Part 1 A
To
The Registrar
Dear Madam/Sir
The statement of claim in relation to this case has been submitted on 1st March 2018. I did not have the capacity of serving the statement by post or personally. This is the reason why I seek to make an application for a substituted service order. I would be grateful if you make order through which the statement of claim can be served via sending it to Dr Wallace at any other place. This is because Under rule 116 of Uniform Civil Procedure Rules it is stated that in case it is not practicable to serve a document in a manner provided by the chapter the court can order substitution of the way in which the document is to be served by another way. In the case of Foxe v Brown (1984) 58 ALR 542 it had been stated by the court that the plaintiff has to be able to provide before the court that at the time when he or she has made the application for substituted services before the court that reasonable effort has been utilized by the plaintiff to serve the document to the plaintiff in personal capacity but such attempts have failed. We have made all possible attempts in this situation to serve the documents to him in his personal capacity which have failed.
Along with this letter I have also endorsed an affidavit which would provide support to my application for substituted services order.
Yours faithfully
AFFIDAVIT
COURT DETAILS
COURT – LOCAL COURT
DIVISION -SMALL CLAIMS
CASE NUMBER – XXXXXX
Title of Proceedings
Plaintiff- Croc Bait 27
Defendant – Dr Wallace
Filed for – Croc Bait 27 plaintiff
Contact and Telephone – XXXXXXX
Name – Croc Bait 27
Address – xxxx
Occupation – Company
Date – 24-10-2018
I affirm that
- I am the above mentioned plaintiff
- The statement of claim in relation to the matter has been submitted in 1st March 2018
- The statement of claim had been posted to the defendant in form of a sealed copy
- The address which has been mentioned above by me is true
- The statement of claim had not been received by the defendant
- On several attempts we have failed to successfully serve the statement of claim to the defendant personal.
- We have come to seek the order of substituted services from the court only because all the attempts which have been made by use to personally sever the statement of claim to the defendant as required under the civil procedure code have failed
- We confirm that all details provided by use are true to the best of our knowledge
- All documents which would be required to prove our failed attempts of delivery have been accompanied with this affidavit.
SWORN at ——–
Signature of Deponent ——-
Witness Name —–
Witness Address —–
Witness Capacity ——–
I saw the deponents face
I have confirmed the identity if the deponent through the use of identification documents.
Outline of arguments for the court with respect to rules and case laws regarding orders for substituted services
Under rule 116 of Uniform Civil Procedure Rules it is stated that in case it is not practicable to serve a document in a manner provided by the chapter the court can order substitution of the way in which the document is to be served by another way.
In the case of Foxe v Brown (1984) 58 ALR 542. it had been stated by the court that the plaintiff has to be able to provide before the court that at the time when he or she has made the application for substituted services before the court that reasonable effort has been utilized by the plaintiff to serve the document to the plaintiff in personal capacity but such attempts have failed. Substituted services involves the situation here the court may allow us to indirectly sever the document to another related person of the defendant which has been approved by the court or through the public publication of the document or by sending it through mail or dropping it to the workplace. We would like to inform the court that on several attempts we have failed to successfully serve the statement of claim to the defendant personal. This is the sole reason for which we are opting for substituted services. In the light of the rules provided through the case of Foxe v Brown we should be provided with an opportunity to avail the services in light of the facts.
In order to seek help under this procedure we are aware about the fact that we need to provide evidence before the court that we are not able to reach the defendant and all efforts which have been made by us to contact the defendant have failed. We are ready to provide the court with such evidence in form of an affidavit. This rule is provided under the case of Embry v Smart [2014] QCA 75. Therefore as we are provide the court with adequate evidence which showcases that we are not able to reach the defendant and all efforts which have been made by us to contact the defendant have failed there should not be any doubt in relation to the fact that we should be allowed to seek help via substituted services in order to serve documents to the defendant.
We would also like to bring to the notice of the court the rules provided in the case of Ricegrowers Co-operative Ltd & Anor v ABC Container Line (1996) 138 ALR 480. In this case it had been ruled by the judges that evidence must be “so obviously futile as not to warrant an attempt at service”. In the light of these rules we would like to bring to the attention of the court that we have not once but on several occasions made an attempt to serve document to the defendant personally. This may clear all doubts that we have not made an attempt.
Embry v Smart [2014] QCA 75
Foxe v Brown (1984) 58 ALR 542
Ricegrowers Co-operative Ltd & Anor v ABC Container Line (1996) 138 ALR 480
Uniform Civil Procedure Rules
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