Substituted Service and when I need to apply for it?

Written by Tatiana Holguin

Edited by Nanki Kaur

Substituted service is a secondary method to serve a person who needs to acknowledge a document. Substituted service is used when personal service of documents is not possible or impracticable under the specific requirements made by the law. It only applies to originating processes.

In Victoria, substituted service is governed by Rule 6.10(1.1) of the General Civil Procedure Rules 2015 (VIC). The originating party must provide sufficient information to the court that it was not possible to make personal service of the documents. Once this is done, the court will produce an order specifying the steps that must be taken to bring the document to the person to be served.

The court will indicate in the order how the documents are to be taken to have been served. Usually, the court orders that a party email the other as substituted service. However, it is important to follow the requirements contained in the order and the rules. Some of these requirements are:

1. A statement that the email has been sent pursuant to an order of the Supreme Court of Victoria;

2. Indication of the address of the court's website, with a statement that the website may be found by using a search engine without the need to use this address directly;

3. Where applicable, the name of the judicial officer in charge of the conduct of the proceeding, together with the contact details of that judicial officer's associate;

4. A statement that the judicial officer's associate may be contacted, and that their contact details are available on the Supreme Court website, to verify the existence of the proceeding and the fact that the court order for substituted service has been made;

5. If applicable, the contact information of the solicitor’s firm of the originating party and any other matter that the court considers should be included.

In the case of ASIC v Antares Energy (No 2) [2018] FCA 212, [1]-[9] ASIC, the originating party was unable to personally serve the defendant, Mr. Cruickshank in the US. The court ordered that the documents be served by mail and personally delivered to Mr. Cruickshank's Dallas address and emailed to his lawyers and his wife.

If you are considering filing an application and know that the defendant possibly can't be personally served, our office can assist you and provide legal advice.