Service of foreign court process in Australia
Relevant conventions / treaties / agreements
Australia is a party to bilateral treaties with Korea and Thailand that are relevant to service of process issues.
Australia is also party to bilateral service conventions with the following countries - this is the result of extension of a convention made between the United Kingdom and each of these countries (as they then were): Austria, Belgium, Denmark, Czechoslovak Republic, Estonia, Finland, France, Germany, Greece, Hungary, Iraq, Italy, Lithuania, Netherlands, Norway, Poland, Portugese Republic, Spain, Sweden, Turkey.
A bilateral service convention between Australia and Belgium applies to the following countries by succession from Belgium: Burundi, Democratic Republic of the Congo, Rwanda.
A bilateral service convention between Australia and Portugal applies to the following countries by succession from Portugal: Angola, Cape Verde, Mozambique.
A bilateral service convention between Australia and Czechoslovakia applies to the following countries by succession from Czechoslovakia: Czech Republic, Slovakia.
A bilateral service convention between Australia and Turkey applies to the following countries by succession from Turkey: Botswana, Cyprus.
A bilateral service convention between Australia and Yugoslavia applies to the following countries by succession from Yugoslavia: Bosnia Herzegovina, Croatia, Macedonia (FYR), Serbia and Montenegro (FRY), Slovenia.
A bilateral service convention between Australia and France applies to the following countries by succession from France: Algeria, Benin, Burkina Faso, Cambodia, Cameroon, Central African Republic, Laos, Lebanon, Morocco, Syria, Vietnam.
A bilateral service convention between Australia and the Netherlands applies to the following countries by succession from the Netherlands: Antilles and Aruba, Indonesia, Suriname.
Please note that these bilateral treaties were concluded during the 1920s and 1930s. Many of the countries extended the treaty to their external territories at the time. Even though those territories are now independent states in many instances the treaty continues in force. For more information please refer to the information available on the Austlii website.
Copies of the relevant treaties are available on the Austlii ‘treaties library’ website (http://www.austlii.edu.au/au/other/dfat/treaties) and specifically from this link http://www.austlii.edu.au/au/other/dfat/treaty_list/bilist/
Australia has not acceded to the Hague Convention on the Service Abroad of Judicial Extrajudicial Documents in Civil or Commercial Proceedings 1965.
Process to follow
Service by Private Agent
A party in another country who wishes to serve a party in Australia with documents issued by a foreign court should employ a private agent in Australia to serve the documents. Service through an agent does not breach Australian law, and is not considered by the Australian Government to be a breach of its sovereignty.
Private agents may be located by searching for ‘process server’ in the relevant State or Territory regional listing online at http://www.yellowpages.com.au. Costs vary between private agents and may be subject to an additional per kilometre charge.
Although Australia does not object to service by a private agent the foreign court that issued the process may not accept service by a private agent. This should be determined prior to engaging a private agent in Australia. If judicial authority is required to prove service then the diplomatic channel should be used.
A foreign court may send a letter to Australia requesting the service of documents notifying the person of civil or commercial proceedings in a foreign court. Letters of request are usually sent under a bilateral treaty or as a matter of international or judicial comity.
Diplomatic Channel
A party in another country who wishes to serve a party in Australia with documents issued by a foreign court may send a request through the diplomatic channel. The diplomatic channel is always used when there is no treaty or agreement in place between Australia and the foreign country. Where there is no agreement in place requests for assistance will normally be executed on the basis of reciprocity. The diplomatic channel is also used under the bilateral treaties between the UK and numerous European countries and their former territories.
A request for service through the diplomatic channel should be sent from the foreign affairs ministry of the requesting country to the Australian Department of Foreign Affairs and Trade (DFAT). DFAT will refer the request to the relevant State or Territory authority for action. Delays of three to six months can be experienced when using the diplomatic channel.
The contact details for DFAT are:
Administrative and Domestic Law Group
Legal Branch
Department of Foreign Affairs and Trade
R G Casey Building
John McEwen Crescent
BARTON ACT 0221
Australia
Korean and Thai bilateral treaties (Central Authorities)
Requests for assistance in the service of documents made under the Korean or Thai treaties use Central Authorities designated under the treaties for transmittal of requests. The Australian Attorney-General's Department is the designated Central Authority under both treaties. Letters of request under the bilateral treaties with Korea and Thailand should be sent to:
Administrative Law and Civil Procedure Branch
Civil Justice Division
Australian Attorney-General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600
Australia
The Attorney-General's Department will refer the request to the relevant State or Territory authority for action.
Matters to be set out in all letters of request for assistance
All letters of request to Australia, whether made under a bilateral treaty or as a matter of comity should:
- set out the relevant treaty, if any, under which the request is made.
- set out the name of the requesting court.
- state the nature of the proceedings for which the service of court process is required.
- set out the names and descriptions of the parties.
- set out the name, description and addresses of the person to be served.
- set out any special procedure which the party wishes the Australian authorities to follow.
The letter of request must be certified by a court or judicial authority (carry the court seal or stamp) and be accompanied by two certified copies. If the request comes from a non English speaking country the request must also be accompanied by translations in English of the letter of request and any accompanying documents. The translations must include certification by the translator attesting to the authenticity of the translation.
Pursuant to State and Territory legislation and applicable Court Rules relating to service of foreign court process, requests will not be executed that do not comply with these procedural requirements.
Delays
Making a request for assistance using formal channels can result in some delay. The time taken to process a request for service will vary in each case and it is difficult to estimate the time a request may take. As delays can be expected in using formal channels a private agent should be used whenever possible.
Fees and Charges
Whether any fees will be charged depends upon the provisions of the relevant treaty or convention and which State or Territory effects service.
Some treaties allow for fees to be charged. Some State or Territory authorities charge for their services. Fees that have been charged previously range from $50AUD to $100 AUD. Please note that is figure is an estimate only and if you wish to know the exact amount the relevant State or Territory authority should be contacted.
Commonwealth countries
The diplomatic channel is not generally used between Commonwealth countries because the foreign ministries of some of those countries (for example New Zealand and the United Kingdom) will not assist with such requests.
Contact details
Any further queries relating to this information, or correspondence relating to private international law matters should be directed to:
Administrative Law and Civil Procedure Branch
Civil Justice Division
Australian 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