Resource ● Last updated 5 December 2024 ● 7 min read
How to serve documents in the Federal Court or Federal Circuit and Family Court of Australia
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What is this resource?
This resource explains the legally technical term of ‘service’. Service, or serving a document, describes giving someone a document in a way that proves to the court that the person received it.
This resource gives you important information about serving documents legally.
What is service?
Service is a common legal term used throughout the Australian legal system. Service describes specific ways of providing, or delivering, a legal document to another person so that the court is satisfied that the other person has received and been made aware of that document.
There are different ways you can serve a document. Check the rules that apply to the court where your matter is being heard. Each court has rules on how a document can be served. Generally speaking, service can be either personal or ordinary.
- Personal service: where you must hand the document to the person you wish to serve, after establishing their identity.
- Ordinary service: includes any other methods that are recognised by the court as valid methods of service, such as serving a document by email or post.
When do service rules apply to documents?
Generally, every document filed with the court must be served on all parties to the proceedings. Particular documents may be required to be served within specific time frames.
The court will need you to serve certain documents at different stages in legal proceedings. Once a document is filed with the court, try to serve the relevant parties with documents as soon as possible.
Who serves documents in a proceeding?
Parties to a proceeding have different obligations and time frames to file documents with the court and to serve each other. Obligations and time frames depend on the type of claim.
Both an applicant and a respondent will need to serve documents at some stage in a proceeding. If either party has not complied with their obligations to service documents properly, raise this with the court.
An example – Serving documents in the Federal Court
An applicant in the Federal Court needs to serve each respondent named in the application:
- A copy of the originating application, and
- The statement of claim or accompanying affidavit.
An applicant must serve documents at least five days before the first return date. The first return date is inserted by the court Registry on the front page of the application when the application is filed.
A respondent must then file and serve a defence within 28 days after they were served with the statement of claim.
When does service take effect?
The date when the court considers your documents to have been served is referred to as the date when service ‘takes effect’. In relation to ordinary service.
The relevant court rules specify when service takes effect depending on the method of ordinary service used.
- Posted (Australian address): The day the document would be delivered in the ordinary course of the post
- Posted (outside Australia): 28 days after posting
- Fax: Next business day after the document was sent
- Electronic communication: Next business day after the document was sent
- Pre-paid post: 7 business days after the document was sent
- Fax: Next business day after the document was sent
- Electronic communication: Next business day after the document was sent.
When is personal service required?
Personal service, known as service by hand in the Federal Circuit and Family Court, is usually only required in certain circumstances. However, the court can also order that certain documents be served personally at any stage in a proceeding.
The relevant court rules specify when a document needs to be served personally. We do not provide a complete list of all the circumstances when personal service will be required in these courts.
You should always consult the relevant court rules before attempting to serve a document or seek legal advice.
Certain circumstances when personal service is required in the Federal Circuit and Family Court include:
- when serving the application starting a proceeding, and
- when serving a subpoena on the person the subpoena is addressed to.
Certain circumstances when personal service is required in the Federal Court in certain circumstances include:
- when serving the originating process (the document that an applicant is required to file to start a proceeding),
- when serving a subpoena on the person the subpoena is addressed to, and
- when serving an application addressed to a person, who is not a party to the proceeding, for the production of documents that are relevant to the issues in dispute in their possession.
Caution
Different requirements for service apply where you are serving someone overseas. Please consult with the Registry staff and obtain legal advice about these requirements.
How do I serve a document?
Service requirements will vary depending on:
- the nature of the document you intend to serve, and
- whether the party you intend to serve is an individual or a corporation.
Serving an ‘originating process’ document
An ‘originating process’ refers to the document that an applicant must prepare and file with the court to start a proceeding. An originating process must always be served personally. The requirements for personal service are set out below.
- In the Federal Circuit and Family Court rules, it is called an ‘application starting a proceeding’.
- In the Federal Court, the rules for service refer to these documents as an ‘originating application’.
If you wish to start a proceeding in the Federal Circuit and Family Court, your application and any document filed with it must be served on each party in the proceeding. Documents cannot be served less than three days before the date of the hearing of an application in a case or less than seven days before the day fixed for the hearing of any other application.
If you want to start a proceeding in the Federal Court, you must file and serve a sealed copy of the originating application and the statement of claim or accompanying affidavit personally on each respondent at least five days before the first return date which will be inserted by the Registry on the first page of the originating process. A sealed copy is a copy of a document which has an original court seal stamped on it, or one electronically applied by the Registry.
Note – Proceedings have commenced
An Application in a Proceeding is made in a case that has already commenced and is used by a party seeking further interim or procedural orders, sometimes on an urgent basis.
Both the Federal Circuit and Family Court and the Federal Court require a respondent to complete a notice of address for service form after a proceeding has commenced. You can generally find an applicant’s address for service on the originating process.
Personal service
If you need to personally serve documents on an individual, you can serve them by:
- leaving the document with the individual;
- if the person refuses to accept the document, putting it down in the person’s presence and telling the person what the document is; or
- leaving the documents with the respondent’s lawyers if they are authorised to accept service of an originating process.
Ordinary service
If you are serving documents on a natural person and they do not need to be personally served, you can serve them by:
- delivering or sending the documents in a sealed envelope via pre-paid post, to the person’s address for service or last‑known business or residential address;
- where that person has agreed that they may be served by fax, sending the documents to the fax number provided by that person;
- where that person has filed a notice authorising service by email, emailing the person;
- where the person’s address for service includes the number of a document exchange box for a lawyer, by placing a pre-paid envelope containing the documents, in that box; or
- where the person is legally represented and their address for service includes their lawyer’s email address, emailing the documents to that person’s lawyer.
If you are serving documents on a natural person and they do not need to be personally served, you can serve them by:
- delivering or sending the documents in a sealed envelope via pre-paid post, to the person’s address for service or last‑known business or residential address;
- where that person has agreed that they may be served by fax, sending the documents to the fax number provided by that person;
- where that person has filed a notice authorising service by email, emailing the person;
- where the person’s address for service includes the number of a document exchange box for a lawyer, by placing a pre-paid envelope containing the documents, in that box; or
- where the person is legally represented and their address for service includes their lawyer’s email address, emailing the documents to that person’s lawyer.
Person under a ‘legal incapacity’
If you are personally serving documents on a person under a legal incapacity (for example, on a person who has a mental disability or is under 18 years old) and that person has a ‘litigation representative’, the document must be served on the litigation representative. Note that in the Federal Circuit and Family Court this person is referred to as a ‘litigation guardian’.
A litigation representative or litigation guardian is a person who has been appointed to represent a person in a proceeding under a legal incapacity. This may include a parent or guardian, the Public Trustee for each respective state and territory in Australia (for example, the NSW Public Trustee and Guardian) or a trustee company.
Even if a person under a legal incapacity has a litigation representative or litigation guardian, you are still required to personally serve the following documents on the person under a legal incapacity:
- a subpoena requiring the person under a legal incapacity to attend court; and
- where the person under a legal incapacity is the respondent and an order has been made by the court which requires that person to do, or not do, an act or thing, the application or order.
If the person does not have a litigation representative or litigation guardian, the document can be served on the person’s guardian, a person with whom the person lives (if they do not have a guardian) or the person’s carer. In the case of a minor who is at least 16 years old and not a mentally disabled person, you must serve both the minor and the parent or guardian. If you cannot serve a person’s litigation representative or litigation guardian, you can apply to the court for an order that the document be served in some other way or on some other person.
Serving a corporation
If you are required to personally serve documents on a corporation, you can serve them by:
- leaving the documents at, or posting them to, the company’s registered office (which you can find out through an ASIC search) or if there is no registered office, at the principal place of business of the corporation;
- personally delivering the documents to a director of the company who resides in Australia or in an external territory; or
- where a company has become insolvent and a liquidator or administrator has been appointed, leaving the documents at, or posting them to, the address of the liquidator’s or administrator’s office, as most recently lodged with ASIC.
Note: Slightly different requirements apply where the party to be personally served is an unincorporated association, organisation or partnership. You can serve these bodies by serving a document at their principal place of business and leaving the document with a person who is an adult and appears to be engaged in the operations of the association, organisation or partnership.
Tip – Finding a corporation
An ASIC search can be done on their website.
ASIC stands for the Australian Securities and Investment Commission. Corporations need to notify ASIC of any changes to the address of their registered office or directors.
How do you prove you have served someone?
Once you (or someone on your behalf) have served documents on the other party, you should keep a written record of how that person was served, in case anyone disputes that you did not serve them properly.
After a document is served, unless the Court orders otherwise, you should have the person who served the document prepare an affidavit of service as soon as possible. This will constitute evidence of service and help you in responding to any dispute about whether service has occurred, particularly if the other party does not attend court for the first directions hearing.
An affidavit of service will need to include the time, date and place of service, manner of service, the document being served, and how the person served was identified. An ‘authorised person’ must witness an affidavit of service. An authorised person can include a lawyer, notary public or Justice of the Peace. Our resource called ‘How to prepare documents for the Federal Court or Federal Circuit and Family Court’ contains further useful information on preparing an affidavit.
In the Federal Circuit and Family Court, there is a specific form (with instructions) you complete for the affidavit of service. In the Federal Court, there is no specific form and you can use the general affidavit form for the affidavit of service.
Once complete, you must file the affidavit with the relevant court Registry. In both the Federal Court and Federal Circuit and Family Court you may electronically file affidavits (and a number of other court documents) online through the e‑Lodgment service. Alternatively, you can physically take the original affidavit (as well as several copies) to the court Registry for filing.
If the document does not have to be personally served, it is still a good idea to obtain an affidavit of service or at least keep any relevant records which show that the document was served. For example, copies of correspondence, making a note of the day you put a letter in the post and/or records about delivery tracking.
Is there an alternative to service?
Substituted service requires the court’s permission and is an alternative method of service to the typical service requirements.
You may apply to the court seeking substituted service orders where it has not been possible to serve a document in a way required by the court rules or where you have been unsuccessful in your attempts to serve documents by the applicable methods set out in the relevant court rules. These orders are typically made when the other party has been evading service.
The Federal Circuit and Family Court may take into account the following factors when determining whether to approve your application:
- whether you have taken reasonable steps to serve the document;
- whether your prior attempts to serve the document were likely to have made the person aware of the existence and nature of the document;
- whether there is an alternative method of service that would likely be successful in making the person aware of the existence and nature of the document; and
- the likely cost of serving the document and your ability to meet this cost.
If your application is successful, the court can make any of the following orders, namely:
- substituting another method of service;
- dispensing with the need for service and stating that other steps can be taken to bring the document to the person’s attention; or
- specifying that the document is taken to have been served with a certain event or at a certain time.
The process to seek a substituted service order will depend on the type of documents you are trying to serve.
Completing an application for substituted service:
Applications for substituted service of a document will usually require you to make an application to the court (known as an ‘interlocutory application’) which typically can be made without needing to notify or serve another party.
Completing an affidavit(s) with supporting reasons that explain why the application is being made:
- The Federal Circuit and Family Court requires completion of a general affidavit, and
- The Federal Court requires completion of a specific affidavit (Form 59).
Filing the application and affidavit at the Federal Circuit and Family Court or the Federal Court Registry, along with the applicable filing fee:
Most substituted service applications are determined by a Registrar online through an eCourtroom.
Service by social media channels, such as Facebook and Twitter, is treated with caution by the courts.
If you are seeking to serve someone using social media, you will need to show that you have complied with the relevant court rules and/or orders. Given the courts’ current attitude towards service using social media, we recommend that you do not rely solely on serving a person in this way.
What are the consequences of improper service?
Failing to serve a document at all or in the proper way can delay the proceeding and have other consequences. It is essential that you always follow the instructions about service set out in the relevant court rules. A proceeding will not normally progress further until the originating process has been served on the relevant parties in accordance with the relevant court rules. However, failing to comply with service requirements will not necessarily mean that the overall proceeding is set aside – this depends on a range of factors, including whether substantive injustice has been caused to the other party.
Generally, a document cannot be served more than 12 months after it has been filed in the Federal Circuit and Family Court.
If you do not properly serve documents during the course of the proceeding, then there may also be consequences. Failing to serve the other party may result in the proceeding being delayed, or the Judge might refuse to give you the orders that you seek. However in some limited cases, if you do not adhere to the service requirements, a Judge may still deem that your attempted method of service was effective where it is difficult to serve the documents in the required way and where you can prove that the document has been brought to the attention of the other party. This is referred to as ‘deemed service’.
Forms
All forms can be found on the and Federal Circuit and Family Court and Federal Court websites.
Federal Circuit and Family Court:
- Notice of address for service
- Affidavit of service
- Affidavit of service – Fair Work
- Interlocutory application – Application in a proceeding
Federal Court:
Can I lodge forms electronically?
eLodgment is the electronic filing facility for the Federal Court of Australia and for the general federal law jurisdiction of the Federal Circuit and Family Court.
This resource was last updated on 5 December 2024. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.
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