Summary
- When served with a Statement of Claim in Australia, you must respond within the specified timeframe or risk a default judgment being entered against you.
- A Statement of Claim formally initiates court proceedings and outlines the plaintiff’s allegations and the relief sought.
- Businesses should carefully review the claim, seek legal advice promptly, and consider whether to file a defence, negotiate a settlement, or make an application to the court.
- This article explains the process of serving and responding to a Statement of Claim in Australian civil litigation, written for business owners and operators.
- It is produced by LegalVision, a commercial law firm that specialises in advising clients on civil disputes and litigation procedure.
Tips for Businesses
Note the deadline on your Statement of Claim immediately – response timeframes are strict. Identify the court, the relief sought, and the factual allegations. Gather relevant contracts, correspondence, and records early. Consider whether the claim has merit and whether settlement is viable before filing a defence.
On this page
- 1. Who Do I Serve a Statement of Claim to?
- 2. What If They Have a Lawyer Acting For Them?
- 3. How Do I Serve a Statement of Claim?
- 4. What If Someone Avoids Being Served?
- 5. How Do I Prove that the Defendant Has Been Served?
- 6. What If The Defendant Is Located Outside NSW?
- Key Takeaways
- Frequently Asked Questions
Serving a statement of claim is the formal process of delivering court documents to your opponent to notify them that you intend to pursue legal action against them. It gives the defendant a fair opportunity to respond and defend the claim. This article answers some Frequently Asked Questions about serving a statement of claim in New South Wales (NSW).
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1. Who Do I Serve a Statement of Claim to?
You serve the person or company named as the defendant in the statement of claim. Remember that an unincorporated business is not a legal entity. If you have been dealing with an unincorporated business rather than a company, you will need to figure out who the person trading for that business is.
2. What If They Have a Lawyer Acting For Them?
If you are already engaging in correspondence about your dispute, you may have been speaking with your opponent’s lawyer. You should check if they hold instructions to accept service on behalf of the defendant. If they do, you can serve the claim directly to the lawyer.
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3. How Do I Serve a Statement of Claim?
You can serve a claim through:
- personal service; or
- postal service.
Personal Service
Here, you can personally serve a statement of claim to individuals and companies at their registered office. It isn’t sufficient to simply pop the statement of claim into their letterbox. You must adequately bring the claim to the defendant’s attention.
You can pay a process server to serve a statement of claim on a defendant personally. A process server is someone that you can hire to issue statement of claims to opponents. This option ensures that the process is correctly done. However, it is a little more expensive than service by post or serving it yourself.
Postal Service
You and the court can both serve company defendants via postal service. However, only a court can serve an individual through the post. It is important to serve the defendant at the correct address as the defendant needs to be aware that the claim exists.
Although postal service can be a cheaper option, there is a risk that the defendant may not receive the statement of claim. Consequently, if you receive a default judgment on the defendant, the judgment may be set aside if they weren’t validly served with a copy of the statement of claim. That is, they didn’t receive it and were not given an opportunity to defend the claim.
Generally, the completion of postal service happens four business days after you originally post the letter. You should keep a record of the date that you posted the claim and the post office that you dropped it in. This could come in handy later if you need evidence to support the validity of your service of the claim.
4. What If Someone Avoids Being Served?
Sometimes defendants avoid service by avoiding to answering the door or refuse to let you onto their property. This is known as ‘keeping house’. If you can establish this behaviour with the court, then you can leave the statement of claim at the letterbox. Or, you could attach it to their property in a place where they will see it. You will need to show the court how they evaded service.
Additionally, the court can make orders for substituted service. This refers to orders for service that are not in person. Sometimes, service can even be issued via social media. Essentially, you need affidavit evidence that explains:
- why you have been unable to serve the statement of claim;
- the alternate ways that the claim could be brought to the attention of the defendant; and
- how you know that serving the claim in that manner will result in it being effectively served.
Process servers have experience and know what to do if they come across an evasive defendant.
5. How Do I Prove that the Defendant Has Been Served?
It may be necessary to show the court how and when a defendant has been served by way of an affidavit.
Keeping records of the following is crucial to show:
- when you served the claim (if you are successful);
- when and where you sent the claim; and
- any attempts you made to serve.
The more information you can provide to a court, the better.
6. What If The Defendant Is Located Outside NSW?
If you have a defendant outside NSW but within Australia, service is still possible in the ways set out above.
If the defendant is located or resides overseas, service becomes a little more difficult, and you will need to take further steps. The process of service will depend on the country that you need to serve in.
Key Takeaways
Service is a key component in court proceedings. It is important to ensure legal proceedings are properly brought to the attention of the defendant. If not, any default judgements made against them will not be valid.
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Frequently Asked Questions
NSW courts don’t generally permit email service unless the defendant’s lawyer confirms they accept service electronically.
Service becomes invalid, potentially voiding any default judgment obtained.
No, you can serve a company at its registered office without requiring acceptance.
Yes, the defendant’s 28-day window to file a defence begins from the date of valid service.
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