Serving Australian legal documents overseas

Serving documents overseas under the Hague Service Convention 

The Hague Service Convention is an international agreement that makes it easier to serve a legal document from one country in another in civil or commercial cases.

Civil or commercial cases are generally considered to include legal disputes involving individuals, families and companies. In Australia, civil proceedings are often any cases that are not criminal. In some types of cases where the distinction is less clear, consider seeking legal advice.

If you want to send documents from Australia to another country for service under the Convention, first check that the other country is a party to the Hague Service Convention. A list of participating countries is available on the Service Section of the Hague Conference on Private International Law website.

The Convention allows several different ways to send or serve documents in other countries. However, each country chooses which of these methods it will accept as well as any requirements attached to that method of service. Before you proceed, you should check to see which methods are allowed in the country where your documents will be served, and whether there are any requirements or rules which apply to those methods. This information is available on the Service Section of the Hague Conference on Private International Law website.

Australian courts also have their own rules about how documents can be served, and when those methods can be used. In some cases, you may need the court’s permission before serving documents outside Australia. You should check the rules of the Australian court handling your matter to make sure you meet all requirements for service outside Australia, and for the specific method you want to use.

Service of legal documents outside of Australia must comply with both the rules of the Australian court and the rules of the foreign country. As serving a legal document outside of Australia can be complicated, consider seeking the assistance of a legal practitioner.

Main channel

One option for sending documents under the Convention is the main channel. This allows an authorised person in one country to send documents to the official authority in another country. That authority then arranges for the documents to be served.

In Australia, only certain people are allowed to send a request for service of legal documents through this main channel. This usually includes court registrars or other people who are specifically authorised under the court’s rules. We do not send documents overseas for members of the public.

If you want to use the main channel to serve documents in another country, check the rules of the Australian court where your case is being handled. Those rules will explain how to make a request to the right person, which is usually done by applying to the court registrar. Generally, this application will need to include:

• a completed Model Form (attached to the Hague Service Convention)
• a copy of the documents to be served
• if English is not an official language of the foreign country – a translation of those documents into an official language of that country, as well as a translation certificate confirming the translator’s qualifications and the accuracy of the translation
• duplicates of the documents to be served
• an undertaking to pay fees associated with the service of the documents (if required by the court rules).

Before applying, make sure you check the specific requirements in the relevant court rules.

Postal channels

In some situations under the Convention, Australian legal documents can be served by post in another country. However, not all countries allow this. Those that do may only allow it in limited circumstances.

Check the requirements of the foreign country to see if that country allows service by post under the Hague Service Convention, and in what situations. Find information for specific countries on the Service Section of the Hague Conference on Private International Law website.

You should also check the rules of the Australian court handling your case. Australian courts usually only allow service by post in very specific situations.

Private process servers

In some situations under the Convention, Australian legal documents can be served in another country by using a local private process server. However, not all countries allow this. Those that do might have requirements under their local law.

You should check the requirements of the foreign country to see if that country allows service by private process server under the Hague Service Convention, and in what situations. Find information for specific countries on the Service Section of the Hague Conference on Private International Law website.

You should also check the rules of the Australian court handling your case.

Serving Australian documents in Thailand or Korea

Australia has specific treaties in place with the Kingdom of Thailand and the Republic of Korea that deal with the service of legal documents.

If you need to serve Australian court documents in Thailand or Korea, consult the court in which your matter is being heard for details on how to apply for your documents to be sent for service overseas. Typically, the court will require:

• the documents to be served
• a translation of the documents into Thai or Korean, as well as a translation certificate confirming the translator’s qualifications and the accuracy of the translation
• duplicates of the documents to be served
• an undertaking to pay fees associated with the service of the documents (if required by the court rules).

Before applying, make sure you consult the court for information. If needed, the court will coordinate with us to transmit the request for service to the Thai or Korean authorities.

Serving Australian documents in New Zealand

Australia and New Zealand have an international agreement to streamline the process for managing and resolving civil and criminal cases, where elements of the legal proceedings span both countries. This is sometimes called the ‘Trans-Tasman Proceedings Regime’ and is implemented in Australian under the Trans-Tasman Proceedings Act 2010 (Cth). New Zealand has many almost identical provisions included in its equivalent piece of legislation and in related laws.

Under the Trans-Tasman Proceedings Regime, legal documents that originate in an Australian or New Zealand court can be served in the other country in the same manner as a local document. If you are based in Australia or New Zealand and need to serve a legal document in the other country, consult the court in which your matter is being heard for further instructions.

Serving Australian documents overseas other than by international agreement

If you need to serve Australian documents in a country that is not a party to a treaty with Australia, you may still be able to have your documents transmitted for service through diplomatic or official channels.

Diplomatic or official channels are usually used where a treaty does not exist between Australia and the foreign country. Service through diplomatic or official channels can be time-consuming. Some countries may object to service through diplomatic or official channels or only allow service on Australian citizens. Every country will be different.

We do not assist with the service of Australian documents overseas via diplomatic or official channels. You should consult the court in which your matter is being heard for details on how to request service by diplomatic or official channels. Generally, you will need to make a request to the court. Depending on the court rules, this request will usually require:

• a letter of request; if the court rules do not prescribe a form for making the request, you may wish to model the request on the form available on the Service Section of the Hague Conference on Private International Law website, noting that you made need to specify that service is not being requested under the Hague Service Convention.
• the documents to be served
• duplicates of the documents to be served
• a translation of the documents into an official language of the foreign country, as well as a translation certificate confirming the translator’s qualifications and the accuracy of the translation
• an undertaking to pay fees associated with the service of the documents (if required by the relevant court rules).

If satisfied that the requirements are met in these cases, the court will then forward the request to the Department of Foreign Affairs and Trade to transmit the request through diplomatic or official channels.

Authorised court officers may forward requests to:

Litigation Support Unit
Department of Foreign Affairs and Trade
RG Casey Building
John McEwen Crescent
BARTON ACT 2600
AUSTRALIA
litigationsupportunit@dfat.gov.au

The law of the foreign country might also permit documents to be sent for service or served directly in its territory by another method allowed under its domestic law. As this will depend on the law of the foreign country, as well as Australian law, you should consult both the Australian court as well as the law of the foreign country to determine if this is an option in your case.

Serving Australian documents on a foreign State

If you need to serve legal documents on a foreign state or state organ, particular rules apply.

You should never attempt to serve documents yourself on a foreign embassy or consulate located in Australia. Attempting to serve legal documents on an embassy or consulate may infringe diplomatic or consular inviolability.

In some situations, you might be able to transmit a request for service through a treaty such as the Hague Service Convention. In other situations, you may need to request service through diplomatic channels. Find out more on our Foreign State immunity page.

Costs and timeframes

There may be costs associated with serving an Australian legal document overseas. The cost will be different depending on the country in which the documents are being served. Usually, the Australian court which has sent the request will receive an invoice, for the litigant in Australia to pay.

Timeframes to serve documents overseas can vary depending on the country in which documents are to be served.

For more on costs and timeframes, if the country is a party to the Hague Service Convention, refer to the relevant country page on the Service Section of the Hague Conference on Private International Law website.