When Can I Apply for Substituted Service?

Summary

• Substituted service allows a party to serve legal documents via an alternative method when normal service is not possible, such as when a person cannot be located.
• Courts require evidence that reasonable attempts at personal service have been made before granting a substituted service order.
• Acceptable alternative methods may include email, social media, or post, depending on what the court considers likely to bring the documents to the recipient’s attention.
• This article is a plain-English guide to substituted service in Australia, aimed at business owners navigating civil litigation and dispute resolution matters.
• It is produced by LegalVision, a commercial law firm that specialises in advising clients on litigation procedures and service of process requirements.

Tips for Businesses

Document every attempt at personal service with dates, times, and outcomes before applying to the court. Consider what contact method the other party actively uses, courts favour methods most likely to reach them. Prepare a supporting affidavit outlining your efforts and proposed alternative method before filing your application.

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On this page

• Personal Service
• What is Substituted Service?
• How Do You Prove You Are Eligible for Substituted Service? 
• How Do I Apply for Substituted Service?
• What Are Some Alternative Methods of Service?
• Key Takeaways
• Frequently Asked Questions

Service is the formal process of notifying a party that legal proceedings have been commenced against them. Getting it right is not optional; defective service can derail your case entirely. There are different requirements of service, depending on whether the other party you are serving is an individual or a company. This article will explain the types of service and how you can apply for substituted service when it is impractical to serve the documents on a person or company.

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Personal Service

To effect ‘personal service’ on an individual person usually requires you to:

• hand the document to the person; 
• put the document down in the person’s presence and tell the person the nature of the document (if the person does not accept the document); or
• hand the document to someone over 16 years old who lives at the same residence or place of work as the person.

To serve the documents on a corporation, you can perform service by:

• leaving a copy of the document at, or posting it to, the company’s registered office;
• personal service (as defined above) on a director or secretary of a company who resides in Australia; or
• leaving the document at the last known address of an administrator or liquidator of a company as lodged with ASIC.

What is Substituted Service?

Substituted service is a way of substituting personal service of documents in a way that will bring the document to the person’s attention. This method of delivery could be through mail, providing it to another person who will bring the document to the person’s attention, or a combination of multiple service methods.

How Do You Prove You Are Eligible for Substituted Service? 

1. Service is Impractical 

To be eligible for substituted service, you must prove that service, by the regular methods, is impractical in this particular circumstance. Service could be impractical for many reasons, including that the person is obviously evading or avoiding you or they have physically moved interstate or overseas. 

2. Reasonable Efforts Have Been Made

You must also demonstrate that you have made reasonable efforts to serve the person. To prove this, you will need to show that you have made several attempts to effect service or locate the person. You could show this by using various search methods such as: 

• property title searches;
• telephone directory search;
• electoral roll searches;
• ASIC searches; and
• any contact with employers or residents at previously known addresses.

3. Proof That the Document Will Come to the Attention of the Person if Served by an Alternate Method

Additionally, you must be able to demonstrate that the document would come to the attention of the person by an alternative method. For example, you can do this by showing that they have recently used an email address or a Facebook messenger account of theirs.

If the court is satisfied that these alternative methods would bring the document to the attention of the person, then the court will make orders as to how you must serve the document, whether it be by email or text message.

How Do I Apply for Substituted Service?

Substituted service is made via an application to the court. Further, it is accompanied by an affidavit. If you used a process server to serve the documents personally, you would obtain a report from the process server that has made attempts to locate the debtor. An additional affidavit from the lawyer may also accompany the report. You should include the following information in the affidavit (if possible):

• what the person’s last known address is;
• if you know the occupation of the person and any business address or last known place of employment;
• any previous addresses where you have served the person;
• details of any enquiries you have made to locate the person (e.g. searches of databases, searches of electoral rolls, telephone directories, social media footprints);
• details of your attempts to serve the person; and
• details of any conversations with anyone at the person’s home or work address.

What Are Some Alternative Methods of Service?

Once you have established that you are eligible for substituted service, you must then propose an alternative service method. Additionally, you must show that this alternative service method will bring the documents to the attention and knowledge of the person or company. 
Some examples of substituted service methods include:

• posting the documents to the person’s address;
• leaving the documents at an address known to be the address of the person;
• emailing the documents to the person (you must show that the defendant has recently used the email account);
• using the person’s social media account (such as Facebook) but only where you can also prove the person is the owner of that account; and
• serving someone with who the person has a close connection. This can include a spouse, family member or solicitor.

Key Takeaways

If you or your company is involved in a commercial dispute that involves litigation, you will need to serve documents correctly. If the other party to the dispute is avoiding service or you cannot find them, you may be able to apply for substituted service. The court provides for alternative ways that you can serve someone.

LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced dispute and litigation lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 1300 544 755 or visit our membership page.

Frequently Asked Questions