Special service by hand

Service by hand involves giving the documents to a server, who gives the documents to the other party and completes an affidavit as proof of service. Service on the other party is always subject to the provisions of any Family Violence Restraining Order which may be in place between you and the other party, even if you use a third party to actually give the documents to the other party.  

Note: The following documents always have to be served using special service by hand: A contravention application A contempt application, and A subpoena to give evidence (but a subpoena to produce documents can be served by ordinary service)   Note: There is specific information for serving a divorce application by hand.

Choosing a server

You need to arrange for a person over 18 years of age to serve the documents on the other party. The server can be a family member, friend or professional process server.

You cannot serve the documents on the other party yourself, but you can be present to help the server identify them.

After you have chosen a server, there are three steps to special service by hand:

• Step 1: Prepare the documents
• Step 2: The documents are served on the other party
• Step 3: The server completes the affidavit of service

Step 1: Prepare the documents

You will need to prepare the documents to give to the server. The documents to serve are:

• an Acknowledgment of Service (Form 6) to be signed by the other party
• an Affidavit of Service (Form 7) to be completed by the server
• the document to be served (such as an application or subpoena)
• any brochures or other accompanying documents required to be served at the same time.

The brochures and accompanying documents you need to prepare depend on what you are serving. If you are unsure of the documents you need to serve, you should read the appropriate information or application kits or seek legal advice.

If the server does not know the other party, it is helpful to provide a recent photograph of the other party.

Step 2: The documents are served on the other party

The server should hand the documents to the person to be served. If the server does not know the person, he or she needs to seek sufficient information to be satisfied about the identity of the person.

This information needs to be recorded at Part D of the Affidavit of Service (Form 7) stating, for instance:

‘I had the following conversation with the person at the time of service

Question:
Are you ‘X’?

Answer:
Yes

Question:
Are you the person named as the respondent in the application?

Answer:
Yes '

The server should ask the person being served to sign the Acknowledgment of Service (Form 6).

If the person being served refuses to take the documents the server may put them down in the person’s presence and tell the person what the documents are.

Serving the party's lawyer

If the other party has a lawyer, you need to find out if they will accept service of the documents on behalf of that party. If they agree, you can serve the lawyer who will sign the Acknowledgement of Service (Form 6). If you serve a lawyer, the server doesn’t need to complete an Affidavit of Service (this means you don't need to complete Step 3, and can file just the Acknowledgement of Service).

Getting the lawyer’s agreement is important, because a lawyer may have given the other party legal advice, but that doesn’t mean they will be representing them throughout the proceedings.

Step 3: The server completes the affidavit of service

Once the documents have been served, the server completes the Affidavit of Service as evidence of:

• whether the other party accepted the documents.
• how the server identified them.

Signing the documents

The server now has to sign the affidavit in front of an authorised witness (usually a lawyer or Justice of the Peace).

The server needs to attach the following documents to the affidavit before signing:

• the Acknowledgment of Service, if the other party signed it
• any photos used by the server to help identify your the other party.

When signing the documents in front of the witness, the server will need photo ID so the authorised witness has evidence of their identity.

Now the service documents are ready to be filed.

Next steps

If service was successful, you can file the service documents.

If the other party could not be located, you may be able to apply for an order to dispense with service. You will need to tell the Court of the efforts you have made to locate the other party.

Last updated: 14-Oct-2024

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