Affidavit of Service (Form 41)

When a court needs proof that a document was served, for example before giving default judgment, the person who served it makes an affidavit of service. Uniform Civil Procedure Rules 2005 (NSW) r 35.8 sets what it must contain: when, where, how and by whom service was effected, what (if anything) the person served said about the service or the proceedings, using their words as nearly as practicable, and a statement that the deponent is over 16. It must clearly identify the document served but must not annex a copy of a document that has already been filed. Form 41 is the approved form for these statements.

When you need it

• You have served a statement of claim and want to apply for default judgment. The application must be accompanied by an affidavit of service of the statement of claim, unless the Local Court served it (r 16.3(2) and (3)).
• The court has asked for proof that a summons, notice of motion, subpoena or other document was served.
• In probate matters, to prove service of a notice under SCR Part 78 rr 19, 39 or 42 (as listed in the Supreme Court probate checklist).

1. 1

   Heading and title

   Put the deponent's name and the date of the affidavit in the heading (r 35.3A), then copy the court, registry, case number and parties from the proceedings.

2. 2

   Who you are

   State your role (for example process server, or solicitor's clerk) and that you are over 16 (r 35.8(2)(c)).

3. 3

   What you served

   Give the date and place of service, the name of the person served and a description of each document. For a filed document, include its filing date (for example statement of claim filed on a stated date). Do not attach a copy of a document already filed (r 35.8(1)).

4. 4

   How you served it

   Describe the method, for example personally handing it to the defendant, or leaving it with a person apparently over 16 at a stated address. Originating process in the Supreme and District Courts generally has to be personally served; the Local Court allows other methods (r 10.20(2)).

5. 5

   What was said

   Record what, if anything, the person served said about the service or the proceedings, as close to their actual words as you can (r 35.8(2)(b)).

6. 6

   Swear or affirm

   Sign in front of an authorised witness (justice of the peace, solicitor, barrister, commissioner for affidavits or notary public), who completes the certificate about seeing your face and confirming your identity. You and the witness must sign every page (r 35.7B).

• File the affidavit in the court where the proceedings are. The NSW Online Registry lists Affidavit of Service (UCPR 41) as a form that can be filed online.
• The Online Registry notes the affidavit must be signed by the person who actually served the document.
• For a default judgment application, file the affidavit of service with the application and an affidavit in support sworn within 14 days before filing (r 16.3(2) and (4)).

• Rule 35.3B(2) requires every affidavit to include a statement that generative artificial intelligence was not used to generate its content. Form 41 version 3 has no paragraph for this, so add one (Form 40 version 8 shows the wording).
• Write the affidavit from the server's own knowledge. A solicitor who did not serve the document should not swear to service.
• Be specific about identity: how you knew the person served was the right person.