What is Substituted Service and When Can I Apply For It?

Serving legal proceedings

Generally, when legal proceedings are filed against a person (the defendant), a copy of the legal proceedings must be personally delivered to the defendant. This requirement is called ‘personal service’.

Personal service ensures that the defendant is aware of the legal proceedings that have been filed against them.

The significance of serving legal proceedings on a defendant is that the defendant is then required to respond to the proceedings within a specified time. If the defendant fails to do this, there can be severe consequences.

Substituted service

Sometimes, a Court will order that legal proceedings can be delivered to a defendant other than by way of personal service. This is known as ‘substituted service’.

Rule 10.14 of the Uniform Civil Procedure Rules 2005 (NSW) states that if it is not practicable to personally serve a party, the Court may order that “instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.”

For example, a Court may order that substituted service of legal proceedings be carried out by leaving a copy of the proceedings at a defendant’s property, sending a copy of the proceedings to the defendant by email or text or by sending a copy of the proceedings to an address, or PO Box, used by the defendant.

However, substituted service will not be allowed by the Courts as a matter of course. It will generally only be permitted if the relevant Court is satisfied that:

  1. Personal service is impractical. This may be demonstrated, for example, by evidence that a defendant is deliberately avoiding attempts to personally serve them with legal proceedings.
  2. Reasonable efforts have been made to personally serve the defendant. This may be demonstrated, for example, by evidence of searches undertaken to locate the defendant, attempts to contact the defendant to arrange a convenient time for personal service and reports from process servers detailing attempts to carry out personal service.
  3. That the proposed method of substituted service would bring the legal proceedings to the attention of the defendant. For example, an applicant may ask the Court to order that substituted service be carried out by emailing proceedings to the defendant. A court may be satisfied that this is appropriate if there is evidence that the relevant email address is actively used by the defendant.

Case study

GRC Project Pty Ltd t/as GRC Property Management & Anor v Lai [2022] NSWDC 514 (GRC Project) dealt with an application by the for substituted service of legal proceedings on the defendant, Lai.

In the GRC Project, the plaintiffs successfully in obtained orders for substituted service by email as the Court was satisfied that the evidence confirmed:

  1. The defendant resided at a property in Strathfield;
  2. The process server engaged by the plaintiffs attended the Strathfield property on multiple occasions. They identified the defendant’s vehicle at the property. They also confirmed that, during their attendances, someone was present at the property, but that the person refused to answer the intercom;
  3. The process server had made contact with the defendant via her mobile number;
  4. The defendant was aware that the process server was attempting to serve her with the plaintiffs’ legal proceedings;
  5. The defendant had been seen around the Strathfield property, which was taken to confirm that she still resided within the vicinity of the Strathfield address identified by the plaintiffs; and
  6. The plaintiffs identified an email address which the defendant could be contacted by.

The Court ordered for personal service to be dispensed with and made orders for the legal proceedings to be served on the defendant by a copy being sent to her email address.

In summary, substituted service can be a useful tool to overcome service issues that may be created by a difficult defendant.

GRC Project illustrates that attempts to carry out personal service should be well documented. Such attempts may need to be relied on as evidence if a substituted service application is required.

 

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