Supreme Court Amendment (Hague Service Convention) Rules 2009

Supreme Court Amendment (Hague Service Convention) Rules 2009

18 June 2009

We, the Honourable Ewan Charles Crawford, Chief Justice, and the Honourable Peter Ethrington Evans, the Honourable Alan Michael Blow, OAM, the Honourable Shan Eve Tennent and the Honourable David Porter, Puisne Judges of the Supreme Court of Tasmania, on the recommendation of the Rule Committee, make the following Rules of Court under the Supreme Court Civil Procedure Act 1932 .

1.   Short title

These Rules of Court may be cited as the Supreme Court Amendment (Hague Service Convention) Rules 2009 .

2.   Commencement

These Rules of Court take effect on the day on which 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.

3.   Principal Rules

In these Rules of Court, the Supreme Court Rules 2000 are referred to as the Principal Rules.

4.    Rule 5 amended (Interpretation)

Rule 5 of the Principal Rules is amended as follows:

(a) by omitting "convention" from the definition of Convention and substituting "convention, other than the Hague Convention,";

(b) by inserting the following definitions after the definition of endorsement :

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;

Hague Convention country means a country, other than Australia, that is a party to the Hague Convention;

5.    Rule 147 substituted

Rule 147 of the Principal Rules is rescinded and the following rule is substituted:

147.   Application of rules

(1)  Rules 147A, 147B and 147C apply to the service of originating process outside Australia.

(2)  Rules 148 , 149 , 150 , 151 , 152 and 153 apply to the service of any document for the purpose of a proceeding in the Court –

(a) in a Convention country; or

(b) in any other country, other than a Hague Convention country, that the Attorney-General, by instrument filed in the proceeding, specifies.

6.    Rule 966 amended (Application of Part 38 )

Rule 966 of the Principal Rules is amended by omitting "foreign country" first occurring and substituting "foreign country, other than a Hague Convention country,".

7.    Part 38A inserted

After rule 970 of the Principal Rules , the following Part is inserted:

PART 38A - Service under the Hague Convention

Division 1 - Preliminary

Note 1

This Part 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 Part provides (in Division 2) for service in overseas Hague Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in Division 3) for default judgment in proceedings in the Court after service overseas of such a document. Division 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 Hague 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 http://www.hcch.net.

970A.   Interpretation of Part 38A

In this Part –

additional authority, for a Hague Convention country, means an authority that is –

(a) for the time being designated by the country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for the 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 Hague 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 Hague Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the 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;

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 Hague Convention country and that 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 Hague 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 Hague Convention country, the Registrar;

Hague Convention – see rule5;

Hague Convention country – see rule 5;

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 Hague Convention country of a local judicial document mentioned in rule 970D(1) ;

request for service in this jurisdiction means a request for service in this jurisdiction of a foreign judicial document mentioned in rule 970M(1) ;

this jurisdiction means Tasmania.

970B.   Provisions of this Part to prevail

The provisions of this Part prevail to the extent of any inconsistency between those provisions and any other provisions of these rules.

Division 2 - Service abroad of local judicial documents

970C.   Application of Division

(1)  Subject to subrule (2) , this Division applies to service in a Hague Convention country of a local judicial document.

(2)  This Division 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.

970D.   Application for request for service abroad

(1)  A person may apply to the Registrar, in the Registrar's capacity as a forwarding authority, for a request for service in a Hague 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 the prescribed form;

(b) the document to be served;

(c) a summary of the document to be served, which must be in accordance with the prescribed form;

(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 practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no practitioner on the record for the applicant in the 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 Hague 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 the service of the documents to be served; and

(b) to pay the amount of those costs to the Registrar within 28 days after receipt from the Registrar of a notice specifying the amount of those costs under rule 970F(3) ; and

(c) to give such security for those costs as the Registrar 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 Hague 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 subrule (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.

970E.   How application to be dealt with

(1)  If satisfied that the application and its accompanying documents comply with rule 970D , the Registrar –

(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 Hague 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 Hague Convention country in which service of the document is to be effected.

(2)  The relevant documents mentioned in subrule (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 970D(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 970D , the Registrar must inform the applicant of the respects in which the application or document fails to comply.

970F.   Procedure on receipt of certificate of service

(1)  Subject to subrule (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 Registrar –

(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 practitioner on the record for the applicant in the proceedings; or

(ii) if there is no practitioner on the record for the applicant in the proceedings, the applicant.

(2)  For the purposes of subrule (1) , a certificate of service is in due form if –

(a) it is in accordance with Part 2 of the prescribed form; and

(b) it has been completed by a certifying authority for the Hague 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 subrule (1) , the Registrar must send to the practitioner or applicant who gave the undertaking mentioned in rule 970D(3) a notice specifying the amount of those costs.

(4)  For the purposes of subrule (3) , a statement of costs is in due form if –

(a) it relates only to costs of a kind mentioned in rule 970D(3)(a) ; and

(b) it has been completed by a certifying authority for the Hague Convention country in which service was requested.

(5)  Subrule (1) does not apply unless –

(a) adequate security to cover the costs mentioned in subrule (3) has been given under rule 970D(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 Registrar.

970G.   Payment of costs

(1)  On receipt of a notice under rule 970F(3) in relation to the costs of service, the practitioner or applicant, as the case may be, must pay to the Registrar the amount specified in the notice as the amount of the costs.

(2)  If the 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 Registrar; and

(b) the Registrar may take such steps as are appropriate to enforce the undertaking for payment of those costs.

970H.   Evidence of service

A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of rule 970F(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 Hague Convention country in which service was effected.

Division 3 - Default judgment following service abroad of initiating process

970I.   Application of Division

This Division 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 Hague Convention country.

970J.   Restriction 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 970F(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 Hague 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 the 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 subrule (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.

970K.   Restriction 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 970F(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 Hague 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.

970L.   Setting aside judgment in default of appearance

(1)  This rule applies if default judgment has been entered against the defendant in proceedings to which this Division 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.

Division 4 - Local service of foreign judicial documents

970M.   Application of Division

(1)  This Division 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 970N ; or

(b) by a forwarding authority.

(2)  Subject to subrule (3) , a request for service in this jurisdiction is in due form if it is in accordance with Part 1 of the prescribed form 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 the prescribed form;

(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 subrule (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.

970N.   Certain documents to be referred back to Attorney-General’s Department of Commonwealth

If, after receiving a request for service in this jurisdiction, the Registrar is of the opinion –

(a) that the request does not comply with rule 970M ; 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 of the Commonwealth –

the Registrar 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.

970O.   Service

(1)  Subject to rule 970N , 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 subrule (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.

970P.   Affidavit 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 Registrar –

(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 the prescribed form; or

(b) if a form of certificate of service that substantially corresponds to Part 2 of the prescribed form accompanies the request for service, in that accompanying form.

E. C. CRAWFORD

Chief Justice

P. E. EVANS

Puisne Judge

A. M. BLOW

Puisne Judge

S. E. TENNENT

Puisne Judge

D. J. PORTER

Puisne Judge

Countersigned,

E. A. KNIGHT

Registrar

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 24 June 2009

These Rules of Court are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the rule)

These Rules of Court amend the Supreme Court Rules 2000 by incorporating model rules for service under the "Hague Service Convention". In particular, they provide for –

(a) service in another Hague Convention country of documents relating to proceedings in the Supreme Court; and

(b) default judgment following such service; and

(c) service in Tasmania of documents relating to judicial proceedings commenced in another Hague Convention country.