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.

Applying for Business Loans
Date: Sep 02, 2010
Australian Consumer Law
Date: Apr 01, 2011
Being Sued
Date: Nov 02, 2010
Closing your Company
Date: Feb 02, 2010
Consideration in contract law
Date: Jun 10, 2015
Contract: the rules of the game
Date: Jun 15, 2015
Goods Shipping and the Law
Date: Oct 01, 2012
Insurance Basics
Date: Feb 03, 2011
Is your business True Blue?
Date: Sep 02, 2009
PPSA Protection and Perfection
Date: May 25, 2015
Security for Costs
Date: Aug 08, 2010
Social Media and your Employees
Date: Apr 03, 2010
Social Networking in Business
Date: Jul 05, 2011
Tax Time Record Keeping
Date: Aug 03, 2010
Trusts and family law disputes
Date: Jul 06, 2015
What is a guarantee?
Date: Nov 10, 2014
What is consideration?
Date: Sep 14, 2014
When should a warning be given?
Date: Sep 14, 2014
Why Choose Bankruptcy?
Date: Dec 14, 2007
Working with Contracts
Date: Mar 02, 2011
Back to Publication List