When commencing proceedings against a debtor, an important step is serving them with the relevant court documents so as to notify them of the claims you are making against them. When legal proceedings are commenced through a mechanism such as a filing a Statement of Claim, it’s an important part of the dispute process to serve notice of this personally on the defendant. However, it is not uncommon in these situations for debtors who are in financial distress to take steps to avoid being personally served, and so delay proceedings.
The good news is that the court has powers to make orders for what is called a substituted service. That is, in certain cases where it is clear a debtor is not cooperative, the court will allow you to serve documents in some other way than personally. To obtain a substituted service, you will need to show the Court that at the date you made the application you have, using reasonable effort, attempted and have been unable to serve a defendant personally. We set out below four things you should know about substituted service.
1. Impractical to Serve
In addition to results of the searches showing the defendant’s address, the Court will want to see what attempts have been made to serve the defendant personally. There is no hard and fast rule as to the number of attempts but you need to show that it is impractical to serve them personally.
Rule 10.14 and 10.15 of the Uniform Civil Procedure Rules provides for circumstances in which you can use substituted and informal service of court documents instead of a personally served statement of claim. It is necessary to show that personal service of documents is “impractical” or that one has been “unable to to effect prompt personal service”. You must also demonstrate that you have made reasonable efforts to serve documents to the defendant personally.
2. What are Reasonable Efforts?
A party cannot be said to have exercised reasonable efforts by simply trying to serve a defendant at their one listed residential address. 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
You may be asked to provide evidence to establish that the defendant is or is not at the address where you have made attempts to serve them personally. Quite often an affidavit of a process server or private investigator can be used as evidence in Court.
4. What Are the Alternative Methods of Service?
You will need to show to 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 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
- Via their social media account (though note, this is a new and evolving area).
The Court has discretion when making orders for substituted service and will consider the details of the attempts made to serve, evidence of the current whereabouts of the defendant (where possible) and the 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).
It is helpful to keep as many details as possible about potential debtors such as physical addresses, email addresses, employers 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 has litigation lawyers with extensive experience in debt recovery and can provide you with practical advice about obtaining a substituted service. Get in touch on 1300 544 755.