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 strata title company or incorporated association.
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.
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 given to each defendant you have made part of your case.
How do I serve a person?
If personal service is required, 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 or business who is reasonably believed to be an adult, that is, to have reached 18 years of age
- 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 or guardian or 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?
Get legal advice if you need to serve a claim on a company, partnership, or public authority.
What if I am having difficulty serving someone?
If you are having difficulty, you may have to ask an enforcement officer (such as the sheriff or a bailiff) to serve the claim. Ask the staff at the court to tell you how to arrange this. An enforcement officer has wider powers to serve 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 serve the claim. Before the court would order this, it is likely it would want proof you have done everything you can to find the person. This could include things such as searching the White Pages telephone lists, placing an advertisement in the West Australian newspaper over a period of several weeks, and checking the electoral roll.
You can make an application to the court to have service in a different way or to not serve the claim. Before the court would order this, it is likely it would want proof you have done everything you can to find the person. This could include things such as searching the White Pages telephone lists, placing an advertisement in the West Australian newspaper over a period of several weeks, and checking the electoral roll.
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 5 clear days before the hearing of the application.
How do I give the court 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. You must lodge the form electronically using the Courts Electronic Case Management System (ECMS) eCourts Portal unless you have asked for an exemption.
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
- Fact sheet Serving a court document - Magistrates Court of WA has information on serving a corporation, strata title company and an incorporated association.
- Magistrates Court of WA - Forms for the forms you need.
Reviewed: 20 February 2024