Whilst I was in court the other day helping a friend with a domestic violence order, the magistrate asked my friends lawyer if the other party had been served the paperwork. The lawyer answered yes, and the magistrate asked where the affidavit of service was as it didn’t seem to be in the file. I knew this could hold up the entire application until the evidence of service on the other party was found. It so happened that the Affidavit of Service was in the back of the file. No delays.
One cannot underestimate the power of such documentation.
Many want to fight a particular issue will sometimes send in a letter, which may be ignored – whilst there’s nothing wrong with a party ignoring a letter, however, if your letter/notice is well constructed it can account for non-response/non-performance and thus can become part of the record that forms an enforceable contract to be used later (eg in Court). However, it’s also critical that a process (like in the public court system as in the example above) has a 3rd party witness who can sign the important “affidavit/certificate of service” as well as a “affidavit of non-response/non-performance”. This will make it absolutely clear of:
- the genuineness of the record; and
- it’s an exception to the hearsay rule; and finally
- forming part of the record that shows agreement between the parties so a court can immediately see there is agreement and thus enforce the record (unless you argue and give it all up)
Hence there are specific advantages to following a process and using an independent 3rd party to send/receive the documents, keep the originals and sign service documents. It doesn’t give the opposite party much room to move. Their failure to respond or their non-performance is also documented. In the graphic below (click to zoom) the blue sections are undertaken by the 3rd party presenter/acceptor and custodian of records. They may:
- sign an Affidavit of Service
- sign an Affidavit of non-response/non-performance
- keep records
- sign a administrative determination at the end of the 3 step administrative process
- send a presentment of evidence into the court (eg all the original records that show agreement between the parties including all delivery confirmation recipes)
Whilst this may seem overwhelming esp if the matter is trivial, this is how the art of establishing an admissible record would typically work. For trivial public side matters, it may be considered acceptable to exclude the 3rd party presenter, but as long as registered post is used with delivery confirmation and running the 3 steps would usually produce a record that has due process behind it. Ideally, a 3rd party presenter should always by used as the value in their testimony is paramount. You cannot testify in your own case as you are bias and would be merely considered hearsay.
See this post for some additional information on the 3rd Party presenter.