What is a Process Server?
A Process Server (sometimes referred to as a Mercantile Agent or Field Agent) is a person who may personally serve Court documents and any other documents on other individuals or corporations. To become a Process Server, you must obtain the appropriate license from the State in which you wish to serve Court documents. This process includes relevant criminal history and identity checks.

 

A Process Server often does more than just serving documents; our agents have previously conducted field calls whereby our agents attend at a given address and make inquiries to confirm whether or not a particular individual resides at the address. Further, agents with relevant security licenses often carry out personal security work for our clients.

What is an affidavit?
An affidavit is a written statement which gives evidence. An affidavit is essentially a written version of oral testimony that may be given at hearing or trial in Court. An affidavit must be sworn or affirmed by the person providing the affidavit (known as the ‘deponent’) and witnessed by (signed in the presence of) a qualified witness, such as a Justice of the Peace or a Solicitor.

 

Our agents provide our clients with either an affidavit of our agents attempts to serve the recipient of our clients’ documents, where our agents describe their efforts to serve recipients, including relevant observations made about the address attended, any relevant things said or done by the recipient etc.

 

If documents are successfully served by our agents, our agents’ sworn affidavits of service are considered by the Courts as evidence that the recipient was served with the documents.

 

If our agents are unable to serve documents on a recipient, our agents’ affidavits of attempted service can be used as supporting evidence of the efforts made to serve a person with documents, or perhaps evidence that a person may no longer be residing at a particular address, and can be used to support any application for substituted service made by our clients.

What is substituted service?
Substituted service is an order from the Court that may be sought by a party so that Court documents may be served on another party by a means other than the prescribed means of service.

 

For example, the usual prescribed method of service of a Federal Circuit Court Application for Divorce is by way of personal service on the respondent (ie. a process server physically handing a copy of the Application to the respondent). If, for example, the applicant attempts to serve the respondent at the respondent’s last known residential address, the server is informed at the last known address that the respondent no longer resides at the address and the applicant does not know any other address for the respondent, the applicant may apply for an order for substituted service that the respondent be served by some other means of service as the applicant is unable to personally serve the respondent.

 

Other methods of service that you may ask for in an application for substituted service may include service my email, post, fax, text message and/or Facebook message. To be successful in obtaining an order for substituted service, the applicant must provide the Court with good evidence that the documents will be brought to the respondent’s attention by the method of service. For example, being able to show recent emails or text messages from the respondent to provide evidence that the email address or phone number is the respondent’s current email address or phone number.

What happens if my ex-partner does not accept service of divorce documents?
We often have clients who are worried that their ex-partner will not accept service of divorce documents. Do not worry. To effectively serve divorce documents, the server must identify the recipient (such as by asking “Are you [name of the recipient]” and the recipient responding “yes”) and either hand the documents to the recipient or, if the recipient refuses to accept the documents, putting the documents down on the ground in the presence of the recipient and telling the recipient what the documents are. The server will then complete the Affidavit of Service advising how service was effected i.e. by handing the documents to the recipient of placing them down on the ground in front of the recipient.
What happens if I cannot personally serve divorce documents?
If you have taken all reasonable steps to attempt service of divorce documents (or any other Family Court document) in accordance with the Family Law Rules 2004 (Cth) and you are unable to serve the documents, you may make an application to the Court for substituted service. This means that you may apply to the Court for an order that the documents be served in some other way which will satisfy the Court that the documents will be brought to the person’s attention, such as by email, fax, post or text message. Pursuant to rule 6.15 of the Federal Circuit Court Rules 2001 (Cth), when making an order for substituted service, the Court may have regard to:

 

  • Whether reasonable steps have been taken to attempt to serve the document.
  • Whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served.
  • Whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available.
  • The likely cost to the party serving the document, the means of that party and the nature of the proceedings.
  • Any other relevant matter.

 

To be successful in an application for substituted service, you need to show the Court that you have taken all reasonable steps to personally serve the documents (and have been unsuccessful) and that another method of service (such as email, fax, text message, social media etc.) will bring the documents to the attention of the recipient. To do this, you must show the Court evidence that the recipient uses those methods of communication currently, or at least recently. This evidence can be things such as recent emails, calls or messages from the recipient.

How do I serve someone with a divorce who has a disability or a person who is in a retirement home?
It is important that the correct protocol is followed when serving documents on a person who has a disability or a person who resides in a retirement home. Rule 7.09 of the Family Law Rules 2004 (Cth) provides that a document that is required to be personally served on a person with a disability, must be served:

 

  • On the person’s case guardian;
  • On the person’s guardian appointed under a State or Territory law; or
  • If the person does not have a guardian as described above, on an adult who has the care of the person. This may include the person in charge of a hospital, nursing home or other care facility.

 

If an Acknowledgment of Service is required to be signed (such as in the case of personally serving an Application for Divorce), the person who is to be served on behalf of the person should make it clear on the Acknowledgement of Service that they have signed as the person’s case guardian, the person’s guardian, the person’s care taker or the person in charge of the relevant facility. The server must set out the circumstances of service in the Affidavit of Service e.g. handed/posted to the and amend the details of service to reflect the person served e.g. The person’s guardian.

 

If you require documents to be served on a person with a disability or a person who is in a retirement home, please contact our friendly team for further information and how our team may assist you.

How do I serve someone with a divorce or Family Court documents in prison?
It can be difficult to serve a divorce or any other Family Court document on a person, especially if they are in prison. Rule 7.10 of the Family Law Rules 2004 (Cth) provides that a documents that is required to be personally served on a prisoner must be served by special service on the person in charge of the prison (this is usually the Warden) on the person’s behalf.

 

If an Acknowledgment of Service is required to be signed (such as in the case of personally serving an Application for Divorce), the person in charge of the prison should make it clear on the Acknowledgement of Service that they have signed as “person in charge of the prison” and the server must set out the circumstances of service in the Affidavit of Service e.g. handed/posted to the “person in charge of (name) prison” and amend the details of service to reflect the person served e.g. The person in charge of the prison.

 

If you require documents to be served on a person in prison, please contact our friendly team for further information and how our team may assist you.

Personal service pursuant to the Uniform Civil Procedure Rules 1999 (Qld)
Almost every Court document filed in a civil litigious matter requires personal service on any individual who is a party to the litigation. The Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provide the rules for personal service of civil Court documents in Queensland.

 

Rule 105 of the UCPR provides that all originating processes must be personally served on the defendant or respondent. This means claims and statements of claims and applications must be personally served on the defendant or respondent.

 

Rule 106 of the UCPR provides that personal service is performed by giving the document, or a copy of the document, to the person intended to be served. If the person does not accept the document, the document may be left at their feet.

 

It is not necessary to serve the original document. Serving a copy of the document will satisfy the requirements under the UCPR.

Service of companies pursuant to the Corporations Act 2001 (Cth)
Rule 107 of the UCPR provides that service of documents on companies is to be done so in accordance with the requirements in the Corporations Act 2001 (Cth).

 

Section 109X of the Corporations Act provides that documents can be served on companies by personally serving the documents on a director of the company who resides in Australia.

Types of documents we can serve
We can serve a great variety of documents and the following list is not exhaustive. If your type of document is not listed below, please contact our friendly team and we would be delighted to arrange service of your documents.

 

Family Court Documents

 

Divorce applications:

  • Initiating Application for Divorce
  • Affidavit of eFiling
  • Marriage, families and separation brochure
  • Any other document filed with the Court relating to a Divorce Application
  • Acknowledgment of Service

 

For more information on serving Divorce documents by hand, see the Service of Divorce section on the Federal Circuit Court website.

 

Response to a Divorce application:

  • Response to Divorce
  • Affidavit in support
  • Any other supplementary documents

 

For more information on serving a Response to a Divorce, see the Service of Response section on the Federal Circuit Court website.

 

Parenting Order applications:

  • Initiating Application for Parenting Orders
  • Affidavit in support
  • Notice of Risk (if applicable)
  • Financial Statement (if applicable)
  • Marriage, families and separation brochure

 

For more information on serving Parenting Order documents, see the Service of Application starting a proceeding section on the Federal Circuit Court website.

 

Subpoenas

  • Subpoena for production
  • Subpoena to give evidence (requires attendance at Court)
  • Subpoena for production and to give evidence

 

For more information on serving Subpoenas, see the Service of Subpoenas section of the Federal Circuit Court website.

 

Civil Court Documents

 

  • Claims & Statements of Claims
  • Complaints
  • Writs
  • Subpoenas
  • Applications (initiating and interlocutory)
  • Statements of Financial Position
  • Notice of Hearings
  • Summons
  • Enforcement Hearing Summons

 

Other documents

 

Personal service of any document is recommended where there is any concern that the recipient of the document may ignore the document if it were served by any other method (ie. Post, email or fax) or where the sender wants clear and indisputable evidence that documents have been brought to the attention of the recipient. We are willing to serve any document on any recipient, whether the recipient is a person, business or corporation, sole trader, partnership, firm, property manager or Warden. We have previously served the following kinds of documents:

 

  • Confidential letters and documents
  • Letters of demand
  • Defamation concerns notices
  • Deeds of settlement, deeds of acknowledgment
  • Letters where an acknowledgment of receipt is required to be signed
  • Binding financial agreements
  • Property settlement documents
  • Documents that required to be hand couriered that clients did not want to put in the post

 

International documents

 

Our agents have served a variety of international documents from overseas clients, including clients located in the United States, Canada, Ireland, New Zealand and Malaysia.

Our agents will serve documents from international clients in accordance with Australian service rules, unless otherwise instructed by our clients. We provide our clients with an affidavit of service or attempted service which is witnessed by an Australian Public Notary so that the affidavit may be used and is admissible in international legal proceedings.

Service by social media- The future of service
It is not uncommon for litigants to encounter difficulty serving Court proceedings. Quite often a party will avoid service or cannot be located. In these circumstances, litigants may give consideration to alternate forms of substituted service. One such alternative is to serve a party via their social media accounts including by Instagram or Facebook.

 

Recently in the NSW Supreme Court case of Wakim V Criniti [2016] NSWSC 1723, the Plaintiff sought an order that personal service of the Statement of Claim be effected on the Defendant through social networking websites Facebook and Instagram. The court ultimately held that the Statement of Claim could not be practicably served on the Defendant in person and service via social media was likely to bring the Statement of Claim to the notice of the Defendant. Similarly, in the ACT Supreme Court in MKM Capital Pty Ltd V Corbo & Poyser (Unreported, 12 December 2008) it was held that a Judgement could be served via Facebook as this method of service would bring the Judgement to the Defendant’s attention.

 

Such cases demonstrate how social media can be a cost effective method for the service of a court document and how it can be potentially considered in cases or circumstances where service is difficult.