Service of Documents
Service is the term to describe the giving of legal documents by one person to another. We may live in a digital world, but sometimes old-fashioned service of documents is still required, so it’s important you’re aware of your obligations.
Due to COVID, there have been some exceptions made to the way we can do business. We found ourselves in a position where we needed to quickly adapt and use alternative methods to get things done. In many ways, this has been a blessing in disguise. It has forced a lot of businesses to review how they operate, and as a result, many have discovered more efficient ways of doing things. However, along the way, some businesses may have forgotten that there are still laws and rules that we need to adhere to. For example, electronic signatures and electronic service. Section 236 of the Building Act Victoria provides for the service of documents generally, and pursuant to this section 236 service can only be effected via personal service or sending the documents via post (there is no provision for service by electronic means).
Service of documents is important for several reasons:
- To prove you satisfied the provisions of your building contract (if proper service is required, for example in the case of suspending works or termination);
- To prove you have satisfied obligations of service under an Act where service of Notices is required; or
- To establish that the other side is aware of the case and has received the required documentation.
Here are some tips to ensure you serve documents correctly:
- If you are arranging service on a company, carry out an ASIC search to find out the current company’s registered address. Do not just assume it is the letter that is on their website, email or letterhead.
- Check the rules and/or legislation about the relevant time limits to ensure you are serving documents within the required time.
- Methods of arranging service:
- Personal Service: If you personally deliver the document, you should make a note of the date, time and place you served (or attempted to serve) the document. If you attempt personal service, then you can either leave a copy of the document with the person to be served, or if they refuse to accept service you can put it down in the person’s presence and explain the nature of the document; or you can deliver to the person’s place of residence (if an individual) or to their registered business (if they are a business).
- Process Server: Another way to serve documents is to engage a third party (known as a process server) to serve the documents. This is often used where the process server serves the documents personally on the other side and then the process server will provide you with the Affidavit of Service as proof of service. You should make enquiries as to the fee for this as it will depend on the location of the other party and how many attempts are required to serve the documents.
- Registered Post (where personal service is not required): In some instances, you may serve documents via registered post (requiring the other side to sign for delivery). This option is not always available for service, so you should carefully check the rules and/or legislation.
- Electronic means (where the contract or legislation permits such service): If you are permitted to serve your document via electronic means (you should carefully check any specific requirements), then you should:
- Confirm the e-mail address;
- Put a read receipt; and
- Ask for the other side to confirm receipt of the email, and if a receipt is not received within 24 hours, you should call them to confirm receipt of the email
- At the time of service, you should carefully note down the details of service, including:
- The date;
- The time;
- The place;
- If you post the documents (via registered post), the tracking details;
- If service was accepted, who accepted service, and if it’s a business what is their position in the company; and
- Photo of the business/person (if you feel it is necessary) or ask the person to sign acknowledging they have accepted the documents (again, if you feel it’s necessary).
- Your notes to the service of the documents will be critical information when you need to prepare an Affidavit of Service. You should also be aware that an Affidavit of Service needs to be sworn or affirmed in the presence of a person who is authorised to witness Affidavits. You should prepare the Affidavit of Service as soon as possible after service so you can ensure all information is accurately recorded.
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