Civil Procedure Exam Notes
Service- Topic 4 PERSONAL SERVICE Requirement of Personal Service- R 6.02(1) (1) Except where otherwise provided by or under any Act or these Rules, originating process shall be served
personally on each defendant. (2) Where a defendant to any originating process files an unconditional appearance , the originating process shall be taken to have been served on the defendant personally on the day on which the appearance is filed or on such earlier day as may be proved.
Service satisfies the notice requirement. o Notifies other party of case and gives them chance to defend their rights. o After initial personal service of writ, can then use normal service.
For Effective Service 1. Service must be effected properly 2. Court must have ‘jurisdiction’; ‘Jurisdiction’ Laurie v Carroll HCA
Action of the writ depends primarily upon presence in the jurisdiction at the time for service of the writ
If right process followed for serving outside of Victoria, then could be forced. o But jurisdiction in personum still ends when defendant is out of the State
Presence is the criterion: o It does not matter person served deceitfully, unless he has been enticed in the jurisdiction fraudulently. (If in jurisdiction for another reason, then no worries) If fraud, then abuse of courts processes and court has inherent jurisdiction to stay proceedings. Does not matter if trick person in jurisdiction to accepting the writ, only matter when tricked into coming into jurisdiction. E.g. lotto ticket
Don’t have to tell person what is in document, can trick that it is for them. E.g. lotto ticket for you, won’t disqualify service.
o
It does not matter whether his is a foreigner or a subject of the Crown
o
It does not matter how temporary may be his presence; Maharanee of Baroda v
Wildenstein Hope v Hope –Object of service is to give notice to the party & chance to defend their rights.
Personal Service ELEMENTS:
R 6.03- Provides for Manner of effecting Personal Service Personal service of a document is effected by— (a) Leaving a copy of the document with the person to be served; or (b) If the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document. (2) In the case of originating process, the copy for service shall be sealed in accordance with Rule 5.11 and in the case of originating process filed electronically in accordance with Part 2 of Order 28, shall have attached to it a copy of the filing confirmation notice.
To effect personal service it shall not be necessary to show the original document.
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NOTE:
Service on a defendant who has been brought into the jurisdiction by force of law even though unwillingly, is a good service; A defendant who is in the jurisdiction for a short time, even if fleetingly, attracts the jurisdiction of the court and service on the defendant during such time would be good service. It is immaterial that the cause of action arose out of the jurisdiction;
Ainsworth v Redd (1990) 19 NSWLR 78, “LEAVING WITH”
HELD:
Documents taken by companion. Both people looked at documents though. A document can be left with a person who does not actually take the document into their physical possession; ‘given’ means ‘left with’ not ‘shown’; in the person’s presence; told what the document is.
Purpose of service is to attribute responsibility to that person, notification. Can leave a document with another person
Howard v National Bank of New Zealand: Solicitor’s appearance as an agent was agreement to take a writ. Was compliant because defendant was notified. o Notification is the primary requirement of service , and if enough evidence to prove
notification. SERVICE =EFFECTIVE.
E.g. gave to wife when husband was home, wife showed him.
Exceptions to Personal Service 1. Service by Agreement; SCR 6.14
Service executed in accordance with a method agreed to by the parties Agree either before or after the proceeding commences that service pursuant to an agreement on an agent is valid Agreement may be within the authority of the agent: Howard v National Bank of New Zealand The rule covers both informal and formal agreements. Rules are not to be construed in a way that forbids parties from litigation to act reasonably when no prejudice on the defendant. Kenneth Allison Ltd v A E Limehouse & Co [1992] 2 AC 105
2. Solicitor’s Undertaking; SCR 6.09
Permits service of a document in a proceeding on a person by acceptance of service of the document by a solicitor for the person.
If a solicitor makes a note on a copy of a document that service of the document is accepted on behalf of a person, the document shall, unless the solicitor is shown not to have had authority to accept service, be taken to have been served on the person on the day the solicitor made the note 6.09(2)
On instruction from the defendant. General instructions to conduct the litigation are not sufficient.
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A solicitor giving an undertaking is bound to accept service and enter an appearance o Court has discretion to release solicitor from undertaking, good cause must be shown by the solicitor. o Undertaking given without instruction is enforceable against the solicitor Enforced by application to court. Even if a solicitor is instructed not to enter an appearance Solicitor is of the opinion that an appearance should not be entered an application to court to be released from the undertaking is required
Time Requirements: ‘Calculating time period for service’; R 5.12
Time does not run during court vacations A period of days is calculated by excluding the first day but including the last day. The phrase ‘clear days’ excludes both the first and last day. Short service excludes days on which the registry is closed. R3.01(4) 5 days. When a time period expires on day registry is closed, extended to day on which registry is next open. R3.02
Special Parties CORPORATIONS CTH
Corporations Act 2001 (Cth): Service incorporated companies by leaving it at, or by sending it by post to, the registered office of that company
S109X: Main way to serve to corporations
Leaving it at by personal mode of service or posting it by registered post to the company's registered office .
1. Delivering a copy personally to a director of the company who resides in Australia; the president or another high office holder of a corporation may receive personal service on behalf of the corporation. Or
2. If a liquidator or administrator of the company has been appointed, by leaving it at or posting it to the address of the liquidator's or administrator’s office, which is the most recent such address as has been lodged with ASIC.
Other Ways S109X (1). The section provides also for other modes of service, namely, o o o o
Delivering a copy of the document personally to a director of the company who resides in Australia or an external Territory. If a liquidator has been appointed, leaving the document at or posting it to the address of the office of the liquidator. If an administrator has been appointed, leaving the document at or posting to the address of the office of the administrator Section 109X does not apply to a company not incorporated under the Act.
VIC -SCR 6.04
Personal service of document under r 6.03, may be effected for a corporation by:
o o
Serving it on the mayor, chairman, president or other head officer of the corporation; or On the town clerk, clerk, treasurer, manager, secretary or other similar officer of the corporation.
Unregistered CORPORATION
Under certain circumstances be served within the jurisdiction (‘personal service’) Agreement between the plaintiff and the defendant Procedures for service on artificial persons applies equally to foreign corporations
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Foreign corporation carrying on a business within the jurisdiction may be served
TEST: active within it for a sufficiently long and continuous period of time, carrying on business from a
Cause of action need not have arisen within the jurisdiction Substantial connection with the jurisdiction, such as the presence of an agent or officer present in the jurisdiction in the relevant sense o Company still has to be carrying on business in the jurisdiction through some person. settled location and address. Registered resident foreign corporations are served by leaving the document at, or by sending it by post to, the address of the local agent; Corporations Act 2001 (Cth) s601CX Unregistered, resident foreign corporations are served under the rules of court by serving the process at the principal office or place of business on a senior officer of the body corporate: Vic r 6.04(a)
Partnership or Business Name- R 17.01:
By rule 17.03(1) the originating process in a proceeding commenced against the partners in the firm name under R 17.01 may be served on:
a) b)
Any one or more of the partners; or Any person at the principal place of business of the partnership in Victoria who appears to have control or management of the partnership business there – this must be actual, not constructive (apparent) control and management of the firm’s business.
If the partnership is registered under the Partnership (Limited Liability) Act 1988, the plaintiff must effect service at the registered office of the partnership.
Partners may sue or be sued in the company name. SCR 17.01
The originating process must be accompanied by a notice setting out the capacity in which the person is served: as a partner, a manager, or in both capacities Principal place of business: where the chief managerial functions of the firm are performed. If there are several places of business the plaintiff must select the principle All of the partners in the partnership when the originating process was issued and that includes a partner who was outside the State at that time is taken to be served. A plaintiff cannot serve process at a dissolved partnership’s address where they are aware of the firm’s dissolution. They must serve the former partners
Agents - R 6.05
Permits service on an agent on behalf of a principal when the principal is outside the jurisdiction of the court.
The contract must have been entered into within the jurisdiction by an agent carrying on the principal’s business inside the jurisdiction. The plaintiff must seek leave of the court to serve process on the agent. o Leave must be sought prior to the agent’s authority being determined.
R 6.13- Service on an Agent (1) Where a contract has been entered into within Victoria by or through an agent residing or carrying on business within Victoria on behalf of a principal residing or carrying on business out of Victoria, originating process in a proceeding relating to or arising out of such contract may, by leave of the Court given before
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the determination of such agent's authority or of the agent's business relations with the principal, be served on such agent. (2) Where an order giving leave is made under paragraph (1)— (a) The order shall limit a time within which the defendant must file an appearance; and (b) A copy of the order and of the originating process shall forthwith be sent by pre-paid post to the defendant at the defendant's address out of Victoria.
Power to make an order under the rule is discretionary, and except under exceptional circumstances o It ought not to be exercised in cases where there is no difficulty in getting an order for and effecting service out of the jurisdiction in the ordinary way
General Agents & Casual Agents
General agent: does regular work for the principal within the jurisdiction. Causal agent: e.g. broker who does isolated transaction for foreign corporation. Proper to serve regular agents doing business for principals if it avoid delay and inconvenience Not proper to serve a broker through which am isolated transaction was effected Affidavits should disclose sufficient facts to enable the judge to determine the basis and nature of the agency sufficient to make a determination o Discretionary decision. o Primary fact is that agent must be a general agent and not a causal agent o Must persuade the court to allow the service on the agent.
R 6.04(b) Infants
Personal service on a person under 18 years of age is effected by:
o
Serving a parent or guardian of the minor
o
Where there is none, serving the person with whom the minor resides or whose care the minor is in.
Substituted service of originating process may be ordered in a proceeding against a minor; as defined by r 15.01 (legal disability reference, ‘legal handicap’)
The person on whom the document is served by way of service on the person under disability in accordance with the rule should be informed that the document is being left with him for the purpose of effecting service on the person under disability, and any affidavit of service of the document should show that the intimation was given
R 6.04(c) Mentally ill persons
Personal service on litigation guardian if there is an eligible person. If not, person with whom party resides and whose care he/she is in; As defined by r 15.01 The person on whom the document is served by way of service on the person under disability in accordance with the rule should be informed that the document is being left with him for the purpose of effecting service on the person under disability, and any affidavit of service of the document should show that the intimation was given
R 6.04(d) Crown
Service on the Secretary of the Attorney General’s department or the Australian Government Solicitor.
R 6.04(e) State of Victoria
On the Victorian Government Solicitor
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R 6.15 Actions for the Recovery of Land
Court may allow service to be effected by leaving the originating process on the land on a prominent section. Leave is allowed if no one appears to be in possession
R 6.05(1), (2) Motor Vehicle Personal Injuries (County Court Rule) (1) In any proceeding in which the plaintiff claims damages in respect of death or bodily injury caused by or arising out of the use of a motor car, originating process shall not be taken to have been served on the defendant unless a copy of the originating process is served on the defendant in accordance with these Rules and also on the Transport Accident Commission. (2) In any proceeding in which the plaintiff claims damages in respect of death or bodily injury suffered on or after 1 September 1985 arising out of or in the course of employment, originating process shall not be taken to have been served on the defendant unless a copy of the originating process is served on the defendant in accordance with these Rules and also on the Accident Compensation Commission. (3) If, in a proceeding to which paragraph (1) or (2) applies, a copy of the originating process has been duly served on the defendant but not on the Transport Accident Commission or the Accident Compensation Commission (as the case requires) the Court may, notwithstanding paragraph (1) or (2), order that the originating process be taken to have been served on the defendant. Paragraph (1) makes clear that service of originating process on the defendant is not complete until a copy is served also on the Transport Accident Commission. Paragraph (2) authorises the court to relieve the plaintiff of the consequences of non-compliance with the requirement of service of originating process on the Transport Accident Commission. Service on Transport Accident Commission By lodging the document at the office of the Commission with a person employed in the administration of the Act and authorised in writing by the Commission to accept service of documents on behalf of the Commission
Proof of Service R 6.17, & 6.08
(1) In the case of personal service of a document, an affidavit of service of the document shall state— (a) By whom the document was served; (b) The hour of the day, day of the week and date on which it was served; (c) The place of the service; and (d) The manner of identification of the person served. E.g. Photo. (2) In any other case of service of a document, an affidavit of service of the document shall state with relevant dates the facts constituting service. (3) An affidavit of service of originating process shall exhibit a sealed copy of the originating process. (4) [Supreme Court Only] In the case of originating process filed electronically in accordance with Part 2 of Order 28, an affidavit of service shall also exhibit a copy of the filing confirmation notice. (4) [County Court Only] In the case of originating process filed electronically, paragraph (3) does not apply and an affidavit of service shall exhibit— (a) A copy of the originating process; and (b) A copy of the filing confirmation notice. By r 6.08, evidence of a statement by the person served of his identity or that he holds some office is evidence of his identity or that he holds that office. o If a person says they are person, is evidence and proof that they are that person. o Overcomes the objection that the statement is hearsay and inadmissible
R 6.07 Ordinary Service 32
Occurs after personal service in the originating process
o Makes use of the nominated address by the parties in the writ. Used for the purposes of filling and notification. More convenient. Usually a solicitor’s office address, if the person is legally represented or their agent. If a person has nominated an address for service, that is the proper address for service.
(1) Where personal service of a document is not required, the document may be served— (a) By leaving the document at the proper address of the person to be served on any day on which the Prothonotary's [Registrar's] office is open; (b) By posting the document to the person to be served at the person's [his] proper address; (c) Where provision is made by or under any Act for service of a document on a corporation, by serving the document in accordance with that provision; (d) Where the solicitor for a party has facilities for the reception of documents in an exchange box in a document exchange, by leaving the document in that exchange box or in another exchange box for transmission to that exchange box; or (e) Where the solicitor for a party has facilities for the reception by telephone transmission of a facsimile of a document, by telephone transmission of the document in accordance with paragraph (2.1). (2) For the purpose of paragraph (1), the proper address of a person shall be the address for service of that person in the proceeding, but if at the time service is to be effected that person has no address for service, the proper address shall be— (a) In the case of an individual, his or her usual or last known place of residence or of business; (b) In the case of individuals suing or being sued in the name of a firm, the principal or last known place of business of the firm; (c) In the case of a corporation, the registered or principal office of the corporation. (2.1) A document that is served by telephone transmission shall include a cover page stating— (a) The name, address and telephone number of the sender; (b) The name of the solicitor to be served; (c) The date and time of transmission; (d) The total number of pages transmitted, including the cover page; (e) The telephone number from which the document is transmitted; (f) The name and telephone number of a person to contact in the event of any problem in transmission of the document; (g) That the transmission is by way of service under Rule 6.07(1)(e). (3) [Supreme Court Only] Where no person can be found at the address for service of a plaintiff who sues or a defendant who has appeared in person, any document in the proceeding may be served on that plaintiff or defendant by filing it. If no one at address can leave it there, or serve by filling. If serve by filing back sheet of the document must be endorsed. (3) [County Court Only] Where no person can be found at the address for service of a plaintiff who sues or a defendant who has appeared in person, any document in the proceeding may be served on that plaintiff or defendant by leaving one copy at such address and by filing another copy. (3.1) A party who serves a document by filing in accordance with paragraph (3) shall indorse upon a back sheet or on the back of the last sheet a statement that the document is filed as such service. (4) Service in accordance with paragraph (1)(a) or (1)(e) which is effected after 4.00 p.m. shall, [shall] for the purpose of calculating any period of time after that service, [service] be taken to have been effected on the next day the Prothonotary's [Registrar's] office is open. (5)The day of service of a document shall, where the document—
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personally on each defendant. (2) Where a defendant to any originating process files an unconditional appearance , the originating process shall be taken to have been served on the defendant personally on the day on which the appearance is filed or on such earlier day as may be proved.
Service satisfies the notice requirement. o Notifies other party of case and gives them chance to defend their rights. o After initial personal service of writ, can then use normal service.
For Effective Service 1. Service must be effected properly 2. Court must have ‘jurisdiction’; ‘Jurisdiction’ Laurie v Carroll HCA
Action of the writ depends primarily upon presence in the jurisdiction at the time for service of the writ
If right process followed for serving outside of Victoria, then could be forced. o But jurisdiction in personum still ends when defendant is out of the State
Presence is the criterion: o It does not matter person served deceitfully, unless he has been enticed in the jurisdiction fraudulently. (If in jurisdiction for another reason, then no worries) If fraud, then abuse of courts processes and court has inherent jurisdiction to stay proceedings. Does not matter if trick person in jurisdiction to accepting the writ, only matter when tricked into coming into jurisdiction. E.g. lotto ticket
Don’t have to tell person what is in document, can trick that it is for them. E.g. lotto ticket for you, won’t disqualify service.
o
It does not matter whether his is a foreigner or a subject of the Crown
o
It does not matter how temporary may be his presence; Maharanee of Baroda v
Wildenstein Hope v Hope –Object of service is to give notice to the party & chance to defend their rights.
Personal Service ELEMENTS:
R 6.03- Provides for Manner of effecting Personal Service Personal service of a document is effected by— (a) Leaving a copy of the document with the person to be served; or (b) If the person does not accept the copy, by putting the copy down in the person's presence and telling the person the nature of the document. (2) In the case of originating process, the copy for service shall be sealed in accordance with Rule 5.11 and in the case of originating process filed electronically in accordance with Part 2 of Order 28, shall have attached to it a copy of the filing confirmation notice.
To effect personal service it shall not be necessary to show the original document.
27
NOTE:
Service on a defendant who has been brought into the jurisdiction by force of law even though unwillingly, is a good service; A defendant who is in the jurisdiction for a short time, even if fleetingly, attracts the jurisdiction of the court and service on the defendant during such time would be good service. It is immaterial that the cause of action arose out of the jurisdiction;
Ainsworth v Redd (1990) 19 NSWLR 78, “LEAVING WITH”
HELD:
Documents taken by companion. Both people looked at documents though. A document can be left with a person who does not actually take the document into their physical possession; ‘given’ means ‘left with’ not ‘shown’; in the person’s presence; told what the document is.
Purpose of service is to attribute responsibility to that person, notification. Can leave a document with another person
Howard v National Bank of New Zealand: Solicitor’s appearance as an agent was agreement to take a writ. Was compliant because defendant was notified. o Notification is the primary requirement of service , and if enough evidence to prove
notification. SERVICE =EFFECTIVE.
E.g. gave to wife when husband was home, wife showed him.
Exceptions to Personal Service 1. Service by Agreement; SCR 6.14
Service executed in accordance with a method agreed to by the parties Agree either before or after the proceeding commences that service pursuant to an agreement on an agent is valid Agreement may be within the authority of the agent: Howard v National Bank of New Zealand The rule covers both informal and formal agreements. Rules are not to be construed in a way that forbids parties from litigation to act reasonably when no prejudice on the defendant. Kenneth Allison Ltd v A E Limehouse & Co [1992] 2 AC 105
2. Solicitor’s Undertaking; SCR 6.09
Permits service of a document in a proceeding on a person by acceptance of service of the document by a solicitor for the person.
If a solicitor makes a note on a copy of a document that service of the document is accepted on behalf of a person, the document shall, unless the solicitor is shown not to have had authority to accept service, be taken to have been served on the person on the day the solicitor made the note 6.09(2)
On instruction from the defendant. General instructions to conduct the litigation are not sufficient.
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A solicitor giving an undertaking is bound to accept service and enter an appearance o Court has discretion to release solicitor from undertaking, good cause must be shown by the solicitor. o Undertaking given without instruction is enforceable against the solicitor Enforced by application to court. Even if a solicitor is instructed not to enter an appearance Solicitor is of the opinion that an appearance should not be entered an application to court to be released from the undertaking is required
Time Requirements: ‘Calculating time period for service’; R 5.12
Time does not run during court vacations A period of days is calculated by excluding the first day but including the last day. The phrase ‘clear days’ excludes both the first and last day. Short service excludes days on which the registry is closed. R3.01(4) 5 days. When a time period expires on day registry is closed, extended to day on which registry is next open. R3.02
Special Parties CORPORATIONS CTH
Corporations Act 2001 (Cth): Service incorporated companies by leaving it at, or by sending it by post to, the registered office of that company
S109X: Main way to serve to corporations
Leaving it at by personal mode of service or posting it by registered post to the company's registered office .
1. Delivering a copy personally to a director of the company who resides in Australia; the president or another high office holder of a corporation may receive personal service on behalf of the corporation. Or
2. If a liquidator or administrator of the company has been appointed, by leaving it at or posting it to the address of the liquidator's or administrator’s office, which is the most recent such address as has been lodged with ASIC.
Other Ways S109X (1). The section provides also for other modes of service, namely, o o o o
Delivering a copy of the document personally to a director of the company who resides in Australia or an external Territory. If a liquidator has been appointed, leaving the document at or posting it to the address of the office of the liquidator. If an administrator has been appointed, leaving the document at or posting to the address of the office of the administrator Section 109X does not apply to a company not incorporated under the Act.
VIC -SCR 6.04
Personal service of document under r 6.03, may be effected for a corporation by:
o o
Serving it on the mayor, chairman, president or other head officer of the corporation; or On the town clerk, clerk, treasurer, manager, secretary or other similar officer of the corporation.
Unregistered CORPORATION
Under certain circumstances be served within the jurisdiction (‘personal service’) Agreement between the plaintiff and the defendant Procedures for service on artificial persons applies equally to foreign corporations
29
Foreign corporation carrying on a business within the jurisdiction may be served
TEST: active within it for a sufficiently long and continuous period of time, carrying on business from a
Cause of action need not have arisen within the jurisdiction Substantial connection with the jurisdiction, such as the presence of an agent or officer present in the jurisdiction in the relevant sense o Company still has to be carrying on business in the jurisdiction through some person. settled location and address. Registered resident foreign corporations are served by leaving the document at, or by sending it by post to, the address of the local agent; Corporations Act 2001 (Cth) s601CX Unregistered, resident foreign corporations are served under the rules of court by serving the process at the principal office or place of business on a senior officer of the body corporate: Vic r 6.04(a)
Partnership or Business Name- R 17.01:
By rule 17.03(1) the originating process in a proceeding commenced against the partners in the firm name under R 17.01 may be served on:
a) b)
Any one or more of the partners; or Any person at the principal place of business of the partnership in Victoria who appears to have control or management of the partnership business there – this must be actual, not constructive (apparent) control and management of the firm’s business.
If the partnership is registered under the Partnership (Limited Liability) Act 1988, the plaintiff must effect service at the registered office of the partnership.
Partners may sue or be sued in the company name. SCR 17.01
The originating process must be accompanied by a notice setting out the capacity in which the person is served: as a partner, a manager, or in both capacities Principal place of business: where the chief managerial functions of the firm are performed. If there are several places of business the plaintiff must select the principle All of the partners in the partnership when the originating process was issued and that includes a partner who was outside the State at that time is taken to be served. A plaintiff cannot serve process at a dissolved partnership’s address where they are aware of the firm’s dissolution. They must serve the former partners
Agents - R 6.05
Permits service on an agent on behalf of a principal when the principal is outside the jurisdiction of the court.
The contract must have been entered into within the jurisdiction by an agent carrying on the principal’s business inside the jurisdiction. The plaintiff must seek leave of the court to serve process on the agent. o Leave must be sought prior to the agent’s authority being determined.
R 6.13- Service on an Agent (1) Where a contract has been entered into within Victoria by or through an agent residing or carrying on business within Victoria on behalf of a principal residing or carrying on business out of Victoria, originating process in a proceeding relating to or arising out of such contract may, by leave of the Court given before
30
the determination of such agent's authority or of the agent's business relations with the principal, be served on such agent. (2) Where an order giving leave is made under paragraph (1)— (a) The order shall limit a time within which the defendant must file an appearance; and (b) A copy of the order and of the originating process shall forthwith be sent by pre-paid post to the defendant at the defendant's address out of Victoria.
Power to make an order under the rule is discretionary, and except under exceptional circumstances o It ought not to be exercised in cases where there is no difficulty in getting an order for and effecting service out of the jurisdiction in the ordinary way
General Agents & Casual Agents
General agent: does regular work for the principal within the jurisdiction. Causal agent: e.g. broker who does isolated transaction for foreign corporation. Proper to serve regular agents doing business for principals if it avoid delay and inconvenience Not proper to serve a broker through which am isolated transaction was effected Affidavits should disclose sufficient facts to enable the judge to determine the basis and nature of the agency sufficient to make a determination o Discretionary decision. o Primary fact is that agent must be a general agent and not a causal agent o Must persuade the court to allow the service on the agent.
R 6.04(b) Infants
Personal service on a person under 18 years of age is effected by:
o
Serving a parent or guardian of the minor
o
Where there is none, serving the person with whom the minor resides or whose care the minor is in.
Substituted service of originating process may be ordered in a proceeding against a minor; as defined by r 15.01 (legal disability reference, ‘legal handicap’)
The person on whom the document is served by way of service on the person under disability in accordance with the rule should be informed that the document is being left with him for the purpose of effecting service on the person under disability, and any affidavit of service of the document should show that the intimation was given
R 6.04(c) Mentally ill persons
Personal service on litigation guardian if there is an eligible person. If not, person with whom party resides and whose care he/she is in; As defined by r 15.01 The person on whom the document is served by way of service on the person under disability in accordance with the rule should be informed that the document is being left with him for the purpose of effecting service on the person under disability, and any affidavit of service of the document should show that the intimation was given
R 6.04(d) Crown
Service on the Secretary of the Attorney General’s department or the Australian Government Solicitor.
R 6.04(e) State of Victoria
On the Victorian Government Solicitor
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R 6.15 Actions for the Recovery of Land
Court may allow service to be effected by leaving the originating process on the land on a prominent section. Leave is allowed if no one appears to be in possession
R 6.05(1), (2) Motor Vehicle Personal Injuries (County Court Rule) (1) In any proceeding in which the plaintiff claims damages in respect of death or bodily injury caused by or arising out of the use of a motor car, originating process shall not be taken to have been served on the defendant unless a copy of the originating process is served on the defendant in accordance with these Rules and also on the Transport Accident Commission. (2) In any proceeding in which the plaintiff claims damages in respect of death or bodily injury suffered on or after 1 September 1985 arising out of or in the course of employment, originating process shall not be taken to have been served on the defendant unless a copy of the originating process is served on the defendant in accordance with these Rules and also on the Accident Compensation Commission. (3) If, in a proceeding to which paragraph (1) or (2) applies, a copy of the originating process has been duly served on the defendant but not on the Transport Accident Commission or the Accident Compensation Commission (as the case requires) the Court may, notwithstanding paragraph (1) or (2), order that the originating process be taken to have been served on the defendant. Paragraph (1) makes clear that service of originating process on the defendant is not complete until a copy is served also on the Transport Accident Commission. Paragraph (2) authorises the court to relieve the plaintiff of the consequences of non-compliance with the requirement of service of originating process on the Transport Accident Commission. Service on Transport Accident Commission By lodging the document at the office of the Commission with a person employed in the administration of the Act and authorised in writing by the Commission to accept service of documents on behalf of the Commission
Proof of Service R 6.17, & 6.08
(1) In the case of personal service of a document, an affidavit of service of the document shall state— (a) By whom the document was served; (b) The hour of the day, day of the week and date on which it was served; (c) The place of the service; and (d) The manner of identification of the person served. E.g. Photo. (2) In any other case of service of a document, an affidavit of service of the document shall state with relevant dates the facts constituting service. (3) An affidavit of service of originating process shall exhibit a sealed copy of the originating process. (4) [Supreme Court Only] In the case of originating process filed electronically in accordance with Part 2 of Order 28, an affidavit of service shall also exhibit a copy of the filing confirmation notice. (4) [County Court Only] In the case of originating process filed electronically, paragraph (3) does not apply and an affidavit of service shall exhibit— (a) A copy of the originating process; and (b) A copy of the filing confirmation notice. By r 6.08, evidence of a statement by the person served of his identity or that he holds some office is evidence of his identity or that he holds that office. o If a person says they are person, is evidence and proof that they are that person. o Overcomes the objection that the statement is hearsay and inadmissible
R 6.07 Ordinary Service 32
Occurs after personal service in the originating process
o Makes use of the nominated address by the parties in the writ. Used for the purposes of filling and notification. More convenient. Usually a solicitor’s office address, if the person is legally represented or their agent. If a person has nominated an address for service, that is the proper address for service.
(1) Where personal service of a document is not required, the document may be served— (a) By leaving the document at the proper address of the person to be served on any day on which the Prothonotary's [Registrar's] office is open; (b) By posting the document to the person to be served at the person's [his] proper address; (c) Where provision is made by or under any Act for service of a document on a corporation, by serving the document in accordance with that provision; (d) Where the solicitor for a party has facilities for the reception of documents in an exchange box in a document exchange, by leaving the document in that exchange box or in another exchange box for transmission to that exchange box; or (e) Where the solicitor for a party has facilities for the reception by telephone transmission of a facsimile of a document, by telephone transmission of the document in accordance with paragraph (2.1). (2) For the purpose of paragraph (1), the proper address of a person shall be the address for service of that person in the proceeding, but if at the time service is to be effected that person has no address for service, the proper address shall be— (a) In the case of an individual, his or her usual or last known place of residence or of business; (b) In the case of individuals suing or being sued in the name of a firm, the principal or last known place of business of the firm; (c) In the case of a corporation, the registered or principal office of the corporation. (2.1) A document that is served by telephone transmission shall include a cover page stating— (a) The name, address and telephone number of the sender; (b) The name of the solicitor to be served; (c) The date and time of transmission; (d) The total number of pages transmitted, including the cover page; (e) The telephone number from which the document is transmitted; (f) The name and telephone number of a person to contact in the event of any problem in transmission of the document; (g) That the transmission is by way of service under Rule 6.07(1)(e). (3) [Supreme Court Only] Where no person can be found at the address for service of a plaintiff who sues or a defendant who has appeared in person, any document in the proceeding may be served on that plaintiff or defendant by filing it. If no one at address can leave it there, or serve by filling. If serve by filing back sheet of the document must be endorsed. (3) [County Court Only] Where no person can be found at the address for service of a plaintiff who sues or a defendant who has appeared in person, any document in the proceeding may be served on that plaintiff or defendant by leaving one copy at such address and by filing another copy. (3.1) A party who serves a document by filing in accordance with paragraph (3) shall indorse upon a back sheet or on the back of the last sheet a statement that the document is filed as such service. (4) Service in accordance with paragraph (1)(a) or (1)(e) which is effected after 4.00 p.m. shall, [shall] for the purpose of calculating any period of time after that service, [service] be taken to have been effected on the next day the Prothonotary's [Registrar's] office is open. (5)The day of service of a document shall, where the document—
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