Service of process outside New South Wales

[2-1600] Service within the Commonwealth of Australia

In the Supreme Court, service of originating process may be effected in accordance with either UCPR r 10.3 or the Service and Execution of Process Act 1992 (Cth), ss 13–16. In other courts, service can only be effected in accordance with the Service and Execution of Process Act 1992. For an exception see [2-1620].

In the case of Supreme Court proceedings, if a person joined as a party wishes to have the proceedings transferred to the Federal Court, Family Court or the Supreme Court of another State or Territory, application may be made under the Jurisdiction of Courts (Cross Vesting) Act 1987 to have the proceedings transferred.

In respect of proceedings in other courts, the Service and Execution of Process Act 1992, s 20 (which does not apply to proceedings in a Supreme Court: s 20(1)) provides that a person served with an originating process under the Act may apply to the court which issued the process for an order staying the proceedings (s 20(2)) on the ground that a court of another State has jurisdiction to determine all the matters in issue between the parties and is the appropriate court to determine those matters: s 20(3). The applicant bears the onus on the balance of probabilities of demonstrating that the alternative court is the appropriate court. Language such as a “clear and compelling basis” operate as an unwarranted gloss on the statute and impose a higher hurdle on applicants seeking a stay of proceedings: Joshan v Pan Pizza Group Pty Ltd (2021) 106 NSWLR 104 at [72]–[77].

In determining such an application, the court is to take into account the matters set out in s 20(4), namely:

the places of residence of the parties and of the witnesses likely to be called in the proceedings,
the place where the subject matter of the proceedings is situated,
the financial circumstances of the parties so far as the court is aware of them,
any agreement between the parties about the court or place in which the proceedings should be instituted,
the law that would be most appropriate to apply in the proceedings, and
whether a related or similar proceeding has been commenced against the person served or another person,

but the court is not to take into account the fact that the proceedings were commenced in the place of issue.

See also the observations of Bell P in Joshan v Pizza Pan Group Pty Ltd at [50]–[68] regarding s 20 of the Act.

The application may be determined without a hearing unless the applicant or a party objects (s 20(6)), or the court may hold a hearing by video link or telephone: s 20(7). An order may be made subject to such conditions as the court considers just and appropriate in order to facilitate determination of the matter in dispute without delay or undue expense: s 20(5).

A court of a State or Territory other than the place of issue must not restrain a party to the proceedings from taking a step in such proceedings on the ground that the place of issue is not the appropriate forum for the proceedings: s 21.

[2-1620] Service pursuant to UCPR r 10.6

In any proceedings, any document (including originating process) may be served by one party or another (whether in New South Wales or elsewhere) in accordance with any agreement, acknowledgement or undertaking by which the party to be served is bound: r 10.6(1).

In relation to the service of an originating process in proceedings on a claim for possession of land, the agreement, acknowledgment or undertaking must be made after the originating process is filed but before it is served: r 10.6(1A).

Such service is taken for all purposes (including for the purposes of any rule requiring personal service) to constitute sufficient service: r 10.6(2).

[2-1630] Service outside Australia pursuant to UCPR Pts 11 and 11A

General

Service of originating process outside Australia is permitted by UCPR Pt 11 and assisted by Pt 11A. Part 11 only applies to the Supreme Court: r 11.1. In the circumstances referred to in Sch 6, leave is not required: r 11.4(1). This rule extends to an originating process to be served outside Australia in accordance with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (the Hague Convention): r 11.4(2). In any proceedings when service is not allowed under Sch 6, such service may be effected with the leave of the court: r 11.5(1).

Part 11A deals with the operation of the Hague Convention, which is a set of uniform rules concerning the service of Australian judicial documents in civil and commercial matters to countries (other than Australia) that are parties to the Convention.

The Convention, which came into force in Australia on 1 November 2010, offers an alternative method of service of judicial documents outside Australia but it is not mandatory.

As to special provisions for service in New Zealand, see r 11.3 and “Trans-Tasman proceedings” at [5-3500]–[5-3510].

Part 11 does not require the leave of the court for any service or other thing that may be effected or done under any law of the Commonwealth or Pt 11A: r 11.2. Division 2 of Pt 11 does not apply to any documents that are intended to be served on a person outside Australia in accordance with the Convention: r 11.8A.

Application for leave to serve

The application must be on notice to every party other than the person intended to be served: r 11.5(2). A sealed copy of the relevant order must be served with the document to which it relates: r 11.5(3). The application must be supported by an affidavit stating the facts and matters referred to in r 11.5(4).

The court may grant an application for leave if satisfied that the claim has real and substantial connection with Australia (r 11.5(5)(a)), that Australia is an appropriate forum for the trial (r 11.5(5)(b)) and that in all circumstances the court should assume jurisdiction: r 11.5(5)(c). See Michael Wilson & Partners Ltd v Emmott [2019] NSWSC 218 where it was held Australia (NSW) was not the appropriate forum to determine the dispute as, inter alia, the citizenship of the parties was not regarded as a connecting factor at common law and no reason was advanced to justify an exception in this case. Further the fact one of the parties had given evidence in Australia did not mean of itself that there was a connection between the current claim and Australia: at [63].

On application by a person relevantly served, the court may dismiss or stay the proceeding or set aside service of the originating process: r 11.6(1).

Without limiting that provision, the court may make such an order if satisfied that service of the originating process is not authorised by the rules (r 11.6(2)(a)), or that the court is an inappropriate forum for the trial of the proceeding (r 11.6(2)(b)) or that the claim has insufficient prospects of success to warrant putting the person served to the time, expense and trouble of defending the claim: r 11.6(2)(c).

Rule 11.7 provides that the person so served must also be served with a notice setting out the matters referred to in that rule.

Rule 11.8 provides that unless the court otherwise orders, an appearance must be filed within 42 days of the date of service.

Application by person served

Although not specifically referred to in r 11.6, it seems that the appropriate course is for a defendant served with an originating process outside the jurisdiction to apply for an order setting aside the originating process or service thereof, declaring the court has no jurisdiction in the matter or declining to exercise jurisdiction under r 12.11 on the ground that the service of the originating process is not authorised by the rules, on the ground that the court is an inappropriate forum for the trial of the proceedings, or that the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the claim: r 11.6. For an example of an application of this general kind, see In the matter of Mustang Marine Australia Services Pty Ltd (In Liq) [2013] NSWSC 360.

Such an application must be made by notice of motion filed within the time limited for entering an appearance, stating the applicant’s address for service, but may be made without entering an appearance and does not constitute submission to the jurisdiction of the court: r 12.11(2), (3), (4).

See further Michael Wilson & Partners Ltd v Emmott [2020] NSWCA 139.

Leave to proceed

Where no appearance is entered, the party serving the originating process may not proceed except by leave of the court: r 11.8AA(1). An application for such leave may be made without serving notice on the person served with the originating process: r 11.8AA(2).

In an application for leave to proceed under r 11.8AA, the plaintiff must prove proper service on the defendant (Castagna v Conceria Pell Mec SpA (unrep, 15/3/1996, NSWCA)). Leave by the court for service outside of Australia or that proceedings come within Sch 6 and therefore r 11.4.

In deciding whether r 11.4 applies, attention is to be directed to the way in which the claims are framed. The focus is upon the nature of the claim which is made, that is the claim in which the plaintiff alleges a cause of action which, according to the allegations, falls within the schedule: Agar v Hyde (2000) 201 CLR 552 at [50].

The inquiry is not concerned with an assessment of the strength (in the sense of the likelihood of success) of the plaintiff’s claim. The application of the schedule depends on the nature of the allegations which the plaintiff makes, not on whether these allegations will be made good at trial. “Once a claim is seen to be of the requisite kind, the proceeding falls within the relevant paragraph … service outside Australia is permitted, and prima facie the plaintiff should have leave to proceed”: Agar v Hyde, above, at [51].

Similarly, it would seem that where leave to serve has been granted by the court and there is no opposition to a grant of leave to proceed, prima facie, the plaintiff should have such leave.

Other matters

Any documents other than an originating process may be served outside Australia with the leave of the court: r 11.8AB.

A document to be served outside Australia need not be personally served so long as it is served in accordance with the law of the country in which service is effected: r 11.8AC. This is so even though personal service would be required if the document was served in Australia: BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496 at 501–502.

For a consideration of issues arising under r 11 and as to service generally, see Hiralal v Hiralal [2013] NSWSC 984 and Agar v Hyde.

Service pursuant to Pt 11A: the Hague Convention

Part 11A deals with the service of documents in Convention countries and with default judgements after such service. The majority of countries are party to the Hague Convention, including United Kingdom and Northern Ireland, United States, China and India. Some of the non-Convention countries include Kuwait and Pakistan. The Commonwealth Attorney-General’s department maintains a list of Convention and non-Convention countries, and other relevant information.

The provisions in Pt 11A prevail to the extent of any inconsistency between those provisions and any other UCPR provisions: r 11A.2.

A person may apply to the Registrar for a request for service of an Australian judicial document in a Convention country. The documentation that must accompany the application is set out in r 11A.4 and includes:

the signed request for service abroad
the document to be served
a summary of the document to be served, and
where applicable, a translation (including a certificate from the translator) of the documentation.

The draft request for service may request a certificate of service: r 11A.4(4)(d). A certificate of service is sufficient proof that service of the document was effected by the method specified in the certificate on that date: r 11A.8. Concerning default judgment following service abroad of the initiating process, r 11A.10 applies if a certificate of service has been filed in the proceedings and the defendant has not appeared or filed a notice of address for service: r 11A.10(1).

A default judgment may not be given against the defendant, pursuant to r 11A.10(2), unless the court is satisfied that the initiating process was served in:

accordance with the law of the Convention country
sufficient time to enable the defendant to enter an appearance in the proceedings.

As to submission to the jurisdiction, see Bagg v Angus Carnegie Gordon as liquidator of Salfa Pty Limited (in liq) [2014] NSWCA 420.

Rule 11A.10(3) provides that “sufficient time” is 42 days from the date on which service of the process was effected or a lesser time that is thought to be appropriate by the court.

Where no certificate of service has been filed or if no service could be effected and the defendant has not appeared or filed a notice of address for service, the court may give a default judgment, pursuant to r 11A.11, if it is satisfied that:

the initiating process was forwarded to the Convention country
a period of not less than 6 months has elapsed since the date on which the initiating process was forwarded
every reasonable effort was made to obtain a certificate of service or to effect service.

An application to have a judgment set aside may be made within a 12 month period after the date on which the judgment was given or within such time after the defendant acquires knowledge of the judgment as the court considers reasonable. An order to set aside a judgment on this basis may be made if the court is satisfied that the defendant did not have knowledge of the initiating process in sufficient time to defend the proceedings and a prima facie defence can be made to the proceedings on the merits: r 11A.12.

Legislation

CPA s 67.
Service and Execution of Process Act 1992 (Cth), ss 13–16, 20–21.
UCPR rr 10.3, 10.6, Pts 11; 11A; 12; rr 11.1–12.11; Sch 6.

International Convention

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (the Hague Convention).

(The Convention and a list of parties to the Convention can be found at http://www.hcch.net.)

Civil Trials Bench Book — Procedure generally