There are currently 84 contracting countries to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (commonly referred to as the Hague Convention). If you need to serve legal documents internationally, there’s a good chance the Hague Convention will apply. While it ensures a standardised process, it can complicate and delay proceedings.
This article focuses on the process as it applies to service of Commonwealth court documents overseas, including compliance with the requirements of the Federal Court Rules 2011 (Cth) (FCR).
Applying to the Registrar
Under Rule 10.64 FCR, a person may apply to the Registrar, in their capacity as a forwarding authority, to request the service of a local judicial document in a Hague Convention country. The application is initiated by lodging the necessary documents with the Federal Court Registry.
The Registrar will review any documents prior to arrangements being made for the documents to be dispatched. Once reviewed, any amendments that may need to be made to the documents will be communicated and the new amended documents accepted for lodgement.
What documents do I need to prepare?
The application must include three copies of each of the following documents (initially in draft form), as prescribed by Rules 10.43B and 10.64 FCR:
- Form 25: Request for Service Abroad of Judicial Documents and Certificate
- Identify the relevant ‘Receiving Authority’ or ‘Central Authority’ for the destination jurisdiction. The Hague Convention website provides an index of Central Authority contact details.
- Form 26: Summary of Documents to be Served
- Include details on:
- where the person or entity being served can obtain legal advice in Australia (for example – Legal Aid New South Wales);
- the parties to the proceedings and their addresses for service.
- the nature and purpose of each court document;
- a brief summary of the dispute; and
- the date and location for entering an appearance (e.g. filing a Form 10 and notice of address of service within the timeframe stipulated under Rule 10.43C FCR).
- Include details on:
- Form 26A: Notice to Person Served Outside of Australia (if serving an originating application):
- specify the scope and jurisdiction of the Court, such as the Federal Court’s jurisdiction under section 398(1A)(c) of the Judiciary Act 1903 (Cth);
- outline how the proceeding confers jurisdiction on the Federal Court (e.g. breach of contract arising in Australia).
- highlight the rights of the recipient to challenge the service or jurisdiction, referencing applicable rules such as Rules 13.01, 12.01, 11.02, and 10.43C FCR.
Additionally, three copies of the court processes being served must accompany these forms.
Solicitor undertaking
Rule 10.64(3) FCR requires that any application to the Registrar for service in accordance with the Hague Convention must be accompanied by a written undertaking to the Court from the applicant’s solicitor (or the applicant if unrepresented) to:
- be personally liable for all incurred costs;
- pay the costs within 28 days of receiving a notice from the Registrar specifying the amount; and
- provide any security for those costs as required by the Registrar.
This undertaking must be signed and submitted alongside the application documents.
The Waiting Game
Once the Registrar approves and dispatches the documents to the Central Authority, it typically takes 2-3 months to receive a certificate of service. However, the timeframe can vary depending on the jurisdiction. We told you patience is a virtue!
Before releasing the relevant documents and providing the certificate of service, the Central Authority will issue payment directions to the Registrar (and, subsequently, the applicant) for any applicable service fees. Once the fees are paid and confirmed, the Central Authority will send the Registrar:
- a letter of service;
- a certificate of service; and
- a completed Part 2 of Form 25.
These documents can then be lodged as evidence of service with the Court.
