Australia: Litigation involving an overseas party: can you commence proceedings by post?

Last Updated: 14 September 2017
Article by Hayley Upton
Services Competition & Consumer Law, Dispute Resolution & Litigation, >Insurance, Intellectual Property & Technology, International Desk

What you need to know

  • An Australian business might contemplate litigation against an overseas party for a wide variety of reasons, such as a claim arising from a breach of contract with a foreign-based supplier or manufacturer.
  • One of the first hurdles in such litigation is ensuring that originating process documents are served correctly, which is where the Hague Service Convention comes into play – this is a treaty to which Australia is one of many member parties, and it facilitates the service of court documents to overseas parties.
  • The requirements of the Hague Service Convention were recently explored in a decision of the US Supreme Court, which dealt specifically with service by post and serves as a useful reminder that some homework will be required to ensure the validity of this method of service.

A case study on attempted service by post

Water Splash Inc (Water Splash) is a Texas corporation that manufactures aquatic playgrounds. Tara Menon (Menon) is a former employee of Water Splash who resides in Quebec, Canada.

In 2013 Water Splash initiated proceedings against Menon for commencing work for a competitor while still employed by Water Splash.

In circumstances where Menon lived in Canada, Water Splash obtained permission to serve process documents by post. When Menon failed to respond or enter an appearance, the trial judge ordered default judgment against Menon.

Menon subsequently filed a motion to set aside the judgment on the ground that she was not properly served under the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention). The Hague Service Convention is a treaty which allows for the service of process documents from one member country to another, and to which the United States and Canada are both members. After the trial judge denied the motion, Menon appealed to the Texas Court of Appeals, which reversed the trial judge's decision and agreed that the Hague Service Convention prohibits service of process by mail.

Ordinarily a decision of the Court of Appeals is final. However, if a party wants the Supreme Court to review a decision for legal error they can file a 'petition for writ of certiorari'. In this instance, Water Splash's petition was successful and the Supreme Court granted certiorari to resolve the conflict. The Supreme Court's decision was handed down in May 2017.1

What does the Hague Service Convention say about service by post?

To determine whether the Hague Service Convention allowed service of process documents by mail in the Water Splash case, the Supreme Court looked to the text of the treaty and the context in which words are used. The Court held that the primary method of service under the Hague Service Convention is set out in Articles 2 to 7 which require that:

  • each state establish a central authority to receive requests for service of documents from other member countries
  • when the central authority has received the relevant documents it must serve the documents or arrange to have them served by an appropriate agency
  • after service is carried out the central authority must complete a certificate of service which states that the document has been served and details the method, place, date and recipient.

The Court noted however that this was not the only method of service approved by the Hague Service Convention, and referred to service through diplomatic and consular channels (Article 8), by agreement between two member countries (Article 11) and methods permitted by internal laws of the member countries (Article 19).2

The issue of contention before the Court in the Water Splash case was the meaning of the postal provision in Article 10:

Provided the State of destination does not object, the present Convention shall not interfere with –

  1. the freedom to send judicial documents, by postal channels, directly to persons abroad
  2. the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination
  3. the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.3

The Court held that the case revolved around whether the phrase in Article 10(a) 'send judicial documents' included sending documents for the purposes of service. In particular, the Court was concerned with the meaning of the word 'send'. The Court adopted a broad interpretation of the term and determined that there was no apparent reason why the term should not include the transmission of documents for a particular purpose such as service. The Court held that in circumstances where the text of the Hague Service Convention is limited to service of documents, and having regard to the structure and drafting history of the treaty, it would be strange if Article 10(a) related to something else.4

The Court went on to caution that while Article 10(a) encompasses service by mail, it does not follow that the Hague Service Convention affirmatively authorises service by post. Article 10(a) merely allows the freedom to serve documents through postal channels so long as the receiving member country does not object. Put simply, in cases subject to the Hague Service Convention, service by mail is allowed if:

  • the receiving country has not objected to service by mail, and
  • service by mail is otherwise authorised under the applicable law in the jurisdiction where proceedings are to be commenced.

In the Water Splash case, the Court accepted that the first limb was satisfied in that Canada had not objected to service by mail. However, the Court remanded the matter to the Texas Court of Appeals to consider whether service by mail is permitted under Texas law.

What does this mean for Australian businesses?

Australia became a member of the Hague Service Convention in 2010. A full list of the member countries can be found here.

Australia allows service by mail under Article 10 so long as:

  • it is permitted in the jurisdiction in which the process documents are to be served, and
  • documents are sent by registered mail.5

Australian businesses may find themselves in litigation with overseas parties for a wide variety of reasons. For example:

  • Australian-based businesses that develop or distribute products to Australian consumers often rely on foreign manufacturers and suppliers, making them particularly vulnerable to cross-border disputes when a problem arises with the product (such as a flaw or safety concern that raises product liability issues)
  • Australian brand owners may come across foreign-based parties engaging in conduct that infringes their intellectual property rights, such as operating a website that reproduces material protected by Australian copyright or trade mark laws.

Australian businesses may have causes of action against foreign parties based on breach of contract, negligence claims, infringement of intellectual property rights or claims brought under the Australian Consumer Law (ACL), to name a few. Only a few months ago we shared an update about a US-based business that was pursued by the Australian Competition and Consumer Law Commission for breaches of the ACL, and ordered by the Federal Court of Australia to pay a $3 million penalty.

Where the claim is based on a contractual breach, it's important to first consider the 'choice of laws' provision in that contract to ensure proceedings can be commenced in Australia. In some cases, contracts will expressly state that disputes will be resolved under the laws of another jurisdiction. If an Australian business wants to have the opportunity for disputes to be addressed and heard on home turf, this will need to be addressed during contract negotiation.

Assuming proceedings can be commenced in Australia, a potential litigant should carefully consider their proposed method of serving originating documents on the opposing party. The Water Splash decision is a valuable reminder that where cross-border litigation involves another party to the Hague Service Convention, and service of documents is proposed to be managed by post, it's critical to check whether this method of service will be recognised in the jurisdiction of the recipient.

It is also important to note that Australia is party to a number of bilateral treaties on judicial assistance. These treaties offer a method for the service of documents where the country is not a member of the Hague Service Convention and diplomatic channels or private process servers are not convenient or possible.[6]


1 Water Splash, Inc. v Menon, 581 U.S.___(2017).

2 Ibid, pp. 2-3.

3 Ibid, p. 3.

4 Ibid, p. 5.

5 See

6 Ibid.

This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this article. Authors listed may not be admitted in all states and territories

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Hayley Upton
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions