‘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. In this article, we outline the appropriate methods for serving documents and address whether you can serve court documents online.
Which Documents Must Be Served?
The most common documents that require proper service are those that commence court proceedings. These are known as ‘originating process’. For example, this might be a:
- a statement of claim;
- a writ or
- a motion.
Time Limits for Service
Various limitation periods apply to different types of claims. The limitation periods provide a time limit within which a person can make their claim. 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 on the other party within the time limit specified by the court rules.
In New South Wales, the Uniform Civil Procedure Rules (UCPR) provides that an originating process filed in the Local and Supreme Court must be served within six months of being filed with the court.
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 limit 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, this means hand delivering the document to their registered office. 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.
If the individual you are serving is the director of a company, and that company is also a party to the claim, a process server can carry out personal service on both the individual and the company by ensuring they confirm with that individual:
- who they are; and
- that they are a director of the relevant company.
This can be useful particularly where a company is no longer operating a business or any mail delivered to its registered office is returned.
Serving Documents by Post
You can serve both individuals and companies by post. However, only the court can serve an individual by post. Serving a document by post may be easier and cheaper, but there is more risk that the defendant may not in fact receive the court documents.
Generally, documents are deemed ‘served’ four business days after they have been posted. It is likely you will need sufficient evidence to prove to the court that you did in fact post the document. The documents sent by post should have a tracking number that can be verified and you should also make note of the date, time and location of where you posted the documents.
Can I Serve Court Documents Online?
Yes, you can serve documents online. However, this is only true in certain circumstances. You can serve documents online if:
- the defendant has legal representation and their lawyer has confirmed that they can accept service on their client’s behalf via email. This will allow you to serve the documents via email. Here, it is vital to also send a copy by post to the defendant’s lawyer’s address, in case their lawyer does not confirm receipt; or
- you get an order for substituted service from the court.
If you have been unable to serve a defendant with your court documents, you can make an application to the court for approval of an alternative method of serving those court documents on the defendant, known as ‘substituted service’.
Additionally, you will need to make a statement to the court explaining:
- you have attempted to serve the court documents;
- 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, but the courts have not exactly 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 satisfaction of the court, the court may permit documents to be served on a defendant via their Facebook or other online profile.
It is important to ensure you carry out effective service of court documents in accordance with the court rules. Additionally, if you are unsuccessful in serving a defendant personally or via post, you can seek the court’s permission to serve the defendant by an alternate method.
If you do wish to serve someone via email or another online method, you will need to be able to satisfy the court that the defendant:
- owns the email or online profile; and
- uses the email or online profile regularly, such that they will promptly see the court documents.
If you have any questions, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.
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