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Law Notes > Litigation - Civil Procedure Notes

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8 service

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Table of Contents

8 service Readings Context

Chapter 8 - 8.430 to end of chapter

* After filing statement of claim / summon - have to serve your opponent

* Largely about two things o Procedural fairness - tell opponent they need to be in court on a particular date

* If service an no appearance/defence - default judgment

Service

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

2. Then there must be service upon opponent a. 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 Personal service Summary When service has to be personal: r 10.20(2)(a)

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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 a. 'nature' is vague. If nature is clear on face and document is not placed in envelope or otherwise concealed that's fine: Lawindi b. 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: a. Personal service where pushed under locked door: Gracyk b. 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 mailbox, 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

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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) a. 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

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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 jurisdiction NSW service SERVICE OUTSIDE NSW:

27. Two options: a. Proceed under the Service and Execution of Process Act 1992 (Cth) - entirely governs service and execution of district court processes b. If supreme court matter may use UCPR r 10.3 - must state that intends to proceed under UCPR. i. 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 10.20)

* Service under SEPA can be effected without leave of court.

* If D does not enter an appearance then leave is not required to proceed to a default judgment. Requirements:

* Must bear an endorsement -that P intends to proceed under SEPA: UCPR r 10.3(3) Notice to D pursuant to s 16 SEPA must be attached:

* This indicates that if another State/Territory court is appropriate court and issuing court of served process is the Supreme Court the D can apply to that court to have it transferred.

* If issuing court is not the Supreme Court the D can apply to issuing court to have proceedings stayed. Proceedings will be stayed if Court satisfied that court of another State has jurisdiction to determin a ll matters in issue between the parties. In respect of proceedings in other courts, the Service and Execution of Process Act 1992, s 20 (which does not apply to proceedings in a Supreme Court) provides that a person served with an originating process under the Act may apply to the court which issued the process for an order staying the proceedings (s 20(2)) on the ground that a court of another State has jurisdiction to determine all the matters in issue between the parties and is the appropriate court to determine those matters: s 20(3). In determining such an application, the court is to take into account the matters set out in

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s 20(4), namely:
? the places of residence of the parties and of the witnesses likely to be called in the proceedings,
? the place where the subject matter of the proceedings is situated,
? the financial circumstances of the parties so far as the court is aware of them,
? any agreement between the parties about the court or place in which the proceedings should be instituted,
? the law that would be most appropriate to apply in the proceedings, and
? whether a related or similar proceeding has been commenced against the person served or another person, but the court is not to take into account the fact that the proceedings were commenced in the place of issue. The application may be determined without a hearing unless the applicant or a party objects (s 20(6)), or the court may hold a hearing by video link or telephone: s 20(7). An order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in dispute without delay or undue expense: s 20(5). A court of a State or Territory other than the place of issue must not restrain a party to the proceedings from taking a step in such proceedings on the ground that the place of issue is not the appropriate forum for the proceedings: s 21.

Service outside Australia

SERVICE OUTSIDE AUSTRALIA Two methods: a. By Private means (UCPR pt 11 Div 1) b. Through diplomatic channels o (in some countries diplomatic channels is really the only way you can serve). o If you want to serve outside country you have to be careful - makesure the other country doesn't feel angry about intrusions into sovereignty - you need the other jurisdiction to recognize judgment from your domestic court After service if no appearance: Both methods require leave of court to continue proceedings after service: UCPR r 11.4 When can serve originating process outside Aust: r 11.2, SCh 6

* Originating process may be served outside Australia in the circumstances referred to in Sch 6 o Eg Sch 6 (a) - if proceedings founded on cause of action arising in NSW. (b) if breach in NSW of contract. (c) if subject matter is contract and contract is made in NSW, made on behalf of person served by or through agent carrying on business/residing in NSW, governed by law of NSW or breach ocommitted in NSW (d) tort in NSW (e) if damage suffered in NSW and proceedings are for recovery of damages (g) if person is domiciled or ordinarily resident in NSW

* Note sufficient to serve + get leave to proceed because one cause of action falls within Sch 6 and then attempt to rely on other causes of action not within Sch 6: Australian Iron v Jumbo Personal service outside of Australia: r 11.6

* When need personal service: A document to be served outside Australia need not be served personally on a person so long as it is

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