Australia has become the 61st country to accede to
the Hague Convention on Service Abroad of Judicial and
Extrajudicial Documents in Civil and Commercial Matters 1965
(Convention). It is expected that the
Convention will apply in Australia after October 2010.
The Convention facilitates the service of court documents on
overseas parties and, as a result, will:
- create clearer arrangements to assist in cross-border
litigation;
- reduce costs and delays in cross-border litigation;
- reduce the ability of overseas defendants to challenge
the legality of service of process;
- allow proceedings to proceed to judgment
rapidly;
- improve legal and commercial assurance; and
- clarify the position for defendants who are parties to
cross-border litigation.
Service of process is a critical initial step in litigation.
Irregularities in service can result in considerable delay and
expense to the parties.
Under the current law, Australians wishing to litigate against
defendants located overseas are required to comply both with the
rules applicable within Australia for the service of process and
the rules of the country in which service is to be effected.
In consequence, Australian court documents are often ignored by
overseas defendants or disputed on grounds of improper service. The
result is delay and increased cost. The Convention will eliminate
such issues for Australians wishing to pursue litigation against
defendants who are residents of countries that are parties to the
Convention.
Canada, China, France, India, Japan, the United Kingdom and the
United States of America have already ratified the Convention.
The Convention can be used in circumstances where:
- a document is to be transmitted from a country that is a party
to the Convention to another country that is also a party to the
Convention;
- the address of the person to be served is known;
- the documents to be served are judicial or extrajudicial;
and
- the documents to be served relate to civil or commercial
matters.
The Convention requires that each acceding country put in place
a 'Central Authority' who will accept and carry out the service
requirements of a litigant requesting service from another
Convention country. The following procedure is to apply:
- the party seeking to serve process is to make application to
the relevant officer of the issuing court for a request to be sent
to the overseas Central Authority;
- the issuing court is to issue the request to the relevant
Central Authority;
- the Central Authority is to arrange service of the documents
upon the defendant; and
- once service has been effected, the Central Authority is to
verify and complete a certificate to be returned to the issuing
court.
Rules effecting the implementation of the Convention have been
promulgated in the state Supreme Courts and the Federal Court of
Australia (see the Federal Court Amendments Rules (No 1) 2009
(Cth) and the Supreme Court (Chapter I Amendment No 14)
Rules 2009 (Vic)).
The Convention will be of considerable benefit to parties
wishing to undertake litigation involving residents of Convention
countries.
A copy of the Convention, and an outline summarising the
relevant process, can be found at:
http://www.hcch.net/index_en.php?act=conventions.text&cid=17.
(Authored by Katerina Poulakis, Cornwall Stodart)