What is Service?
Service of legal documents in Civil Proceedings is the process by which one party serves the other party legal documents related to the court proceeding. Service means that the other party has received the documents and is aware of what’s going on. A court is reluctant to enforce a legal document if it has not been served properly.
One of the most important legal documents you will serve is the document that Originates the Process. These are either statements of claims or summons. Both of these documents are applicable in different contexts. However, their main role is to notify the other party of the nature of the claim and what is being sought. If you have any queries on how to start Civil Proceedings, speak with one of our lawyers today.
There are specific rules you must follow while serving documents on a party. We have these rules to ensure that the other side has an opportunity to know of and respond to proceedings against them. If service isn’t valid, it is possible to have the case dismissed.
There are different rules that apply for serving on an individual and serving on a business in NSW.
Serving on a Business
The rules that apply when serving a business include:
Section 109X of the Corporations Act
The Corporations Act applies where the company is registered under the Corporations Act. Section 109X defines service as either personally serving the document to the director or secretary of the company. Or by posting it to or leaving it at the registered address of the business. Or if the company is insolvent, leaving or posting it to the registered liquidator or administrator.
Rule 2.7 of the Supreme Court (Corporations) Rules and Rule 2.7 of the Federal Court (Corporations) Rules
According to the Supreme Court and Federal Court Rules, service on a registered corporation has to be done as soon as the originating process is filed in court. The last possible date to serve is 5 days before the date of the hearing for an originating document.
Rule 10.9 and 10.10 of the Uniform Civil Procedure Rules
The UCPR states that when serving an unregistered (r10.9) or registered (r10.10) business, service is valid when the originating process is either posted to or left at the registered address of the business. You can also post the document to any place the business operates.
How to make sure service of legal documents is valid
Simply posting an originating process to the registered address of a business may not constitute valid service in some situations. In 2017, the Supreme Court of the NSW found that service is invalid where documents are knowingly served to an address that the company no longer operates from. This is despite the fact it was the company’s fault for not updating the address in the register. Therefore, it is important you confirm that the defendant has received the documents.
When serving a company, it is important to serve as soon as you file the originating process. This is despite the fact that an originating document is valid for 6 months. The NSW Cout of Appeal made this rule clear in 2018 when found that rule 2.7 of the Supreme Court (Corporations) Rules trumps the UCPR rules when it comes to serving documents on a registered corporation.
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