Serving a claim

If you have filed a claim in the Magistrates Court of WA, the next step is to give the defendant a copy of the claim against them. This is called serving the claim

Serving a claim is very important, as you cannot do anything else to progress your case until the defendant has been served with the court documents. There are special rules about how you can serve your claim on the defendant, depending on whether they are a person or a company or similar.

When you start a claim in the Magistrates Court, you are normally responsible for organising someone to serve the claim on the defendant. This could be done yourself, or you can pay the court to ask the sheriff or bailiff to serve the defendant for you. You also have the option of paying a private process server to do it.

In minor case consumer/trader claims, the court will organise service for you.

Find out:

  • What service of a claim involves
  • What to do if you are having difficulties serving someone
  • Time limit for serving a claim
  • What you have to do to prove you have served the claim.

What is service?

Once you have lodged your claim at the court, it needs to be served on the defendant. A separate service copy and response copy of the claim form must be provided for each defendant you have joined.

The court will serve the defendant in minor case consumer/trader claims.

How do I serve an person?

To properly serve documents on a person, you must hand the documents:

  • directly to the person
  • to their parent, guardian or litigation guardian if the person is a child or has a legal disability
  • to someone at the person's usual or last known place of residence/business who is reasonably believed to be an adult 
  • to someone who is authorised in writing to receive documents for the person, or
  • to an agent or lawyer who is acting for the person.

If a person (or their parent/guardian/litigation guardian) refuses to take the documents, you can serve them by telling them about the nature of the claim and the documents, and leaving the documents somewhere in their presence (for example, on a table or on the ground in front of them).

If serving the claim as described above will be too expensive or too difficult, get legal advice.

What if I have to serve a company, unincorporated association, partnership or public authority?

If you need to serve a claim on a company, partnership or public authority you should get legal advice.

What if I am having difficulty serving someone?

If you are having difficulty, you may have to ask an enforcement officer to serve the claim. Ask the staff at the court to tell you how to arrange this. The enforcement officer has wide powers for the purpose of serving documents. You must prepay the service fee, but the fee can be included as part of the amount claimed against the defendant.

What if I can't find the person I need to serve?

Get legal advice.

You can make an application to the court to have service in a different way or to not to have to serve the claim. Before the court would do this, it is likely it would want proof you have done everything you can to find the person, eg searched the white pages, placed an advertisement in the West Australian newspaper over a period of several weeks, etc.

Is there a time limit on serving the claim?

You must serve the claim as soon as possible. It must be served within one year after it has been lodged and at least five clear days before the hearing of the application.

How do I provide proof I have served the claim?

The person who served the claim must complete an affidavit of service to show that the claim was served. This must be lodged with the court.

If you served the claim yourself, the affidavit of service (Form 11) is available from the Magistrates Court.

The number of kilometres travelled to serve the claim can be stated in the affidavit of service. The fee for travel can be included as part of the costs on the claim.

 

More information

 

Reviewed: 11 April 2018

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.