Member Article

Australia’s accession to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (Convention) will streamline administrative procedures involved in transnational litigation. This welcome step will reduce many risks associated with transnational litigation, giving confidence to Australians engaged in international transactions.

Implications for Australian litigants

• There is now less room for foreign defendants to challenge the validity of Australian court documents on technical grounds.
  
• It is easier for Australian litigants to prove valid overseas service to Australian courts.
  
• Australian defendants are more likely to receive notice of overseas proceedings which they are party to with sufficient time to defend themselves.

The service of documents internationally

'Service' of documents refers to the delivery of court authorised documents. This is an extremely important step in litigation, as it notifies the recipient that they are a defendant in court proceedings, and provides the court with jurisdiction to proceed with the matter.

For service to be valid, it must adhere to the rules of the court hearing the matter, and the jurisdiction of delivery. These rules can vary significantly between countries, making cross-border litigation complex, and prone to conflicts between differing legal systems. Consequently, the risks for parties involved can be high. If valid service does not reach a defendant, or does not reach them in time, default judgment may be awarded against them for failing to appear at the proceeding. For applicants, a failure to show that documents have been validly served within a required timeframe can prevent them from continuing with proceedings.

Before Australia's accession

Before Australia's accession to the Convention, Australian court documents were served through diplomatic channels or private agents, which often took months. The rules of the receiving country had to be researched to ensure compliance. A failure to adhere to these rules could render 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 handed down against them.

Similar problems were experienced by international litigants seeking to serve documents on Australian defendants. Consequently, Australian defendants to foreign litigation often received court documents with insufficient time to defend proceedings properly. This increased the risks of default judgment being handed down against them.

Given the increase in transactions in the international arena, it is important that unnecessary procedural risks are reduced. Australia's accession to the Convention is designed to reduce these risks.

Convention

Australia acceded to the Convention on 15 March 2010. The Convention aims to simplify the service of documents in civil disputes abroad. It does so by requiring member states to nominate a Central Authority which acts as the main channel for the service of documents between member countries. In Australia, the Central Authority is the Commonwealth Attorney-General's Department and the State Supreme Courts (with the exception of Queensland which has nominated its Department of Justice) are additional authorities.

There are 61 other members to the Convention. This includes many of Australia’s common trade partners, such as the China and the United States of America. Accordingly, the Convention affects a large proportion of international litigation.

Incoming documents

The Central Authority of each member country will receive requests for service from other member countries. It then returns either a certificate confirming valid service, or notification of ineffectual service (with reasons attached).

Outgoing documents

The Convention is mainly concerned with the incoming service of documents. Accordingly, member countries are responsible for determining how documents are sent to a Central Authority of another member country for service.

In Australia, an application to serve documents abroad may now be made to the Registrar of an Australian Federal or state Supreme Court. The court will then send the documents to the receiving country's Central Authority, who will serve the documents in accordance with the required procedures of that country. This process ensures that service is valid and timely.

Default judgments

The Convention also provides additional protection to defendants against default judgments. It does so by ensuring that a defendant is actually served documents with sufficient time before default judgment is given.

Final comments

The process for serving documents on international litigants has been harmonised into a simple application to an Australian court. Additionally, the process for receiving documents relating to foreign litigation is simplified so that it is administered through one channel. This will save time, money, and reduce the risks of transitional litigation. As a result, litigation is a more viable option for international dispute resolution, and ultimately, the risks of international transactions are reduced.