Can a document be served – even if someone refuses to accept?
In most cases a person receiving documents does so graciously. There are however always a few who decide to be evasive and will go out of their way to avoid being served. We have had recipients run away to avoid being served!
But the rules in New Zealand are pretty simple…
If the process server is able to identify a person, either
because they acknowledged who they are (often before they know what we are there for),
or we have a photograph of the Recipient,
then the documents can be brought to their attention and placed at their feet.
In this instance an affidavit of service sworn or affirmed by the process server will likely be required, as there is every chance that the recipient may deny ever being served.
If the recipient actively avoids service, then another indirect method of service may need to be sought from the court… this is termed substituted service…
According to the District Court Rules
“If reasonable efforts have been made to serve a document by a method permitted or required under these rules, and either the document has not come to the knowledge of the person to be served or it cannot be promptly served, the court or a Registrar may—
(a) direct —
(i) that instead of service, specified steps be taken that are likely to bring the document to the notice of the person to be served; and
(ii) that the document be treated as served on the happening of a specified event, or on the expiry of a specified time.”
Types of substituted service that the Court may consider
Leaving the documents with a relative or friend that is believed to know the whereabouts of the recipient (this is the most common method).
By way of advertisement in the public notices section of regional and national newspapers.
Email – if it can be established that the recipient actively uses the email account.
Social Media – i.e Facebook may be allowed if there is evidence to establish that a Facebook page is, in fact, that of the person to be served and that the persons is actively using their account. Check out our article How document service is changing with social media.
What happened when a person we were trying to serve in the United Kingdom tried to avoid being served
We recently engaged a process server in the United Kingdom to serve dissolution papers on a New Zealander living there. Our agent made several visits to the home address, work address and then also made several phone calls to the Respondent. It was established that he was actively avoiding service.
We provided a full report on all attempts to effect service, noting time and date of all activities. Our client then applied for an order for substituted service by way of Facebook. We had identified that the Respondent was actively using their FB page and we were able to provide evidence of this for our clients substituted service application. The order was granted, and we were able to then serve the Respondent via our Docuserve facebook page, providing the New Zealand Family Court with a supporting affidavit of service.
If you are considering engaging a process server to serve your documents you want to know that they will keep a thorough history of all service attempts – in the event that an application for substituted service is required. And even better, if they have the ability to then prepare this information for you to make the application for substituted service straight forward.