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Key points
- The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters came into force in Australia on 1 November 2010.
- It facilitates the service of documents on overseas persons, including parties to litigation and witnesses by:
- expediting and simplifying cross-border transmission of documents for service;
- bringing documents to a defendant's knowledge within adequate time for the preparation of a defence; and
- providing evidence of service.
Background
Before Australia's accession to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Convention), Australian court documents were served through diplomatic channels or private agents, which could be a lengthy process.
The procedural rules relating to service of the receiving country had to be investigated to ensure compliance and a failure to adhere to these rules could render the service of documents void, and in some countries, result in criminal penalties. Moreover, an irregularity in service could give the defendant an opportunity to challenge an Australian judgment subsequently handed down against them.
The Convention
The Convention, which commenced operation in Australia on 1 November 2010, now facilitates the service of court documents between state parties which, subject to a few exceptions, cannot be refused by the receiving state. It applies in all civil or commercial matters where there is occasion to transmit a judicial or extrajudicial document for service abroad.
Under the Convention, a request for service of an Australian court document on foreign parties is sent to the registrar or prothonotary of an Australian federal or state supreme court. The court will then forward the documents to the receiving country's Central Authority, which will serve the documents in accordance with the required procedures of that country. The Central Authority then returns either a certificate confirming valid service, or notification of ineffective service (with reasons attached).This process helps to ensure that service is valid and timely.
The Convention also provides additional protection to defendants against default judgments by ensuring that sufficient time is given to a defendant to prepare and serve its defence before default judgment can be entered.
A Practical Handbook on the application of the Convention provides guidance on how its provisions are to be applied and most state and federal superior court rules have been amended to implement the Convention.
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The member countries
Other member countries of the Convention include Canada, China, France, India, Japan, the United Kingdom and the United States of America. Read the full list of member countries.
Comment
- The process for serving documents on international litigants has been harmonised by a simple application to an Australian court.
- The process for receiving documents relating to foreign litigation is simplified so that it is administered through one channel. This should save time, money, and reduce the risks of transitional litigation.
- The validity of service of Australian documents abroad should be less capable of challenge in Australian courts. As a result, litigation should prove to be a more viable option for international dispute resolution, and ultimately, the risks of international transactions should be reduced.
Further Information
Kate Clark | Special Counsel
+61 3 9269 9315
kclark@landers.com.au
Rosehana Amin | Lawyer
+61 3 9269 9431
ramin@landers.com.au
Ari Abrahams | Partner
+61 3 9269 9122
aabrahams@landers.com.au
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