The Commonwealth of Australia became signatory to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, also called the Hague Service Convention, on March 15, 2010, and its provisions entered into force on November 1, 2010.
US attorneys seeking service in Australia would be wise to familiarize themselves with the mandatory character of the Hague Service Convention as set forth in the US Supreme Court case Volkswagenwerk A.G. v. Schlunk, 486 US 694 (1988).
Canadian attorneys should consult provincial precedent — Canadian courts take a more nuanced view of the Convention, but effectively reach the same conclusion: its limitations must be observed. Regardless of forum court requirements, the service rules of the receiving country must be observed, or enforcement of a judgment may become impossible.
Prior to its accession to the Convention, service of process in Australia was relatively simple and expedient — an American attorney had only to hire a private process server in Australia, and the service would comply with local law. Likewise, US courts recognized Australian private process service as valid under Due Process considerations.
Today, domestic courts in Australia still recognize process served by private process servers, but the Schlunk holding deemed service of US process upon foreign defendants pursuant to the Hague Convention mandatory. Consequently, service of process via an Australian process server was rendered invalid.
Or was it? Australian authorities have not yet defined several of the specific terms used in the Convention, including who is a judicial officer for purposes of Article 10, so Article 10 alternative channels may or may not be valid.
** Note, however, that each territory has its own central authority; service submitted to the Federal Central Authority may delay service unnecessarily.
Australian law provides for several types of service, but those types vary according to state and territory. Our staff can assist you in discerning options.
With regard to direct service by postal channel, Australia does not object, provided the requesting jurisdiction likewise recognizes service by mail. In all cases, service via the postal channel should include a signed receipt mechanism.
Mail service pursuant to the Hague Service Convention is fraught with problems, including potential problems with later enforcement of US judgments in the destination state — even when the destination state has not objected to such service. US courts are also split regarding propriety of mail service under the Convention. US plaintiffs are advised to proceed with caution when employing this channel.
With regard to direct service by a judicial officer, official or other competent person, Australia does not object. However, Australia has not defined the terms “judicial officer”, official”, or “competent person.”
Such terms are defined under the laws of the destination state, not under the laws of the requesting state. Until the Commonwealth has issued clear guidance, LLS recommends not using the interested person channel.
Likewise, with regard to direct service by “interested person”, Australia does not object. However, Australia has also not defined that term. Until the Commonwealth has issued a clear definition, LLS recommends not using the interested person channel.
LLS can assist you with service and can help you understand and meet the requirements for service of process in Australia. Please call 1-800-755-5775 for more information.