Service of a court document refers to providing a valid copy of the document, such as a Complaint, Summons, Writ or Statement of Claim, to the person who is being sued (“the Defendant”). If you have been served with a court document but do not understand why you have received it, here is some information that may assist you further:
What is contained on the court document that is about to be served?
When a document has been filed with the court and is required to be served on the Defendant, a case number and date of filing will appear on the document and copy of that document is be served on the Defendant.
Who can effect service?
Any person can serve the court document, however, specific requirements apply for service depending on whether the Defendant is an individual or company. It is generally recommended that a professional Process Server be engaged to ensure the court document is served in the correct manner. A Process Server is a person who is able to serve legal court documents for any court case. The Process Server makes every effort to effect service within the time frame given and with as little fuss as possible.
Types of service
There are two modes of service:
- Personal service; and
- Ordinary service.
Service may be ordinary unless it is required by law to be personal. Generally speaking, only service of an originating process is required to be personal.
Personal service is effected by:
- Handing a sealed copy of the originating motion to the Defendant, or
- If the Defendant refuses service, a sealed copy can be placed in the Defendant’s presence with an explanation of the nature of the document.
Once the originating process has been personally served and an Appearance bearing an address for serve has been served, then all service to or at the address for service may be effected:
- By posting the document be ordinary pre-paid post;
- In accordance with the relevant legislation;
- By posting to the lawyer acting for the party, or
- By Facsimile transmission.
Why is service required?
By serving the originating process, the Defendant is made personally aware that there is a claim against him/her and the Defendant then has the opportunity to defend the claim.
Under the Court Rules, personal and postal service are equally valid. However, only the Court can serve an individual defendant by post. There is a risk that if the originating motion is served by post or left with someone else at the Defendant’s home or place of business, the Defendant may not receive it.
Accordingly, if default judgment is obtained against the Defendant, the Defendant may subsequently apply to have the default judgment set aside on grounds that a copy of the document was not (validly) received.
Affidavit of service
After the originating process has been served on the Defendant, it is necessary to provide the court with information on how and when the court document was served. This is called an Affidavit of Service, The Affidavit of Service must include the following:
- Name, address and occupation of the person who served the complaint;
- Date and place the document was served;
- Method of service;
- How the identity of the Defendant was ascertained;
- Signature of the person who served the originating motion, and signature of an authorised person who received (witnessed) the affidavit, and
- Sealed copy of the originating motion exhibited.
If you require assistance with a court document that has been recently served on you or your business or you wish to obtain more information on what service entails, call (03 9863 7621) or email Steven, Angela or Lynda for a complimentary consultation to find out how Dangerfield Exley Lawyers can help you find a clear and practical solution for your dispute. It’s a sensible place to start.
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