Use this kit when you need to 'serve' documents on another person in a case.
The following information has been extracted from this kit.
What is service
Service is the legal term used to describe the giving or delivering of court documents to another person in a way that satisfies the Court that the person has received them. This is particularly important if the person served does not attend Court. If the Court is satisfied that the person has received the court documents the case may proceed without that person being present and orders may be made.
When do you serve documents
Whenever you file a document a copy of that document must be served.
There are rules about when documents must be served. For example:
Application for Divorce
At least 28 days before the hearing if it was served in Australia
At least 42 days before the hearing if it was served overseas.
These should be served as soon as practicable after filing. However, you should check with Court staff as special conditions can apply to certain documents.
If you are unable to serve an application within the time limits your application may be delayed or it may proceed on the hearing date if the other party agrees.
A document cannot be served 12 months after the date of filing without permission of the Court.
Who do you serve with the documents
A copy of the document filed must be served on the other party or parties to the case and on the independent children's lawyer if one has been appointed and any other person required to be served by an order of the court or legislative provision (see Rule 7.04(4)). If the other party has a lawyer, that lawyer may accept service on behalf of her/his client. If the other party has an address for service then the documents should be served at that address.
Service of documents on persons who are not parties
There are some documents that must be served on persons who are not parties. For example, if you are applying for an order for property settlement and either party has a superannuation interest, you may need to serve a copy of the application on the trustee of the superannuation plan in which the interest is held. Other examples include the service of documents on the Child Support Registrar. You should seek legal advice about what needs to be done in these circumstances.
Certain documents must be filed by special service. They are:
- an Initiating Application (Family Law)
- an Application in a Case fixing an enforcement hearing
- an application for Divorce
- a Subpoena
- an Application - Contravention
- an Application - Contempt
- an affidavit or other document that must be filed with a Form mentioned above
- a brochure required by the Rules to be served with a Form that must be served by special service (see Rules 2.03, 4.13 and 4.23(2), sub-rules 15.28(1)(ii) and 20.1111(3)(b)
- an order made on Application without notice (see Rule 5.12)
If a document is required to be served by special service, the person on whose behalf the document is served must satisfy the Court that the person served actually received the document, unless this is admitted (see Rule 7.05).
Methods of special service
- By hand. You may arrange for a process server (for a fee) or any other person over 18 years of age to hand deliver the documents for you. Process servers are listed in the Yellow Pages phone Directory. The Subpoena, the Application - Contravention and the Application - Contempt must be served in this way.
- By post or electronic communication (fax or email). Do not use this method of service unless you are confident that the other party will sign the Acknowledgment of service and return it to you. If you choose to serve by electronic communication, you must include a cover sheet with required details. If you attempt service by post, fax or email and the Acknowledgment of service is not returned to you, your application may be delayed and it may be necessary to arrange for further copies of the documents to be served on the person. If service is by post you must include a self-addressed, stamped envelope (for the return of the Acknowledgment of service).
- By service on a lawyer. A document is taken to be served by special service on a person if: a lawyer representing the person agrees, in writing, to accept service of the document for that person; and the document is served on the lawyer and the lawyer acknowledges service.
Special service on person with a disability and prisoners
There are special requirements when a document is required to be served by special service on a person with a disability or a prisoner.
A person with a disability means a person who, because of a physical or mental disability, does not understand the nature and possible consequences of the case.
Special service on a person with a disability (Rule 7.09)
The document must be served
(a) on the person's case guardian;
(b) on the person's guardian appointed under a State or Territory law, or
(c) if there is no-one under paragrapgh (a) or (b), on an adult who has the care of the person.
Note: the person in charge of a hospital, nursing home or other care facility is taken to have the care of a person who is a patient in the hospital, nursing home or facility.
Special service on a prisoner (Rule 7.10)
The document must be served on the person in charge of the prison.
NOTE: that when serving an application, subpoena or notice of appeal on a prisoner, the prisoner must be informed in writing about the requirements to attend Court by electronic communication under rules 5.07, 12.12(4), 16.10 or 22.41, as applicable.
If a document is not required to be served by special service, it may be served on a person by ordinary service. This means the documents can be served:
- by all the methods of special service, but you do not need to obtain a signed Acknowledgment of service from the other party; or
- at a person's contact address (address for service) in Australia by delivering it, posting it or sending it by electronic communication to that address; or
- if a person does not have a contact address (address for service), by delivering it, posting it or sending it by electronic communication to their last known address.
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What you will be serving
You may need to serve a range of documents. The most likely documents required to be served are listed at Item 3 of the Affidavit of service, contained in the kit. In the case of a subpoena, it is necessary at the time of service to provide "conduct money" to cover the cost of the person travelling to and from the Court and home or workplace.
If you need to serve documents overseas please ask registry staff about special requirements.
Dispensing with service
If you cannot find the other party to serve the documents on them, it is possible to apply to the Court to dispense with service of the application. You should obtain legal advice about how to do this.