Automatic language translation
Our website uses an automatic service to translate our content into different languages. These translations should be used as a guide only. See our Accessibility page for further information.
On 1 November 2010, the Hague Convention on the Service Abroad of Judicial Extrajudicial Documents in Civil or Commercial Proceedings 1965 ('the Hague Service Convention') entered into force for Australia. The procedures contemplated by this Convention are now available between Australia and the other contracting states. For more information concerning the operation of the Convention and the countries that are contracting states to the Convention, please refer to the Hague Conference on Private International Law website.
The outward service of documents may be effected either by a designated Central Authority or by the diplomatic channel or privately.
The Australian (Commonwealth) Attorney-General's Department is the designated Central Authority for Australia and it transmits the request for service to its counterpart in the foreign country. The foreign country's equivalent of the Australian Attorney-General's Department then transmits the request to the relevant court for execution.
Where a convention or treaty is in place between Australia and the foreign country, the procedure available under the convention/treaty must be followed. Fact sheets for individual countries are provided by the Australian Attorney General with information about the convention or treaty requirements where applicable or, if none exists, the procedure allowed by the relevant country.
Enquiries should be directed to: Administrative Law and Civil Procedure Branch, Civil Justice Division, Australian Government Attorney-General's Department, Robert Garran Offices, National Circuit BARTON ACT 2600.
Use of the diplomatic channel involves the Australian Department of Foreign Affairs and Trade (DFAT) transmitting request for service to the Australian embassy in the foreign country. The Australian embassy then transmits the request to the relevant foreign affairs authority in the foreign country and this authority passes it to the authority for justice services which sends it to the relevant court.
A document to be served outside Australia must be served on a party in accordance with the law of the country in which service is effected.
Where a country is a signatory to an international convention to which Australia is a signatory, the NSW Department of Communites and Justice is the judicial authority for the State of New South Wales which ensures that the application meets all the requirements of the convention and transmits it to the Commonwealth authorities for service via the judicial or diplomatic channels. Requirements to be checked include: that the Prothonotary of the Supreme Court has sealed the documents and that they include the documents plus the relevant number of specified copies (check specific convention and court rules; a certified translation into the language of the country where service is requested.
After service has been effected, a certificate of service, attempted service or non-service must be returned. This should be issued by a judicial authority or other responsible person in the country concerned or a British or Australian consular authority under the Uniform Civil Procedure Rules (Part 11 Division 2 .11.11).
Where no convention or treaty is involved, the Attorney General assesses the application to ensure it complies with the Court Rules in Australia and the procedure allowed by the foreign country concerned. It is the responsibility of the NSW Department of Communities and Justice to ensure that the documents meet the requirements in all respects and, where no convention exists, to prepare a submission to the Attorney General. Where applications comply with court rules and the general diplomatic protocols, the Attorney General declares the country to be a participating country by notice filed in the proceedings therefore enabling service under the Uniform Civil Procedure Rules (Part 11 Division 2 11.9).
After service has been effected, a certificate of service, attempted service or non-service must be returned. This should be issued by a judicial authority or other responsible person in the country concerned or a British or Australian consular authority under the Uniform Civil Procedure Rules (Part 11 Division 2 .11.11).
The inward service of documents may be effected either by a designated Central Authority or by the diplomatic channel or privately.
The Australian Attorney-General's Department is the designated Central Authority for Australia and it transmits the request for service to the relevant judicial authority within Australia which forwards it to the relevant Court.
The role of DFAT under the conventions is limited to facilitating transmission of documents to the appropriate judicial authority in Australia. DFAT attempts to ensure that requests for service in NSW accord with the requirements under section 57.2 of the NSW Supreme Court Rules. Due to the large volume of incoming requests,it is not always possible for DFAT to do this and it is therefore the responsibility of the NSW Department of Attorney General and Justice as the judicial authority for New South Wales to ensure that applications comply with the requirements of conventions (where relevant) and relevant court rules.
Under Part 57 of the Supreme Court Rules foreign documents required in connection with civil or commercial proceedings pending before a foreign court or tribunal may be served on persons residing in the State.
Under Part 57 rule 1 the Registrar must receive a letter of request from the foreign court or tribunal to serve the document and either:
(a) the request for service is pursuant to a convention; or
(b) the Attorney General certifies that effect ought to be given to the request.
Where the request is pursuant to a convention, it is the responsibility of the Attorney General's Department to ensure that the request meets all the requirements under the convention and the Supreme Court Rules. It is the responsibility of the Department to ensure that the request includes a letter of request, the document to be served plus two copies and a translation of the document and the letter of request if required. As the judicial authority for the State of New South Wales, the Department has a duty to verify and forward the request and documents to the Prothonatory of the Supreme Court as soon as possible to enable service to be effected.
Upon receiving the sealed certificate of service or non-service plus a copy of the document and request and a statement of fees owing from the Supreme Court, it is the responsibility of the NSW Department of Communities and Justice to forward the certificate and to the Department of Foreign Affairs and Trade or the Embassy or Commission, whichever was the source of the request.
Where documents originate from a country not a convention country, the request is forwarded to the Attorney General so that he may determine whether or not it is appropriate to allow the service of the documents. If the Attorney determines that the documents should be served, they are forwarded to the Registrar of the Supreme Court with a letter from the Attorney certifying that effect ought to be given to the request. If the Attorney determines that the documents should not be served, they are returned. It is noted that the Attorney has previously determined that documents should be served on behalf of the requesting country.
There are no other legislative or policy guidelines defining how the Attorney should exercise this discretion. While it is appropriate to review the documents to determine if they warrant service within the State: see Re S [1948] VLR 11, comity requires that any request of a foreign court should be treated with sympathy and complied with so far as local law permits: see Seyfang v GD Searle & Co [1973] 1 QB 148 at 151-2.
Where the request is not made pursuant to a convention, the Supreme Court must provide a certificate that is appropriate to the terms of the letter of request or, if no appropriate terms are requested, a certificate:
(a) annexing the letter of request, a copy of the document and any translation and a copy of the affidavit of service;
(b) identifying the annexure;
(c) certifying the manner and proof of service are such as required by the Supreme Court for the service of originating processes or, if attempts for service failed, certifying the failure and the reasons for the failure; and
(d) certifying the costs incurred.
31 Aug 2023