In Australia, a court case commences when the originating process (more specifically a writ or originating motion) outlining the nature of the claim is filed with the court. The act of filing an originating process is often sufficient to prevent a claim from becoming statute barred (in other words – ‘out of time’ according to the statute of limitations).

However, if a court-stamped copy of the originating process is not served on the other party (the “defendant” or “respondent” depending on the particular jurisdiction), it may become stale. Consequently, the case may be dismissed under Rule 34A.15 of the County Court Civil Procedure Rules 2008 (Vic)).

How to Effect Service

To effect service of an originating process, ‘personal service’ is usually required and it involves either:

  • Leaving a copy of the document with the person to be served; 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.

If the defendant/respondent is a corporation, service of an originating process can be performed 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.

How to Serve Subsequent Court Documents

Once a notice of appearance is filed by a defendant/respondent to a case, subsequent court documents can generally be served by ‘ordinary service’, which includes:

1. Leaving the document at or posting the document to the address of the other party;

2. Faxing the document to the other party; or

3. Emailing the document to the other party. You can read about whether you can serve court documents via social media in our earlier article.

Informal Service of Court Documents

Several State jurisdictions to ensure that the rules regarding service of documents operate fairly and efficiently accept ‘informal service’ of court documents.

In these jurisdictions (such as Victoria and Tasmania) where for any reason a document was not served in the manner required by the rules of court, the document is taken to have been served on the day that it came to the person’s notice. 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, and for some applications that this is likely to have occurred a certain number of days before the hearing. 

Here, Facebook Chat may be of real value by indicating whether the other party had seen a particular message and, if so, the date and time when this occurred.

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If you need advice as to whether to commence a court proceeding or have any questions about responding to court documents, get in touch with our disputes team on 1300 544 755. 

Noam Greenberger

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