Process serving is the delivery of court documents - usually directly in person - to a party named in the documents as the intended recipient. The process server must follow certain rules as to how this is done, and must fulfil the specific requirements set out by the court and the issuing lawyer(s).

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Nature and Expectations of the Role

The advice in this website should never be taken as complete. Reading the relevant rules in legislation is necessary to ensure that service is effected correctly. Although certification and licensing is unnecessary for the role of process server, the rules governing the manner of service are complex in some ways. Any person whose perception of this occupation is in any way influenced by video entertainment depictions is advised strongly to re-think. On basic principle, the service of documents is a serious function and if any rule of civil procedure is breached, it provides your client’s counter-party with grounds to argue a breach of procedure, and hence to have a mistrial declared. In short, by doing your job incorrectly, you provide ammunition to your client’s opponent. Each court has its own legislation and slightly different rules, so care is needed every time. This author would suggest that a certificate course is needed as a entry-level requirement. 

 

Before commencing with the service of documents, it is advised that the process server should familiarise themselves with the legislation currently in force to govern the manner in which they are to perform their role, as applicable to the specific court involved. If the process server is not fully familiar with the requirements of that specific court’s rules, then they would find it helpful to formulate a written plan of action based on those rules and the specific requirements they have been given by their client and/or by the court's explicit directions.

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Specific Rules

As for the specific rules of service for specific courts, be aware that each court has its own rules defined in statutes that govern administrative processes for each individual court. These documents MUST be consulted for service to be affected for each individual court, as the special allowances for non-standard forms of service vary. It is not to be assumed that all rules are the same, in spite of the existence of many similarities in standard in-person service.

 

The following list, current at the time of publication, shows all the State and Territory government websites where legislation can be found. It is then a matter of doing a search for terms like “Supreme Court Rules” or “Federal Court Rules” On some sites it may be necessary to select a link to legislation currently “in force” and/or to look for “Statutory Instruments” rather than Acts.

 

Federal                        https://www.legislation.gov.au/

ACT                              https://www.legislation.act.gov.au/

New South Wales      https://legislation.nsw.gov.au/

Northern Territory    https://legislation.nt.gov.au/

Queensland               https://www.legislation.qld.gov.au/

South Australia          https://www.legislation.sa.gov.au/

Tasmania                    https://www.legislation.tas.gov.au/

Victoria                       https://www.legislation.vic.gov.au/

Western Australia     https://legislation.wa.gov.au/

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Proof of Service

It is open to a party to allege that documents were not served on them, or served in a manner that conflicts with the court’s rules. To counter this, an Affidavit of Service is required. The legislation referred to above also specifies the content of an Affidavit of Service. Affidavits are written statements, signed and sworn to before a solicitor or barrister and are used with witness testimony to affirm that service was made.

 

Proof of service can also be supported by a sound or video recording in which the name of the party served is stated and agreed to by them. It is simply a matter of greeting them and asking their name. Adherence is necessary to the surveillance device legislation of the jurisdiction in which service is made.

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