Australia To Join Hague Service Convention

Key Points:
The Service Convention eliminates complications that arise from the overlap of two or more systems of law for the service of documents by providing a set of internationally-recognised procedures to which the transmission of documents for service must conform.

Australia will soon become the 61st State to join the Hague Service Convention¹, the most important multilateral convention in the field of transnational service of process. The Convention greatly simplifies the service of court documents on persons and companies located overseas in civil or commercial matters.

The service of documents is an essential first step in the commencement of proceedings. It is therefore essential to get it right. However, as the world grows ever smaller, more and more legal disputes cross national borders. This can lead to complications that arise from the overlap of two or more systems of law. The Service Convention eliminates those complications for the service of documents by providing a set of internationally-recognised procedures to which the transmission of documents for service must conform.

In practice, Australia's accession to the Service Convention will provide several concrete benefits to Australian litigants:

• first, where documents relating to Australian proceedings are to be served abroad, the process for service will in most instances be greatly simplified;
• secondly, the validity of service of Australian documents abroad will be less capable of challenge in Australian courts and abroad;
• thirdly, where Australian proceedings have proceeded to judgment, those decisions are more likely to be recognised and enforced abroad; and
• finally, Australian defendants to foreign proceedings will gain a number of important protections against liability arising from foreign default judgments.

In the current financial climate, businesses are understandably keen to minimise risk wherever possible. Australia's accession to the Service Convention reduces much of the risk and complexity in an essential and early step of litigation. This, in turn, reduces the risk of all cross-border transactions. Given that most of Australia's major trading partners are parties to the Convention, Australia's accession makes an important contribution to the efficiency of Australian international commerce.

This article describes the main features of the Convention, and explains its practical utility to persons involved in transnational disputes.

Some things change, others stay the same

Service of documents has always been simpler in some States than in others.

States that inherited the common law system from England have always taken a relaxed approach to the service of documents, allowing almost any person to serve documents in their State, including lawyers and professional process servers. The service of Australian documents in these States, including the United States and England, has always been a simple matter of sending the documents to a solicitor or process server and asking them to serve the documents on the defendant. This simple procedure remains possible under Article 10 of the Convention.

But not all States are so agreeable. Some States, especially those from a civil law background, view the service of documents as a judicial function that may only be exercised by specially authorised officers of the court. In these States, service by a private party or process server constitutes a breach of sovereignty, and may lead to significant criminal penalties. Accordingly, before accession to the Convention, a person wishing to serve documents on a person located in a foreign State needed to know whether direct service would constitute a breach of the foreign State's sovereignty and, if so, was required to request officials of that State (who were under no obligation to grant the request) to serve documents on their behalf.

The Service Convention does away with these concerns, by providing a simple mechanism for the service of documents in all States Parties - whatever view they take of the service of documents.

A simple and reliable system

The Convention requires that each State Party set up a "Central Authority" that accepts and executes requests for the service of documents from abroad. This means that serving documents abroad is simply a matter of identifying the Central Authority of the State in which the documents are to be sent, and arranging for a request for service to be sent to that Central Authority.

The rules of the Federal and Supreme Courts have been amended to include provisions that allow an application to be made to the Registrar² of the Court for a request for Service abroad to be sent to the Central Authority of the State in which the documents are sought to be served (the "Requested State")³. Once the request has been sent, the Central Authority is required to serve the document according to the law of the Requested State, or by some other method specified in the request. Once the document has been served, the foreign Central Authority completes a certificate confirming that service has occurred, which is returned to the Registrar. The certificate of service constitutes sufficient evidence in the Australian court that the document was served according to the law of the Requested State.

This simple but powerful procedure eliminates any need to investigate foreign rules of service, or to search for and engage foreign process servers. All that is required is an application to an Australian court, using uniform Australian rules.

In-built protections

The Convention also builds in protections for defendants against judgment by default. These protections offer an important safeguard to ensure that persons receive proper notice of proceedings, wherever they may be in the world. The Service Convention's success over thirty years is testament to the fact that it has struck the proper balance between the rights of plaintiffs and defendants.

Under Article 15 of the Convention, prior to default judgment being entered, the Convention requires that the following steps be taken:

• the originating process be served upon the defendant either by a method provided for in the Convention, or by a method allowed by the law of the State in which he defendant is located; and
• such service must be effected in "sufficient time" to enable the defendant to defend the action (under the Australian rules, "sufficient time" is 42 days after the date of service, unless the court decides otherwise).⁴

The court may, however, give default judgment if the document was transmitted under the Convention, and if no certificate of service has been received after 6 months.

Similar protections are provided by Article 16 to ensure that a defendant, after default judgment has been entered, has an opportunity to appeal the default judgment within a year, as long as they can demonstrate that they had no notice of the document required to be served, and can disclose a prima facie defence to the action on the merits.

Other methods of service

In addition to the method set out above, the Service Convention allows a number of other methods for service. Where the State in which the document is to be served allows, and where the Australian rules of court allow, documents can be transmitted:

• by posting the documents directly to the person to be served;
• through consular or diplomatic channels; or
• by sending the documents directly to a person authorised to serve the documents in the foreign State.

Conclusion

After 30 years, Australia's accession to the Service Convention is long overdue. Australian litigants will soon be entitled to enjoy the benefits and protections of this time-tested and truly global Convention.

Footnotes

1. Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters opened for signature 15 November 1965, 658 UNTS 163 (entered into force 10 February 1969).

2. Or Prothonotary.

3. For example, FCR O 8A; NSW Rules Pt 11A; Tas Rules Pt 38A; Vic Rules O 80. The Rules of Court have been nationally harmonised, meaning that the procedures are the same for all States and Territories.

4. See, for example, FCR O 8A r 10.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.