Jacqdar Consulting

Substituted Service - What is it ?

By : Darrin Edwards

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	There are times when direct personal contact with a defendant cannot be made to effect service of an claim or other document. What do you do when this happens ? How can you lawfully effect service of a document ?

What happens if you cannot locate a defendant to serve a Claim ?

Service of a Claim (or other originating process) is required to be delivered to the defendant personally (see rule 105 Uniform Civil Procedure Rules 1999 (""UCPR"")). Service of the document cannot be made by post (except on a Corporation) or by facsimile or by email unless authorised by the court.

There are on occasions when a defendant cannot be served personally - either through purposeful attempts by the defendant to avoid service or otherwise. For example, the defendant may be in jail. In this case depending on other factors not coming into play, service of the Claim is effected by delivering a copy of the Claim to the person in charge of the prison holding the defendant.

But what happens, when a defendant cant be located and served personally ?

When a defendant cannot be located for personal service the process server should make enquiries to establish a means of contacting the defendant through relatives, friends, his employment or other another associated business. If a means can be established which will bring the proceedings to the attention of the defendant, then an application can be brought before the court which seeks dispensation with the usual manner of service and an order for the substituted service of the proceedings.

Your process server should have made an attempt to serve the defendant at the last known address of the defendant, made enquiries with neighbours, conducted a White Pages Residential Listing enquiry (ie the phone book), enquiries of the Department of Natural Resources (land ownership) and the Electoral Roll at the very least. If these searches fail to yield a result then further searches may need to be undertaken through other organisations such as the Australian Securities and Investments Commission (ASIC) if the defendant has engaged in business activities and held an office as a proprietor, director, secretary or shareholder. Fees apply for searches of most public records.

The results of each search need to be properly documented for inclusion in an affidavit.

To succeed in an application for the substituted service of the proceedings, clear facts of the attempts of service and the enquiries made must by stated by the person who made the attempts and made the enquiries (the process server). If the attempts were made by one person and the enquiries by another, then two people should be deposed. An example of the nature of the affidavit required are found here.

On the odd occasion, you may know where the defendant is but you cannot access them to serve the document personally. In particular, in this day and age, the high-rise apartment building with security poses the biggest problem for the process server. The defendant resides in a unit on floor 35 and access to the front door of the unit is not possible because on floor one, you are required to use an intercom to contact the defendant. If he speaks with you and wont open the security door to let the process server in to serve the documents, service cannot be lawfully effected. An application would be made to the Court to ""authorise"" service in another manner, perhaps by post to the unit or by affixing it to the area adjacent to the entry way - or both.

Similarly, if the defendant resides in a dwelling house, and answers the front door without opening the main door (ie calling through the door), and wont open it to accept service, then again service cannot be lawfully effected - you will need to make an application for substituted service.

However, if the defendant opens the main door and wont open a screen door through which you can see the defendant and he/she properly identifies themselves as the defendant, then the process server can serve the documents by putting it down in the presence of the defendant and tell him what it is. Service in that manner is authorised by rule 106 of the UCPR.

How can we help you ?

At Jacqdar, we pride ourselves in our ability to locate a defendant for the service of process- and serve documents properly. If we cannot locate the defendant directly, we can usually locate a means by which the process can be brought to the attention of the Defendant.

The fees applicable to our process service vary according to the location of the Defendant.

Our standard fee is $48.40 including GST. If you require a quote to serve a defendant outside of the Brisbane local area, but in Queensland, please use our fee calculator located here. Search fees are additional to our standard fee and are charged at cost, plus an hourly rate for enquiries currently assessed at $90.00 per hour plus GST.

Are you interested in having an article published about something quite specific to do with debt recovery or an associated matter ? Do you have a debt you want collected ?