Australia has recently taken further steps to strengthen its
global position in cross-border dispute resolution by ratifying the
Hague Convention on the Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matter. By
adding channels of document service to international litigants, the
changes add certainty and clarity to international procedures
whilst reducing costs.
Australia has ratified the Hague Convention on the Service
Abroad of Judicial and Extrajudicial Documents in Civil or
Commercial Matters 1965 ("the
Convention"), which came into effect on 1 November
The goals of adopting the Convention include:
adding channels of service to international litigants beyond
adding certainty and clarity to international service
procedures whilst reducing costs, and
giving greater effect to Australian judicial decisions
Channelling success: impact and implementation
The Convention provides for one main channel of service
transmission and several alternative channels. 'Service'
refers to the delivery of court-authorised documents. Under the
main channel, a judicial officer in the requesting party's
State will serve the document directly to the Central Authority of
the State where the intended recipient is located. For example, in
Australia the Central Authority is the Commonwealth
Attorney-General's Department. The Central Authority will then
use their internal systems to have that document delivered to the
recipient. The Authority is obliged not to charge for delivery,
thereby reducing the financial burden on the parties.
Once service is affected, a certificate of service will be
completed by the Central Authority and transmitted back to the
applicant. That certificate will then satisfy the judiciary that
the recipient was served in accordance with the Convention and can
be used as evidence in proceedings.
Diplomatic and postal channels are still open to litigants, as
are direct communications between judicial officers and the
Familiar faces: signatories and benefits
The 62 signatories to the Convention comprise some of
Australia's largest trading partners. These include the United
States, China, the United Kingdom and members of the European
Union. When disputes arise between entities in these countries, the
Convention provides a clear set of procedures for transmission of
document service that may largely bypass the diplomatic
On ratification, legislators are looking to achieve streamlines
of service between political and judicial authorities. The hope is
to increase efficiencies in the service of documents between
member-states that will reduce the time and cost of litigious
disputes. The Convention makes it easier to prove service abroad
and will give Australians more time to defend an action when one is
raised against them.
To prevent default judgment being made by a court, additional
protections are in place to ensure a defendant is served documents
with sufficient time.
It should be noted that the Convention applies to all civil
procedures and cases where there is no known address for service.
Criminal matters are not subject to the accord.
The Convention in context
The ascension of the Convention continues a recent trend by
Federal Parliament to bring Commonwealth law into line with
international agreements, particularly in the area of international
arbitration. A flurry of legislative activity emerged following the
release of the updated UNCITRAL Model Law, with the newly enacted
International Arbitration Amendment Act 2010 bringing
domestic procedure into line with the Convention. The Civil
Dispute Resolution Act 2010 has also adopted the measures of
flexibility and finality proposed in the international law.
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.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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