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    Why You Need a Process Server

    Jul 31, 2019 10:31:17 AM

    When running a litigation matter, that is, any Court matter, it is critical to be able to prove to the court that your court documents were delivered to the other side. Afterall, if the other side did not receive your court documents then how do they defend themselves and how is justice upheld in the court system? This is where a process server comes in handy.

    You must be able to prove that you have served your documents correctly. Proof of service is most readily found in an affidavit of service. That is, a sworn statement confirming that the documents had been served correctly.

    Some Definitions

    To serve someone, or service, in this context means to deliver your documents.

    A process server is a third party engaged to serve someone with your documents.

    Types of Service

    It depends on the documents, Court and particular circumstances as to what service is required. The relevant court rules outline the requirements for service.

    In some circumstances ordinary service is sufficient. Ordinary service includes sending the documents to the registered address of the other part perhaps by email or registered post. When documents are served by ordinary service, you still need to prove that you served the documents. This may mean an affidavit of service showing the tracking number proving delivery or a read receipt.

    In other circumstances ordinary is not sufficient and personal or special service is required. When personal service is required, you must be able to prove that the other party personally received your court documents. This is where you would engage a process server.

    Engaging a process server

    Where you think there will be a dispute about a person receiving your documents, or the court requires personal service, you should consider engaging a process server.

    A process server, once given your documents, will go to the address and give the documents to the other party. They will then provide you with an affidavit, which you can then file in court to prove that you have completed service on the other party.

    To engage a process server consider the following:

    1. Obtain multiple quotes;
      1. Some servers charge additional fees for personal service, urgency and travel.
    2. What address do you believe the other side will be at?
      1. For companies you may need to do an ASIC search to obtain their registered address.
      2. For individuals you may need to do a title search to find their home.
    3. Does the person work, or is more likely to be at the address at a particular time?
    4. What does the person look like?
    5. When does the service need to be completed by?

    Once you have engaged the process server and given them clear instructions on what to do, then you should file the affidavit of service as soon as it is received.

    Conclusion

    When you engage in litigation, you may need to engage a process server to prove you have served your documents. If you do not prove service then your court matter is unlikely to proceed successfully.

    If you have any questions or concerns regarding litigation or service of documents please contact Andrea Harrold at aharrold@franklaw.com.au

    This is not legal advice.

    Andrea Harrold

    Written by Andrea Harrold