Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

civil procedure > Service of legal documents > Flashcards

Service of legal documents Flashcards

You may prefer our related Brainscape-certified flashcards:
Civil Procedure 1L flashcards
1
Q

What is legal service?

A

When legal proceedings are started with the delivery of court documents to the defendant or respondent. Audi alteram partem.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Before documents are served, what must happen?

A

It must be issued.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What are the duties that the sheriff must perform when serving court process?

A
  1. Explain nature and contents of the document to the person being served and state in their return that they have done so.
  2. Hand a copy of the document to that person and explain the consequences of failure to defend the action or oppose the application.
  3. Return with return of service.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

What is a return of service?

A

A written report from the sheriff stating when, where and how he served the document, constitutes prima facie proof of service.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What happens if there sheriff is unable to successfully serve a summons or notice of motion ito the rules?

A

The sheriff completes a return of non-service.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Which court documents need not be served by the sheriff?

A

Court documents that follow the initial summons.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What are the usual methods of service in the HC?

A
  1. Personal service
  2. Leaving a copy at the place of residence or business
  3. Service at the place of employment of the person to be served
  4. Service at the domicilium citandi of the person to be served
  5. Service on a company
  6. Service of an agent duly authorised in writing to accept service
  7. On a partnership, firm or voluntary association
  8. On a local authority or a statutory body
  9. In legal proceedings against the state, a province or an official in their official capacity
  10. Prisoners
  11. Foreign diplomats
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What if a document is improperly served on a client?

A

It can be raised as an exception.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is substituted service?

A

Service to be done in a way different from the usual methods and may only be used where the defendant or respondent is known or believed to be inside the country.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is edictal citation?

A

Service outside of the country.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What legal maxim underpins legal service?

A

Audi alteram partem.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Which document must be served by the sheriff?

A

The document that starts legal proceedings.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Which legal provision regulates the service of documents in relation to sheriffs?

A

Section 3 of the Sheriffs Act.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is the issue process?

A

Documents that initiate legal proceedings are given a case number and a court file is opened.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Which rule regulates methods of service in the HC?

A

Rule 4.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is personal service?

A

In-person delivery of court documents to the other side.

16
Q

What is service at the place of employment?

A

Service effected by delivering the document to a person who is apparently in authority over the person to be served and is apparently not younger than 16 years old.

17
Q

What is service at the domicilum citandi et executandi?

A

Service at the person’s chosen address for service of documents.

18
Q

What is service at place of business or residence?

A

The document is left with a person at the place of business or residence of the defendant/respondent, provided that the person is apparently in charge of the premises and is apparently not younger than 16 years old.

19
Q

What are the methods of service in the MC?

A
  1. Personal service
  2. Service upon a duly authorised agent
  3. Service at the resident or place of business
  4. Service at the place of employment
  5. Service at the domicilium citandi
  6. Service upon a corporation or company
  7. Service upon state organs and state officials
  8. Service by affixing a copy of the document to the outer or principal door or security gate or placing a copy in the post-box
  9. Service upon a partnership
  10. Service upon curators, executors, guardians, liquidators and trustees
  11. Service upon clubs, societies, and similar bodies.
20
Q

Which rule regulates service in the MC?

A

Rule 9 of the MCR.

21
Q

What does one need to show the court in their application for substituted service?

A
  1. That they have tried other methods unsuccessfully
  2. Suggest a method of service that makes sense.
22
Q

Which provisions allow for electronic service?

A
  1. Section 44 (1) (a) of Superior Courts Act
  2. Rule 4A (1) of the Uniform Rules of Court.
23
Q

Which case deals with electronic service?

A

CMC Woodworking Machinery v Pieter Odendaal Kitchens.

24
Q

What did the court do in the CMC Woodworking v Pieter Odendaal case?

A

Allowed the plaintiff to send the notice of set down via Facebook Messenger.

25
Q

What is the information needed to support an application for substituted service or edictal citation ito CMC Woodworking?

A
  1. The nature and extent of the claim
  2. The grounds upon which the claim is based
  3. The grounds upon which the court has jurisdiction to hear the matter
  4. The method of service that you are asking the court to authorize
  5. The last known whereabouts of the person you want to serve
  6. The steps taken / enquiries made to find out where the person is
  7. Any other information which may assist the court
26
Q

What must the affidavit contain?

A
  1. Must set out a proposal of what method the court is being asked to authorize
  2. Motivate why this method is the best or most suitable e.g. the defendant resides with his family, but he is refusing to accept the summons from the sheriff so we ask for the summons to be served on a family member
  3. If the document is to be served in a newspaper, then a shortened version of the document can be included as well
  4. Satisfy the court that all reasonable steps have been taken to locate the defendant
27
Q

What are the reasonable steps?

A
  1. Determine the defendant’s last known place of residence
  2. Determine the last known address of the defendant through word of mouth, or any information
  3. Determine the defendant’s place of birth
  4. Determine the defendant’s spouse of partner’s address
  5. Determine the defendant’s relatives’ address
  6. Details of the specific enquiries
28
Q

Which provisions regulate edictal citations?

A
  1. Rule 10 of MCR
  2. Rule 5 of URC.
29
Q

Which rule regulates substituted service?

A

Rule 9 of MCR.

30
Q

What is ‘without prejudice’?

A

Any communications which constitute genuine settlement negotiations between the parties are not admissible as evidence at a subsequent court hearing in the same matter.

31
Q

Which matter requires personal service?

A

Divorces ito Rule 44(1) of URC and Rule 9(3) of MCR.

civil procedure (14 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions