2018 festivities are behind us, tanned (and sunburnt) workers have returned to the office and the Court term, like the school term, has commenced for another year. This may be a blessing or a curse if you are trying to fulfil your new year’s resolution of pressing ‘go’ in litigation.
Service Please
It is not uncommon for an individual to actively ‘dodge’ a process server attempting to effect personal service of a court document. Unfortunately, there is little you can do if this occurs apart from applying to the Court for substituted service orders.
However, if you are aware that the individual you are attempting to personally serve is going to be at Court, whether in your matter or another, can you serve the documents on that person in the Court precinct? The Courts have determined that, subject to certain exceptions, the answer is yes.
The exception to the rule is if service of a document will ‘obstruct the administration of justice’.
Some have argued that if it is established that a document is served ‘within the Court precinct’, service of that document should be deemed invalid. This was the case in Ian Walter Brookfield & Anor v Davey Products Pty Ltd [1998] FCA 1201, where the plaintiff submitted that service of a bankruptcy notice in the lift on the 9th floor of 25 Grenfell Street, Adelaide, which at that time contained courtrooms, should be deemed invalid as it was ‘within Court precincts’.
His Honour held that even if it were the case that service was effected ‘within Court precincts’, the key factor to consider is whether the conduct constitutes a contempt of Court.
In Baldry v Jackson [1976] 1 NSWLR 19, it was determined that there would be a contempt finding if the conduct had ‘such a deterrent effect as to obstruct the administration of justice’. Such a deterrent would be the individual not attending a Court date due to the fear of being served with a Court document. In circumstances where the threat of service did not deter the plaintiff from attending Court, no contempt finding was made and service was deemed to be valid.
Although each case will be determined on its merits, those thinking about attempting to personally serve a document on an individual in Court should be wary that if that conduct results in a litigant not attending Court, you may be held in contempt of Court, with the consequences ranging from a substantial fine to imprisonment.
Who’s Counting?
Separately, if you posted a document prior to Christmas by way of service, you will need to add some extra days before the document may be presumed served.
Under the Evidence Act 1995 (NSW), postal articles are presumed to be received (if sent by prepaid post addressed to a person at a specified address in Australia) on the seventh working day after having been posted (prior to July 2018 only four working days were required). Seven working days after 21 December 2018, for instance, is 4 January 2019 – a whole two weeks later.
Counting the days is particularly important where time starts (or stops) ticking once a document is served, so check and double-check your dates.
Special Delivery
Effective service of court documents is one of the necessities of litigation. Whilst it may appear straightforward, don’t kick your legal year off to a bad start by failing to comply with service requirements, as this could adversely affect your matter.
Whether you are serving or being served with court documents, Polczynski Robinson can advise across a wide range of litigation. Contact our office to discuss your service or litigation needs.
For more information please contact Kylie Tate or Dominic Dragicevic on 02 9234 1500.