3.26: Time for service of statement of claim
3.28: Effect of not serving statement of claim in time
4.34: Stay of proceedings on transfer or transmission of interest
11.27: Validating service
12.3: Application of other Parts
12.55: Service of documents
12.57: Proof of service
12.58: Rules that do not apply

Case Summary

The Applicant Plaintiff applied in regular family law chambers to validate service of a Statement of Claim for Divorce and Division of Matrimonial Property upon the Defendant, or in the alternative, to grant an extension of time for service.

Counsel for the Plaintiff gave a copy of the Statement of Claim to counsel for the Defendant and stated that they would personally serve the Defendant. Personal service never occurred. After the Statement of Claim was given to Defendant counsel, the Plaintiff had passed away and his son had become litigation representative.

Service of a Statement of Claim for Divorce and Division of Matrimonial Property is governed by Rules 12.55 and 12.57. Service must be made on the individual and not their lawyer, by a person other than the Plaintiff, and must include a picture of the individual served unless the Court otherwise orders. There was no dispute that the Plaintiff did not meet the textual requirements of Rules 12.55 and 12.57.

The Court noted that service is a practical question and that the point of service is that the Defendant has knowledge of the Claim and can choose to defend. Rule 11.27 allows the Court on application to make an Order validating service. Rule 12.3 provides that other parts of the Rules apply to family law proceedings unless they are expressly excluded by a rule in Part 12. Rule 12.58 is an exclusionary rule that states that Rule 11.25 (not at issue in the present Application) does not apply to service of a Statement of Claim for Divorce and Division of Matrimonial Property.

The Court found on a balance of probabilities that the Statement of Claim was brought to the Plaintiff’s attention.

Although Plaintiff counsel indicated that formal service would follow, they did not indicate that the Statement of Claim was provided for informational purposes only and counsel for the Defendant made no representations that the provision of the Statement of Claim did not constitute service or engage legal rights. In fact, counsel for the Defendant communicated about issues with the Divorce and Division of Matrimonial Property and participated in Court Applications which fully engaged the legal rights of the parties.

The Court validated service on the Defendant.

Rule 4.34 stays an Action until an Order is granted to continue an Action when the Action has been transferred or transmitted to another person by the death of a party. Therefore, this Action was stayed upon the Plaintiff’s death. The Court granted an Order under Rule 4.34 to continue the Action in the name of the Plaintiff’s son as litigation representative.

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