Commissioner of the Australian Federal Police v Xin (No 2)

The matter before the court involved the Commissioner of the Australian Federal Police and an individual named Xin. The dispute centred on the service of originating process in civil proceedings, specifically under the Uniform Civil Procedure Rules 2005 (NSW) in relation to substituted and informal service. Xin, located in a Hague Convention country, had not been personally served, and the Commissioner sought an order under UCPR 10.14(3) that the originating process be deemed served. The court was required to determine the legal issues surrounding the practicability of personal service and whether the application complied with the rules.

The primary legal issue before the court was whether the application for deemed service under UCPR 10.14(3) was appropriate given that Xin resided in a Hague Convention country, and whether such an application was consistent with UCPR 11A. The court considered the principles of international comity and the need to balance the convenience and fairness of the proceedings with the necessity of ensuring that the defendant is properly served. The Commissioner argued that personal service was not practicable due to logistical and security reasons, while Xin's representatives contended that the application was an improper circumvention of the Hague Service Convention.

The court found that the application for deemed service was appropriate under UCPR 10.14(3) as the circumstances justified such a course of action. The court held that there was no inconsistency with UCPR 11A, which concerns the service of process in proceedings involving Hague Convention countries. The court acknowledged the difficulties in serving process personally on Xin, given his location and the potential security risks. Consequently, the court granted the application, deeming the originating process to have been served upon Xin.

The final orders of the court included an order under UCPR 10.14(3) that the originating process be taken to have been served on Xin, effective as of a specified date. The court also directed that the proceedings continue with the deemed service noted in the records. This decision ensures that the proceedings can proceed without undue delay, while also respecting the procedural rights of the defendant.