Once you have decided to dispute your claim in court, the next step is to serve your claim or pleading on your opponent. The purpose of ‘serving’ a claim is to notify your opponent and to give them an opportunity to defend the claim. In NSW you have six months from the date of filing the Claim to effect service on the defendant so it is important to act promptly.
Here, we answer some Frequently Asked Questions about serving a statement of claim.
1. Who Do I Serve?
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 a business rather than a company you will need to ascertain the person who is trading as that business.
2. What If They Have a Lawyer Acting For Them?
If you have already been engaged in correspondence about your dispute prior to commencing proceedings 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 there.
3. How Do I Serve a Claim?
There are two ways you can serve a Claim under the Uniform Civil Procedure Rules 2005 – personal service or postal service. Both are equally valid.
You can personally serve individuals and companies a statement of claim at their registered office. It isn’t sufficient to simply pop the statement of claim into their letterbox. You must satisfy the court that service has been brought to the defendant’s attention.
You can pay a process server to serve a statement of claim on a defendant personally. In our view, this is the best option as they ensure it is done correctly. Obviously, it is a little more expensive than service by post or serving it yourself but can work to your advantage.
You and the court can both serve company defendants via postal service, however, only a court can serve an individual via post. It is important to serve the defendant at the correct address as the claim needs to be brought to the defendant’s attention.
Although postal service can be a cheaper option, there is a risk that the defendant may not receive service. Consequently, if you receive a default judgment against the defendant, they may have the judgment 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.
The general rule with postal service is that it is served 4 business days after it was posted. You should keep a record of the date you posted the claim and even the post box or post office 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 – they may avoid 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 letter box or attached to their property where it will be brought to their attention.
You will need to show the court how they have evaded service as well as when and where you left the claim.
Additionally, the court can make orders for substituted service. That is, orders for service other than personally. We have previously discussed substituted service and an increasing trend in service via social media. Essentially you need affidavit evidence explaining the following:
- Why you have been unable to serve the statement of claim;
- The alternate ways the claim could be brought to the attention of the defendant; and
- How you know serving it in that manner will result in it being effectively served.
Process servers regularly deal with evasive defendants and are well placed to assist with this.
5. How Do I Prove 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. For example, if the defendant does not file a defence within 28 days (the time stipulated by the court) then you can apply for default judgment. But you must be able to prove the defendant saw the claim, had the opportunity to file a defence but did not take any action.
As we said before, keeping records of the following is crucial:
- When you are served (if you are successful);
- When and where you sent the claim; and
- Attempts you made to serve.
The more information you can provide to a court the better.
6. What If The Defendant Is Located Outside the State Where The Proceedings Are Commenced?
If you have a defendant outside NSW but within Australia, service is still possible in the ways set out above. You do, however, need to serve under the Service and Execution Process Act 1992 (Cth) that requires you attach a form to the statement of claim when served.
If the defendant is located or resides overseas, service becomes a little more difficult, and further steps are involved. Much will depend on the country you need to serve in.
Service is a key component in court proceedings. It is important to ensure legal proceedings are properly brought to the attention of the defendant or any default judgements made against them will not be valid. If you need to discuss a court claim, we have lawyers who can assist you.
If you need to discuss a court claim or a method of serving notice of a statement of claim, get in touch with our disputes lawyers on 1300 544 755.