University of New England v Boerner

The University of New England, an Australian institution, was involved in a legal dispute with Dr Vinzent Boerner, a German national. The case was heard in the Federal Court of Australia, where the university sought preliminary discovery and aimed to join a second prospective respondent who resided in Denmark. The university intended to serve these documents in Denmark through substituted service. The court needed to decide whether it was practicable to serve the documents in Denmark in accordance with the Federal Court Rules 2011 (Cth) and the Hague Convention. The university argued that serving the documents through the Hague Convention would take three to six months, which was not feasible.

The court considered section 37M of the Federal Court of Australia Act 1976 (Cth) and determined that it was not practicable to serve the documents in Denmark in the manner required by the Rules. As a result, the court granted the university leave to amend its originating application and serve the documents outside Australia. The court allowed the university to serve the documents via email to the second prospective respondent, who was already aware of the proceedings. The university was also permitted to send the documents to the second prospective respondent's legal representative, K&L Gates, with a request to forward the documents to the second prospective respondent. The court directed that these documents be deemed personally served upon the second prospective respondent once the university complied with the specified service terms.

The court further ordered that the university serve the amended originating application and the ancillary documents on the second prospective respondent by a specified deadline. The second prospective respondent was required to file a notice of address for service within 14 days after the service was completed. The case management hearing for the originating application for preliminary discovery was scheduled for a date in the week commencing 25 March 2024. The costs of the interlocutory application were reserved.