4 Things to Consider When Obtaining a Substituted Service

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Table of Contents

• 1. Impractical to Serve
• 2. What Are Reasonable Efforts?
• 3. Evidence You Have Attempted to Contact a Defendant
• 4. What Are the Alternative Methods of Service?
• Key Takeaways
• Frequently Asked Questions

When commencing proceedings against a debtor, an important step is serving them with the statement of claim, and other relevant court documents, so as to notify them of the claims you are making against them. Ensuring proper notice has been served is essential to commencing any legal proceedings. However, it is not uncommon in these situations for debtors who are in financial distress to take steps to avoid being personally served to delay proceedings. The good news is that the court has powers to make orders for what is called a ‘substituted service’.

Substituted service occurs in certain circumstances where you can show the court that the debtor is not cooperative. As a result, the court will allow you to serve documents in a way other than personally. To obtain a substituted service, you will need to demonstrate that you have made reasonable attempts at the date you made the application but have been unable to serve the defendant personally. This article covers four things you should know about substituted service and consider when making an application to the court.

1. Impractical to Serve

The court will want to see:

• the results of the searches showing the defendant’s address (for example, an ASIC extract if the debtor is a company); and
• what attempts you have made to serve the defendant personally.

There is no hard and fast rule as to the number of attempts. However, you need to show that it is impractical to serve them personally.

It is necessary to show that personal service of documents is “impractical” or that you have been “unable to effect prompt personal service”. You must also demonstrate that you have made reasonable efforts to serve documents to the defendant personally and have exhausted all possibilities for personal service. A common example of this are situations where the defendant is overseas. Where the defendant is not in Australia, personal service may be impractical, and instead, you will look to substituted service as an alternative. 

2. What Are Reasonable Efforts?

The court will not consider that you have exercised reasonable efforts by simply trying to serve a defendant at their one listed residential address. Instead, you will need to show that the defendant is at the address at which the attempts have been made to serve. Ways of checking whether the defendant is at a particular address is by using various search methods such as:

• property title searches;
• telephone directory search;
• electoral roll searches;
• ASIC searches; and
• any contact with employers or residents at previously known addresses.

3. Evidence You Have Attempted to Contact a Defendant

The court may ask you to provide evidence to establish that the defendant is or is not at the address where you have attempted to serve them personally. Quite often, you can use an affidavit of a process server or private investigator as evidence in court. An affidavit will need to include information to support the application for substituted service. Where possible, you can include: 

• the other side’s last known address;
• current employment details and address;
• details of addresses where you have attempted service;
• information on reasonable efforts made to locate the defendant (such as those outlined above);
• details on all attempts made to serve the defendant personally;
• any communication with the defendant or related parties; and 
• any other information which supports the application for substituted service.

4. What Are the Alternative Methods of Service?

You will need to show the court an alternate method of service that is likely to bring the proceedings to the defendant’s attention. Examples could be:

• leaving them at the known address of the defendant (this is where the search results will assist);
• posting them to the address of the defendant (again, this is where the search result will assist);
• emailing them to the defendant where you know that the defendant uses that email address;
• serving someone close to the defendant (for example, their partner); or
• serving them via their social media account (though note, this is a new and evolving area). 

Service Through Social Media

For the court to accept substituted service through social media, as with the other examples, you have to demonstrate it is reasonably likely the defendant will receive the statement of claim. In some cases, this has involved matching the details such as the birth date and email address on the social media account to the information available.

In addition, many social media accounts provide the sender with a notification of receipt when the message has been viewed and received. This has been useful in some applications. 

Key Takeaways

The court has discretion when making orders for substituted service. It will assess the: 

• details of the attempts made to serve; 
• evidence of the current whereabouts of the defendant (where possible); and 
• practicalities of serving the documents. 

The court will also need to be confident that the documents will reach the defendant’s attention at the alternate address or through the alternative method of service (for example, digitally or being served on someone known to the defendant).

It is helpful to keep as many details as possible about potential debtors such as physical addresses, email addresses, employers/employees and the like to assist with locating them down the track. It may seem pedantic, but when it comes to trying to serve and later enforce judgments, this information will prove invaluable to you.

If you have questions regarding your options as to contacting a debtor, LegalVision’s experienced dispute and litigation lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions