If you are considering legal proceedings, you should be familiar with the procedural service requirements. If you comply with the court’s requirements, you may avoid the court dismissing your claim. In this article, we explain the service of documents in civil litigation and discuss various ways it can occur.
What Is the Service of Documents?
In Australia, a court case commences when one party files the relevant legal documents outlining the nature of the claim and the orders sought from the court. For example, consider a Statement of Claim or a Writ. Court processes can only commence once you serve the originating process on the party you want to include in a court claim.
Filing an originating process is often sufficient to prevent a claim from becoming statute-barred. However, suppose the other party does not receive a court-stamped copy of the originating process. In that case, it may become stale, and the court may dismiss your claim.
Examples of Documents That Need to Be Served
1) Originating Process Documents
Documents that initiate legal proceedings, such as a statement of claim, need to be served on the relevant party.
2) Subpoenas
Subpoenas are documents issued to compel witnesses to testify in a hearing. Likewise, you can also request a subpoena to compel the other party to produce documents that you have requested.
3) Orders and Notices
Orders and notices are documents that need to be served. These include court orders, judgments, and official notifications.
4) Family Law Documents
These documents are pertinent to family law issues. For example, documents including divorce applications and parenting orders, are documents that need to be served.
5) Legal Notices
These documents have to be formally served as specified by applicable legislation or regulatory frameworks.
Continue reading this article below the formHow to Effect Service
To effect the service of an originating process on an individual, the court will usually require ‘personal service’. It involves either:
- leaving a copy of the document with the person to be served; or
- putting the copy down in the person’s presence and telling the person of the nature of the document (if the person does not accept the copy).
It is common practice to engage a third-party process server to attend the home or workplace of the individual they wish to serve. If you are a third-party process server, you need to locate the individual or wait until the person attends these premises and then serve this person. If you are unable to locate an individual for service of documents, you can also engage another party to complete a ‘skip trace’. This may be carried out by a:
- process server;
- debt collector; or
- private investigator.
A skip trace typically requires the investigator to search data records to find the individual’s current location. If the defendant/respondent is a corporation, service of an originating process can occur by:
- leaving a copy of the document at, or posting it to, the company’s registered office;
- by personal service 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.
If you post a document to a corporation, it is vital you keep a record of the postage details for the legal proceedings. You may need to rely on these postage details if the counter-party disputes the service of the document. This will include any tracking information, a copy of the envelope, and the mailing address used.
How to Serve Subsequent Court Documents
Once the other party to your case files a notice of appearance, you can generally serve any subsequent court documents via ‘ordinary service’ which includes:
- leaving the document at or posting the document to the address of the other party;
- faxing the document to the other party; or
- emailing the document to the other party.
If the other party engages legal representatives to act on their behalf in court proceedings, you can serve documents to their lawyers directly. However, it is important to note that there are exceptions to this rule. Therefore, you should consider the procedures of the court you are filing with.
Informal Service of Court Documents
Some state jurisdictions accept the informal service of court documents to ensure that the rules regarding the service of documents operate reasonably and efficiently.
In these jurisdictions (such as Victoria and Tasmania), where a document was not served in the manner required by the court, the document is taken to have been served on the day it came to the person’s notice.
Furthermore, a party relying on informal service will need to prove to the court that the document is likely to have reached the attention of the relevant person. For some applications, you may need to prove that this is likely to have occurred a certain number of days before the hearing. For example, text messages or web-based instant messaging applications may indicate whether the other party had seen a particular message and, if so, the date and time when this occurred.
In other jurisdictions, you may need to apply to the court for an order to allow ‘substituted service’ before effecting informal service.
Special Considerations for Service of Documents
In some cases, there are special considerations and rules that apply to service:
Service on Minors or Incapacitated Persons
Special rules and considerations govern the service of legal documents on individuals who are minors (under the age of 18) or those lacking legal capacity due to various factors, such as mental incapacitation. In these cases, the legal system places a significant emphasis on safeguarding the rights and interests of vulnerable parties.
Service Overseas
Globalisation has made it increasingly common for legal proceedings to involve parties located overseas. Serving legal documents on international parties involves a complex set of rules, international service procedures, and adherence to relevant international treaties and agreements. The Hague Service Convention is one such international treaty that outlines the procedures for serving documents across international borders.
Obtaining Court Orders for Alternative Methods of Service
In certain situations, the standard methods of service may not be feasible or appropriate. In these cases, obtaining court orders is necessary to permit alternative methods of service or to extend the time allotted for service. For instance, if a party is actively evading service or if the traditional methods of service are unlikely to reach the intended recipient, the court may grant an order allowing substituted service, which may involve posting the documents on a front door or publishing notices in newspapers.
In other instances, court orders may be sought to grant an extension of time for service if strict deadlines cannot be met due to exceptional circumstances. It is advisable to seek legal guidance when encountering these scenarios to ensure compliance with court procedures and rules.
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Key Takeaways
Legal proceedings are costly and time-consuming. Nevertheless, getting the service of documents correct may be critical to your case. If a service mistake is made, the other party may be able to argue that they were unaware of the proceedings. This may be costly to rectify. Alternatively, the court may dismiss your claim.
If you need advice on whether to commence a court proceeding or have any questions about the service of documents, contact our experienced litigation lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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