Service of documents is a critical part of court proceedings no matter which jurisdiction you are in.
Complications can arise where court documents are served across international borders, which necessarily means that two sets of laws will overlap. This often results in non-recognition of service of documents which may make or break a case.
Australia will see an exciting change in this area when the “Service Convention” (formally known as the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965) comes into effect for Australia on 1 November 2010.
The convention provides a set of simplified and internationally recognized procedures for the transmission of documents overseas for service of process. It will apply to all court documents that are required to be transmitted abroad, except for documents in criminal matters, and cases where the address for service is unknown.
Until now, Australian court documents were transmitted overseas through a diplomatic channel. This was a complex procedure requiring time and research, it gave rise to uncertainty and it was often prone to challenge. By Article 9, the Service Convention allows flexibility for the applicant to decide whether to serve the documents through diplomatic channels or as per the procedure outlined in the Convention, the latter is by far the more timely and cost-effective process.
Under the Convention, the Court document is annexed to a prescribed form and forwarded to the “Central Authority” which in Australia is the Commonwealth Attorney-General’s Department. The Department then transmits the documents to the Central Authority of the country where the documents are to be served. The Central Authority of the addressee country then arranges for an appropriate agency to serve the addressee. Once service is effected, the Central Authority of that country completes a certificate of service and transmits the certificate back to the applicant. The certificate can then be used in Australian proceedings as evidence that the addressee was served in accordance with the Convention.
The obvious benefits afforded by the Convention are as follows:
- Service of Australian documents abroad in accordance with the Convention would less likely be challenged in the Australian Courts.
- The process for service abroad will be simplified, saving time and achieving certainty.
- Judgments of Australian Courts are more likely to be recognised and enforced overseas.
- In foreign Court proceedings, Australian defendants/respondents can be protected against foreign default judgments.
Australia’s accession to the Service Convention will not only enhance the resolution of international business and trade disputes, it will be useful in family law where evidence of foreign organizations or individuals are critical in determining overseas assets and financial resources in property settlement proceedings.
Readers are reminded that the purpose of this article is to provide general information only and is not to be taken as a substitute for independent legal advice.
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