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Lecture 4

WEEK 4 - Service

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Department
Law
Course
LWB431
Professor
All Professors
Semester
Spring

Description
SERVICE OF PROCESS AND DOCUMENTS PROCESS LEADING TO SERVICE Prepare documents, take to court registry with at least one copy, court will enter the number of the document in your initiating process, that document becomes your document number, registrar signs and stamps document (seals document – i.e. authenticates document), once that document is returned, then service can take place. PURPOSE OF SERVICE Give notice of the existence of the documents to another person; Occurs when:  formally gives notice to the party served: Hope v Hope (Lord Cranworth)  essentially gives the Court’s jurisdiction in personam jurisdiction: Laurie v Carroll WHICH MODE OF SERVICE IS APPROPRIATE? The UCPR stipulates the mode of service appropriate to the process being served. IF originating process: Originating process must be served personally: r105 [Document] is an originating process because it is a ___ (pick from list). o claim: r8(2) o application: r8(2) o notice of appeal: r8(2) o notice of appeal subject to leave: r8(2) o Added Defendant or respondent, r70 o Third Party, r195 o Counterclaims on new parties, r178 NOT an application in, about or pending the trial, hearing or outcome of a proceeding: r8(3) HAS PERSONAL SERVICE BEEN PERFORMED? IF Magistrate’s Court Proceedings: The value involved in a magistrate’s court proceeding may not justify personal service, thus some ordinary service methods is sufficient: r111. May be served by ordinary service ( r112 below pg 3): BUT NOT o r112(1)(b) or (c): by leaving it at an address, or in a building or area in a position where it is likely to come to the recipient's attention o r112(e): fax o r112(1)(g): electronic means prescribed by practice direction r111 IF person lives/business > 50 kms from nearest court: A document to be served on a person who lives or carries on business more than 50 kilometres from the nearest court may be served by post at the person's residential or business address: r111. OTHERWISE: r106: (1) To serve a document personally, the party serving it must given the document, or a copy of the document to the person intended to be served. (2) However, if the person does not accept the document or copy, the party serving it may serve it by putting it down in the person’s presence and telling him or her what it is: Ainsworth v Redd (in possession and control of the person being served as circumstances will allow) (3) It is not necessary to show the person served the original of the document. (Don’t need to show sealed copy – but does need to be a true copy) N.B. Service of a document in a manner not complying with r 106 when personal service is required means that service is an irregularity rather than a nullity: r 371. Court can declare the step a step to be effectual or declare the step take to be ineffectual: r 371(2). Ainsworth v Redd (1990) 19 NSWLR 78 [6.2.3C] 1 FACTS: A process server held out the initiating process and said “these documents are for you” but did not identify what the documents were. D’s attorney took the documents thinking they were to do with a different matter on which the attorney was advising the defendant. Both men were subsequently observed to be looking at the documents and D was overheard saying to his attorney “we had better look at these”. It was accepted that the attorney didn’t intend on taking the documents for the defendant either personally or on behalf of the defendant [wasn’t his intention to accept personal service on behalf of the defendant]. Held: It did meet the first requirement for service, that is, that the court was satisfied that the documents had been given to D when they were purportedly handed over and then taken by D’s attorney. NSW court of appeal was looking at the words “leave with” under the NSW rules, whereas in Queensland the words used are “given” – not real difference between words. Court pointed out that the second method is only required if the first is not complied with and said here, the court was satisfied that the documents had in fact been given to D by that method of service. NB. Preferable view is that circumstances such as those in Ainsworth v Redd remain sufficient to satisfy the requirements of r 106(1) and constitute good personal service. Such construction consistent with the philosophy of rules set out in r 5. Examples of personal service  Service within the precincts of the court is valid: R v Jones  In Taylor v Marmaras personal service was effected even though the application was enclosed in an envelope in the circumstance where the defendant was aware of the application but rejected it without opening the envelope.  Attaching the document to a closed door while explaining the nature of the document to the defendant on the other side of the door: Re Hudson  In Re Ditfort the court accepted that it is sufficient for a process server to state the nature of the process and leave it before or near the defendant who has unimpeded and immediate access to it.  Pushing document under a door to a defendant on the other side and explaining nature of document: Graczyk DOES AN EXCEPTION TO PERSONAL SERVICE APPLY? IF Solicitor Accepts Service Solicitor may accept service of documents as an alternative to personal service of the defendant: r115(1) BUT 1. Solicitor must make a note on a copy of the document to the effect that the solicitor accepts service for the party: r115(2) 2. Unless the party proves the solicitor did not have authority to accept service for the party: r115(3) This applies whether or not personal service of the document is required under these rules: r115(4). N.B. o Should have specific instructions to accept service general instructions are NOT enough. ‘I accept the service of this claim on behalf of defendant and undertake to enter an appearance’. o Solicitor is bound by undertaking even if instructions change: Re Crimdon; o Service is deemed effected on date of such endorsement unless it is shown the solicitor didn’t have authority to accept service: r115. IF Service under Contract Where there is a contractual/informal agreement regarding service then service can be made in accordance with that agreement: r119 (e.g. previously agreed that service can be via …) IF agreed before: If before a proceeding starts, the parties to the proceeding agree that a document relating to the proceeding may be served on a party, or someone else for the party, in a way or at a place, in Queensland or elsewhere, specified in the agreement: r119(1)(a) Then the document may be served in accordance with the agreement: r119(2) IF agreed after: If before a proceeding starts, the parties to the proceeding agree that a document relating to the proceeding may be served on a party, or someone else for the party, in a way or at a place, in Queensland or elsewhere, specified in the agreement: r119(1)(b) Then the document may be served in accordance with the agreement: r119(2) 2 WAS SERVICE EFFECTED IN TIME? Time Requirements Claim in force for 1 year on day filed (sub-r (1)), but may be renewed by registrar for period not more than 1 year (sub-r (2) – but needs to be stamped with court’s seal showing the period for which it has been renewed (sub-r (5)) : r24. There must have been reasonable efforts made to serve the defendant or another good reason to renew the claim: r 24(2). NB. • Plaintiff otherwise denied the ability to pursue her action was not a ‘good reason to renew the claim’ because it would be a feature in every case where there is recourse to r24 and relevant limitation period had expired: Muirhead v The Uniting Church in Australia Property Trust (Q) (per Davies and Pincus JJA and Williams J). On qn. generally as to approach to be taken in determining whether there is good reason to renew a claim, Pincus J summarised the views applied by Stephen J in Van Leer Australia: o There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties; o The discretion may be exercised although the statutory time limit has expired; o Matters to be considered include the length of the delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the pff by refusing renewal or the def by granting it;  (relevant to hardship to plaintiff whether it is self-inflicted or defendant has done something to induce delay in service or encourage belief that claim against it might be settled without litigating: IMB Group Pty Ltd (in liq) v ACCC per Holmes J) o There is a wide and unfettered discretion and there is ‘no better reason for granting relief than not to see that justice is done’ • Claim can be renewed whether or not it is in force: r 24(3) th • Court’s leave must be obtained before claim renewed for a period falling on or after 5 anniversary of day on which claim originally filed: r 24(4). • Despite sub-r (1) any time limit (including limitation periods) are taken to have started on day claim originally filed: r 124(6). IF on Good Friday or Christmas Day: No service on Good Friday or Christmas Day unless court orders otherwise: r101 IF service after 4pm: If a document is served on a person after 4.00pm, the document is taken to have been served on the next day: r103 HAS ORDINARY SERVICE BEEN PERFORMED? If these rules do not require personal service of a document, the following are ways by which the document may be served on the person to be served: r112(1) a) Leaving it with someone who is apparently an adult living at the relevant address; b) If there is no one at the relevant address—leaving it at the relevant address in a position where it is reasonably likely to come to the person’s attention; c) If the relevant address is within a building or area to which the person serving the document has been denied access—leaving it at the building or area in a position where it is reasonably likely to come to the person’s attention; d) Posting it to the relevant address; e) If the person has given— I. A fax number under these rules—faxing the document to the person; or II. An e-mail address under these rules—emailing the document to the person; f) If the solicitor for the person has— I. An exchange box at a document exchange—leaving the document in the exchange box or another exchange box available for documents to be transferred to the solicitor’s exchange box; OR N.B. The document is taken to have been served on the business day after it is left in the document exchange box: r112(2) II. A fax—faxing the document to the solicitor; OR III. An e-mail address—emailing the document to the solicitor; g) An electronic means prescribed by practice direction: r112(3) (3) In this rule— 3 “Relevant address”, of a person to be served, means— a) The person’s address for service; or b) For an individual who does not have an address for service— I. The individual’s last known place of business or residence; or II. If the individual is suing or being sued in the name of a partnership—the principal or last known place of business of the partnership; or c) For a corporation that does not have an address for service—its head office or it’s principal or registered office. IF document left in document exchange box: Document served under sub-r (1)(f)(i) taken to have been served on the business day after it is left in the document exchange box: r 112(2). IF by FAX: 122 Special requirements for service by fax (1) A document served by fax must include a cover page stating the following— (a) the sender’s name and address; (b) the name of the person to be served; (c) the date and time of transmission; (d) the total number of pages, including the cover page, transmitted; (e) the telephone number from which the document is transmitted; (f) the name and telephone number of a person to contact if there is a problem with the transmission; (g) that the transmission is for service under a stated rule. (2) An affidavit of service of a document by fax must include, as an exhibit, the transmission advice, generated by the sender’s fax machine, indicating the transmission was successful. IF by post: Service may be affected by properly addressing, prepaying and posting the document as a letter and is taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless contrary proven: s 39A(1) AIA 1954 (Qld). IF returned undelivered: This inference of service will be displaced if it is shown that the letter containing the document was returned undelivered: Fancourt v Mercantile Credits Ltd (HCA). 4 DOES A SPECIAL PROCESS APPLY TO THE SERVICE OF THE DEFENDANT? IF Corporation: Documents to be served personally on a corporation must be served in the way provided for the service of documents under the Corporations Law or any other applicable law: r107 For corps registered under the Corporations Act, service can be affected in accordance with s 109X CA. 109X Service of documents (1) For the purposes of any law, a document may be served on a company by: (a) leaving it at, or posting it to, the company’s registered office; or (b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or (c) if a liquidator of the company has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or (d) if an administrator of the company has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC. (2) For the purposes of any law, a document may be served on a director or company secretary by leaving it at, or posting it to, the alternative address notified to ASIC under subsection 5H(2), 117(2), 205B(1) or (4) or 601BC(2). However, this only applies to service on the director or company secretary: (a) in their capacity as a director or company secretary; or (b) for the purposes of a proceeding in respect of conduct they engaged in as a director or company secretary. (3) Subsections (1) and (2) do not apply to a process, order or document that may be served under section 9 of the Service and Execution of Process Act 1992 . (6) This section does not affect: (a) any other provision of this Act, or any provision of another law, that permits; or (b) the power of a court to authorise; a document to be served in a different way. (7) This section applies to provisions of a law dealing with service whether it uses the expression “serve” or uses any other similar expression such as “give” or “send”. Section 39 Acts interpretation act also applies - see page 2-615 practice guide. IF Service in another state or territory of Australia Service on a corporation in another state or territory is governed exclusively by SEPA because s 109X(1) and (2) do not apply to documents that may be served under s 9 SEPA: s 109X(3) Corps Act. IF Partnership: Originating process against a partnership must be served: r114(1) (a) on one or more of the partners; (b) on a person at the principal place of business of the partnership in Queensland who appears to have control or management of the business there; (c) for a partnership registered under the Partnership (Limited Liability) Act 1988 (Qld), at the registered office of the partnership. IF serving on multiple partners: If service is effected by serving one or more of the partners under r 114(1)(a) THEN all of the partners at the time of issue of the originating process are taken to be served, including a partner who was outside Queensland: r114(2). IF partner wasn’t a partner when originating process issued: The originating process must also be served on anyone who the plaintiff seeks to make liable as a partner but who was not a partner when the originating process was issued: r114(3). IF partnership dissolved As partnership was dissolved before originating process issued, none of the partners sought to be made liable can be served under r 114(1). Thus originating process must be served on each person the plaintiff seeks to make liable as a partner but who was not a partner when originating process was issued: r 114(3). 5 IF Unregistered Business Name: 113 Service in relation to a business (1) This rule applies if— (a) a proceeding is brought against a person in relation to a business carried on by the person under a name or style other than the person’s name; and (b) the name is not registered under the Business Names Act 1962; and (c) the proceeding is started in the name or style under which the person carries on the business. (2) The originating process may be served by leaving a copy at the person’s place of business with a person who appears to have control or management of the business at the place. IF Spouse: IF one spouse party to proceeding: The particular spouse you want to serve must be served: No express rule. If both spouses are parties to the proceedings: Both must be served: No express rule. IF Infant: Personal service on a young person is effected by serving the young person's litigation guardian: r108 IF no litigation guardian: If there is no litigation guardian the parent or guardian is served or, if there is neither a parent nor guardian an adult who has the care of the young person or with whom the young person lives: r108. IF Mentally Ill: For a person with impaired capacity, service is effected on the litigation guardian (for the proceedings) or, if there is no litigation guardian, on an adult who has the care of the impaired person: r109. IF Agent for principal outside jurisdiction: If a principal who resides or carries on business outside Queensland enters into a contract inside Queensland through an agent who resides or carries on business inside Queensland, the court may give leave for an originating process relating to a proceeding arising out of the contract to be served on the agent: r 118(1). N.B. Court need not decide the agent's authority or business relationship with the principal on the application for leave. An order granting leave must state the time for the defendant to file a notice of intention to defend: r118(2). When the agent is served the plaintiff must immediately send the principal a copy of the originating process and the order granting leave to serve the agent: r118(3) N.B. They must be sent to the principal's address outside Queensland by pre-paid post: r118(4). IF Crown: o Queensland: The State of Queensland is served according to s19 of the Crown Proceedings Act 1980 (Qld) by leaving with or serving the crown solicitor. o Commonwealth: Proceedings against the Commonwealth are served on the Attorney-General according to s63 of the Judiciary Act 1903 (Qld). WHAT EVIDENCE IS REQUIRED TO PROVE SERVICE? 120 Affidavit of service (1) If an affidavit of service of a document is required under these rules or an Act or law, the affidavit— (a) for an affidavit of personal service—must be made by the person who served the document and include the following— (i) the person’s full name; (ii) the time, day and date the document was served; (iii) the place of service; (iv) the name of the person served and how the person was identified; or (b) otherwise (i.e. not personal service)— (i) must state the relevant dates and the facts showing service; and (ii) may be made on information given to, or the belief of, the person causing the service; and (iii) if made on information given to the person—must state the source of the information. 6 (2) An affidavit of service must (BOTH)— (a) have the document filed with it as an exhibit or be written on the document; (BUT – now breaches r455 can’t use a document already filed as an exhibit – makes court file too big – just refer to it) or (b) if the document has been filed—mention the document in a way sufficient to enable the document to be identified. 121 I
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