Service

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This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [10.450]-[10.500].

Introduction

[1] Service refers to the service of documents on other parties (ie, serving a statement of claim or an affidavit on the defendant). Service is generally required, and the court may issue orders to serve particular documents such as replies to expert reports etc.

  • There are a number of ways to serve documents: personal service, service by post, email, fax etc.
  • The court has discretion to order that service is effected in a particular way.

Service of Documents Generally

[2] The general requirement is that a party must serve documents on other parties as soon as possible after filing the document to court: UCPR, r 10.1. A document is considered as 'filed' once it is lodged at the court's registry and stamped with the court's seal.

  • Service is usually proven by an affidavit of service (an affidavit by the person who served the documents attesting that documents were served. r 35.8 notes that an affidavit of service must include the where, when, how and by whom the documents were served, the conversation as it had happened, and that the person served was over 16.
  • In the Local Court, an originating process can be, and a defence must be, serviced by an officer of the court: UCPR, r 10.1 (2).

Methods of Service

The UCPR r 10.5 details the different methods of service available:

  • Personal service.
  • Posting a copy to the person's service address (if not an active party, business or residential address is acceptable).
  • Leaving a copy at the person's service address (if not an active party, business or residential address is acceptable) with a person over 16 years of age who lives or works at the address.
  • In the case of a corporation, any manner which is acceptable by law for corporations.

Failure to Comply with Rules of Service

[3] s 63 of the CPA states that a failure to comply with one of the rules of service does not automatically result in the invalidation of the document, proceedings or application. Rather, the court now has the discretion to to set aside proceedings, documents and so on (it does not have to exercise it).

  • The court can only exercise the discretion to set aside if an application is made in reasonable time, and before any fresh step is taken in the proceedings: s 63 (4).

Service of Originating Process

[4] An originating process almost always needs to be served in order to alert the defendant that a case is being brought against it. There are some procedures which can be brought ex parte (in the absence of a party) such as search orders brought under the UCPR (since alerting the defendant will ultimately defeat the purpose of the order).

  • An originating process is stamped in the court and remains in the registry. A copy is made to be served on the defendant.
  • An originating process must be served personally, because the defendant themselves must be made aware of the claim.[5]
    • Originating process is defined as a statement of claim, summons and a cross-claim. However, cross-claims against active parties are not required to be served personally.
    • An originating process in the Local Court may be served by leaving it at the defendant's business or residential address with a person who is apparently over 16 and works/resides at the address OR the court may serve it by posting it to the business/residential address addressed to the defendant.
  • An originating process must be served on the defendant within 6 months after it was filed: UCPR, r 6.2.
    • In the District Court, it is only 1 month, unless the defendant is outside NSW, in which case its 6 months again.

An originating process and further pleadings will include a service address for all parties. After the personal service of the originating process, most documents do not need to be serviced personally and be serviced at the service address of the party. Other documents which do need to be serviced personally include:

  • Notice of motion if served on not a party to the proceedings; or party who is not active: UCPR, r 18.5.
  • Copy of a judgment: UCPR, r 42.8.
  • Subpoena: UCPR, r 33.5.
    • However, can be serviced by post in Local and District Courts: UCPR, r 10.20 (d).

Personal Service

[6] r 10.21 specifies how personal service is affected:

  • By leaving a copy of the document with the person, or, if he refuses to accept the document, leaving it in the person's presence after telling him what it is.
    • The document doesn't need to be physically taken by the defendant to constitute personal service. Eg, service was held as valid when it was left with a representative of the person standing right next to him when the person said he will look at the document.[7]
    • If the person does not refuse the document, there is no obligation to tell him what the document is.
    • If the person refuses, the document may be left in his presence by pushing it under his door[8] or fixing it to his door[9] for example.
  • If the server is prevented from service through violence, leaving it as close as practicable to the person will constitute personal service.
    • The requirement to explain what the document is is not demanding.[10]

A defendant does not need to permanently reside in the jurisdiction in order to be served, he can be a temporary visitor. However, the court does have the discretion to decline to proceed if it considers the jurisdiction to be an inappropriate forum (more below).

Service Constituting Personal Service

[11] There a number of ways in which non-personal service can be taken to constitute personal service. For example:

  • Defendant operating under unregistered business name,[12] a registered business name,[13] or a partner in a limited partnership,[14] may be personally served by leaving the document with a person apparently over 16 years old at business place, or by sending the document by post addressed to the defendant at the address of business.
  • Corporations may be personally served by personally serving a principal officer of the corporation or by serving the document on the corporation in another manner prescribed by law: UCPR, r 10.22.
    • Corporations Act 2001 (Cth) s 109X (1) (a) provides that a document may be served on a company by leaving it at, or posting it to, the company’s registered office.

One of the most relevant substitutions for personal service is made when a person is 'keeping house' - that is, remains in premises to which the server cannot gain access to. In such cases, r 10.26 provides that personal service may be effected by:

  • Placing the document in the mailbox.
  • Affixing the document to the door.
  • If the above two are not possible, affixing the document to some fence, wall or any part of the premises, as near as possible to the entrance of the premises.

Service by Agreement, Acknowledgement or Undertaking

[15] Service can also be effected in accordance with ant agreement, acknowledgment or undertaking by which the party to be served is bound: UCPR, r 10.6. Ie, an agreement could have stipulated that service can be effected by post or email or such.

  • The agreement needs to specifically refer to the mode of service.

Acceptance of Service by Solicitor

[16] Personal service requirements can also be dispensed with if the party’s solicitor accepts service. The solicitor accepting service must make a note on the document as evidence that he or she has accepted service on behalf of the person to be served: UCPR r 10.13.

Substituted Service and Confirmation of Informal Service

[17] In circumstances where it is impracticable to effect personal service, the court may 'substitute' other steps for service as opposed to the one required by the rules: UCPR r 10.14. This usually occurs when a party is trying to avoid being served, and the following requirements must be satisfied:

  1. The service required by the rules cannot practicably be undertaken. To establish this, evidence (in a form of an affidavit) of prior attempts or evidence that such service would be futile are relevant.
    • Cost or inconvenience are not enough .
  2. The substituted mode of service will address the purpose of bringing the document to the notice of the person concerned. Evidence showing that the substituted service is reasonably likely to bring the matter to the defendant's attention should be provided.[18]
    • Affidavit evidence with regards to enquiries made and support to the efficacy of the method should be given as well.
    • The degree of urgency is a relevant factor.[19]

Both of the requirements were discussed in Syndicate Mortgage Solutions v Khaled El-Sayed:[20]

  • Facts: the defendants applied for an order for substituted service.
  • Held: the court's power under UCPR r 10.14 depends on establishing the impracticability of service in accordance with the rules. Before making an order under the rule, the Court must be satisfied that the method of substituted service is one which is reasonably likely to bring the proceedings to the notice of the defendant.
    • In this case, the evidence doesn’t sufficiently establish the impracticability of service in accordance with the rules - the plaintiffs didn't really try enough searches or made sufficient enquiries in regards to real property, electoral rolls, telephone lists, credit references, enquiries of former addresses etc which are usually undertaken to locate persons or establish that they cannot be found.
    • Also, the evidence doesn’t establish that the method of substituted service proposed is reasonably likely to bring the proceedings to the notice of the plaintiff - they proposed to leave it at an address of his former company to which he probably doesn't have any connection anymore.

The second requirement was discussed further in Bulldogs Rugby League Club v Williams:[21]

  • Facts: the defendant left the plaintiff's football club and started playing for one in France. The football club sued him and had a hard time effecting personal service. They applied for and were granted substituted service steps, and they substantially performed them (served documents at most of the registered addresses of the French club, texted it to two phone numbers and left it at a registered residence and po box of the defendant (actually in the post office, not po box). They also 'personally' served it by attending training and throwing the documents to the ground in front of the defendant, which were picked up by another and were given to him.
  • Held: the plaintiffs substantially performed the substituted service method, which in effect is personal service.

An order for substituted service win the case of a personal service of a subpoena to give evidence was discussed in Nash v Stewart:[22]

  • Subpoenas to give evidence which are ignored are punishable by contempt and can result in jail sentences. Accordingly, the requirement of personal service cannot be substituted for a lesser form of service, because penal consequences should not be triggered by any such remoter and less secure method.
  • Thus, r 10.14 is not applicable to override rule 33.5 (1) - personal service of a supoena to give evidence cannot be substituted.

Confirmation of Informal Service

[23] A party can also act on its own initiative in substituting service and then apply to the court for a 'confirmation of informal service' which would validate the process retrospectively: UCPR r 10.14 (3). The court should confirm the service if the the method of service successfully brought the matter to the attention of the person served.

Waiver of Objection to Service

A party who files a document in reply to another effectively waives its right to contest that the document has been served, unless a notice of objection is served together with the reply: UCPR, r 10.19.

Service Outside Jurisdiction

[24] There are different laws for when a document needs to be served outside a jurisdiction:

  • The originating process must be served within the boundaries of the court's jurisdiction.
  • The Supreme Court has unlimited jurisdiction and thus service of documents related to cases within the Supreme Court can be effected under the UCPR even outside of NSW (but in Australia).
  • However, the Local and District Courts do not have jurisdiction outside NSW. Thus service of documents related to such cases outside NSW but within Australia is effected in accordance with the Service and Execution of Process Act 1992 (Cth) (SEPA).

An originating process in the Supreme Court should specify whether the plaintiff intends to proceed under the UCPR or under SEPA (UCPR r 10.3 (3)). A ‘Notice to the Defendant’ pursuant to SEPA s 16 should be attached to the originating process, encouraging the defendant to seek legal advice and setting out his or her rights:

  • The defendant can apply to have the court, if it is the Supreme Court, transfer proceedings to a more appropriate court; or
  • If the court is not the Supreme Court, apply to the issuing court to have the proceedings stayed.
    • Matters to be taken into account for determining an application to stay proceedings are contained in SEPA s 20 (4) and include: places of residence of the parties and of witnesses likely to be called; the place where the subject matter of the proceeding is situated; the financial circumstances of the parties; the law that would be most appropriate to apply in the proceeding.
  • A matter not taken into account is the fact that the proceeding was commenced in the place of issue.
    • The defendant has 21 days to make such an application or file an appearance: SEPA s 17.
    • The appearance must state an address within Australia for service: SEPA s 18.

Service Overseas

[25] There are several ways to effect service overseas, which is provided for in Part 11 of the UCPR (which only applies to the Supreme Court - District Court proceedings which involve a subsequent overseas party must be transferred to the Supreme Court in order for leave to continue the proceedings).

  • Private means (Division 1)
  • Diplomatic channels (Division 2)
  • Hague Service Convention (Part 11A)
  • Bilateral treaty

Private Means

r 11.2 states that an originating process may be served outside Australia in the circumstances referred to in Schedule 6, which basically specifies the nexus between the dispute and the forum.

  • Personal service is not necessarily required; just compliance with the laws of the jurisdiction: UCPR r 11.6.
  • Originating processes which are to be served overseas must include a notice to that effect: UCPR r 11.3.
  • Remember: District and Local Court proceedings must be transferred to the Supreme Court first.

If the defendant enters an appearance, the matter continues. However, if the defendant does not enter an appearance, the plaintiff must obtain leave from the court to continue: UCPR r 11.4.

  • The defendant may apply for the originating processes served overseas to be set aside under r 11.7 (as well as under the general power to set aside any originating process under r 12.11).

Leave to proceed in cases involving overseas defendants and setting aside such originating processes were discussed in Agar v Hyde:

  • The enquiry of whether to give leave does not involve an assessment of the reasonable prospect of the claim - it involves an assessment similar to the one for an originating process to be served, namely, whether the claim is of the 'requisite kind'.
  • Considerations in respect of setting aside leave for appeal are threefold:
    1. The claim is not of the requisite kind which are described Schedule 6.
    2. The court is an inappropriate forum for the trial of the proceeding.
    3. The claim has insufficient prospects of success to justify putting an overseas defendant to the time, expense and trouble of defending the claims
      • This issue is only considered if the court has not deemed itself an inappropriate forum.
      • The 'reasonable prospects' test applies in the same way as it does in normal summary dismissal - it does not matter that the defendant is overseas.

The test for whether the court is an 'appropriate forum' is essentially whether or not the court is a ‘clearly appropriate forum’ as opposed to whether there is a ‘more appropriate forum’: Voth v Manildra Flour Mills.[26] This test was discussed in Garsec v Sultan of Brunei:[27]

  • Facts: the plaintiff sued the defendant (served overseas) for not paying for a manuscript of the Koran. The plaintiff wished to have the case tried in NSW, because there the defendant (who was a Sultan), would not have constitutional protections which he would have in Brunei (his residence). The defendant argued that NSW is an inappropriate forum and that the proceedings are vexatious and oppressive and thus an abuse of process.
  • Held: the principles regarding an 'inappropriate forum' are the same as the ones regarding the usual discontinuance or dismissal of a claim (ie, abuse of process or vexatious). Similarly to other dismissals etc, the grant of such a dismissal is to be exercised with great caution, and not given merely because the balance of convenience favours another jurisdiction.
    • In this case, it would be oppressive and an abuse of process to bring proceedings in NSW so to prevent the defendant from enjoying defences available in the courts of another country.

Service by Diplomatic Channels

[28] Another option is to serve documents on an overseas defendant through 'diplomatic channels', which is provided for in Division 2 of Part 11 of the UCPR.

  • The division doesn't apply to documents served under the Hague Convention (see below).[29]
  • The plaintiff needs to check whether the country in which the defendant is in is a 'participating country'. A 'participating country' is defined in r 11.9 as a country which is signatory to the same service convention that Australia is.
  • The filing of requisite documents is detailed in r 11.10, and the procedure is detailed in r 11.11.
  • Just like in service through private means, no appearance by the defendant means that the plaintiff must seek leave to continue: UCPR r 11.4

The main things to note about this process is that it is the most formal and official method, but also the most complex and time consuming. Refer to the p. 568 of the textbook for more information.

Hague Convention

[30] Documents may also be served under the Hague Convention, which is dealt with in Part 11A of the UCPR.


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References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 529.
  2. BKL, p. 529.
  3. BKL, p. 531.
  4. BKL, p. 531.
  5. UCPR, r 10.20 (2).
  6. BKL, p. 533-6.
  7. Ainsworth v Redd (1990) 19 NSWLR 78.
  8. Graczyk v Grazcyk [1955] SLR (CN) 1077.
  9. Re Hudson: Ex parte G E Crane & Sons (1990) 25 FCR 318.
  10. Lawindi; Re Elkateb v Elkateb (2001) 187 ALR 479.
  11. BKL, p. 536.
  12. UCPR, r 10.9
  13. UCPR, r 10.10
  14. UCPR, r 10.11
  15. BKL, p. 539-10.
  16. BKL, p. 539-10.
  17. BKL, p. 540-1.
  18. Chappell v Coyle (1985) 2 NSWLR 73.
  19. Amos Removals & Storage Pty Ltd v Small [1981] 2 NSWLR 525.
  20. [2009] NSWSC 207.
  21. [2008] NSWSC 822.
  22. [2010] NSWSC 513.
  23. BKL, p. 548.
  24. BKL, p. 548-9.
  25. BKL, p. 550-3.
  26. (1990) 171 CLR 538.
  27. (2008) 250 ALR 682.
  28. BKL, p. 566.
  29. UCPR, r 11.8A
  30. BKL, p. 569.
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