Rule 115 of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”) provides:
“(1) Despite parts 2, 3 and 4, a solicitor may accept service of a document for a party.
(2) The solicitor must make a note on a copy of the document to the effect that the solicitor accepts service for the party.
(3) The document is taken to have been served on the party, unless the party proves the solicitor did not have authority to accept service for the party.
(4) This rule applies whether or not personal service of the document is required under these rules.”
The rule is largely self-explanatory and typically operates where the solicitor for a defendant advises the solicitor for the plaintiff it has instructions to accept service and subsequently does so by making the required notation in accordance with rule 115(2).
We have recently encountered the example where the defendant’s solicitor, despite having informed us that it has instructions to accept service, refused to make the rule 115(2) notation.
The novelty of non-compliance with rule 115(2) does not appear to have been considered by the Courts in Queensland.
Accordingly, we have considered the following options for dealing with non-compliance.
- Service be re-affected in accordance with Chapter 4 of the UCPR.
- An Application be made for orders for informal service pursuant to rule 117 of the UCPR.
It is not necessary for such an Application to be preceded by a letter written pursuant to rule 444 of the UCPR in circumstances where the Application of Part 8 does not apply to service.
Should the circumstances be analogous to the above, we would also consider there a basis for the applicant to seek costs orders against the respondent’s solicitor pursuant to rules 681 and 690 of the UCPR arising from their failure to comply with rule 115(2).
Should you find yourself in a similar situation, require any guidance with service or wish to discuss this article further, please contact our commercial litigation team on (07) 3847 3333.
The above information is intended as a selective overview of the UCPR and should not be interpreted or relied upon for legal advice.