Almost every document you file in the High Court, District Court or Family Court in New Zealand needs to be given to the other person involved in the proceeding.
It is the plaintiff’s (or applicant’s) responsibility to serve their documents on the defendant (or Respondent), and in return it is the defendant’s responsibility to serve their documents on the plaintiff. This includes information about when and where a hearing or conference will take place.
There are various ways documents can be served…
- giving it directly to the other party (known as personal service)
- posting it to their address or leaving it at that address between 9am and 5pm
- sending it to a post office box, document exchange box, email address or fax number given to you by the other party for the purposes of service
- another method that the court may tell you
Court cases can be delayed if one of the involved parties claims that they never received the relating documents. So whatever the service method employed, it is essential to ensure that this can be supported i.e. an email from the defendant stating that they are happy to accept via email may suffice.
However it is not uncommon for the recipient of proceedings to be less than accommodating! Therefore personal service may be the preferred method to ensure that proceedings continue in a timely manner. In addition to serving the documents personally a supporting affidavit of service detailing date and time of service, sworn by the person who served the documents, may also be required.
Last year we served some documents on an individual in Auckland. The Respondent was not happy about being served, and they were not happy about the matter being heard in court. The Respondent tried to state that they hadn’t been served correctly (in an attempt to stall proceedings). Our process server was asked to appear in court to confirm how service was effected. We keep thorough records not only of date and time of service (including a GPS date stamp), but also noting any issues encountered at the time of service. The judge upheld the service and suggested that the Respondent not waste any more of his time!
Serving an individual vs a company – are the rules different?
Yes, different rules apply depending on who you are serving.
An Individual
In New Zealand personal service is just that, one person handing documents to another. The person serving will ask the recipient to acknowledge their identity and then accept the documents handed to them – the perfect scenario! In some cases i.e. family proceedings, the recipient may also be asked to sign an acknowledgement of service.
If the defendant will not accept the documents, as long as the server has established their identity, then the documents can be served by placing them at the recipients feet and bringing them to the recipients attention.
If the defendant cannot be located, then there are other methods that can be employed to get the documents to them. Substituted service may be an option, via a family member, emailing, affixing to a property they own, or even social media (i.e. facebook). See our article serving via facebook.
There are some instances where personal service can be effected through a third party.
For example, a lawyer may be authorised to accept on behalf of their client. There needs to be evidence of this, and it is prudent to get the lawyer to sign an acknowledgment of service.
We have had individuals claim that their lawyer has the authority to accept documents on their behalf. We have then contacted the lawyer only to be told that they do not have the official capacity to accept. It is essential to have the authorisation acknowledged – before proceeding to serve the documents incorrectly!
There are also rules for serving an individual who
- lives or works on board a vessel (including a vessel belonging to the Royal New Zealand Navy).
- is a member of the New Zealand Armed Forces.
- is a prisoner being held in a corrections facility.
Understanding the rules is important, as you need to get service right first time or you run the risk of disrupting the progression of a court case.
Times/ days service is permitted on an individual in New Zealand: In most cases documents can be served any day or time of the week, except on Sundays and Public Holidays.
A Company
In New Zealand the service of documents must adhere to the rules outlined in sections 387-391 in the Companies Act 1993. Methods of service do differ from that of an individual, and it is important to understand the rules.
A service of documents on a company in legal proceedings can be done by
- Handing to a Director of the company.
- Handing to an employee of the company at the companies Registered Office (it is prudent to confirm the address on the Companies Register.
- If the Registered Office is a residential address then the document can be left with a person over the age of 18 at the address.
- If there is no one at the Registered Office, then the document can be left at the address – usually by way of affixing to the front door. It is good practice to take a photograph which can be used in a supporting affidavit of service if required.
- If there is a solicitor representing the company who is authorised to accept the documents, then they may be served.
Vacant Premises
If the premises of the business is vacant, but the address is still listed as the Registered Office for the company then the documents can simply be affixed to the front door, job done. However, if you want to ensure that the proceedings are brought to the Directors attention, then it may be best to locate and serve them personally also.
In most cases we would confirm first before affixing a document at a companies registered office, to ensure that this method of service is sufficient for our clients requirements. Each case will be different and it is best not to assume!
Times/ days service is permitted on a company in New Zealand: Documents can only be served on a company during business hours Monday – Friday, and not on Public Holidays. However, if you are serving a Company Director, the rules for personal service (outlined above) apply.
Serving documents seems relatively straightforward, and it often is just that. However, understanding the rules for service of process is key to ensuring the documents are served right – first time.