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HG Alert: Australia set to accede to the Hague Service Convention - 14 Dec 2009

Australia is set to accede to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965.

The Convention was tabled in the Australian parliament on 25 June 2009, which was the first step in the formal process for agreement to the Convention. If ratified, the Convention will simplify the process of serving Australian proceedings in foreign jurisdictions, and introduce protection for Australian defendants in foreign proceedings.

When is the Convention likely to come into effect in Australia?

The Senate Joint Standing Committee on Treaties presented a report on 15 September 2009 which recommended that Australia accede to the Convention. Since then, Australia has finalised the domestic legislation required to implement the Convention. One of the final steps in the formal convention process is to obtain approval for the accession from the federal executive council. Once approval has been obtained and Australia accedes to the Convention, there is a six month period before the Convention enters into force. During this period, other countries which are parties to the Convention have the right to veto Australia’s accession. It is highly unlikely, however, that any objection will be made.

Background to the Convention

The Convention is designed to simplify international litigation by providing a framework for the service of court documents between participating countries, or “Contracting States”. It is important to note that the Convention is only applicable to civil and commercial matters, and does not apply to criminal matters.

Contracting States include the United States, China, the United Kingdom, Japan, South Korea, India, Canada and France, as well as a number of other European countries.

How will the Convention affect you?

The Convention creates greater certainty when conducting international litigation. The service of originating process is a crucial part of litigation, as it provides notice to a person or organisation that they are a defendant in the proceedings. It also allows the court to exercise jurisdiction over the defendant. Legislation governs the service of court documents to ensure that the defendant is given proper notice of the proceedings. In Queensland, service of documents is dealt with in the Uniform Civil Procedure Rules 1999.

The current process for serving documents abroad is through diplomatic or consular channels. Other countries use a similar method to serve documents in Australia. However, there are a number of problems associated with the current method of service abroad - the process is time-consuming and complex, often involving extensive research on the laws of the country in which service is to occur, and can mean engaging a foreign process server.

A delay in service can have serious consequences for the plaintiff, as failing to prove that documents have been effectively served can result in a court refusing to grant judgment in favour of a plaintiff, or dismissing the proceedings. The Convention will allow litigation to proceed more quickly.

The Convention enhances the ability for Australian court documents to be enforced overseas. Australian defendants to proceedings abroad will also benefit from the safeguards contained in the Convention. The framework provided by the Convention for the service of documents between Contracting States decreases the likelihood of delays and the complications that may arise as a result. Simplifying the process in foreign countries will also minimise costs.

Procedure for service under the Convention

Article 2 of the Convention requires a “Central Authority” to be established within each Contracting State. The Central Authority is the body which receives and executes requests for the service of documents from other Contracting States. In comparison to the current procedure of sending the documents through diplomatic channels, the process established by the Convention is simple.

The Federal Court and State Supreme Court rules have recently been amended to include provisions relating to the Convention. The Uniform Civil Procedure Rules 1999 provide for an application to be made to the Registrar of the relevant Australian Court for a request for service overseas to be sent to the Central Authority of the Contracting State in which the documents are to be served. Upon receipt of the request, the Central Authority is required to serve the documents in a method which complies with both the request and the laws of the Contracting State.

Once service is complete, the Central Authority prepares a certificate confirming this, or alternatively stating that service was not effective. This certificate is returned to the Registrar and is sufficient proof to an Australian court that the document was served as required. Where the request does not comply with the Convention requirements or the request may infringe upon Australia’s sovereignty or security, it is the duty of the Central Authority to inform the requesting Contracting State.

Alternative methods of service are also permitted in the Convention. These include service by post to the relevant person, sending the documents to a person authorised to effect service in the foreign country, and diplomatic channels.

The Convention contains safeguards to protect defendants against a default judgment being entered against them. Proper notice of the proceedings is ensured by the requirement that:

  • the documents be served in accordance with the laws of the Contracting State or methods permitted in the Convention; and
  • the timeframe for the preparation of any defence be “sufficient time” to allow the defendant to defend the proceedings.

Conclusion

Australia’s accession to the Convention will simplify and enhance the process for serving court documents in foreign jurisdictions. The framework provided for service in Contracting States is quicker and more cost-effective than the current methods used. As a result, Australian judgments are more likely to be enforced in other countries.

The Convention also provides significant safeguards for Australian defendants to foreign proceedings. Once the Convention is ratified, parties engaged in international trade and business can have greater confidence that their legal rights will be able to be enforced.

For more information on the Convention or the procedures for the service of documents that the Convention will introduce, please contact HopgoodGanim’s Litigation and Dispute Resolution practice.