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You’ve been served!

The art of serving documents also known as process serving Ron McQuilter CFE

The requirement for legal documents to be personally served on a respondent (known as process serving),

dates back many ages. Today’s technology has allowed electronic service but many documents still need to be

personally served. Confirmation of service allows for the next stages of the legal proceedings to be followed.

Technology has even seen Facebook as a conduit used to serve documents with the consent of the court

(March 16 2009 Wellington High Court, Justice David Gendall - Axe Market Garden vs Craig Axe). This has

been done in Australia as well. Click here - New Zealand Herald Article

Unless a proceeding is without notice (only in exceptional circumstances) every person has the right to know

that legal or court action has been filed against them. Process serving plays a key role in this legal process,

failure to serve or meet the requirements may render work void and cost substantial to accrue. Without being

advised “formally” that legal proceedings are to commence and the reasons why, there is no obligation on the

party to offer to resolve issues or apply a remedy. The process server should be a third party to avoid any

arguable defence or conflict.

In some circumstances, documents may be required to be served on a legal entity such as a company rather

than a person. Often, in this event it is acceptable to effect service on the address given and recorded at

Companies Office for service. Documents may in certain cases be left attached with tape to the front door.

When serving an individual, typically the process server having identified the person usually with a short

questioning conversation, will hand over the documents and advise them that they have been served. It is

common for the person to refuse to accept the documents and the server may lay the documents down for

them in their presence. The rule for a process server is that if the person has been identified, the documents

brought to their attention and they are within a distance that they could reasonably take the documents then

THEY ARE SERVED. It is also common for the receiving party to dispute being served, therefore in every case

the server should note the individual’s description, mannerisms, clothing, vehicles present, etc, just in case they

are required later.

Identifying the individual to be served can be tricky, especially if only a telephone number and address are

provided or the name is foreign to the server. Serving the wrong person opens a whole can of worms including

breaches of the Privacy Act for which there can be legal consequences. Individuals can be particularly evasive

especially those involved in fraud, owing money or acrimonious divorces. When the person to be served adopts

a mind-set of avoidance there can be little doubt that both agility and ingenuity are required by the process

server to effectively carry out service. A good process server will see evasion as a challenge and rise to the

occasion. A knowledgeable and experienced process server will have a tool kit of methods of approach, cunning

but legal, and there are legendary tales of process service success which have left unscrupulous evaders

aghast at being served despite best efforts to evade service. One of mine was serving a man as he drove his

car along the Mt Wellington Highway by driving alongside and placing the documents from my car through his

open passenger side window at 40km/hr. I could not count the number of times I have hid in bushes waiting for

an evader to arrive home.

There is a distinct difference between a standard document where a subjects details are known and the server

can carry out service without hindrance or delay and the requirement to trace a party prior to service. Traces

are time consuming and a commercially different service especially with the rising costs of fuel and the need to

actually go to addresses as opposed to tracing from a desk.

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Some agencies also charge where the server has to make more than one attempt to locate the subject at a

given address, or where the subject may have relocated to an alternative address. Generally a process server

will have to adapt and “follow the trail”. A chameleon approach is necessary when knocking on doors in these

times and an appropriate standard of dress is crucial.

Serving outside normal working hours is a given and as a rule of thumb documents may be served between

the hours of sunrise and about 9pm and on any day except for a Sunday or public holiday.

In an unusual service of documents recently for an Employment Tribunal which eventually required subject

tracing because the person involved would not accept service and was being evasive, it was discovered that

the individual to be served was actually a fugitive from justice in the Philippines and that there was an

outstanding warrant of arrest for him there which was current. This was passed on to the appropriate authorities

and the subject’s time in the shadows was over. His dark past had surfaced and was “on the table” as a result

of his lack of compliance in a simple employment matter.

After a service has been carried out, some clients will want a phone call confirming immediately. From a

practical perspective, a short email from a smart phone is good service, followed by a report with a photograph

if possible. The report must always include the full legal name of the process document server, date, time,

place, address, a general description of the location, circumstances and manner of service and if confirmation

was provided, a description of the person served and if possible a photograph of the location. This is particularly

useful in the event of a dispute or the service being challenged some time later and ensuing actions require an

affidavit from the process server. Key minor points and details of the party served may have otherwise been

forgotten.

In 2012 a process server in Auckland swore an Affidavit of service; http://www.anticorruption.co.nz/wp-

content/uploads/2012/07/affidavit-of-Tony-Parker.pdf that he had served a Private Investigation firm a winding up

Notice that was only discovered when the company was told by the Companies Office they were struck off. !!

When challenged and provided with evidence that the private investigator was actually with someone else that

day, the server claimed he was confused, and the document has actually slipped under his car seat. Given the

above rules of reporting, any such claim must be taken with the contempt it deserves.

It follows then that there are similarly rules for instructing a process server:-

Confirm the server is experienced and of the highest integrity.

Ensure that the exact document or process service requirements are stipulated clearly.

Identify critical expiry dates or times in bold.

Provide as much information as possible to assist quick service.

Request notification of completion of document service by phone (or email) and a written report on completion.

A good process server or document service company realises that they play an integral role in legal proceedings

and participate pro-actively by speedily and accurately complying with their clients requirements of service. It

is an art form and it takes a certain type of person. It has it’s fun moments though and you get to meet all types

of people good and bad, honest and downright dishonest.

Ron McQuilter is the Managing Director of Paragon Private Investigations, Chairman of the New Zealand

Institute of Professional Investigators, Immediate Past President of the Auckland Branch of Certified

Fraud Examiners and has been a Justice of the Peace for New Zealand since 2002. He has personally

served thousands of documents for leading law firms and government agencies since 1983 and has

lectured on the subject to law firms and government agencies.