Citiserv Process Servers

NSW Legislation- Rules of Service

Uniform Civil Procedure Rules 2005

Division 1 Service generally

10.1   Service of filed documents

(cf SCR Part 15, rule 28)

(1)  Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party.

(2)  In the case of proceedings in the Local Court, an originating process may, and a defence must, be served on the other parties, on behalf of the party by whom it was filed, by an officer of the Local Court.

Note—

See rules 10.7 and 10.8 as to how service is to be effected by a court.

(3)  Despite subrule (2), a defence that is filed in proceedings in the Local Court by means of Online Registry (within the meaning of Part 3) must be served on the other parties by the party that filed the defence rather than by an officer of the Local Court.

10.2   Service of affidavits

(cf SCR Part 38, rule 7; DCR Part 30, rule 7; LCR Part 25, rule 7)

(1)  A party intending to use an affidavit that has not been filed must serve it on each other interested party not later than a reasonable time before the occasion for using it arises.

(2)  A party who fails to serve an affidavit as required by subrule (1) may not use the affidavit except by leave of the court.

10.3   Service of originating process in Australia

(cf SCR Part 10, rule 2B)

(1)  This rule applies to proceedings in the Supreme Court.

(2)  Subject to this Part, originating process may be served anywhere in Australia, whether in New South Wales or elsewhere.

(3)  An originating process for service in Australia, but outside New South Wales, must bear a statement either that the plaintiff intends to proceed under the Service and Execution of Process Act 1992 of the Commonwealth or that the plaintiff intends to proceed under the Uniform Civil Procedure Rules 2005.

(4)  The plaintiff may proceed otherwise than in accordance with the intention stated under subrule (3), but only with the leave of the court.

10.4   Operation of Service and Execution of Process Act 1992 of the Commonwealth

(cf SCR Part 9, rule 1A)

This Part does not limit the operation of the Service and Execution of Process Act 1992 of the Commonwealth or any other law of the Commonwealth.

Division 2 Manner of service

10.5   The various methods of service

(cf SCR Part 9, rules 3 and 4; DCR Part 8, rules 3, 9 and 12; LCR Part 7, rules 3, 9 and 12)

(1)  Subject to these rules, a document may be served on a person—

(a)  by means of personal service, or

(b)  by posting a copy of the document, addressed to the person—

(i)  to the person’s address for service, or

(ii)  if the person is not an active party, to the person’s business or residential address, or

(c)  by leaving a copy of the document, addressed to the person—

(i)  at the person’s address for service, or

(ii)  if the person is not an active party, at the person’s business or residential address,

with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, or

(d)  in the case of service on a corporation, by serving the document on the corporation in any manner in which service of such a document may, by law, be served on the corporation.

(2)  In the case of a person having an address for service that is a solicitor’s office address, service of a document on the person may also be effected—

(a)  if the notice advising the address for service includes a DX address, by leaving a copy of the document, addressed to the solicitor, in that DX box at that address or in another DX box for transmission to that DX box, or

(b)  if the notice advising the address for service includes a fax number, by faxing a copy of the document to that number, or

(c)  if the notice advising the address for service includes an electronic service address, by transmitting an electronic copy of the document to that address.

(3)  Unless the contrary is proved, the time at which a document is taken to have been served is—

(a)  in the case of a document that is left in a DX box in accordance with subrule (2)(a), at the end of the second day following the day on which the copy is so left, or

(b)  in the case of a copy of a document that is faxed in accordance with subrule (2)(b), at the end of the first day following the day on which the copy is so faxed.

Note—

See clause 13 of Schedule 1 to the Electronic Transactions Act 2000 as to when an electronic copy of a document is taken to have been delivered to an electronic mail address. See also Division 3 of this Part as to how personal service is to be effected.

10.6   Service in accordance with agreement between parties

(cf SCR Part 9, rule 9; DCR Part 8, rule 15; LCR Part 7, rule 15)

(1)  In any proceedings, any document (including originating process) may be served by one party on another (whether in New South Wales or elsewhere) in accordance with any agreement, acknowledgment or undertaking by which the party to be served is bound.

(1A)  In relation to the service of an originating process in proceedings on a claim for possession of land, the agreement, acknowledgment or undertaking referred to in subrule (1) must be made after the originating process is filed but before it is served.

(2)  Service in accordance with subrule (1) is taken for all purposes (including for the purposes of any rule requiring personal service) to constitute sufficient service.

10.7   Notice given or served by court

(cf SCR Part 9, rule 14)

Subject to any order of the court, any notice or other document that is required to be given to or served on any party by the court, or by any officer of the court, is taken to have been given or served if served in any manner in which a document not requiring personal service may be served under this Part.

10.8   Service of defence by court

(cf LCR Part 9, rule 3)

(1)  This rule applies to proceedings in the Local Court.

(2)  When filing a defence, whether in person or by post, a party must lodge additional copies of the defence for service on each of the other active parties.

(3)  On receiving such copies, an officer of the court—

(a)  must mark each copy with the date of acceptance of the document, and

(b)  must return one copy to the party by which it was filed, and

(c)  must cause the remaining copies to be served on each of the other active parties.

10.9   Service of process on defendant operating under unregistered business name

(cf SCR Part 64, rule 3; DCR Part 46, rule 2; LCR Part 35, rule 2)

(1)  This rule applies to any proceedings against a person in respect of anything done or omitted to be done by the person in the course of, or in relation to, a business carried on under an unregistered business name.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the unregistered business name—

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at any place at which business is carried on under that name, or

(b)  by sending it by post, addressed to the defendant, to any place at which business is carried on under that name,

whether or not the place concerned is within New South Wales.

(3)  For the purposes of any such proceedings—

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left, or to which the document is sent by post, is taken to be the place of service of the document, and

(c)  in the case of a document sent by post, the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

10.10   Service of process on defendant operating under registered business name

(cf SCR Part 64, rule 3)

(1)  This rule applies to any proceedings against a person carrying on business under a registered business name in respect of anything done or omitted to be done by the person in the course of, or in relation to, business carried on under that name.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the registered business name—

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at any place at which business is carried on under that name, or

(b)  by sending it by post, addressed to the defendant—

(i)  to any place at which business is carried on under that name, or

(ii)  to the address for service of any person in whose name the business name is registered under the Business Names Act 2002,

whether or not the place concerned is within New South Wales.

(3)  For the purposes of any such proceedings—

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left, or to which the document is sent by post, is taken to be the place of service of the document, and

(c)  in the case of a document sent by post, the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

10.11   Service of process on partner in limited partnership

(cf SCR Part 64, rule 3A)

(1)  This rule applies to any proceedings against a partner in a limited partnership (within the meaning of Part 3 of the Partnership Act 1892) in respect of anything done or omitted to be done by any person in the course of, or in relation to, a business carried on by the partnership.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the firm-name of the partnership—

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at the registered office of the partnership, or

(b)  by sending it by post, addressed to the firm-name of the partnership, to the registered office of the partnership.

(3)  For the purposes of any such proceedings—

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left as referred to in subrule (2)(a), or to which the document is sent as referred to in subrule (2)(b), is taken to be the place of service of the document, and

(c)  in the case of a document sent as referred to in subrule (2)(b), the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

10.12   Service of process on person under legal incapacity

(cf SCR Part 63, rule 15)

(1)  This rule applies to any proceedings in which a document is required to be served personally on a person under legal incapacity.

(2)  Personal service on a person under legal incapacity may not be effected otherwise than in accordance with this rule.

(3)  If the person under legal incapacity has a tutor in the proceedings, the document may be served on the tutor.

(4)  The document may be served on any person (including the person under legal incapacity) whom the court may, before or after service, approve.

(5)  If the person to be served is a minor and has no tutor in the proceedings, the document may be served—

(a)  on the person, but only if the person is aged 16 years or more, or

(b)  on a parent or guardian of the person, or

(c)  if the person has no parent or guardian, on a person with whom he or she resides or in whose care he or she is.

(6)  If the person to be served is a protected person (within the meaning of the NSW Trustee and Guardian Act 2009) and has no tutor in the proceedings, the document may be served—

(a)  if the person has a manager in respect of his or her estate, on the manager, or

(b)  if the person does not have a manager, on a person with whom he or she resides or in whose care he or she is.

(7)  Subject to subrule (8), a document served pursuant to this rule must be served in the manner required by these rules in relation to documents of the same kind.

(8)  In addition to any other service required by these rules—

(a)  a judgment or order requiring a person under legal incapacity to do, or refrain from doing, any act, and

(b)  a notice of motion for the committal of a person under legal incapacity, and

(c)  a subpoena addressed to a person under legal incapacity,

must be served personally on the person.

(9)  Subrule (8) does not apply to an order for interrogatories or for discovery or inspection of documents.

10.13   Acceptance of service by solicitor

(SCR Part 9, rule 7; DCR Part 8, rules 6 and 7; LCR Part 7, rules 6 and 7)

If a solicitor notes on a copy of—

(a)  any originating process, or

(b)  any other document required or permitted to be served in any proceedings, but not required to be personally served,

that he or she accepts service of the document on behalf of any person, the document is taken to have been duly served on that person on the date on which the note is made or on such earlier date of service as may be proved.

10.14   Substituted and informal service generally

(cf SCR Part 9, rules 10 and 11; DCR Part 8, rules 5 and 16; LCR Part 7, rules 5 and 16)

(1)  If a document that is required or permitted to be served on a person in connection with any proceedings—

(a)  cannot practicably be served on the person, or

(b)  cannot practicably be served on the person in the manner provided by law,

the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.

(2)  An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.

(3)  If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.

(3A)  An application for an order under this rule must be supported by an affidavit by the applicant that includes—

(a)  a statement as to the applicant’s knowledge of the whereabouts of the person to be served, and

(b)  a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail).

(4)  Service in accordance with this rule is taken to constitute personal service.

10.15   Substituted and informal service of originating process in proceedings for possession of land

(cf SCR Part 9, rule 5)

(1)  Without limiting rule 10.14, this rule applies to any originating process that is required to be served on a defendant in connection with proceedings for the possession of land.

(2)  On application under rule 10.14, the court may order that the plaintiff may serve the originating process on the defendant by affixing a copy of the originating process to a conspicuous part of the land—

(a)  in addition to any other steps ordered to be taken for the purpose of bringing the originating process to the notice of the person concerned, or

(b)  if the originating process cannot be served on the defendant without undue delay or expense.

(3)  An order under subrule (2) may direct that the originating process be taken to have been served on the defendant on the expiry of a specified time.

(4)  If a copy of the originating process has been affixed to a conspicuous part of the land otherwise than under an order under subrule (2), the court may order that the originating process be taken to have been served on the defendant on a date specified in the order.

(5)  If an originating process is served pursuant to an order under subrule (2) and the plaintiff applies for default judgment under rule 16.3, the application for default judgment must be limited to the possession of land (and not include any other relief such as damages) unless—

(a)  the originating process is taken to have been served because of a direction under rule 10.14(3), or

(b)  the originating process was served directly on the defendant while attempting to serve it in accordance with an order made under subrule (2) and the plaintiff’s application for default judgment is supported by an affidavit specifying when, where and how service was effected.

(6)  Service in accordance with this rule is taken to constitute personal service.

10.16   Service by filing

(cf SCR Part 9, rule 12)

(1)  If in any proceedings any document is required or permitted to be served on—

(a)  a person who is in default of appearance, or

(b)  a person who has entered an appearance but is not an active party in the proceedings,

the filing of the document is taken to have the same effect as service of the document on the person unless the court orders otherwise.

(2)  This rule does not apply to any document that is required to be served personally.

10.17   Service of injunctions

(cf SCR Part 9, rule 15)

If the court grants an interlocutory injunction, the party may serve notice of the injunction by letter signed by or on behalf of the registrar.

10.18   Service at address for service in other court or tribunal

(cf SCR Part 9, rule 8)

If—

(a)  a decision is given or a case is stated in proceedings before any judicial officer or other person (the proceedings below), and

(b)  a party to the proceedings below (the subject party) has an address for service in New South Wales for the purposes of those proceedings at the office of a solicitor (the address below), and

(c)  proceedings (not being proceedings in relation to punishment for contempt) arising out of the proceedings below are commenced in the court (the new proceedings), and

(d)  the plaintiff in the new proceedings has not received notice that the address below has ceased to be applicable,

documents, including the originating process, may be served on the subject party at the address below, until the subject party has an address for service in the new proceedings, as if the address below were the subject party’s address for service in the new proceedings.

10.19   Waiver of objection to service

(cf DCR Part 8, rule 5(3))

A party who files a document in reply to a document alleged to have been served on that party is taken to have waived any objection to the fact or manner of service unless he or she files and serves notice of the objection together with the document so filed.

Division 3 Personal service

10.20   Personal service required only in certain circumstances

(cf SCR Part 9, rules 1 and 2; DCR Part 8, rule 3; LCR Part 7, rules 3 and 20)

(1)  Any document required or permitted to be served on a person in any proceedings may be personally served, but need not be personally served unless these rules so require or the court so orders.

(2)  Except as otherwise provided by these rules—

(a)  any originating process, and any order for examination or garnishee order, in proceedings in the Supreme Court, the Industrial Relations Commission (including the Commission when constituted as the Industrial Court), the Land and Environment Court, the District Court or the Dust Diseases Tribunal must be personally served, and

(b)  any originating process in the Local Court must be served in one of the following ways—

(i)  it may be personally served on the defendant,

(ii)  it may be left, addressed to the defendant, at the defendant’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address,

(iii)  if served by the Local Court, it may be sent by post, addressed to the defendant, to the defendant’s business or residential address in an envelope marked with a return address (being the address of the Local Court but not so identified), and

(c)  any order for examination, garnishee order or subpoena for attendance in proceedings in the Local Court must be served in one of the following ways—

(i)  it may be personally served on the person to whom it is directed,

(ii)  it may be left, addressed to the person to whom it is directed, at that person’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, and

(d)  any subpoena for production in proceedings in the District Court or the Local Court must be served in one of the following ways—

(i)  it may be served personally on the person to whom it is directed,

(ii)  it may be left, addressed to the person to whom it is directed, at that person’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address,

(iii)  it may be sent by post, addressed to the person to whom it is directed, to the person’s business or residential address in an envelope marked with the return address of the party at whose request the subpoena was issued.

Note—

As to service by post, see section 76 of the Interpretation Act 1987.

(3)  If an envelope, posted as referred to in subrule (2)(b)(iii), is returned to the court by the postal authority as having not been delivered to the addressee—

(a)  service of the document contained in the envelope is taken not to have been effected, and

(b)  any judgment given or entered on the basis of that service is to be set aside,

and the registrar must so advise the party by whom or on whose behalf it was posted.

(4)  Service of a subpoena in accordance with subrule (2)(c)(ii) or (d)(ii) or (iii) is taken to be personal service for the purposes of rule 33.5(1).

(5)  Unless an earlier date is proved, a defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered.

(6)  The provisions of this rule concerning the service of originating processes extend to the service of amended statements of claim if the defendant to be served has not filed either a notice of appearance or notice of defence.

10.21   How personal service effected generally

(cf SCR Part 9, rule 3; DCR Part 8, rules 3 and 14; LCR Part 7, rules 3 and 14)

(1)  Personal service of a document on a person is effected by leaving a copy of the document with the person or, 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)  If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.

(3)  Service in accordance with subrule (2) is taken to constitute personal service.

10.22   Personal service on corporation

(cf SCR Part 9, rule 3; DCR Part 8, rule 12; LCR Part 7, rule 12)

Personal service of a document on a corporation is effected—

(a)  by personally serving the document on a principal officer of the corporation, or

(b)  by serving the document on the corporation in any other manner in which service of such a document may, by law, be served on the corporation.

10.23   Personal service on Crown Solicitor

(cf SCR Part 9, rule 3; DCR Part 8, rule 7A)

For the purposes of section 6 of the Crown Proceedings Act 1988, personal service of a document on the Crown Solicitor may be duly effected by leaving the document at the office of the Crown Solicitor with a person who is apparently a member of the Crown Solicitor’s staff.

10.24   Personal service on judicial officers

(cf SCR Part 9, rules 7A and 7B)

(1)  In proceedings against a judicial officer, personal service of any document may be effected by leaving a copy of the document—

(a)  in the case of a judicial officer of the Supreme Court or District Court, at the office of the principal registrar of that Court, or

(b)  in any other case, at the office of the senior judicial officer of the court at which the decision or determination was made,

addressed, in either case, to the judicial officer on whom it is to be served.

(2)  In subrule (1), judicial officer includes an Assessor within the meaning of the Local Court Act 2007.

10.25   Personal service on inmate of correctional centre

(cf DCR Part 8, rule 11; LCR Part 7, rule 11)

(1)  Personal service of a document on an inmate (within the meaning of the Crimes (Administration of Sentences) Act 1999) is effected by leaving a copy of the document, at the correctional centre at which the inmate is held in custody, with the general manager of the correctional centre.

(2)  Personal service of a document on a detainee (within the meaning of the Children (Detention Centres) Act 1987) is effected by leaving a copy of the document, at the detention centre at which the detainee is held in custody, with the centre manager of the detention centre.

10.26   Personal service on person who “keeps house”

(cf DCR Part 8, rule 13; LCR Part 7, rule 13)

(1)  If a person keeps house (that is, remains in premises to which a person attempting service cannot lawfully or practicably obtain access), the person attempting service may serve the document on the person keeping house—

(a)  by doing one of the following—

(i)  placing the document in the mail-box for the premises,

(ii)  affixing the document to an outer door of the premises,

(iii)  if the person attempting service cannot lawfully or practicably obtain access to any such mail-box or door, affixing the document to some part of the premises, or to some fence or wall surrounding the premises, as near as practicable to the principal door or entrance to the premises, and

(b)  within 24 hours after doing so, by posting a notice to the premises, addressed to the person keeping house, informing the person of the fact that the document has been so placed or affixed.

(2)  Service in accordance with subrule (1) is taken to constitute personal service.

10.27   Proof of identity

(cf SCR Part 9, rule 4A; DCR Part 8, rule 17; LCR Part 7, rule 17)

For the purposes of proof of service, evidence of a statement by a person of his or her identity or of his or her holding some office is evidence of his or her identity or that he or she holds that office, as the case may be.

Division 4 Service under particular Acts

10.28   Service under the Confiscation of Proceeds of Crime Act 1989

In any proceedings in which notice under the Confiscation of Proceeds of Crime Act 1989 is required to be given in accordance with rules of court, the notice is to be given by filing it, and serving it on—

(a)  all active parties, and

(b)  all other persons to whom it is required by that Act to be given,

as soon as practicable after it has been filed.

10.29   Service under the Industrial Relations Act 1996

In any proceedings under the Industrial Relations Act 1996 in which a document is required to be served on an industrial organisation within the meaning of that Act, service of the document must be effected—

(a)  by serving it personally on the organisation’s secretary or principal officer, or

(b)  by leaving it at the organisation’s registered office with a person who is apparently employed by the organisation, or

(c)  by sending it by post, addressed to the organisation’s secretary or principal officer—

(i)  to the organisation’s address for service in the proceedings, or

(ii)  if it has no address for service in the proceedings, to the organisation’s registered office.

These rules may be found at https://www.legislation.nsw.gov.au/view/html/inforce/current/sl-2005-0418#pt.11A

By the team at Citiserv Process Servers