Serving court documents - where can it go wrong?
Back in the day, process serving was somewhat of a game for cowboys. Stories abounded of agents turning up to a defendant’s address with a bunch of flowers, falsely claiming to be a florist delivery. Or with a huge gift basket full of delicious treats. The objective was to hoax the defendant into revealing their name. The agent would serve them with the court documents and take the flowers and gifts onto the next unsuspecting defendant. Thus, serving the documents under false pretenses.
Other underhanded tactics included, leaving the documents at the address without verifying that the defendant lived there. Not personally serving the documents, but posting them in the letter box or leaving them at a potential stranger’s door. Giving the documents to a third party or worst, throwing the documents away, and stating via an affidavit that the documents were served in person to the defendant. Known in the industry as sewer services, as the agent may as well have thrown the court documents in the sewer for all the use they have for the defendant.
Monitoring the standard at which process servers conduct themselves professionally, has become a focus for the Australian Competition and Consumer Commission, alongside the Australian Securities and Exchange Commission.
The combined efforts of the commissions founded the “Debt Collectors Guidelines for Collectors and Creditors” published in 2016.
The guidelines outline procedures that seek to outlaw such acts of misrepresentation and “sewer service”
Misrepresentation is described by Collins Dictionary of Law as;
“is representing something incorrectly. A misrepresentation is distinct from a statement of opinion. It may have the effect of making an otherwise valid contract void or at least voidable” Collins Dictionary of Law.
Misrepresentation - Invalid service
In regards to process serving, pretending to be someone you are not, with the sole purpose of luring a potential defendant into an order, is classified as misrepresentation.
As stated by Law.Jrank.org “Service is also invalid if the defendant has been enticed into the jurisdiction by fraud. Courts have ruled that luring a potential defendant into the state, in order to serve him with process when no other grounds exist to assert jurisdiction over him in that state violates the individual's right to due process of law. Service of process by fraud is null and void” Service of Process – Invalid Service.
Loop hole for the defendant
The potential of finding a loop hole in these laws, have allowed defendants to delay court hearings, by making false complaints of not being served correctly. This is particularly rife in the mercantile industry where it may be beneficial for the defendant to delay potential repossessions, in the hope that their financial situations may turn.
Generally, a complaint is made directly to the lawyers working for the plaintiff, or to the Financial Ombudsman Service. The Ombudsman is then obligated to investigate the matter and the agent. An outcome of the investigation will either rule in favor of the defendant, at which time the plaintiff will have to organise to re-serve the document in a legally compliant fashion. The organisation who served the documents under misrepresentation may be penalised up to $1 700 000, depending on the business structure and degree of fault.
If the Ombudsman rules in favour of the plaintiff, the court proceedings continue and the defendant is obliged to follow the procedure outlined in the court documents.
Despite strict legislation and penalisations surrounding the issue, process servers have been known to try underhanded tactics to get the job done.
The way smaller companies can ensure that this isn’t happening is by tracking the movements and actions of their agents.
GPS tracking and photographic evidence will ensure that the agents are actually arriving at the destination, thus lowering the possibility of “Sewerage Service”.
The Financial ombudsman build a database of suspected misrepresentation, and as the complaints increase, the reputation of the agent decreases. Eventually they are outed as frauds and will be penalised accordingly.
Finding a reputable process server
Agents are obligated to sign an affidavit stating the facts of the service of documents, so under whatever jurisdiction the documents were fraudulently served, they may be in contempt of court and be penalised further for their actions.
Needless to say, having an agent that is trustworthy, has integrity and is willing to adhere strictly to legislation to ensure that the documents are served in a legally valid fashion, is difficult to police, especially when law firms are obliged to utilise the services of subcontractors to get the job done.
Looking for a service that conforms to Australian and International standards, and word of mouth seem to be the only way of indicating the reputation of a superior process serving agent or company. Ensuring that the company you outsource to, vets their subcontractors to high of standards that your company expects.
Because at the end of the day, an invalid service, means a loss of time, reputation and possibly your case.