EXPLANATORY STATEMENT

Select Legislative Instrument 2009 No. 72

Issued by the authority of the

Judges of the Federal Court of Australia

Federal Court Amendment Rules 2009 (No. 1)

Section 59 of the Federal Court of Australia Act 1976 permits the Judges of the Court or a majority of them, to make rules of Court not inconsistent with the Act. These rules may provide for the practice and procedure to be followed in the Court and in Registries of the Court. They may extend to all matters incidental to any such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.

Under subsection 59 (4) of the Federal Court of Australia Act 1976, the Legislative Instruments Act 2003 (other than sections 5, 6, 7, 10, 11 and 16 of that Act) applies in relation to rules of court made by the Court under the Federal Court of Australia Act 1976 or another Act:

(a)          as if a reference to a legislative instrument were a reference to a rule of court; and

(b)          as if a reference to a rule-maker were a reference to the Chief Justice acting on behalf of the Judges of the Court; and

(c)          subject to such further modifications or adaptations as are provided for in regulations made under section 59A of the Federal Court of Australia Act 1976.

The present Federal Court Rules came into operation on 1 August 1979. They are reviewed regularly.

The Judges have agreed to amend the Federal Court Rules by:

• inserting after Order 8 a new Order 8A setting out the harmonised rules for Service under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965;
• making consequential amendments to Order 8;
• inserting in Schedule 1 new forms 14D and 14E.

The Amendment Rules give effect to the harmonised rules in relation to the Hague Convention that have been developed by the Council of Chief Justices’ Harmonised Rules on Service Outside the Jurisdiction Committee.  The Amendment Rules have been the subject of consultation with legal practitioners and the Attorney-General’s Department.

Details of the Rules are in Attachment 1.

The Rules commences on the day 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.

ATTACHMENT 1

Federal Court Amendment Rules 2009 (No. 1)

RULE 1 Name of rules

This rule provides that the Rules are to be cited as the Federal Court Amendment Rules 2009 (No. 1).

RULE 2 Commencement

This rule provides that these Rules commence on the day the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (‘the Hague Convention’), done at the Hague on 15 November 1965, enters into force for Australia.

RULE 3 Amendment of Federal Court Rules

Schedule 1 amends the Federal Court Rules.

SCHEDULE 1

[1]   Order 8, rule 1, definition of convention

[2]   Order 8, rule 1, after definition of foreign country

Order 8 provides for the service of judicial and other documents outside Australia.  Rule 1 sets out the meaning of various terms used in Order 8.

Items [1] and [2] amend Order 8 rule 1 by inserting a definition for ‘Hague Convention’ and amending the definition for ‘convention’ so that it no longer includes the Hague Convention.  The amendments are consequential upon the adoption of specific rules for service in accordance with the Hague Convention.

[3]   Order 8, subrule 3 (2)

[4]   Order 8, subrule 3 (2), note

Order 8 rule 3 deals with applications for leave to serve originating process outside Australia.

Item [3] amends subrule 3 (2) by inserting a reference to the Hague Convention.  The amendment is consequential upon the change to the definition of ‘convention’ made by item [1] above.

Item [4] replaces the note appearing at the foot of subrule 3 (2) with two notes:

• Note 1 provides that the law of a foreign country may permit service through the diplomatic channel or service by a private agent.
• Note 2 provides that Division 2 of Order 8A deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention. 

[5]   Order 8, subparagraph 3 (3) (c) (ii)

Order 8 rule 3 deals with the evidential requirements for an application for leave to serve an originating process outside Australia. 

Paragraph 3 (3) (c) states that the evidence must include (i) a statement that the proposed method of service is permitted by, if a convention applies, the convention; or (ii) in any other case, the law of the foreign country. 

This amendment replaces subparagraph 3 (3) (c) (ii) with a new subparagraph which states that if the Hague Convention applies then the statement needs to indicate that the proposed method of service is provided for under the Hague Convention.

A new subparagraph 3 (3) (c) (iii) provides that, in any other case, the law of the foreign country applies.

[6]   Order 8, subparagraph 3 (5) (b) (ii)

Order 8 subrule 3 (5) deals with the evidential requirements for an application to confirm service of an originating process served outside Australia without the leave of the Court. 

Paragraph 3 (5) (b) states that if the originating process was served on a person in a foreign country without the leave of the Court, the Court may confirm the service if the Court is satisfied that the method of service is permitted by (i) if a convention applies, the convention; or (ii) in any other case, the law of the foreign country. 

This amendment replaces subparagraph 3 (5) (b) (ii) with a new subparagraph which states that if the Hague Convention applies then the statement needs to indicate that the proposed method of service is provided for under the Hague Convention.

A new subparagraph 3 (5) (b) (iii) provides that in any other case, the law of the foreign country applies.

[7]   Order 8, subrule 4 (1)

[8]   Order 8, subrule 4 (1), note

Order 8 rule 4 deals with the service of documents other than an originating process.

Item [7] amends subrule 4 (1) by inserting a reference to the Hague Convention.  The amendment is consequential upon the change to the definition of ‘convention’ made by item [1] above.

Item [8] replaces the note appearing at the foot of subrule 4 (1) with two notes:

• Note 1 provides that the law of a foreign country may permit service through the diplomatic channel or service by a private agent.
• Note 2 provides that Division 2 of Order 8A deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention. 

[9]   Order 8, subparagraphs 4 (3) (a) (ii) and 5 (b) (ii)

Item [9] amends Order 8 subparagraphs 4 (3) (a) (ii) and 5 (b) (ii).

Paragraph 4 (3) (a) states that if a document (other than an originating process) was served on a person in a foreign country without the leave of the Court, the Court may confirm the service if the Court is satisfied that the service was permitted by (i) if a convention applies, the convention; or (ii) in any other case, the law of the foreign country. 

This amendment replaces subparagraph 4 (3) (a) (ii) with a new subparagraph which states that if the Hague Convention applies then the statement must indicate that the proposed method of service is provided for under the Hague Convention.

A new subparagraph 4 (3) (a) (iii) provides that, in any other case, the law of the foreign country applies.

Order 8 rule 5 deals with the application of other Orders of these Rules to service of a document in a foreign country.  It states that the other Orders apply in the same way as they apply to service on a person in Australia, so far as they are not inconsistent with (i) if a convention applies, the convention; or (ii) in any other case, the law of the foreign country. 

This amendment replaces subparagraph 4 (5) (b) (ii) with a new subparagraph which states that if the Hague Convention applies then the rules are not to be inconsistent with the rules under the Hague Convention.

A new subparagraph 4 (5) (b) (iii) provides that, in any other case, the rules are not to be inconsistent with the law of the foreign country.

[10]  Order 8, subrule 7 (1)

Order 8 rule 7 deals with substituted service.  Subrule 7 (1) states that this rule applies if an official certificate or declaration is sent to the Court by the government or a court of a foreign country stating that attempts to serve a document on a person in the foreign country in accordance with a convention or through diplomatic channels have not been successful.

Item [10] amends subrule 7 (1) by inserting a reference to the Hague Convention.  The amendment is consequential upon the change to the definition of ‘convention’ made by item [1] above.

[11]  Order 8, rule 8

Order 8 rule 8 outlines the requirements for proof of service of a document.

The amendment replaces rule 8 with a new rule 8.  The effect of the amendment is to insert a new subrule 8 (1) which provides that the rule does not apply to a document served in accordance with the Hague Convention and a note below subrule 8 (1) that refers to Order 8A as dealing with service of documents in a country, other than Australia, that is a party to the Hague Convention.  The existing subrules 8 (1) and (2) are renumbered as subrules 8 (2) and (3).

[12]  Order 8, after subrule 9 (1)

Order 8 rule 9 sets out the requirements for documents to be lodged with the Court if a person has been given leave to serve a document on a person in a foreign country.

The amendment inserts a note at the foot of subrule 9 (1) which states that this rule does not apply if a person has been given leave to serve a document on a person in a foreign country that is a party to the Hague Convention.  Service in this situation is dealt with in Division 2 of Order 8A.

[13]  After Order 8

This amendment inserts a new Order 8A that sets out the rules for service under the Hague Convention.

Order 8A gives effect to the harmonised rules in relations to the Hague Convention that have been developed by the Council of Chief Justices’ Harmonised Rules on Service Outside the Jurisdiction Committee.  This Order forms part of the scheme to implement Australia’s obligations under the Hague Convention.

Order 8A consists of 4 divisions. 

Division 1 deals with preliminary matters.  It includes three notes:

• Note 1 states that Order 8A forms part of the scheme to implement Australia’s obligations under the Hague Convention and that under the Convention the Attorney-General’s Department is designated as the Central Authority and certain courts and government departments are, for certain purposes, designated as ‘other’ or ‘additional’ authorities.
• Note 2 describes the matters dealt with by Order 8A. 
• Note 3 describes the information held by the Attorney-General’s Department, which includes 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.

Order 8A rule 1 sets out the definitions of various terms used in Order 8A.  Rule 2 states that the provisions of Order 8A are to prevail to the extent of any inconsistency between those provisions and any other provisions of these Rules.

Division 2 deals with the service abroad of local judicial documents.  It consists of rules in relation to:

• the application of the Division (rule 3);
• an application to the Registrar for a request for service in a Convention country of a local judicial document and the documents that must accompany such an application (rule 4);
• how the Registrar must deal with an application under rule 4 (rule 5);
• the procedure the Registrar must follow upon receipt of a certificate of service in relation to a local judicial document to which a request for service abroad relates (rule 6);
• the payment of any costs associated with the service abroad (rule 7);
• the evidence of service abroad (rule 8).

Division 3 deals with default judgment in civil proceedings following service abroad of an initiating process.  It consists of rules in relation to:

• the application of the Division (rule 9);
• the restriction on the power to enter default judgment if a certificate of service of initiating process has been filed in the proceedings stating that service has been duly effected and the defendant has not appeared or filed a notice of address for service (rule 10);
• the restriction on the power to enter default judgment if a certificate of service of initiating process has not been filed in the proceedings, or has been filed stating that service has not been effected and the defendant has not appeared or filed a notice of address for service (rule 11);
• setting aside a default judgment in proceedings to which Division 3 applies (rule 12).

Division 4 deals with the local service of foreign judicial documents.  It consists of rules in relation to:

• the application of the Division (rule 13);
• the requirement that the Registrar must refer to the Attorney-General’s Department a request for service if, in the opinion of the Registrar,

(a)   the request does not comply with rule 13;

(b)   the document to which the request relates is not a foreign judicial document; or

(c)   the request may infringe Australia’s sovereignty or security

(rule 14);

• the arrangements for service of the relevant documents in accordance with the request (rule 15);
• the content of the affidavit as to service and how the Registrar is to deal with the affidavit once it has been lodged (rule 16);

[14]  Schedule 1, after Form 14B

This amendment inserts into Schedule 1 the two new forms referred to in the new Order 8A.  The forms are Form 14D ‘Request for service abroad of judicial documents and certificate’ and Form 14E ‘Summary of the document to be served’.

Form 14D is the form of the request for service of documents outside Australia and includes a certificate of service to be completed once service of the documents has been effected or attempted.

Form 14E is a summary of the document to be served which must be included with the request for service abroad pursuant to Order 8A rule 4.