To start legal proceedings it is necessary to do 2 things: 1. File a claim or application naming another person or entity as the Defendant or Respondent; and 2. Personally serve that filed claim or application on that person or entity you want to make your claim against.
There are some very important and fundamental differences in the way that you can personally serve natural persons, businesses, companies and other structures.
Service is a legal process of bringing the legal proceeding to the defendant’s or respondent’s attention in a way that is acceptable to the particular court or tribunal that the legal proceedings are before.
The word ‘personal’ is used in a more legal sense than a descriptive one about how a party is served because a party can be ‘personally served’ according to law, but never actually given the court document in their hands.
In effect, each court has slightly different but overlapping methods for service of court documents depending on the party being sued (a person, business, partnership, company, prisoner, child, etc) and the monetary value of the legal proceedings themselves.
We only intend on dealing with service of natural persons and companies in this article, which are the most common parties to legal proceedings.
An adult person (being over 18) can be served personally in the most common way, by physically giving them the court document (or a copy) to them, by hand. You must ensure you identify the person being served. Either you already know who they are or you must ask if they are the person named and they confirm it (“Hi, are you Luke Skywalker?“….. “Yes that’s me“). You then simply hand the court documents over to the person.
If the person refuses to take possession of the court document then it is permissible to place the court document on the ground in view of the person and advise them what the court document is (“I am going to leave these court documents here, which is a claim against you in the Magistrates Court by Han Solo”).
When you have completed personal service be sure to make a note of:
The above method of personal service is always best practice and is required for both the District and Supreme Court of Queensland. However, if your claim is commenced in the Magistrates Court of Queensland, then you may serve a person personally by giving the court document to a person over 18 that lives at the same address as the defendant or respondent. If you do this, I would always ask if the person to be served lives at the address (“Hi, does Luke Skywalker live here?”….. “Yes he does”…..”Thanks, can you make sure he gets these court documents please”).
Further, if the person being served has a lawyer, then you can serve the person personally using their lawyer, but the lawyer must make a notation on the document that they accept service of the court document on their client’s behalf.
Once the first personal service of the claim document is completed, there is no need to personally serve other court documents. They can be issued by post, email, fax or via their lawyer.
Personal service of a company is easier than a person, but can be tricky to prove in some instances. All that is required is for you to post (or deliver) the court documents to the company’s registered office (you’ll need to do a current ASIC search). If you do so, you should make sure that you:
Most of the time, a company uses it’s accountant as the registered office and this is still acceptable as personal service on the company. However, this can cause some issues if the claim or application is not answered (no defence or appearance is made) and the company argues that the court documents did not, in fact, reach their attention such that they seek further time to answer the claim or application.
Where you fear some issues may arise in that regard, a company can also be personally served by serving a director of the company (at their address stated on the current ASIC search) personally in the way described above to serve a person.
As above, if the company has a lawyer, then you can serve the person personally using their lawyer, but the lawyer must make a notation on the document that they accept service of the court document on their client’s behalf.
Again, once the first personal service of the claim document is completed, there is no need to personally serve other court documents. They can be issued by post, email, fax or via their lawyer.
After you carry out personal service, it will be necessary to document what you did to serve the party in an affidavit of service. For the Queensland Courts, a Form 46 is used to create your affidavit.
We have prepared an example affidavit of service to show you the type of information you should record in your affidavit.
Once your affidavit of service is complete you file that with the court in case you need to prove to the court that you served the court documents on a particular day and time in support of a default judgment application.
Sometimes a person is difficult to find or tries to avoid personal service of court documents in the vain hope that the legal proceedings will somehow disappear.
That is were certain legal rules come in that allow a person to be served by way of substituted service. That effectively means that the court will accept that another method (other than personal service) can be used to serve the person and the court will accept that substituted method of service as personal service.
Other methods normally used for substituted service include email, public advertisements, service on family members and even Facebook. Usually, the court requires a combination of these methods and sufficient time to allow those methods time to work by bringing the court proceedings to the defendant’s attention.
You must make an application to the court for substituted service and whilst we won’t go into that in this article, we can always assist.
We only deal with civil claims and therefore deal with issues of personal service day in and day out. Obviously if you are a client of ours then we will deal with all issues that may arise, but if you are running your own case and are having trouble serving somebody (perhaps they are avoiding service or can’t be found) and need some advice, then we can help on a piecemeal basis.
DISCLAIMER: The above article was written at a specific point in time in the past and is provided as general guidance only. It is not intended to be specific legal advice to any person’s particular circumstances who may be reading it. We do not recommend you use this article as a replacement for obtaining proper legal advice on your issue and encourage anyone reading the article to obtain legal advice to ensure the above information and guidance remains valid and suits your particular circumstance. In our experience, there is no ‘one size fits all’ to legal problems!