In civil litigation, one of the most important procedural steps is delivering the court’s originating process to the defendant so they know they have been sued. This process is called service. The requirements vary slightly depending on whether the recipient is an individual or a company. In this article, we explain the detailed procedure for serving court originating process, and what steps you can take if you are unable to hand the documents to the other party in person.
“Can I serve the originating process myself?”
No, you cannot.
Court originating process must be served by a third party, who must ensure that they see or locate the other party, and then hand the documents to them or place them in front of them while informing them of the nature of the documents.
In some cases, a professional server is engaged for this purpose. These professionals are known as process servers. Typically, the process server confirms the defendant’s identity in person and then hands the documents directly to them. If the recipient is a company, the documents are sent to the company’s registered address; if the recipient is an individual, the documents are handed over personally after their identity is confirmed. This provides proof that the defendant has received the documents.
“What if the other party deliberately refuses to come out?”
When serving originating process, it often happens that the other party is clearly at home but refuses to open the door. In this situation, how can you ensure the other party has seen or received the documents?
Taking New South Wales as an example, the process server may take any of the following steps:
Place the documents in the letterbox at the front door
Affix the documents to the door
If the server cannot lawfully access either of the above areas, they may affix the documents as close to the house as they can reasonably reach, for example on a fence or wall.
Within 24 hours of doing so, give notice to the defendant informing them that the documents have been placed or affixed at a particular location.
If the recipient is a company, service may be effected in the following ways
Leave a copy of the documents at, or post it to, the company’s registered address
Hand the documents personally to a director or secretary of the company (who must be in Australia)
Leave the documents at the address registered for that company with the Australian Securities and Investments Commission (ASIC)
“What if the person really cannot be found?”
If none of the above methods s\ucceed in personally serving the documents — for example, if the other party is deliberately evading service or if no address can be located — you can apply for substituted service.
Substituted service is a way of replacing personal service; it can be effected by methods such as email. However, substituted service must be applied for through the court, and the application must explain that reasonable attempts have already been made to contact the other party without success, justifying the application for substituted service.
How do you know whether you can successfully apply for substituted service?
1. The documents cannot be served
To prove eligibility for substituted service, the applicant must show that the documents cannot be successfully served by the ordinary methods of service. For example, the other party is deliberately evading service, or is overseas.
2. Reasonable efforts have been made
You must also show that reasonable efforts have been made to locate the other party. To establish this, you need to demonstrate multiple attempts to serve the documents or to find the other party’s address. This can be shown by using various search methods, such as:
title searches;
telephone directory searches;
electoral roll searches;
ASIC searches;
attempts to contact their employer or last known residential address
3. Show that substituted service will bring the documents to the other party’s attention
In addition, the applicant must be able to show that the documents, if served by substituted service, are likely to come to the other party’s attention. For example, this can be demonstrated by showing that they have recently used their email address or Facebook messenger account. If the court is satisfied that these alternative methods are likely to bring the documents to the person’s attention, the court will then specify how the documents must be served — whether by email or by text message.
How should you apply for substituted service?
An application for substituted service can be made to the court, and must be accompanied by an affidavit. The affidavit should include the following information:
the other party’s last known address;
the other party’s occupation and any business address, or the last place they were known to be employed;
the addresses at which service has been attempted;
details of any enquiries made to locate the person (for example database searches, electoral roll searches, telephone directory searches, social media records);
details of attempts to serve the documents; and
details of any conversations had with anyone at the other party’s home or workplace.
Final thoughts
Service of court documents may seem like only a small stage of the process, but if the other party deliberately fails to respond or actively evades service, it can significantly prolong the litigation. If you are facing a civil dispute and considering suing the other party, we recommend consulting a qualified lawyer to determine the best course of action.
