If you have been involved with legal proceedings or are considering legal proceedings, you may be familiar with the service rules and regulations. ‘Service’ is the term that describes the delivery of a court document to another person. The method of service must comply with the rules of the court and must draw the document to that person’s attention. This article outlines the appropriate methods for serving documents and addresses whether you can serve court documents online. Ensuring you serve documents correctly is a critical part of legal proceedings. If done incorrectly, it can be difficult to remedy and can impact your claim.
Which Documents Do I Need to Serve?
The most common documents that require proper service are those that commence court proceedings. These are known as ‘originating processes’ and can include:
- a statement of claim;
- a writ; or
- a motion.
You may also be required to serve additional court documents as they are filed throughout the legal proceedings. Service requirements will also apply to other types of legal documents. For example, most contracts will contain notice provisions for breach or termination documents that indicate notice should be given in writing.
Time Limits for Service
Various limitation periods apply to different types of claims. The limitation periods provide a time limit for a person to make their claim. For example, you can only bring a breach of contract claim within six years from the date the cause of action accrues. In the context of an unpaid invoice, this would be the date the invoice is due and payable. After that time, the claim becomes ‘statute barred’. This means that it is no longer legally enforceable.
Filing an originating process is sufficient to stop the clock on the limitation period. However, it is imperative that you also serve the document to the other party within the time limit specified by the court rules. It is important to note that service requirements may vary from state to state and even amongst the different courts. Before serving any documents, you should check the relevant rules and applicable practice notes.
For District Court matters, the time limits are:
- six months for debt claims;
- six months for claims where the party you are serving is outside New South Wales; and
- one month for all other claims.
How Do You Serve Court Documents?
The UCPR provides that an originating process can be served personally or by post.
Serving Documents Personally
You can personally serve both companies and individuals. For a company, you can personally serve an originating process by:
- leaving a copy of the document at, or posting it to, the company’s registered office;
- by personal service (as defined above) on a director or secretary of a company who resides in Australia; or
- by leaving the document at the last known address of an administrator or liquidator of a company as lodged with ASIC.
For an individual, it is best to engage a professional process server to carry out service. This is because you must satisfy the court that you have brought the document to the individual’s attention. Moreover, personal service requires:
- leaving a copy of the document with the person to be served, that is, handing them a copy of the document; or
- if the person does not accept the copy, putting the copy down in the person’s presence and telling the person of the nature of the document.
Typically, a process server will attend these premises and wait for the individual’s appearance before giving them the documents personally.
Serving Documents By Post
As set out above, you can serve documents by post. However, only the court can serve an individual by post. Furthermore, it is important to be aware of the postal service rule: a document is deemed to have been received seven days after it was posted. In addition, it is important to check the relevant court rules that apply to service as these can vary from court to court.
It is prudent to avoid any dispute concerning when and how you served a document. Accordingly, if you serve a document via post, ensure you have evidence to prove to the court that you did post the document. The documents sent by post should have a tracking number that can be verified. Additionally, you should also make a note of the date, time and location of where you posted the documents.
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Can I Serve Court Documents Online?
Yes, you can serve documents online. However, this is only true in certain circumstances. For example, you can serve documents online if:
- the defendant has legal representation, and their lawyer has confirmed that they can accept service via email on their client’s behalf; or
- you obtain an order for substituted service from the court.
Substituted Service
Suppose you have been unable to serve a defendant with your court documents. In that case, you can apply to the court for approval of an alternative method of serving those court documents on the defendant, known as ‘substituted service’.
To obtain permission from the court to serve a document by substituted service, you will need to provide a statement to the court explaining:
- that you have attempted to serve the court documents and how;
- how your attempts failed and confirmation that you have not been able to serve the court documents;
- there are alternate methods that will bring the documents to the defendant’s attention; and
- how you know those methods will be effective.
A common alternate method is serving someone by email, provided you establish that the person regularly uses that email address.
What About Social Media?
Serving someone via their Facebook or Twitter profile may sound easy. However, courts have not warmed to the idea, and it is not commonplace. This is largely because it may be difficult to establish that:
- the online profile is in fact that of the defendant; and
- the defendant regularly uses their profile, such that they will promptly see the court documents.
Provided you can establish the above criteria to the court’s satisfaction, the court may permit substituted service by sending court documents via their Facebook or other online profile.
Key Takeaways
It is important to ensure you effectively serve court documents according to the court rules. You may do so by serving documents personally or via post. Additionally, suppose you are unsuccessful in serving a defendant personally or via post. In that case, you can seek the court’s permission to obtain substituted service orders to serve the defendant by an alternate method.
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Frequently Asked Questions
The most common documents that require proper service are those that commence court proceedings. These are known as ‘originating processes’. For example, this might be a statement of claim, a writ or a motion.
Yes. Various limitation periods apply to different types of claims. The limitation periods provide a time limit for a person to make their claim. Filing an originating process is sufficient to stop the clock on the limitation period. However, it is imperative that you also serve the document to the other party within the time limit specified by the court rules.
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