Process serving has legal requirements that guide each activity and ensures that every step of the way is completed fairly, securely and confidentially. While requirements differ, every jurisdiction has some definition of correct service of documents, and failing to serve documents properly can cause otherwise robust cases to fail.

What is process serving?

Process serving refers to delivering court documents to individuals or entities involved in a legal matter. This guarantees that all parties are properly informed and have the opportunity to respond as required by law. 

Process serving is a crucial component of day-to-day operation of legal professionals, such as lawyers, debt collectors, and corporations, in ensuring timely and proper delivery of legal notices. It is important to the justice system, as it enables legal proceedings to run smoothly by delivering court documents, summons, and subpoenas to the intended recipients. 

Process serving also protects the due process rights of individuals by making sure that they receive appropriate legal notice and opportunities to respond to claims, facilitates compliance with the law by reducing the chances of a delay in the case and assists with risk management by ensuring that documents are served securely and legally. 

Legal requirements

Approach

Process serving follows a structured approach to ensure legal documents are served correctly and in compliance with the law. The process includes locating the recipient, verifying their identity, delivering the documents according to state laws, and filing proof of service with the court. Doing these checks prevents mistakes and delays.  

Proof of service

Proof of service must be filed with the Court. Proof of service is a formal document confirming that legal papers have been properly delivered. Obtaining proof of service is crucial to prevent delays or case dismissals. Typically provided by the process server, it includes key details such as the date, time, location, and method of service. Process servers may alternatively provide an affidavit. Sometimes, individuals may refuse to confirm that they received the documents by not signing, which may require the process server to take photos of the delivery. 

Process serving licensing requirements by state

Licensing requirements for process servers vary across Australian states and territories. Below is an overview of the current regulations:

  • New South Wales (NSW): A Commercial Agent License is required under the Commercial Agents and Private Inquiry Agents Act 2004.
  • Victoria (VIC): No formal license is needed, but process servers must comply with privacy laws and civil procedure rules.
  • Queensland (QLD): A Commercial Agents License issued by the Office of Fair Trading is required.
  • South Australia (SA): Licensing is not mandatory, but process servers must follow the Sheriff’s Office guidelines.
  • Western Australia (WA): No specific licensing requirements apply.
  • Tasmania (TAS): A Commercial Agent License is required.
  • Australian Capital Territory (ACT): No specific license is required, but process servers must operate within court regulations.
  • Northern Territory (NT): A Commercial and Private Agent License is required under the Agents Licensing Act.

Liability insurance

Process serving requires liability insurance to protect all parties involved. It can be helpful if some mistakes are made along the way and provide assurance for clients as it shows accountability. 

Skip tracing

Every process will have a deadline set and failing to meet that may lead to unfair serving. If the person is not served in a timely manner, they may not be aware that they need to take action. Not being served the required documents can undermine the case. Sometimes, people may try to avoid being served for that exact reason, which forces process servers to come up with strategies to combat it. One of those strategies involves skip tracing professionals who will find the right person and give the necessary details to process servers. Skip tracing itself has its own legal requirements. 

During the skip tracing process, investigators may talk to neighbours to try and get more information about the location of the individual they are looking for. They may even use that person to try and reach the individual. 

Spend less time managing paperwork and more time investigating with case management designed specifically for skip tracing.

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Location

Considering that process serving may require skip tracing to locate an individual, the residence of the person may not be the only place they go to. While it is not preferred, process servers are allowed to serve both employees and employers at their workplace without needing special permission. However, most process servers will typically try multiple times to serve the individual at home before attempting to serve them at work. This could be due to scheduling conflicts or the difficulty of reaching them if they live in a building with restricted access. In some cases, the workplace may be the only address they found during the skip tracing process. 

What is against the law? 

While delivering the documents, process servers are not allowed to impersonate police officers for any reason. That includes pretending to be an officer for people to open the door. They may also not trespass or beak into properties in order to speak to people. It is important to know though that if a process server is on the property, the person being served cannot tell them to go away as they would be deemed as interfering with the process. 

 Process serving must be completed in a legal and professional manner. Process servers are not allowed to lose their temper and make threats or leave the documents with an underage person. Some states require the person to be at least 16 while others have a minimum age of 18. 

Can someone who is not licensed serve papers?

To serve papers to an individual, they must be physically handed directly to that person. Court documents must be delivered by an independent party, someone who is not involved in the dispute. A significant other or immediate family member cannot serve papers to each other which is why often a process server is hired. 

A neutral third party may be asked to serve the papers in some cases, but they might not want to get involved. Process serving is usually not a pleasant experience for the person receiving the papers so it is advised that is completed by a professional. 

Automating the process

Process serving can become more efficient when using a case management system. Polonious allows process servers to track the progress of their case, record serving attempts and generate insightful reports. Our system is confidential and our ISO 9001 and ISO 27001 highlight our commitment to delivering high quality and security for every case. Book a demo today and learn more about how we automate each stage of an investigation.