Service of Australian court process abroad - general information
Introduction
The information sheets on each country contained on these web pages are intended to provide a step by step guide to serving Australian court process abroad. The following is a general explanation of information contained in the fact sheets and a guide to their format.
What regulates the service of Australian court process abroad?
The permitted methods for serving Australian court documents in a foreign country depend upon two things:
- the Court Rules in Australia which regulate service abroad, and
- the procedure that the foreign country will allow.
A list of relevant legislation can be accessed from the main index under ‘Relevant State and Territory legislation’. The information sheets accessible from the main menu under ‘A-Z Country list’ provide information on the procedure that the foreign country will allow.
Information contained in the Country Fact Sheets
The procedure adopted for the service of documents overseas can be based upon provisions of a treaty or agreement between Australia and the foreign country, or where no treaty exists, procedures which are accepted international practice. The following are the most commonly accepted forms of service overseas the fact sheets indicate whether they are available in particular countries.
Diplomatic Channel
The different permutations are:
- The service request must be transmitted via the diplomatic channel and served by a judicial authority in the foreign country.
- The service request may, but is not required to, be transmitted via the diplomatic channel.
- The foreign country will not accept service requests transmitted via the diplomatic channel.
Use of the diplomatic channel involves the Australian Department of Foreign Affairs and Trade (DFAT) transmitting the 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. The foreign affairs authority then transmits the request to the authority responsible for justice services and that authority transmits the request to the relevant court. The executed request is returned via the same path. The number of agencies involved in the diplomatic channel contributes to the substantial delays that can be experienced when serving documents using the diplomatic channel.
Private Agent
The different permutations are:
- The court process may be served by private agent in the foreign country.
- The foreign country does not allow service by private agent. The objection to use of a private agent usually stems from the foreign country’s view that service by another country’s court is that court exercising jurisdiction in their territory. It is considered an incursion on territorial sovereignty.
When use of a private agent is permitted, it is arranged by the relevant court or a party to the matter before the court and no government agencies are involved. The private agent is usually a practitioner in the relevant foreign jurisdiction. Some companies specialise in the service of process internationally. We do not provide details about how to contact private agents or process serving companies. However, the US Department of State does keep this information on its website. The US Department of State’s contact details can be accessed via the main index under ‘Further Information’.
Central Authority
- The service request is transmitted via designated Central Authorities under a bilateral treaty or convention and served by a judicial authority in the foreign country.
The designated Central Authority procedure involves the Australian Government Attorney-General's Department transmitting the request for service to their counterpart in the foreign country. The foreign country’s equivalent of the Australian Government Attorney-General's Department then transmits the request to the relevant court for execution.
Dual options
In many instances both service through the diplomatic channel and service by private agent will be available.
This Department recommends the use of a private agent where possible as it is the most efficient method of service. However, a party may prefer to use the diplomatic channel as it provides recognised formal channels to prove service.
Fact Sheet Format
Where a treaty or agreement is in place between Australia and the foreign country it is generally considered exclusive. This means that the procedure available under the treaty must be followed for service of documents. Where a particular procedure is not mentioned in a treaty it generally means that procedure is not available. Accordingly, when seeking to serve documents in a foreign country the first question to ask is Does a treaty apply.
The fact sheets are set out as follows:
1. The first section on each of the country fact sheets states whether there is a convention, treaty or other agreement in place.
2. The second section on each of the country fact sheets sets out the procedure which the relevant convention or agreement provides for, or if there is no convention or agreement, the procedure allowed by the relevant foreign country.
3. This is followed by information about how a letter of request should be written if service will be under a treaty, through the diplomatic channel or Central Authority, addresses to which letters of request should be sent and information related to fees and charges which may apply.
Further Information
If the country you need information about does not appear in the country list please contact this Department and we will endeavour to provide the information that you require.
Contact details
Any further queries relating to this information, or correspondence relating to private international law matters, required under rules of court or a convention 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
Australia
telephone 61 (0)2 6250 6255
facsimile 61 (0)2 6250 5902