Service
Two types of service:
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Personal – other party physically given the document
Ordinary – other party is sent the document
Service is not allowed on Christmas Day or Good Friday – r 101
If served after 4pm service is deemed to have occurred the next day – r 103
Personal service:
Applies only to an originating process – r 105(1)
People – r 106
Must give the document or a copy to the person intended to be served – r 106(1). This is approached
practically e.g. if D refuses to accept but it is given to their solicitor service has occurred: Ainsworth v
Redd
If person will not accept the document put it down in their presence and say what it is – r 106(2). A
broad, less formalistic approach will be taken: UG Resources v Calabro
Companies – r 107
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Must be served according to 109X of Corporations Act 2001 (Cth)
Leaving or posting to registered office
Personal service to director
Interstate companies – use Service and Execution of Process Act 1992 (Cth)
Prisoners – r 110
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Public trustee – if applicable
Litigation guardian
Superintendent of prison facility where prisoner is held
Business name (not registered) – r 113
Leave copy at place of business with person who appears to have control of business.
Ordinary service:
Do not have use personal service for all exchange of all documents during a proceedings.
Claim and Notice of Intention to Defend MUST give an address for service. This allows parties to
exchange documents without using personal service
r 112:
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Leaving with person at address
Leaving in prominent place at address
Fax (if provided)
Email (if provided)
Solicitors (address, fax, email)
Substitute service – r 116:
When you cannot find D to serve you can apply to Court for substitute service. Must prove:
1. Impracticable to serve; and
Syndicate Mortgage Solutions v Khaled El-Sayed:
Failed on both limbs
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Not impracticable to service (haven’t tried everything)
Hadn’t proved alternative would bring to attention
2. Proposed alternative likely to bring action to D’s attention
Miscamble v Phillips and Hoeflich (No 2)
D’s whereabouts had been unknown for 45 years. Ct refused substitute service. Ct not satisfied that
substitute service would bring the matter to D’s attention (implication he was dead).
Practice – Form 9, affidavit of attempted service, details of proposed substitute service, explanation
why substitute might work
Some substitute service arrangements:
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Post, newspaper, spouse, War of World Craft chatroom, relative known to have contact,
solicitor
Informal service – r 117:
If D can be shown to have seen or have the documents an application declaring the documents served
through informal service can be sought.
Symes v Saunders – message sent over Facebook saying to contact solicitor. D saw this and did so. Court
accepted this and ordered service had been effected.
Out of jurisdiction service
Interstate service:
r 123 says use SEPA. s 8 SEPA allows service outside jurisdiction (excludes substitute service) according
to the rules in UCPR Chapter 4 (see above). s 9 SEPA states to serve corporations to leave or post
documents to registered address or personally serve a director.
Overseas service:
UCPR 4 Part 7 Division 1
r 124 sets out the requirement that of a nexus with Queensland
If non Convention country specifies that the UCPR chapter 4 applies to service NOT the law of the
country the document will be served in – r 129
If convention country specifies service according to convention with filing of translated and other
document required for conventional service with Ct – r 130
Affidavit of service
Required when D has not filed notice of intention to defend and P wants summary judgement.
r 120 sets out requirements in affidavit of service:
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Name of Server
Name of person served and information on how person identified
Details of service (when, where how, what happened)