SERVING QCAT PROCEEDINGS

You may have read our previous blog focusing on recent QCAT traps and tips on how to avoid them. However, if you’re too busy or cannot be bothered revisiting that post, here is a quick little refresher to bring you up to speed.

The Queensland Civil and Administrative Tribunal (“QCAT”) is a Queensland based tribunal and is well known for building and neighbourhood disputes (think arguments between neighbours over an overhanging tree or a fence line). It also deals with minor civil and debt disputes, being disputes over a monetary amount less than $25,000.

Once you have started your proceeding in QCAT, you may not realise that you must also serve the proceeding on the other party. Generally, you will likely be suing an individual (or multiple individuals) or their company and there are different requirements on how you need to serve these documents to ensure that the other party has proper notice of the proceeding against them, and so you can advance the proceeding towards the resolution you desire.

We recently helped one of our 23LEGAL friends serve their QCAT proceeding and realised that there was no easy way to locate the information you needed to effectively serve your proceeding. We have set out some brief insights below to help you work out how best to serve the QCAT proceeding on the other party if they are an individual or a company. 

Personal service on an Individual

When you file proceedings in QCAT against an individual, the next step is that you must personally serve that individual with the proceeding documents or application within 28 days of filing or, if the matter is a minor debt claim (being a monetary claim for up to $25,000), you have 90 days to serve that person.

When serving an individual, you must give them either the original stamped copy of the documents or a copy of those stamped documents. Whilst you must personally serve an individual, there are three exceptions to this rule being:

1. If the person refuses to take the document, you can leave the document in that person’s presence and state what the document is; or
2. If it is not practicable to personally serve that individual with documents or leave them in their presence you may then leave them with an adult living at the last known place of business or residence of the individual being served; or
3. Where the individual resides or carries on a business more than 50km from the nearest registry (being either the Brisbane Registry of QCAT or a Queensland Magistrates Court Registry) then you can post the documents to the person’s residential or business address.

For more information related to the serving of documents on an individual, refer to the relevant QCAT Practice Direction here. If you require further assistance or want to know your next steps in relation to serving documents on an individual, please contact us and we would be happy to discuss.

Personal service on a company

When you file proceedings in QCAT against a company under the Corporations Act 2001 (Cth) (“the Corporations Act”) the next step is that you must personally serve that company with the proceeding documents or application within 28 days of filing or, if the matter is a minor debt claim (being a monetary claim for up to $25,000), you have 90 days to serve that company.

Under section 109X of the Corporations Act you can serve the document/s on a company by:

1. Leaving it at, or posting it to, the company’s registered office (see below for how to find the registered office); or
2. Serving a copy of the document/s personally to the director of the company who resides in Australia or in an external Territory (see above as to how to personally serve an individual); or
3. If a liquidator or administrator of a company has been appointed, serving a copy of the document/s personally by leaving at, or posting to, their most recent address lodged with the Australian Securities & Investments Commission (“ASIC”).
   1. You need to be mindful that when a company is in the process of liquidation you need the permission of the Supreme Court or the Federal Court to bring proceedings. We recommend contacting us in these circumstances so we can discuss this further and provide other options that may be available to you.

How to find a company’s registered office

To locate a company’s registered office, being the formal address registered with ASIC, you will need to obtain a current company search from ASIC. You can obtain the search at this link by:

1. Searching within ‘Organisation and Business Names’
2. entering either the company’s name or the company’s Australian Company Number (“ACN“); and
3. paying any relevant fee for the search (around $10).

For more information related to the personal serving of document/s on a company, refer to the QCAT Practice Direction linked above. Please contact us for any enquiries related to serving documents on a company and we would be more than happy to help.

Other Entities

There may be circumstances where you will be issuing proceedings against other types of entities, such as an incorporated association, unincorporated association, a partnership, or a business. The personal service requirements will vary depending on the entity you are dealing with in your proceedings.

For more information on this, head over to the QCAT Practice Direction linked above which provides guidance on what you need to do in circumstances where you are serving one of these entities. If you find yourself stuck in one of these situations and need assistance with serving documents in your proceedings, please reach out to us to discuss.

Affidavit of Service

Once you have served the QCAT Proceedings we recommend that you immediately prepare an affidavit of service to create the evidence for QCAT that the proceedings were validly served.

An affidavit of service is a sworn or affirmed court document that you are must complete if you wish to prove that service has been valid affected on the other party to the proceeding.  This will be essential if the Respondents do not file a response and you wish to obtain judgment.

QCAT provide an affidavit of service form which can be accessed here.

The key details regarding the service of documents (as outlined below in our tips and tricks) are essential to completing this form or for compiling your affidavit of service to ensure that there is sufficient evidence before QCAT to prove service was validly effected.

The affidavit of service must be sworn or affirmed in the presence of a qualified person who is either a Justice of the Peace, Commissioner for Declarations, or a Lawyer.

The Affidavit of Service should then be filed at the QCAT registry where your original application was filed to prove service on the other party has been validly performed. We recommend keeping a secure copy of the affidavit of service with the official QCAT stamp to prove it has been filed in your proceedings.

Tips and Tricks for service

Now that you have a better idea on how to serve documents in your proceedings, here are some of our recommended tips and tricks to further assist you.  

Storing copies of documents served

We recommend that you serve with the documents a covering letter that lists each of the documents you are serving on the other party. It is important that you keep a copy of the documents you filed with QCAT by either taking a photo on your mobile device or scanning and saving the documents to your computer or cloud server (e.g. OneDrive, Google Drive or iCloud) or storing the documents in a safe place at home. It does not matter how you keep a copy of the documents provided you keep them safely stored and make a note as to where they are stored so you can access them upon putting together your affidavit of service (discussed below).

Putting together the Affidavit of Service

To ensure that you can properly put together your affidavit of service you must also keep a record of the key details related to the serving of the documents on the other party. We recommend keeping a record of these details (which we have set out below) in your mobile device, emailing them to yourself or jotting them down into a book or piece of paper that is secure at home.  We recommend also keeping these details in the same place as the documents so you have all the relevant information in the same place so that you don’t lose anything.

For personal service on an individual (including serving a director of a company personally), you must keep a record of (at least) the following key details for the affidavit of service:

1. The date and time you served the documents
2. The location of where you served the documents  
3. How the individual being served was identified
4. The details of the documents handed to the individual

For the personal service on a company (if you are delivering or posting them to their registered office), you must keep a record of the following key details for the affidavit of service:

1. The date and time the documents were posted
2. The location of the post box the documents were placed in
3. The documents contained in the envelope and a photo of the front of the envelope with the required postage stamps
4. How you identified the address being posted to (this will likely be through the ASIC company extract search discussed above)

However, if you do not wish to serve the documents personally for any reason (such as being in a very heated dispute with the other party) there are options available for outsourcing the personal serving of documents. We suggest engaging in a process server who will hand deliver the documents to the individual or company being served. Please get in contact with us regarding engaging a process server who can assist in this area.

Next Steps

Hopefully this article will assist you with your QCAT proceedings; however if  you are looking to engage (or have engaged) in QCAT Proceedings and need assistance, we are more than happy to discuss and assist you to ensure you are equipped with the necessary information and steps to properly deal with the serving process.