I was sitting down watching an episode of the American drama series ‘Yellowstone’ recently when a dramatic scene unfolded whereby a process server knocks on the front door of a Montana mansion, asks the occupant of the home for their identity then violently slams a folder against the occupant’s chest proclaiming “you’ve been served!”
This scene, reminiscent of many other scenes just like it in television and film over the years, prompted a conversation about what the phrase actually means and how it fits into the law.
“Service” of a document is the process of making sure that any person who is required to be given a copy of a legal document is given it in a way which complies with the relevant legal rules.
In New South Wales the Uniform Civil Procedure Rules 2005 set out the manner in which a person is to be served.
The most common types of legal document a person might be served with include:
1. A Statement of Claim whereby a person or entity is suing another person or entity;
2. A Summons, which like a Statement of Claim, is a document that enables a person or entity to commence legal proceedings against another person or entity;
3. A Subpoena requiring a person or entity to attend a Court and give evidence or produce documents in Court proceedings.
Generally speaking, these types of documents are required to be served personally. Personal service involves serving the relevant document on an individual. Personal service can be effected by physically giving a document to the recipient in person, or if the person refuses to accept the document, putting the document down in the person’s presence and telling the person the nature of the document.
If a person who is attempting service is prevented from doing so by violence or threat of violence from the recipient, then the person serving the document can leave the document as near as is practicable to the recipient.
Personal service on a corporation requires the server to personally serve the document on a principal officer of the corporation or on the registered address of the relevant entity.
Personal service can also be effected by placing the document in the mailbox of a property or premises in which the recipient lives and in most cases service can be effected by serving the document on the recipient’s lawyer.
If an intended recipient cannot be located, then the parties seeking to serve the relevant document can make an application to a Court for substituted service. This is usually the case if the person either cannot be found or is knowingly avoiding being served.
The rigid and strict rules of service in New South Wales are designed to protect both the Plaintiff and Defendant.
The Defendant is protected by the Plaintiff having to take specific steps to ensure that they are served and aware of the proceedings.
The Plaintiff is protected by being able to prosecute its claim if it has adhered to the rules of service even with an uncooperative or unrepresented Defendant.
