Due to the increasingly international nature of criminal law, judicial documents often need to be served overseas. This raises a number of important implications in ensuring that documents are appropriately transmitted to the foreign jurisdiction.
In a recent communication, the Australian Government Attorney-General´s Department outlines the options available for serving documents overseas:
- Hague Service Convention
- Bilateral treaties with other countries
- Diplomatic channels
- Private process servers, local agents and via post
Hague Service Convention
Australia is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Service Convention).
The Hague Service Convention allows the transmission of judicial and extrajudicial documents for service to countries which are party to the Convention.
The Hague Service Convention ensures that the litigant in Australia will receive a certificate or affidavit confirming service or attempted service, and also provides certainty that the receiving country will not object to service on grounds of sovereignty.
Preparing the request for service
In order to serve a document overseas using the Hague Service Convention, an Australian litigant must refer to the relevant Australian state, territory or Federal Court rules where proceedings are occurring for the steps required. For example, in New South Wales, the Uniform Civil Procedure Rules 2005 should be referred to.
Generally, the rules will require the litigant in Australia to lodge an application to the Registrar requesting foreign service. The application must generally include: a Letter of Request, Summary of Documents to be Served form and a blank Certificate of Service; the documents to be served; certified translations where necessary; duplicates of all documents where required, and an undertaking to pay any fees associated with the service of the documents.
If the Registrar (or the person referenced in the relevant legislation) is satisfied that the requirements are complied with, the request will then be transmitted to the receiving country’s Central Authority, additional authority or other authority.
The foreign authority will then process the request and attempt service in accordance with its domestic laws, providing formal confirmation as to whether the service was successful or unsuccessful, and transmitting the certificate/affidavit to the forwarding authority (i.e. the Australian court) to be forwarded to the Australian litigant.
There may be costs associated with the execution of the request. In some cases, the forwarding authority will receive a Statement of Costs/Invoice which is payable by the litigant in Australia.
In its recent communication, the Attorney General´s Department provides a useful checklist for Outgoing Hague Service Requests. This covers proper preparation of the Letter of Request (e.g. language used, legibility of addresses and methods of service), as well as requirements relating to translations, Certificates, summary of documents to be served, required number of document copies and other requirements.
Australia’s bilateral treaties with other countries
Australia is a party to a number of bilateral treaties entered into by the United Kingdom in the 1920´s and 1930´s, and by virtue of its membership of the British Commonwealth, the rights and obligations under those treaties also extend to Australia. One example is the Convention between the United Kingdom and Germany regarding Legal Proceedings in Civil and Commercial Matters. It should be noted that many of the countries now use the Hague Service Convention.
Australia also has bilateral treaties on judicial assistance with the Republic of Korea (South Korea) and the Kingdom of Thailand. Thailand is not a party to the Hague Service Convention therefore the above treaty is the only agreement currently in place between Australia and Thailand in relation to judicial assistance in civil and commercial matters. The Republic of Korea is a party to the Hague Service Convention, however the bilateral treaty is still used by both parties for the service of documents.
Preparing and transmitting the request
In order to serve a document using a bilateral treaty, the litigant in Australia must refer to the terms of the treaty and the relevant Australian state, territory or Federal Court rules for the steps required. Generally, the litigant in Australia will be required to follow similar procedures as outlined above in preparing the request for service under the Hague Service Convention.
The Attorney-General´s communication also outlines the key considerations in transmitting the request overseas. Whilst the Hague Service Convention stipulates that the request be sent directly to the foreign country, under bilateral treaties the request is either sent to the Commonwealth Attorney-General’s Department (Republic of Korea and Thailand) or to the to the Department of Foreign Affairs and Trade (bilateral treaties with all other countries), who will forward the documents to the relevant foreign authority.
Service using diplomatic channels
A foreign authority may accept Australian documents for service through diplomatic channels.
Diplomatic channels are used for the transmission of information between diplomats and foreign states. In Australia these communications are sent and received by the Commonwealth Department of Foreign Affairs and Trade.
Transmission of documents via diplomatic channels is usually only used where bilateral or Convention arrangements do not exist. Service through diplomatic channels can be subject to delays and countries may object to service through this channel (e.g. for reasons of sovereignty, or when regarding their own citizens).
Preparing and transmitting the request
The relevant Australian state, territory or Federal Court rules must be referred to for the steps required. Generally, the litigant in Australia will be required to follow similar procedures as outlined above in preparing the request for service under the Hague Service Convention.
Upon compliance with the requirements, the request will then be sent to the Department of Foreign Affairs and Trade to transmit the request via diplomatic channels. The foreign authority will then process the request and attempt service in accordance with its domestic laws.
The average timeframe for requests to be processed and for service to be effected in a foreign country is approximately 4 – 6 months, and there may be costs associated with the execution of the request.
Serving using private process servers, local agents and via post
Private process servers, local agents and registered post may also be used in some circumstances to transmit and serve documents overseas, if the receiving country accepts this method of service.
Countries may object to use of these methods for reasons of sovereignty, or in matters regarding their own citizens.
A number of different methods exist for serving judicial documents overseas, with varying requirements to be complied with to ensure that they are successfully served. Whilst the Attorney-General´s department provides a summary and general overview of matters relating to international judicial assistance, it is recommended that independent legal advice be sought before any action is taken.