“Keeps House” in New South Wales

The proper service of documents is one of the most important parts of the legal process. If service is not proper, then any post service enforcement or other action may be compromised causing loss of time, money and reputation.

Risk & Security Management understands the importance of effecting proper service and ensuring compliance with all State and Federal Rules applicable to service.

In this article we will consider the circumstances where a Statement of Claim has been issued out of a Local Court in NSW for service on a natural person, and that person refuses to make themselves available for service at premises. These circumstances require consideration of Rule 10.26 (1) of the Uniform Civil Procedures Rules 2005, which deals with the situation where a person “keeps house” (that is, the person remains in premises where a person attempting service cannot lawfully or practicably gain access to).

Scenario

A process server attends a residential address for service whereby the address is secured by a locked gate and secure perimeter fence. The only form of contact with the residents is via a security intercom system. The process server presses the security intercom system and has a conversation with a male person who admits to being the Defendant however, refuses to open the gate and or make himself available for service and subsequently terminates the conversation.

In this situation the process server has confirmed that the Defendant is at the premises and based on the evidence gathered, and in accordance with Rule 10.26, can assume that the Defendant “keeps house”. Accordingly, service can be effected as follows:

1. placing the document in the mail-box for the premises;
2. affixing the document to an outer door of the premises; or
3. 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.

Once the process server has taken one of the above courses of action, he or she must also, as per 10.26 (1) (b), within 24 hours after placing or affixing the document, post 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. This is commonly referred to as a Notice of Placing Process.

If service is effected as per Rule 10.26, then such service is deemed to have been personally served on the Defendant.

Conclusion

The Australian Court system has so many different Rules when it comes to the service of process. This is why it is important for your process serving provider to have a thorough understanding of the Rules as this can make a significant difference to the journey of your litigation.

If you require further information or would like to discuss our services then please contact our Head of Field Services, David Goldsmith via david.goldsmith@risksec.com.au or 0439 807 204.

This article has been produced by Risk & Security Management. It is current at the time of publication but does not constitute legal advice and should not be relied upon as such. You should seek independent advice where necessary.