AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
ing the service of Australian judicial documents in civil and commercial matters to parties in countries which are subject to the Hague Convention (other than Aus - tralia). The Hague Convention, which came into force in Australia on 1 November 2010, offers an alternative but not mandatory method of service of judicial docu - ments outside Australia. The Trans-Tasman Proceed - ings Act 2010 (Cth) governs service in New Zealand. Under Part 11A.4 of the UCPR, a party seeking to serve a document overseas must make an applica - tion requesting overseas service of a local judicial document to the Registrar of the Supreme Court of NSW. The application must be accompanied by three copies of: (i) the draft request for service abroad in the approved form, (ii) the document to be served, (iii) a summary of the document to be served in the approved form, and (iv) if required, a translation of the document to be served and the summary docu - ment in the official language of the country in which the document is to be served. The draft request for service abroad needs to be addressed to the “Cen - tral Authority”, being the authority that is, for the time being, designated by the relevant Hague Convention country, under Article 2 of the Hague Convention, to be the Central Authority for that country, or to an addi - tional authority. Similar procedures apply under the court procedure rules for other Australian jurisdictions (see Supreme Court (General Procedure) Rules 2015 (Vic), Order 80; Uniform Civil Procedure Rules 1999 (Qld), Ch 4, Pt 7, Div 3; Rules of the Supreme Court 1971 (WA), Order 11A; Uniform Civil Rules 2020 (SA) Sch 1, Pt 1, Div 3 & Sch 1, Pt 3, Div 1; Supreme Court Rules (Tas), Pt 38A; Court Procedure Rules 2006 (ACT), Pt 6, Div 6.8.12; Supreme Court Amendment Rules 2016 (NT), Order 7A). For matters in the Federal Court of Australia, overseas service is permitted under Division 10.4 of the Federal Court Rules 2011 (Cth) (the “Federal Court Rules”) and assisted by Division 10.6 of the Federal Court Rules. Rule 10.42 provides a list of the kinds of pro - ceedings in which an originating application may be served outside of Australia. Otherwise, leave must be obtained prior to serving any originating application outside of Australia in accordance with Rule 10.43.
Any leave application should be accompanied by an affidavit or evidence in support. Similar to Part 11A of the UCPR, Division 10.6 deals with the operation of the Hague Convention on the service of an originating process in the Federal Court of Australia, offering an alternative method of service of judicial documents outside Australia in countries that are a party to the Hague Convention. Alternatively, for countries that are not a party to the Hague Convention, service of judicial documents will need to be made through a private process server or local agent if this method of service is accepted by the receiving country. If this method of service is not accepted by the receiving country, diplomatic chan - nels or bilateral agreements will need to be utilised through the assistance of the Department of Foreign Affairs and Trade. In cases where the defendant fails to make a pay - ment within the timeframe set by the court, or at all, the claimant may take steps to enforce the judgment. Writ of Execution of Property Pursuant to Section 106 (1)(a) of the Civil Proce - dure Act 2005 (NSW), a writ for the levy of property is another form of enforcement whereby the sheriff’s office is ordered by the court to seize and sell property owned by the judgment debtor. Property that can be seized includes: • money, cheques, bonds and securities; • personal property in which the debtor has a benefi - cial interest; and • land (where the judgment is regarding more than AUD10,000). It is important to note that there are a number of items protected from seizure under Australian law (for exam - ple, kitchen items, safety equipment, tools of trade to enable the debtor to earn an income). 5. Enforcement 5.1 Methods of Enforcement The judgment debtor’s property is bound to the sher - iff’s office from the time the writ is delivered to the
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