It is not uncommon for a client to give instructions to commence court proceedings only to face difficulties when trying to personally serve the court documents on a defendant. This can cause significant frustration and delay for a client, particularly if a defendant is purposely avoiding service. This is because most court proceedings cannot continue unless a defendant is personally served with the court documents. Thankfully, there is a solution.

What is substituted service?

The primary object of substituted service is to bring the court proceedings to the knowledge of a defendant. A plaintiff can apply to the court and ask for the court proceedings to be served in another way on a defendant.

What must a plaintiff prove?

The court may make an order for substituted service if:

  1. it is impracticable to serve a document; and
  2. the proposed method of service is reasonably likely to bring the document to the attention of a defendant.

While this may seem simple enough, there are many common pitfalls which can be avoided with proper preparation.

What does ‘impracticable’ mean?

It is not enough that personal service is inconvenient or too hard, but that it must be ‘impracticable’. The way this test has been applied by the courts varies.

Some decisions require a plaintiff to exhaust all possible leads before applying for substituted service. Other decisions only require that a plaintiff has made minimal (if any) attempts at serving a defendant.

A general rule is that a plaintiff is required to use reasonable efforts to serve the defendant and that these efforts reveal that it would be impracticable to serve the defendant in the usual way.

This would usually require evidence of prior attempts of service and may include that a plaintiff has performed searches and undertaken investigations to locate the defendant. A the very least, any evidence should detail the efforts which have been made to serve a defendant, explain why service was attempted at this address, include any details of the known whereabouts of a defendant and any further information about why it would be impracticable to serve a defendant in the usual way.

What other ways can a defendant be served?

There is no one method fits all; it all depends on the circumstances on the particular case. The court must be satisfied that the proposed method of service will likely bring the court proceeding to the attention of a defendant.

Some common examples of other ways a defendant can be served include:

  1. leaving or posting the court proceeding to a defendant at a last known address;
  2. giving the court proceeding to a known associate (for example, managing agent, parent);
  3. sending the court proceedings to a defendant by email or social media account;
  4. placing an advertisement in a local newspaper;
  5. sending a text message to a defendant.

A general rule is that the court will require more than one method of service to be used (so a combination of the above methods). It is also important to understand that if a plaintiff has positive knowledge that, for example, a defendant’s phone number is disconnected or that a defendant no longer resides at the proposed address, this will not likely be an accepted method of substituted service.

Usually when sending the court proceedings to a defendant using the substituted service method, a plaintiff must also send a copy of the court order for substituted service.

What about the costs involved in making this application?

If a plaintiff successfully obtains an order for substituted service, the court may make an order for costs in favour of a plaintiff. This is more likely in circumstances where it is apparent that a defendant has deliberately avoided service.

Key lessons

While obtaining an order for substituted service may seem simple enough, there are many common pitfalls which can be avoided with proper preparation. At MBA Lawyers we are experienced in all areas of litigation and can assist you to successfully serve a defendant.

Article authored by Brendan Pitman, Lawyer at MBA Lawyers.