When Is Substituted Service an Option?

The commencement of proceedings against another person or business requires the lodging party to inform that person or business about the claim made by providing them with a copy of the originating documents; this is referred to as “serving” a party. The procedural formality surrounding service is mainly due to the requirement for the defendant to respond to the proceedings within a specified time after being served, with the failure to do inviting severe consequences. The default method of service is personal service, where documents are given to a defendant in person (often by a process server), but there are other methods of serving documents, which a court will allow under certain circumstances.

What is Substituted Service?

Substituted service is when a court makes orders that a plaintiff may serve a defendant in a way other than through personal service. For example, documents may be served via mail to the defendant’s last know address, or even via email or other digital means if it is not possible to serve the documents physically. It is also possible to serve documents through a combination of ways, if this increases the likelihood that the defendant does, in fact, receive those documents.

How to Prove you are Eligible for Substituted Service?

Under Regulation 6460 of the Court Procedure Rules 2006 (ACT), Subsection (3) (a) and (b) states that the Court may make the order for substituted service if it is satisfied:

• a) It is impracticable, for any reason, for the document to be served in the authorised way; and

Service may be impracticable for several reasons, including that the addressed person is actively evading or avoiding being served, or, if they have physically left to another state or country. Things like property title searches, electoral roll searches and telephone directory searches may be sound evidence toward proving that, despite reasonable efforts being taken, service through the authorised method of service is simply impractical or even impossible.

• b) The alternative way is reasonably likely to bring the document to the attention of the person to be served.

The alternative method of service being proposed must be reasonably likely to actually achieve the goal of bringing the documents to the attention of the defendant. It may be the case that the physical address of a defendant is not known (or they are not in the country), but they regularly correspond with the plaintiff or third parties by email. In such circumstances, it may be possible to satisfy the court that sending documents to that active email address has a high likelihood of bringing those documents to the defendant’s attention. Once the court is satisfied, it will make orders for the substituted service of the documents, whether it be via email or even text message.

How do I apply for Substituted Service?

Orders for substituted service may be obtained through an application to the Court, ordinarily accompanied by an affidavit setting out the reasons that substituted service is necessary. The following details would likely be relevant to provide in an affidavit:

• The last known address of the receiver;
• The occupation of the person and any affiliated business addresses or last known locations of employment;
• Any previous addresses where you have served them;
• Any previous attempts to serve the person; and
• Details of enquiries you have made to locate the person (e.g. searches on electoral rolls, telephone directories, and even social media footprints)

Alternative Methods of Service

Some examples of substituted service methods include:

• emailing the documents to the person (though it must be demonstrated that the defendant has recently used the email account);

• serving it through the person’s social media account (e.g. Facebook) – this is only permissible when an individual person is the owner of the social media account.

In the ACT Supreme Court case of MKM Capital Pty Ltd v Corobo and Payser, having failed to serve the documents through personal service, the court ordered substituted service of notice of default judgement on two defaulting borrowers, to be effected by privately messaging the defendants on Facebook. The plaintiffs were able to prove to the Court that this method of service would deliver the documents to their attention by providing evidence of cross-referencing the dates of birth and email addresses on the public Facebook profiles with those listed on the defendant’s loan application, as well as the two defendants’ appearing to be mutual “friends” on Facebook.

• serving someone with a close relationship to the recipient, for example, a spouse, family member or solicitor, or

• leaving the documents at an address known to be the address of the intended recipient.

If you or your business are involved in a commercial dispute involving litigation, the correct service of documents is imperative. If the other party to the dispute is presenting issues that appear to be precluding your ability to serve documents, and you find yourself in need of assistance with a substituted service application, please contact the BAL Lawyers.

For all litigation related queries or concerns, please contact BAL Lawyers Litigation and Dispute Resolution team on 02 6274 0999.