Why It Pays to be a Stickler for Service of Court Documents

Date: Jun 04, 2015
Document Type: Article

Natural justice requires that a person be made aware of the claim or charge brought against him or her, and be given an opportunity to defend such a claim. For this reason, the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)set out precise guidelines for service of court documents.

If service in the usual way is not able to be achieved, for whatever reason, the courts may make an order for substituted service to ensure the court documents are brought to the attention of the defendant. The case of Violi v Commonwealth Bank of Australia [2015] NSWCA 152 (Violi), which overturned a decision of the District Court, is a timely reminder of the importance of natural justice and compliance with service requirements.

In Violi, at the first instance, the Court dismissed Mr Violi’s application to set aside default judgment, on the basis that the Bank had complied with an order for substituted service, and that Mr Violi had not made out sufficient grounds explaining his failure to file a defence in time.

In the Court of Appeal, one of the key issues for consideration was whether or not service of the statement of claim had been effected, and whether the affidavit of service, on which the Bank relied to obtain default judgment, satisfied the service requirements of the UCPR.

Sackville AJA opined that a person seeking default judgment must “comply meticulously” with the UCPR, so that, amongst other considerations, the court officers processing the application “can ascertain that all preconditions for a default judgment have been satisfied”.

The Court found that the Bank’s affidavit of service did not establish satisfactorily that service of the court documents had been effected. Importantly, the Court determined that actual facts of service were required, and that it would be insufficient “merely [to assert] personal service or service in accordance with a substituted service order”.

This meant that the material relied upon by the Bank did not satisfy the requirements of the UCPR. As a result, the Court found that the default judgment entered against Mr Violi had been entered irregularly, and, by majority, set aside the judgment and ordered the Bank to pay Mr Violi’s costs of the application for leave and of the appeal.

Whilst for many professionals, swearing an affidavit of service or obtaining default judgment is a common, run-of-the-mill occurrence, it is important to ensure that all legislative requirements have been satisfied in every matter. Otherwise, as was seen in Violi, the courts may make orders not only setting aside the judgment, but also ordering the party who brought the claim to pay the costs of the alleged debtor.

Our team is able to assist with all aspects of legal claims, including substituted service and obtaining judgment. For more information, please contact our office. The law in this article is current as at June 2015. It may have changed by the time you read this article.

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