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What is substituted service?
Essentially, substituted service is a process that can form an important part of the procedure of court proceedings. In this article, we’ll explain what it means and circumstances where it can be used.
The general rule of personal service
When you want to initiate court proceedings, the law surrounding court procedure requires you to “serve” the defendant. Serving the defendant means providing the defendant with a copy of the originating process. This is the first document you need to initiate proceedings. An originating process is either a statement of claim or a summons. Generally, a plaintiff will serve the documents via “personal service”. The ideal image of personal service involves the plaintiff leaving a copy of the document with the defendant. The plaintiff may also put the document down in the defendant’s presence and tell the defendant what the document is. While each state has its own rules relating to service, the general principle behind personal service remains similar. This process of informing the defendant is important to the concept of justice. It is important since it allows defendants to have the opportunity to defend themselves.
Though slightly different, each state’s rules behind personal service account for a wide variety of situations. For example, the NSW rules account for defendants who attempt to avoid personal service by hiding in their property. Essentially, the plaintiff cannot fulfill the general rule of personal service since it requires the presence of the defendant. However, the NSW rules allow plaintiffs to personally serve hiding defendants by following 2 steps:
- putting the document in the mailbox or attaching it to some part of the property as close as possible to the door or entrance of the property
- informing the defendant within 24 hours that the plaintiff left the document where they left it
Additionally, the personal service rules contain other practical alternatives that account for other situations such as proceedings where the defendant is not an individual.
Substituted service
However, in the event that a plaintiff cannot personally serve the defendant even when accounting for all of the alternatives, they may apply to the court for an order for substituted service. If a court allows substituted service, the plaintiff may serve the defendant using the method that they have proposed to the court. This new method effectively “substitutes” in for personal service.
When is substituted service allowed?
Courts only allow substituted service when personal service is practically impossible. Applicants for substituted service need to exhaust all options of potential success with personal service and demonstrate the futility of continuing their attempts. Applicants usually submit this evidence to court in an affidavit along with their notice of motion. The courts have set this high bar as they want to maintain personal service as the default requirement.
The applicant’s proposed alternative method must also have a reasonable likelihood of alerting the defendant to the proceedings. This alternative method may involve contacting multiple people and leaving the document in multiple places connected with the defendant.
See here for a list of NSW court form templates including notices of motion and affidavits.
So what should you do? What should you look out for?
When you are involved in court proceedings, whether as a plaintiff or as a defendant, it is always a good idea to consult a lawyer. Noncompliance with procedural rules such as service can cost you money or ruin your case. In severe circumstances of noncompliance, you may even lose your opportunity to fight for your rights in court.
Since the circumstances of each case are different, the argument you would need to mount for substituted service and its chances of success would differ with each individual case. Consequently, the expertise of a lawyer becomes even more helpful. As a general rule however, it is helpful propose multiple methods of service with detailed arguments as to how the substituted methods differ from the previously attempted methods and particularly why they would successfully alert the defendant to the proceedings.
