SERVING THE CLAIM ON THE RESPONDENT

The applicant must generally serve a sealed copy of the relevant claim documents on each respondent and interested party (if any) as soon as practicable [r 63.3(2)].

A Multilingual Notice (Form 31) must also be served with the claim [r 63.3].

There are three choices as to how the claim is served [r 63.4(3)]:

  • Personal service in accordance with rule 42.1
  • Email service in accordance with rule 42.2.
    • This means sending the documents as an attachment in PDF or Word format to an address used by the recipient and the recipient replying or actively acknowledging receipt of the email. However, a response generated automatically by the recipient’s email service is not considered a reply or acknowledgment of service [r 42.2 (3)].
  • Express post via Australia Post in accordance with rule 42.3
    • This means sending the documents by express post to an address which the recipient has used or resides at.The sender should retain proof of posting of the documents, such as the Article Lodgment Receipt showing when the envelope was received over the counter at the post office. The sender must demonstrate proof of delivery of the document by using a printout of Australia Post’s online tracking facility showing when the envelope was delivered to the address shown on the envelope. The sender must then state in the Affidavit of Proof of Service (Form 42) that the tracking number shown in the online tracking printout matches the envelope sent to the other party.

The court will charge an additional fee for the Sheriff’s office to personally serve the claim. The same fee can be claimed if a licensed process server serves the claim. A process server may charge the applicant more than the fee allowed by the court in which case the difference will have to be paid by the applicant but cannot be able to be recovered from the respondent. This is added to the amount of the claim but as with the issue fee must in the first instance be paid by the applicant.

If the claim is posted to the respondent but is returned to the court as unclaimed the applicant will have to either find a new address at which to try to serve the respondent and notify the court or try to serve it personally. If the applicant or a licensed process server serves the claim personally on the respondent then they must complete an Affidavit of Proof of Service (Form 42) and file it with the court registry. This is called a ‘proof of service’. Unless this is done the court will not know if the claim has been served on the respondent and will not be able to assist the applicant to take any further steps to proceed with the claim.

A claim must be served within six months of it being issued but this can be extended with the court’s permission if the court is satisfied that there are good reasons why it was not served within that period [r 64.1].

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