.
- Newspaper Advertisement – The applicant arranged for an advertisement to be placed in the Rockhampton Morning Bulletin newspaper. The advertisement, which served to notify the respondent of the application, was published on 17 January 2002.
In this case, the Court found:
In those circumstances, it seems to me to be appropriate that I direct that it is unnecessary for a formal application for substituted service to be made and that the steps taken by the applicant as deposed to in the affidavit of Mr Stubbins and the affidavit of Mr Bailey be deemed to be substituted service of the application and supporting documents and that the respondent be taken to have been served upon the date of publication of the advertisement in the Rockhampton Morning Bulletin namely the 17th January 2002.
Again, this emphasises the importance of doing everything possible, similar to an application for substituted service, prior to making the application to the Court.
Symes v Saunders [2011] QDC 217
Similarly, in Symes v Saunders [2011] QDC 217, in an application for substituted service, Judge Robin QC commended the applicant for trying to get the respondent served. The types of service
- Facebook Notification – Mr. Wallace, the applicant's lawyer, located the respondent's profile on Facebook. He communicated via Facebook, advising the respondent of the application and providing a copy of it (without supporting material). Mr. Wallace invited the respondent to contact him or his firm for further information and informed him of the return date.
- Personal Communication – On 1 September 2011, the respondent contacted Mr. Wallace via Facebook and mobile phone. Mr. Wallace informed the respondent about the court hearing date and advised him to seek legal advice. The respondent discussed the incident underlying the application and provided additional contact details.
The respondent confirmed receipt of the application and the information and discussed the matter with Mr. Wallace.
The court acknowledged that the respondent was adequately informed of the application despite the absence of formal personal service.
The court proceeded with the hearing, determining that the service via Facebook was sufficient under rule 117, stating:
Mr Wallace deserves some commendation for his initiative and in the circumstances in my opinion the court is justified and ought, in the interests of efficiency and not requiring further costs to be incurred, to proceed to determine the application. In effect, the court is determining that there has been sufficient service of the originating application for purposes of rule 117.
Again, this emphasises the importance of doing everything possible to get the respondent served prior to making the application to the Court.
Deputy Commissioner of Taxation v Cooney [2004] QDC 478
In Deputy Commissioner of Taxation v Cooney [2004] QDC 478, the plaintiff served the defendant at a new address. When the defendant answered the door at the new address, he confirmed he was the defendant before running up the staircase when he became aware of the reason for the plaintiff's presence.
The plaintiff stuck the documents to the door of the new address to serve the defendant as he would not accept the documents. The defendant later claimed that the wrong person had been served and that the address was incorrect.
The court found that the defendant had been effectively served at his new address.
Because of this, Judge Robin QC said:
I am convinced that the documents left by Mr McDonald came into possession of the defendant on the 7th of September 2004, and in the circumstances, consider this is a suitable case for the use of Rule 117.
Ultimately ordering:
The Claim and Statement of Claim number 94 of 2003 were sufficiently served by Peter Alexander McDonald on behalf of the plaintiff on the defendant on 7 September 2004.
Informal Service in Queensland FAQ
Welcome to the FAQ section on Informal Service of legal documents in Queensland.
This guide aims to answer common questions regarding the informal service process, its legal implications, and practical steps to ensure effective delivery and acknowledgement of court documents.
What is Informal Service?
Informal service occurs when legal documents are delivered in a non-standard manner that doesn't strictly follow the formal service regulations. The key is that the recipient becomes aware of the documents, allowing them to respond to legal proceedings. This method is recognised by courts when formal service proves impractical or is actively avoided by the recipient.
Why is Informal Service Used?
Informal service is often used when formal methods are not feasible. This could be due to the recipient avoiding service, residing in a difficult-to-reach location, or other barriers. The court prioritises whether the recipient is aware of the proceedings over the strict adherence to service regulations, ensuring justice is upheld.
What Does Section 117 of the Uniform Civil Procedures Rules 1999 Say?
Section 117 allows the court to accept informal service if it can be shown that the document came into the recipient's possession. The court can then declare the date of possession as the effective date of service. This provision ensures that legal proceedings are not unduly delayed by technicalities in serving documents.
How Can Legal Documents be Informally Served?
Informal service can be done through various methods like email, mailing to the last known address, or leaving documents at a known address. Each method requires proof that the recipient received and acknowledged the documents. These methods are recognised when traditional service methods fail.
What Evidence is Required to Prove Informal Service?
Proof of informal service can include email receipts, mail tracking confirmations, witness statements, and follow-up communications. The evidence must convincingly show that the recipient was aware of the documents. Courts look for robust evidence to validate informal service.
What is the Role of Follow-up Communication in Informal Service?
Follow-up communication can solidify the proof of informal service. If the recipient responds to emails, letters, or phone calls about the documents, this can be used as evidence that they were aware of the service. Courts value such interactions as they demonstrate acknowledgement of the legal documents.
What are Some Case Examples of Informal Service?
Cases like D'ath v TNT Australia Pty Ltd and Deputy Commissioner of Taxation v Cooney illustrate how courts validate informal service when the recipient acknowledges the documents. These cases highlight the importance of showing the recipient's awareness and the thorough efforts made to serve them.
Can Social Media be Used for Informal Service?
Yes, social media has been used in some cases to serve documents informally. Courts have accepted service via platforms like Facebook when traditional methods fail, provided there is sufficient evidence that the recipient received and acknowledged the documents.
What Happens if Informal Service is Contested?
If the recipient contests the service, the serving party must provide substantial evidence of delivery and awareness. Courts will evaluate the provided evidence to determine if the informal service meets the necessary legal standards. Persistent and documented efforts can support the validity of the service.
How Important is Documentation in Informal Service?
Thorough documentation is crucial. Keeping records of all attempts, communications, and acknowledgements helps in proving the service in court. Courts rely heavily on documented evidence to validate informal service and ensure fair legal proceedings.
What Should be Done if Formal Service Fails?
If formal service fails, attempt alternative methods and document each effort. Informal service should only be considered after exhaustive attempts at formal service. Providing evidence of these attempts strengthens the case for accepting informal service.
Can Informal Service be Used for All Legal Documents?
Informal service is generally used for civil proceedings, but its applicability can vary depending on the document type and the specific legal context. Always seek legal advice to ensure compliance with the relevant rules and regulations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.