Untitled document
Supreme Court (Chapter I Amendment No. 14) Rules 2009
S.R. No. 60/2009
TABLE OF PROVISIONS
Rule Page
1Object
2Authorising provision
3Commencement
4Principal Rules
5Definitions
6Service in foreign country
7Order 80 substituted
ORDER 80—SERVICE UNDER THE HAGUE CONVENTION
PART 1—PRELIMINARY
80.01Definitions
80.02Provisions of this Order to prevail
PART 2—SERVICE ABROAD OF LOCAL JUDICIAL DOCUMENTS
80.03Application of Part
80.04Application for request for service abroad
80.05How application to be dealt with
80.06Procedure on receipt of certificate of service
80.07Payment of costs
80.08Evidence of service
PART 3—DEFAULT JUDGMENT FOLLOWING SERVICE ABROAD OF INITIATING PROCESS
80.09Application of Part
80.10Restriction on power to enter default judgment if certificate of service filed
80.11Restriction on power to enter default judgment if certificate of service not filed
80.12Setting aside judgment in default of appearance
PART 4—LOCAL SERVICE OF FOREIGN JUDICIAL DOCUMENTS
80.13Application of Part
80.14Certain documents to be referred back to the Attorney-General's Department of the Commonwealth
80.15Service
80.16Affidavit as to service
8Form 7A revoked
9New Forms
Form 80A—Request for Service Abroad of Judicial Documents and Certificate
Form 80B—Summary of the Document to be Served
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ENDNOTES
STATUTORY RULES 2009
S.R. No. 60/2009
Supreme Court Act 1986
Supreme Court (Chapter I Amendment No. 14) Rules 2009
The Judges of the Supreme Court make the following Rules:
1Object
The object of these Rules is to amend Chapter I of the Rules of the Supreme Court to provide for service of documents in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
2Authorising provision
These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.
3Commencement
These Rules come into operation on the day that the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965 enters into force for Australia.
4Principal Rules
In these Rules, the Supreme Court (General Civil Procedure) Rules 2005[1] are called the Principal Rules.
5Definitions
In Rule 1.13(1) of the Principal Rules—
(a)in the definition of Convention for "means" substitute ", other than in Order 80, means";
(b)the definition of Convention country for "means" substitute ", other than in Order 80, means".
6Service in foreign country
(1)The heading to Part 1 of Order 7 of the Principal Rules is revoked.
(2)Part 2 of Order 7 of the Principal Rules is revoked.
7Order 80 substituted
For Order 80 of the Principal Rules substitute—
"ORDER 80
SERVICE UNDER THE HAGUE CONVENTION
PART 1—PRELIMINARY
Note 1
This Order forms part of a scheme to implement Australia's obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney-General's Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as "other" or "additional" authorities (under Article 18 of the Convention).
Note 2
This Order provides (in Part 2) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in Part 3) for default judgment in proceedings in the Court after service overseas of such a document. Part 4, on the other hand, deals with service by the Court or arranged by the Court, in its role as an other or additional authority, of judicial documents emanating from overseas Convention countries.
Note 3
The Attorney-General's Department of the Commonwealth maintains a copy of the Convention, a list of all Convention countries, details of declarations and objections made under the Convention by each of those countries and the names and addresses of the Central and other authorities of each of those countries. A copy of the Convention can be found at this Order—
additional authority, for a Convention country, means an authority that is—
(a)for the time being designated by that country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for that country; and
(b)competent to receive requests for service abroad emanating from Australia;
applicant, for a request for service abroad or a request for service in this jurisdiction, means the person on whose behalf service is requested;
Note
The term applicant may have a different meaning in other provisions of these Rules.
Central Authority, for a Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Convention, to be the Central Authority for that country;
certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Convention;
certifying authority, for a Convention country, means the Central Authority for that country or some other authority that is for the time being designated by that country, under Article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention;
civil proceedings means any judicial proceedings in relation to civil or commercial matters;
Convention country means a country, other than Australia, that is a party to the Hague Convention;
defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served;
foreign judicial document means a judicial document that originates in a Convention country and relates to civil proceedings in a court of that country;
forwarding authority means—
(a)for a request for service of a foreign judicial document in this jurisdiction, the authority or judicial officer of the Convention country in which the document originates that forwards the request (being an authority or judicial officer that is competent under the law of that country to forward a request for service under Article 3 of the Hague Convention); or
(b)for a request for service of a local judicial document in a Convention country, the Prothonotary;
Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965;
initiating process means any document by which proceedings (including proceedings on any cross-claim or third party notice) are commenced;
local judicial document means a judicial document that relates to civil proceedings in the Court;
request for service abroad means a request for service in a Convention country of a local judicial document mentioned in Rule 80.04(1);
request for service in this jurisdiction means a request for service in this jurisdiction of a foreign judicial document mentioned in Rule 80.13(1);
this jurisdiction means Victoria.
80.02Provisions of this Order to prevail
The provisions of this Order prevail to the extent of any inconsistency between those provisions and any other provisions of these Rules.
PART 2—SERVICE ABROAD OF LOCAL JUDICIAL DOCUMENTS
80.03Application of Part
(1)Subject to paragraph (2), this Part applies to service in a Convention country of a local judicial document.
(2)This Part does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention.
80.04Application for request for service abroad
(1)A person may apply to the Prothonotary, in the Prothonotary's capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.
(2)The application must be accompanied by 3 copies of each of the following documents—
(a)a draft request for service abroad, which must be in accordance with Part 1 of Form 80A;
(b)the document to be served;
(c)a summary of the document to be served, which must be in accordance with Form 80B;
(d)if, under Article 5 of the Hague Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, the official language or one of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served.
(3)The application must contain a written undertaking to the Court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no legal practitioner on the record for the applicant in those proceedings, by the applicant—
(a)to be personally liable for all costs that are incurred—
(i)by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served; or
(ii)by the use of any particular method of service that has been requested by the applicant for service of the documents to be served; and
(b)to pay the amount of those costs to the Prothonotary within 28 days after receipt from the Prothonotary of a notice specifying the amount of those costs under Rule 80.06(3); and
(c)to give such security for those costs as the Prothonotary may require.
(4)The draft request for service abroad—
(a)must be completed (except for signature) by the applicant; and
(b)must state whether (if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected) the applicant wants service to be attempted after the expiry of that time; and
(c)must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served; and
(d)may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.
(5)Any translation required under paragraph (2)(d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating—
(a)that the translation is an accurate translation of the documents to be served; and
(b)the translator's full name and address and his or her qualifications for making the translation.
80.05How application to be dealt with
(1)If satisfied that the application and its accompanying documents comply with Rule 80.04, the Prothonotary—
(a)must sign the request for service abroad; and
(b)must forward 2 copies of the relevant documents—
(i)if the applicant has asked for the request to be forwarded to a nominated additional authority for the Convention country in which service of the document is to be effected, to the nominated additional authority; or
(ii)in any other case, to the Central Authority for the Convention country in which service of the document is to be effected.
(2)The relevant documents mentioned in paragraph (1)(b) are the following—
(a)the request for service abroad (duly signed);
(b)the document to be served;
(c)the summary of the document to be served;
(d)if required under Rule 80.04(2)(d), a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c).
(3)If not satisfied that the application or any of its accompanying documents complies with Rule 80.04, the Prothonotary must inform the applicant of the respects in which the application or document fails to comply.
80.06Procedure on receipt of certificate of service
(1)Subject to paragraph (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the Prothonotary—
(a)must arrange for the original certificate to be filed in the proceedings to which the document relates; and
(b)must send a copy of the certificate to—
(i)the legal practitioner on the record for the applicant in those proceedings; or
(ii)if there is no legal practitioner on the record for the applicant in those proceedings, the applicant.
(2)For the purposes of paragraph (1), a certificate of service is in due form if—
(a)it is in accordance with Part 2 of Form 80A; and
(b)it has been completed by a certifying authority for the Convention country in which service was requested; and
(c)if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority, it has been so countersigned.
(3)On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in paragraph (1), the Prothonotary must send to the legal practitioner or applicant who gave the undertaking mentioned in Rule 80.04(3) a notice specifying the amount of those costs.
(4)For the purposes of paragraph (3), a statement of costs is in due form if—
(a)it relates only to costs of a kind mentioned in Rule 80.04(3)(a); and
(b)it has been completed by a certifying authority for the Convention country in which service was requested.
(5)Paragraph (1) does not apply unless—
(a)adequate security to cover the costs mentioned in paragraph (3) has been given under Rule 80.04(3)(c); or
(b)to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the Prothonotary.
80.07Payment of costs
(1)On receipt of a notice under Rule 80.06(3) in relation to the costs of service, the legal practitioner or applicant, as the case may be, must pay to the Prothonotary the amount specified in the notice as the amount of those costs.
(2)If the legal practitioner or applicant fails to pay that amount within 28 days after receiving the notice—
(a)except by leave of the Court, the applicant may not take any further step in the proceedings to which the local judicial document relates until those costs are paid to the Prothonotary; and
(b)the Prothonotary may take such steps as are appropriate to enforce the undertaking for payment of those costs.
80.08Evidence of service
A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of Rule 80.06(2)) that certifies that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that—
(a)service of the document was effected by the method specified in the certificate on that date; and
(b)if that method of service was requested by the applicant, that method is compatible with the law in force in the Convention country in which service was effected.
PART 3—DEFAULT JUDGMENT FOLLOWING SERVICE ABROAD OF INITIATING PROCESS
80.09Application of Part
This Part applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country.
80.10Restriction on power to enter default judgment if certificate of service filed
(1)This Rule applies if—
(a)a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of Rule 80.06(2)) that states that service has been duly effected; and
(b)the defendant has not appeared or filed a notice of address for service.
(2)In circumstances to which this Rule applies, default judgment may not be given against the defendant unless the Court is satisfied that—
(a)the initiating process was served on the defendant—
(i)by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory; or
(ii)if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in that country, by that method; or
(iii)if the applicant did not request a particular method of service , in circumstances where the defendant accepted the document voluntarily; and
(b)the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.
(3)In paragraph (2)(b), sufficient time means—
(a)42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or
(b)such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.
80.11Restriction on power to enter default judgment if certificate of service not filed
(1)This Rule applies if—
(a)a certificate of service of initiating process has not been filed in the proceedings; or
(b)a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of Rule 80.06(2)) that states that service has not been effected—
and the defendant has not appeared or filed a notice of address for service.
(2)If this Rule applies, default judgment may not be given against the defendant unless the Court is satisfied that—
(a)the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested; and
(b)a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which initiating process was so forwarded; and
(c)every reasonable effort has been made—
(i)to obtain a certificate of service from the relevant certifying authority; or
(ii)to effect service of the initiating process—
as the case requires.
80.12Setting aside judgment in default of appearance
(1)This Rule applies if default judgment has been entered against the defendant in proceedings to which this Part applies.
(2)If this Rule applies, the Court may set aside the judgment on the application of the defendant if it is satisfied that the defendant—
(a)without any fault on the defendant's part, did not have knowledge of the initiating process in sufficient time to defend the proceedings; and
(b)has a prima facie defence to the proceedings on the merits.
(3)An application to have a judgment set aside under this Rule may be filed—
(a)at any time within 12 months after the date on which the judgment was given; or
(b)after the expiry of that 12 month period, within such time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances.
(4)Nothing in this Rule affects any other power of the Court to set aside or vary a judgment.
PART 4—LOCAL SERVICE OF FOREIGN JUDICIAL DOCUMENTS
80.13Application of Part
(1)This Part applies to service in this jurisdiction of a foreign judicial document in relation to which a due form of request for service has been forwarded to the Court—
(a)by the Attorney-General's Department of the Commonwealth, whether in the first instance or following a referral under Rule 80.14; or
(b)by a forwarding authority.
(2)Subject to paragraph (3), a request for service in this jurisdiction is in due form if it is in accordance with Part 1 of Form 80A and is accompanied by the following documents—
(a)the document to be served;
(b)a summary of the document to be served, which must be in accordance with Form 80B;
(c)a copy of the request and of each of the documents mentioned in paragraphs (a) and (b);
(d)if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.
(3)Any translation required under paragraph (2)(d) must bear a certificate (in English) signed by the translator stating—
(a)that the translation is an accurate translation of the document; and
(b)the translator's full name and address and his or her qualifications for making the translation.
80.14Certain documents to be referred back to the Attorney-General's Department of the Commonwealth
If, after receiving a request for service in this jurisdiction, the Prothonotary is of the opinion—
(a)that the request does not comply with Rule 80.13; or
(b)that the document to which the request relates is not a foreign judicial document; or
(c)that compliance with the request may infringe Australia's sovereignty or security; or
(d)that the request seeks service of a document in some other State or Territory—
the Prothonotary must refer the request to the Attorney-General's Department of the Commonwealth together with a statement of his or her opinion.
Note
The Attorney-General's Department of the Commonwealth will deal with misdirected and non-compliant requests, make arrangements for the service of extrajudicial documents and assess and decide questions concerning Australia's sovereignty and security.
80.15Service
(1)Subject to Rule 80.14, on receipt of a request for service in this jurisdiction, the Court must arrange for the service of the relevant documents in accordance with the request.
(2)The relevant documents mentioned in paragraph (1) are the following—
(a)the document to be served;
(b)a summary of the document to be served;
(c)a copy of the request for service in this jurisdiction;
(d)if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.
(3)Service of the relevant documents may be effected by any of the following methods of service—
(a)by a method of service prescribed by the law in force in this jurisdiction—
(i)for the service of a document of a kind corresponding to the document to be served; or
(ii)if there is no such corresponding kind of document, for the service of initiating process in proceedings in the Court;
(b)if the applicant has requested a particular method of service and that method is compatible with the law in force in this jurisdiction, by that method;
(c)if the applicant has not requested a particular method of service and the person requested to be served accepts the document voluntarily, by delivery of the document to the person requested to be served.
80.16Affidavit as to service
(1)If service of a document has been effected pursuant to a request for service in this jurisdiction, the person by whom service has been effected must lodge with the Court an affidavit specifying—
(a)the time, day of the week and date on which the document was served; and
(b)the place where the document was served; and
(c)the method of service; and
(d)the person on whom the document was served; and
(e)the way in which that person was identified.
(2)If attempts to serve a document pursuant to a request for service in this jurisdiction have failed, the person by whom service has been attempted must lodge with the Court an affidavit specifying—
(a)details of the attempts made to serve the document; and
(b)the reasons that have prevented service.
(3)When an affidavit as to service of a document has been lodged in accordance with this Rule, the Prothonotary—
(a)must complete a certificate of service, sealed with the seal of the Court, on the reverse side of, or attached to, the request for service in this jurisdiction; and
(b)must forward the certificate of service, together with a statement as to the costs incurred in relation to the service or attempted service of the document, directly to the forwarding authority from which the request was received.
(4)A certificate of service must be—
(a)in accordance with Part 2 of Form 80A; or
(b)if a form of certificate of service that substantially corresponds to Part 2 of Form 80A accompanies the request for service, in that accompanying form.".
8Form 7A revoked
Form 7A of the Principal Rules is revoked.
9New Forms
After Form 75C of the Principal Rules insert—
"FORM 80A
Rules 80.04, 80.06 and 80.16
REQUEST FOR SERVICE ABROAD OF JUDICIAL DOCUMENTS AND CERTIFICATE
PART 1—REQUEST FOR SERVICE ABROAD OF JUDICIAL DOCUMENTS
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965
| Identity and address of the forwarding authority requesting service | Identity and address of receiving authority [Central Authority/additional authority] |
The undersigned forwarding authority (on the application of [name and address of applicant on whose behalf forwarding authority requests service]) has the honour to transmit—in duplicate—the documents listed below and, in conformity with Article 5 of the above-mentioned Convention, requests prompt service of one copy thereof on the addressee, ie:
(identity and address)
(a)in accordance with the provisions of subparagraph (a) of the first paragraph of Article 5 of the Convention*:
(b)in accordance with the following particular method (subparagraph (b) of the first paragraph of Article 5*):
(c)by delivery to the addressee, if the addressee accepts it voluntarily (second paragraph of Article 5).*
The receiving authority [Central Authority/additional authority] is requested to return or to have returned to the forwarding authority a copy of the documents—and of the annexes*—with a certificate as provided in Part 2 of this Form on the reverse side.
List of documents
Done at , the
Signature or stamp (or both) of forwarding authority.
*Delete if inappropriate.
PART 2—CERTIFICATE
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965
The undersigned authority has the honour to certify, in conformity with Article 6 of the Convention:
1. that the documents listed in Part 1 have been served*
the (date)
at (place, street, number)
in one of the following methods authorised by Article 5:
(a)in accordance with the provisions of subparagraph (a) of the first paragraph of the Article 5 of the Convention*:
(b)in accordance with the following particular method*:
(c)by delivery to the addressee, who accepted it voluntarily*.
The document referred to in the request, has been delivered to:
(identity and description of person)
relationship to the addressee (family, business or other)
2. that the document has not been served, by reason of the following facts*:
In conformity with the second paragraph of Article 12 of the Convention, the forwarding authority is requested to pay or reimburse the expenses detailed in the attached statement*.
Annexes
Documents returned:
In appropriate cases, documents, establishing the service:
Done at , the
Signature or stamp (or both).
*Delete if inappropriate.
__________________
FORM 80B
Rule 80.04
SUMMARY OF THE DOCUMENT TO BE SERVED
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, done at The Hague on 15 November 1965
(Article 5, fourth paragraph)
Identity and address of the addressee [Central Authority/additional authority]:
IMPORTANT
THE ENCLOSED DOCUMENT IS OF A LEGAL NATURE AND MAY AFFECT YOUR RIGHTS AND OBLIGATIONS. THE SUMMARY OF THE DOCUMENT TO BE SERVED WILL GIVE YOU SOME INFORMATION ABOUT ITS NATURE AND PURPOSE. YOU SHOULD HOWEVER READ THE DOCUMENT ITSELF CAREFULLY. IT MAY BE NECESSARY TO SEEK LEGAL ADVICE.
IF YOUR FINANCIAL RESOURCES ARE INSUFFICIENT YOU SHOULD SEEK INFORMATION ON THE POSSIBILITY OF OBTAINING LEGAL AID OR ADVICE EITHER IN THE COUNTRY WHERE YOU LIVE OR IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED.
ENQUIRIES ABOUT THE AVAILABILITY OF LEGAL AID OR ADVICE IN THE COUNTRY WHERE THE DOCUMENT WAS ISSUED MAY BE DIRECTED TO:
SUMMARY OF THE DOCUMENT TO BE SERVED
Name and address of the forwarding authority:
Particulars of the parties:
**JUDICIAL DOCUMENT
Nature and purpose of the document:
Nature and purpose of the proceedings and, when appropriate, the amount in dispute:
Date and place for entering appearance:
Court in which proceedings pending/judgment given:
**Date of judgment (if applicable):
Time limits stated in the document:
__________________".
Dated: 28 May 2009
M. L. WARREN, C.J.
CHRISTOPHER MAXWELL, P.
F. H. R. VINCENT, J.A.
GEOFFREY NETTLE, J.A.
DAVID ASHLEY, J.A.
MARCIA NEAVE, J.A.
MURRAY B. KELLAM, J.A.
MARK WEINBERG, J.A.
P. D. CUMMINS, J.
T. H. SMITH, J.
DAVID BYRNE, J.
H. R. HANSEN, J.
PHILIP MANDIE, J.
D. J. HABERSBERGER, J.
R. S. OSBORN, J.
K. WILLIAMS, J.
ANTHONY CAVANOUGH, J.
ELIZABETH CURTAIN, J.
TONY PAGONE, J.
PAUL COGHLAN, J.
ROSS ROBSON, J.
JACK FORREST, J.
LEX LASRY, J.
JAMES JUDD, J.
PETER VICKERY, J.
EMILIOS KYROU, J.
DAVID F. R. BEACH, J.
JENNIFER DAVIES, J.
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ENDNOTES
[1] Rule 4: S.R. No. 148/2005. Reprint No. 1 as at 3 September 2007. Reprinted to S.R. No. 91/2007 and subsequently amended by S.R. Nos 128/2007, 32/2008, 100/2008, 149/2008, 151/2008 and 44/2009.
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