Service in the Supreme Court is governed by Order 11 Division 4, supplemented by specific rules for particular documents. The methods are few and worth knowing precisely.
Order 11 Rule 7
Where in these rules service is required of any document, it may be effected —
(a) by serving a signed and sealed copy of the document personally on the party to be served; or
(b) by delivering a signed and sealed copy of the document to (i) the address for service of a party given in accordance with Division 3; or (ii) the address for service of a party in the proceedings in the National Court from which the present proceedings arose; or
(c) where a lawyer of a party has an address for service disclosed, service shall be effected at that address whilst such lawyer continues to act for a party.
Both paragraphs (a) and (b) require a signed and sealed copy. A photocopy of an unsealed draft is not service, and an affidavit of service that does not depose to serving a sealed copy invites challenge.
Order 11 Rule 4
The address for service must be a place within 15 kilometres of the Registry, at which documents in the proceedings may, during ordinary business hours, be left, together with an address to which documents in the proceedings may be posted.
Where a lawyer has requested and been allocated by the Registrar a compartment in the Document Exchange Box located within the Registry, the deposit of a document in such compartment shall amount to ordinary service.
Rules with their own service requirements
| Document | On whom, and when | Rule |
|---|---|---|
| Notice of appeal | Each party affected or interested, and the associate to the primary judge — without delay | O 7 r 13 |
| Appeal from a Judge sitting on an appeal | A copy left with the court or tribunal below | O 7 r 12 |
| Notice of the appointment to settle | Each person on whom the appeal is served | O 7 r 34 |
| Draft index | The respondent, no later than two clear days before settlement | O 7 r 41 |
| Notice of cross-appeal | Immediately on the appellant and any person affected by the relief claimed | O 7 r 28(g) |
| Application for review (general) | As soon as possible on all parties to the National Court proceedings | O 5 r 5 |
| Constitutional application or reference | On the Principal Legal Adviser, as soon as possible after filing | O 4 r 13 |
| Section 26 reference | By the Registrar, on the acquitted person, the Public Prosecutor and the Public Solicitor | O 9 rr 3, 4 |
| Bill of costs | Each other party, at least 21 days before the appointment to tax | O 12 r 34(2) |
A step people forget
The notice of appeal must be served upon the associate to the primary judge, and that is what triggers Rule 31, under which the Associate shall make out and certify a list of exhibits and the exhibits and other documents shall be delivered to the registry.
Because exhibits are retained only 40 days after the judgment is pronounced under Rule 30, service on the associate should follow filing within days, not weeks.
Order 7 Rule 14
The Court or a Judge may —
(a) direct that the notice of appeal be served on any party to the proceedings in the court below on whom it has not been served, or on any other person;
(b) dispense with service on any party either altogether or on such terms as it or he thinks fit;
(c) direct that service be effected in a particular manner.
Applications are made in Form 4 under Order 13 Rule 15, with a concise statement of the Court’s jurisdiction.
Order 9 Rule 4, for section 26 references, illustrates what alternative service looks like: by sending it by post, addressed to the lawyer who acted for the person acquitted at trial; for a body corporate, by leaving it at or by sending it by post to the registered office; and for any other person, by post as provided by law, by delivery to the person, or by leaving it with some person apparently over the age of 16 years at the last known or usual place of residence.
Serving government parties
Constitutional matters. Order 4 Rule 13: an application, reference or special reference shall be served on the Principal Legal Adviser unless made by that authority, as soon as possible after it is filed. Order 1 Rule 7 defines that office as the Principal Legal Adviser within the meaning of the Attorney-General Act 1989.
Provincial legislation. Order 4 Rule 15: where the matter relates to the Constitutional validity of any Act or a provision passed by the National legislature in relation to any Province, or by the legislature of a Province, it shall be served on the Provincial Government according to law.
Enforcement against the executive. Order 6 Rule 4(b): where action for enforcement of constitutional rights is taken against the executive arm of Government, service is in accordance with Order 4 Division 4.
Affidavits of service
Several rules require one. Order 5 Rule 15: on an election petition review, an affidavit of service shall be filed within that three-day period. Order 12 Rule 39: for interest on costs, service must be established by an affidavit of service.
Elsewhere none is required at filing, but the affidavit is the evidence on any question of competency, delay or want of prosecution. Order 7 Rule 48 turns on whether the appellant has not done any act required to be done by or under these rules — and service is such an act.
Sources
- Supreme Court Rules 2012 — O 4 rr 13–15; O 5 rr 5, 15, 25; O 7 rr 12–14, 28, 30, 31, 34, 41, 48; O 9 rr 3, 4; O 11 rr 3–7; O 12 rr 34, 39; O 13 r 15
- Supreme Court Act (Chapter 37) — ss 17, 32, 36, 37
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.