A comparison between using friends and family, bailiffs and process servers

In order for a legal matter to be formally commenced in a Court, an “originating process” must be prepared and filed by the Applicant. This is the first step in commencing legal action such as:

• A civil claim
• A debt recovery claim
• Enforcement proceedings
• Family Law matters (for example a divorce, property settlement or parenting orders) 

Many people hire a lawyer to help them prepare their originating process, however others opt to complete this step themselves, particularly if their legal matter is relatively straightforward and they feel confident that they can fill out all the necessary paperwork correctly. 

Once filed with a Court, the Court will stamp the documents with the Court’s seal. These stamped documents are referred to as “sealed copies”. A sealed copy of the originating process must then be served on the other party to the proceeding (the Respondent or Defendant). 

Most originating processes, particularly Family Law applications like divorces and parenting orders, must be delivered by hand to the Respondent and an affidavit of service needs to be provided to the Court to prove that the Respondent has been properly served with the documents. 

For people who have prepared and filed their own originating processes, the next step is to decide how they will serve the sealed paperwork and also obtain proof that service has been effected on the other party.

There are three main ways to serve legal documents on an individual in Australia, and there are some considerations to be aware of with each method. This blog explores your options if you are in the position of needing to personally serve legal documents.

Via friends or family  

In most Australian states, you must be a licensed process server to personally serve Court documents. You can’t personally serve your own paperwork – you must use a third party.

The only exception to this is divorce documents – you can use a friend or family member to serve divorce papers on your behalf. 

The person who serves an Application for Divorce must not be the party on whose behalf the documents are being served (Family Law Rule 2.35). So even if you are going through an amicable divorce, and your ex-partner is expecting the documents, you cannot serve documents on them yourself. 

You can ask a trusted friend or family member to serve the divorce papers on your behalf and acquire the necessary signed Acknowledgement of Service. But this can become tricky if the recipient refuses to sign for it. 

Once your Application for Divorce has been served, the person who served the papers must sign an Affidavit of Service by Hand (Divorce). This Affidavit and any signed Acknowledgment of Service must both be signed before the same Justice of the Peace, then filed with the Court. 

In the event that you’re unable to personally serve an individual with your originating process (whether it’s an Application for Divorce or any other originating process), you will likely need to obtain orders from the Court to serve the originating process in another way, such as by post, email, text message or to another person on their behalf. This is known as applying for substituted service orders. In support of this application, you will need to prepare and file affidavit(s) that depose to: 

• Why you have been unable to personally serve the recipient;
• The alternate ways that the documents could be brought to the attention of the recipient; and
• How you know that serving the documents in that alternate manner will result in the documents being effectively served.

Arranging this additional paperwork can add undue stress and time to an already difficult situation. So generally speaking, if you think the recipient is going to pose challenges for you in terms of personally serving your documents, it can be best to go with another, professional option. 

Via a Bailiff

A bailiff is an individual appointed by the Courts to serve papers as well as enforce judgments and orders made by the Court. Arranging for a bailiff to serve your legal documents can be done through your local courthouse and saves you a lot of stress and hassle compared to doing it all yourself. The bailiff will be responsible for making all reasonable attempts to correctly serve your paperwork. But it’s important to be aware of how engaging a bailiff works. 

When you opt to use a bailiff, your case will enter a “queue” with other people’s requests for process serving. Depending on the workload of a particular courthouse, it could take a few months for a bailiff to action your request for process serving.

This may not be a concern for you if your legal issue is not time sensitive, but in many circumstances, legal paperwork needs to be served within a specific timeframe. For example, an Application for Divorce must be served 28 days prior to the first Court date.  If your paperwork needs to be served within a few days or weeks, a bailiff may not be a viable option for you. 

Via a private process server (AKA a field agent) 

Unlike a bailiff, a process server is not employed by the court and instead operates as a licensed private individual and can be hired through a process serving agency. 

Most private process servers work 6 to 7 days a week including nights and weekends. This helps to ensure attempts are made to personally serve your documents at times when the recipient is likely to be home. 

Process servers invest significant effort in tracking down a recipient as they rely on their good reputation to obtain work in the future. This is in contrast to relying on a Court appointment like a bailiff. 

Process servers can also conduct additional investigation in order to track down recipients if their address is unknown, such as trying to find them at their place of work or public places they may commonly frequent. Process servers have a vested interest in going the extra mile to find and serve recipients as soon as they can as many reputable agencies will promise the successful delivery of documentation within a much shorter time frame compared to a bailiff – sometimes even within 24 hours. 

Most process servers have background experience in law enforcement or in the military, meaning they are able to keep calm if they find themselves in a confrontational situation. They know how to deescalate and understand the importance of abiding by trespass and privacy laws.

Once a process server has successfully delivered your documents on time, you will be provided with a correct affidavit of service to be filed in the court so that you can progress with the next steps of your legal proceedings. This gives you peace of mind that your legal matter will not be delayed.

Do you have documents which need to be served in a timely manner? 

Please contact us on 1300-918-851 or by filling out the form on this page. We will be happy to answer any questions or address any concerns you have. 

We look forward to helping you in any way we can, including with any special requests. Wherever you are located in Australia or overseas, you deserve the best service possible, so choose Servedoc today.