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Peter G.
Peter G., Solicitor
Category: Australia Law
Satisfied Customers: 767
Experience:  Law degree from the University of Melbourne 1978, with thirty years of practice experience.
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I received an affidavit from a process server who said he had

Resolved Question:

I received an affidavit from a process server who said he had served documents on me personally at my home at a particular time on a particular day. It was totally untrue as I was 35kms away at work at the time. What do I do
Submitted: 3 years ago.
Category: Australia Law
Expert:  Peter G. replied 3 years ago.

Peter J R Gauld :

What State are you in please? And, are you saying you have a copy of the affidavit of service of some documents on you? Has the matter the subject of the service been heard; or when is it to be heard?

Customer :

I am in QLD but the lawyers chasing my debt are in NSW. The process server is in QLD. I have no court date and no other correspondence from the lawyers except a letter stating how much i owe in costs. Not itemised just a total. The debt to my creditor has already been settled directly with them so now it is only costs that the legal firm are chasing me for. Meanwhile i get a copy of this affidavit of service which is a lie. The affadavit says i was served with a statement of claim and a copy of a Form 1 notice pursuant to s16. I have none of these documents as I was not there to receive them nor did anyone receive them on my behalf

Peter J R Gauld :

So this is your own solicitors apparently suing you for their costs?


Somehow you have been told that proceedings have been served upon you, and you have had some communication with your solicitors saying you have received nothing, and they have then sent you the affidavit of service? Is this what happened?

Peter J R Gauld :

If it is, then I would communicate with them again, with the statutory declaration you speak of verifying that you were not there, establishing that the process server has clearly got something very badly wrong.


I suspect that he may have served the wrong person.

Customer :

they didn't serve anyone, that's the point. He lied in his affadavit. My flatmate was home at the time and refused to accept the papers on my behalf, so the process server was told that i wasn't there. He said he would come back later but never did. The lawyers trying to get costs from me are not my lawyers. They are debt collectors acting on behalf of the supplier i originally owed the debt to. I closed a business and changed home addresses 4 times in 12 months so the original invoices and statements from my supplier didn't reach me. I had goods of which some were on consignment and some I owned, I thought I had returned all that were on consignment and unsold. This was not the case, so when the process server turned up i contacted the supplier who explained that i still had a certain number of their goods which they had tried to invoice me for about 6 months after the store closure. By then my mail forwarding had stopped so I was unaware of the debt until the process server arrived. My flatmate phoned me at work after he had been. I immediately contacted the supplier to find out what the debt was all about. When i contacted the supplier we sorted out the return of goods and they gave me credits and i settled a small amount then owing. They had put my debt in the hands of the law/debt collecting firm some months prior so costs were accruing without me knowing anything about it. After settling the debt with the supplier I was told I would have to deal with the debt collectors because costs would be owing. I spoke with them, they sent a letter saying an amount was owed. It still included an amount that I had settled directly with the supplier so I asked for an itemised account. This is when the copy of the affadavit turned up. No other correspondence was with it so I still don't know what the actual costs are for or the final amount without the supplier's amount, and have had no invoice, just the first letter. I have only received two pieces of correspondence from them. The letter after I sorted things out with the supplier that said i owed $927 ( no breakdown) part of which i had already paid the supplier, and the next was the copy of the affadavit after I had asked for a final itemised account. The first letter was addressed incorrectly with the name of another business, I almost returned it to sender except that my flatmate came home, thought it was his mail and opened it. That is when we realised that the body of the letter was about my business but the company it was addressed to was a clerical error on their part. I still don't know exactly what is owed in costs, and what they are for. I think they may have paid the process server and that cost is included in what i owe them. If he didn't actually serve me then i shouldn't have to pay that cost. There may also be court costs but if a court date went ahead i don't know about it and i was never served the papers so they shouldn't have proceeded. I am just totally in the dark and they are unco operative about giving me any information. I am not going to pay any money to them until i know what i really owe and what it is for. I think the copy of the affadavit was to scare me into paying up. Either that or they don't know that their process server is an unethical (maybe illegal) liar.

Peter J R Gauld :

Ok, thanks for that further information which helps.

Peter J R Gauld :

I assume that you contacted the creditor because your flatmate was told what the matter was about? It was not because the process server left papers at the flat? I will assume that no papers were left at the flat, because, sometimes, serve will be good if left at a defendant's address with someone else.

Peter J R Gauld :

The affidavit of service itself will specify how service was effected - can you tell me what it says please.

Peter J R Gauld :

Putting that aside, and continuing on the basis that no papers were left at the flat, yes, this is a far more serious issue than a process server just making a mistake, for instance unwittingly serving the wrong person, and actually not swearing a false affidavit. If indeed the process server did not return to serve the papers, and didn't leave them with your flatmate on the basis this would be good service, then he has sworn a false affidavit. And, more importantly, you haven't been served.

Peter J R Gauld :

Anything flowing from the assumption of good service should be set aside.

Peter J R Gauld :

If the document was a summons, a debt summons, then it is likely that judgment was obtained "on the papers", that is, entered automatically on the basis that no Defence was filed.

Peter J R Gauld :

Costs would have been added to the original amount of the debt.

Peter J R Gauld :

What I would do is write to the solicitor who is involved and include an affidavit or statutory declaration. An affidavit would be better, because you now have the court details - the header on the affidavit of service. But, if you want to avoid for the present having to get a solicitor, and you would probably have to do so to do an affidavit, then just get your flatmate to make a statutory declaration stating clearly in plain English about the visit of the process server and that nothing was left and he said he would come back, and he didn't.

Peter J R Gauld :

You should also make a statutory declaration stating that no documents were ever service upon you; that you have read the affidavit of service provided to you and it is false.

Peter J R Gauld :

Send both to the solicitor and say that you will not be paying any costs in the circumstances, and that if necessary you will be reporting the process server to relevant authorities for perjury.

Peter J R Gauld :

This should make them sit back and think. I can't predict what will happen next; you will have to take this step by step, but proceed on the basis that service was defective, and you cannot be liable for anything that happened from it.

Peter J R Gauld :

I'm sorry, this is important, also ask the solicitor to set aside any judgment that may have been entered based on the false affidavit, and to confirm with you that this has been done. And if you do not receive any confirmation within seven days, you will have no option but to see a solicitor about the matter.

Peter J R Gauld :

I'm a bit in the dark because I, and you, don't know exactly what has happened; what sort of process is involved, etc.. But the above will/should get things sorted out at least to the point of necessary clarifications about what did happen.

Peter J R Gauld :

As a solicitor, I would be a bit horrified if one of my process servers did this; it is the last thing you want because of the trouble it can cause, as apparently has happened here.

Peter J R Gauld :

Proper service is critical to any legal process, and you want it done right, or not at all.

Peter J R Gauld :

Please come back if there are any further queries.







Peter G., Solicitor
Category: Australia Law
Satisfied Customers: 767
Experience: Law degree from the University of Melbourne 1978, with thirty years of practice experience.
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