Process Serving and Investigation

Legality and Procedure

‘Process’ simply refers to legal documents that summon a person or legal entity to appear in court or to submit evidence. “Process serving” involves formally issuing such documents to a person in compliance with the law. You may have seen someone being served in a movie or a tv show – here’s a good example (language warning): https://www.youtube.com/watch?v=UPvOA2UCsOY

Depending on the jurisdiction, documents may need to be physically handed to the person named on them and a current address for the person or business named in the documents may need to be included. The laws governing the way in which process serving is carried out are very similar from state to state in Australia but there are certain subtle differences. There are also different requirements in different states regarding who is legally entitled to serve documents – in some states a process server must be licenced and in others, anyone can serve documents.

Generally, to begin litigation, you or your lawyer must fill out a Statement of Claim (which sets out the details of your dispute) and file it with the appropriate court. From there, the document/s must then be served on the subject of the dispute in accordance with the relevant laws. Other legal documents that can be served on an individual (after litigation has commenced, for example) include subpoenas, writs, family law applications and various other documents like garnishee orders and examination summons.

Some process serving can be carried out by government employees such as a local sheriff with jurisdiction over the subject’s residential area for a certain fee. Hiring these workers, or regular process servers can often be of limited effectiveness because such an operative will simply knock on the subject’s door and attempt to serve the subject in a straightforward manner. If a subject is being evasive and making it difficult to serve him or her, an alternative approach is usually required.

Serving Documents on Evasive Respondents

Sometimes serving documents is difficult because the subject person is deliberately avoiding detection or keeping house (not answering the front door). In cases where the defendant is difficult to serve, it is usually preferable to engage an agent who is dually licenced to carry out surveillance and process serving. Such an agent can monitor an address of interest and seek to serve the defendant at a time when he or she is visible and outside, such as when the subject is on the way to a vehicle or collecting mail or going for a walk. An investigator will also endeavour to record the interaction on video so that there can be no dispute later on as to whether the service was successful.

Utilising a dually-licenced operative is imperative if the subject is not served after one or two attempts by a regular process server or a government process server. Using an investigator to serve documents results in a high success rate because few subjects expect someone to patiently wait to effect service. If necessary, an investigator will wait and observe a subject’s address, make discreet inquiries with neighbours and conduct database searches to learn more about a subject.

Occasionally, process serving can also dangerous because a subject becomes aggressive, abusive or physical. Process servers have been attacked, followed and had damage caused to their vehicles so it’s usually sensible for people not to serve documents themselves.

Locating a Respondent

In order to serve process in the first place, the court must usually be made aware of the subject’s location. Individuals who are facing a court appearance can often be difficult to locate, so an investigator can also be utilised to uncover the address of the subject, if that is not known. Investigators locate most people by conducting detailed searches on databases and/or by making associated discreet inquiries. Much like approaching process serving, when it comes to locating persons, creative thinking is often required – it’s not what databases are searched but rather how they are searched that gets results.

Should you have a difficult process serving job, please contact Lyonswood to discuss the optimal strategy today.