AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
Extraterritorial Jurisdiction Australian courts may exercise extraterritorial jurisdic - tion if expressly provided by the law. The Corporations Act 2001 (Cth) does not contain an express provision on extraterritorial application. How - ever, Section 581 of the Corporations Act 2001 (Cth) mandates Australian courts to act as an aid of, or an auxiliary to, foreign courts of prescribed countries (see Corporations Regulations 2001 (Cth) reg 5.6.74) that have jurisdiction in external administration matters. Australian courts also have discretion to assist the courts of non-prescribed countries in external admin - istration matters. However, certain provisions of the Competition and Consumer Act 2010 (Cth) do have extraterritorial effect. For instance, Section 5 (1) of the Competi - tion and Consumer Act 2010 (Cth) states that certain provisions of legislation, including the ACL (save for Part 5-3), extend to the engaging of conduct outside Australia by bodies corporate incorporated or carry - ing on business within Australia, Australian citizens, or persons ordinarily resident within Australia. In Valve Corporation v Australian Competition and Consumer Commission [2017] 351 ALR 584, the Fed - eral Court found that the consumer guarantee regime in the ACL was applicable to a company that con - ducted its business in a foreign jurisdiction and where the proper law of the contract was also of a foreign jurisdiction. The Federal Court noted that Section 67 (b) of the ACL expressly provides that the consumer guarantee regime applies to the conduct of foreign corporations in Australia, even if a law other than Aus - tralian law had been chosen to govern the contract for the supply of goods and services to a consumer. The Federal Court also found, inter alia, that despite the foreign corporation being incorporated outside of and not having a physical presence in Australia, the representations it made to its large base of Australian consumers through its online platform nonetheless amounted to the “supply of goods” (ie, computer soft - ware) within Australia, which meant that the foreign company “undoubtedly carried on a business in Aus - tralia” ( Valve Corporation v Australian Competition and Consumer Commission [2017] 351 ALR 584, 607 [86]).
Nonetheless, whether a party is carrying on business in Australia is a question of fact ( LK Law Pty Ltd v Karas (No 4) [2025] FCA 1461 at [1960] “ LK Law ”). In LK Law , the Federal Court considered whether a law firm registered in England and Wales (“MdR”) was liable as an accessory to Mr Karas’ breaches under the ACL and/or the Corporations Act 2001 (Cth). The court held that evidence of a consultancy agreement and invoices between MdR and an Australian law firm, and MdR having advised Australian clients or advised non-Australian clients in connection with Australian matters was not sufficient to show that MdR was car - rying on business in Australia. Like many global firms, MdR was simply “capable of providing advice on Aus - tralian law… notwithstanding they do not practise in Australia” (at [1984]). It should be noted that despite the express intention of Parliament for legislation to have extraterritorial effect, this would neither deter a foreign party from object - ing to the jurisdiction of Australian courts nor object to the enforcement of any judgment rendered by an Australian court. Service of Writ out of the Jurisdiction Service of originating process outside Australia is permitted by Part 11 and assisted by Part 11A of the UCPR. Part 11A deals with the operation of the Hague Con - vention on the Service Abroad of Judicial and Extraju - dicial Documents in Civil or Commercial Matters 1965 (the “Hague Convention”), providing a set of uniform rules concerning the service of Australian judicial documents in civil and commercial matters to parties to the Convention (other than Australia). The Hague Convention, which came into force in Australia on 1 November 2010, offers an alternative but not manda - tory method of service of judicial documents outside Australia. The Trans-Tasman Proceedings Act 2010 (Cth) governs service in New Zealand. 4.2 Service of Proceedings out of the Jurisdiction Service of originating process outside Australia is permitted by Part 11 and assisted by Part 11A of the UCPR. Part 11A deals with the operation of the Hague Convention, providing a set of uniform rules concern -
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