#8511 - Service - Litigation - Civil Procedure

1. Establish that there has been filing of a statement of claim /summon

   1. Setting aside?

2. Then there must be service upon opponent

   1. Note: Person serving D then completed affidavit attesting to service – UCPR r 35.8 identifies information that must be included.

Methods of service in general:

3. UCPR r 10.5 – number of ways you can serve: (a) Personal service (b) Post (c) Hand delivery (d) by serving document on corporation

4. Agreement: service can be in accordance with agreement between parties: r 10.6 but must be agreement that specifically pertain to mode of service: Mondial Trading (agreement concerning appropriate jurisdiction to bring a claim was held not to encompass an agreement as to mode of service): r 10.6

5. Solicitor Accepting service: if a solicitor notes on a copy of: (a) any originating process; or (b) any other document required or permitted to be served in any proceedings, but not required to be personally served, that he or she accepts service of the document on behalf of any person the document is taken to have been duly served on that person on the date on which the note is made or on such earlier date of service as may be proved. r 10.13

What to serve:

6. A party who files a document must as soon as practicable serve copies on each other active party: r 10.1 UCPR

When service has to be personal: r 10.20(2)(a)

7. Personal service is required for: (a) any originating process, and any order for examination or garnishee order, in proceedings in the Supreme Court, the Industrial Relations Commission (including the Commission when constituted as the Industrial Court), the Land and Environment Court, the District Court or the Dust Diseases Tribunal: r 10.20(2)(a)

8. For originating processes in the Local Court don’t have to be personally served / can be left with person at that persons buesinss or residential address over 16 years and apparently employed or residing at that address: r 10.20(2)

9. What is an originating process? Statement of claim, summons, statement of cross-claim and cross-summons: Sch 99 UCPR

What is personal service > for persons

10. (1) Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document: r 10.21 UCPR

    1. ‘nature’ is vague. If nature is clear on face and document is not placed in envelope or otherwise concealed that’s fine: Lawindi

    2. if past knowledge so person knew nature of document from past history in relation to matter service valid despite no clear statement of nature by process server: taylor v Marmaras

11. Violence: If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person: r 10.21(2), (3) UCPR

12. If person does not accept document:

    1. Personal service where pushed under locked door: Gracyk

    2. Attach doc to front of locked door while advising this was occurring: Re Hudson

13. Where person is keeping house: where strong evidence that person is keeping house, remains in premises to which process server cannot lawfully or practicably obtain access, then person can place doc in mail-box, affix doc to outer door of premises, can attach to fence or wall as near as practicale to principal door or entrance to premises, and within 24 hours after doing so post notice to premises addressed to person informing that document has been placed or affixed – and this will be personal service – r 10.26

14. Example of personal service: where process server went to pitch of player, observed him training, threw documents in direction, was picked up and handed to D and said ‘this is for you’. Seems those constituted personal service: Bulldogs v Williams

Personal service > other entities

15. For: Unregistered business name: r 10.9 UCPR, D operating under registered business name: r 10.10, Service on partner in limited partnership: r 10.20 – can leave document with person over 16 years of age at place that business is carried out or by sending document by post addressed to D at address of business.

16. UCPR r 10.22 – personal service on corporation – effected by personally serving principal officer of corporation or by serving doc on corporation in another manner prescribed by law eg under Corporations Act s 109X(1)(a)

If personal service hard, then maybe substituted service: r 10.14

17. (Legg: can seek substituted service before or after trying service)

18. (1) If a document that is required or permitted to be served on a person in connection with any proceedings: (a) cannot practicably be served on the person, or (b) cannot practicably be served on the person in the manner provided by law,
    the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned: r 10.14(1)

19. An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time: r 10.14(2)

20. If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order: r 10.14(3)

    1. Eg swear on affidavit that opponent said that he had a PO box, and mail something to the PO box

21. Matters to be satisfied: (a) demonstrate impracticability (eg affidavit as evidence of serving in accordance with requirements. Mere cost or inconvenience not persuasive) and (b) steps proposed to be taken instead of service will address the purpose of bringing the document to the notice of the person concerned. Evidence that substituted service is reasonably likely to bring the proceedings to the D’s attention: Chappell v Coyle . Affidavit evidence required about efficacy.

Demonstrating personal service impracticability

22. Urgency will be taken into account: Amos Removals . eg summons issued on Thursday, had to be served by Friday, 19 Ds spread across NSW – so substituted service allowed.

23. Where application not urgent and P had taken incomplete checks – not impracticable to take further steps: P tried to sue D who’s bike registered in WA, D was german national with NT and international drivers licence, no record of leaving Australia, current address unknown. Because P did not know address sought substituted service on insurance company. The application not urgent and P had taken incomplete checks of official records. Needed to check German embassy and German clubs.

24. Taking lots of steps: inquiries should be made to employer/ees, contacts, family, property information authorities. If address found, registered post or service on spouse might be alternative substitute – but if not, then this can suggest efficacy of alternative steps suggested.

Example of substituted service

25. Examples of orders of substituted service: where SBW left NSW, went to play for French club. Summons difficult to serve to SBW. Judge ordered: service of copies at 5 addresses of French club, copy at SBW’s Sydney address, copies at registered address of company and text messages to mobile phone: SBW

26. Curative orders: in above case, unable to leave copies at post office box because locked – posting docs from inside adjacent post office sensible. Two addresses were football stadiums – they were locked, no letterbox – so returned to clubhouses, handed to manager of clubhouse – but this occurred after the Sydney time required. Still adequately brought to attention of D, so curative order under r 10.14(3) granted: SBW

Service outside NSW:

27. Two options:

    1. Proceed under the Service and Execution of Process Act 1992 (Cth) – entirely governs service and execution of district court processes

    2. If supreme court matter may use UCPR r 10.3 – must state that intends to proceed under UCPR.

       1. If you are in SC then use UCPR because its just simpler although both are viable options.

SEPA

• An initiating process issued in a State may be served in another State: s 15(1) SEPA

• Service on an individual must be effected in the same way as service of such an initiating process in the place of issue: s 15(2) SEPA

• SEPA doesn’t require any nexus between State where procedings are issued and where it is served.

• Mode of service should be that specified by UCPR pt 10 (eg r...