Part 11 Service of documents outside Australia and service of external process
(1) This Part applies to proceedings in the Supreme Court.(2) For the purposes of this Part, a reference to Australia includes a reference to the external Territories.
11.2 Cases for service of originating process
(cf SCR Part 10, rule 1A)
(1) Originating process may be served outside Australia in the circumstances referred to in Schedule 6.(2) This rule extends to originating process to be served outside Australia in accordance with the Hague Convention.
11.3 Notice to the defendant served outside Australia
(cf SCR Part 10, rule 2A)
(1) If originating process is intended to be served on a defendant outside Australia, a notice to that effect must be included in the originating process.(2) This rule does not apply to originating process that is intended to be served on a defendant outside Australia in accordance with the Hague Convention.Note. Division 2 of Part 11A deals with the service of local judicial documents in a country (other than Australia) that is a party to the Hague Convention.
11.4 Leave for plaintiff to proceed where no appearance by defendant
(cf SCR Part 10, rule 2)
(1) If originating process is served on a defendant outside Australia, and the defendant does not enter an appearance, the plaintiff may not proceed against the defendant except by leave of the Supreme Court.(2) A motion for leave under subrule (1) may be made without serving notice of motion on the defendant.Note. Rule 11.8 provides for the interaction between this Division and Part 11A (which deals with service of judicial documents under the Hague Convention). See Division 3 of Part 11A in relation to default judgment in proceedings in the Supreme Court after service overseas of a local judicial document.
11.5 Service of documents other than originating process
(cf SCR Part 10, rule 3)
Service outside Australia of a document other than originating process is valid only if it is effected pursuant to the leave of the Supreme Court or is subsequently confirmed by the Supreme Court.
(cf SCR Part 10, rule 5)
A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.
11.7 Setting aside originating process served outside Australia
(cf SCR Part 10, rule 6A)
(1) The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia.(2) Without limiting subrule (1), the Supreme Court may make an order under this rule:(a) on the ground that the service of the originating process is not authorised by these rules, or(b) on the ground that the court is an inappropriate forum for the trial of the proceedings.
11.8 Operation of Commonwealth laws and Hague Convention
(cf SCR Part 10, rule 6)
This Part does not require the leave of the Supreme Court for any service or other thing that may be effected or done under any law of the Commonwealth, the Hague Convention or Part 11A.Note. Part 11A deals with service of judicial documents under the Hague Convention.
Division 2 Service outside Australia in accordance with Attorney General’s arrangements
This Division does not apply to any document that is intended to be served on a person outside Australia in accordance with the Hague Convention.Note. Division 2 of Part 11A deals with the service of local judicial documents in a country (other than Australia) that is a party to the Hague Convention.
(cf SCR Part 10, rule 7)
In this Division:applicant means the person by whom an application is made under rule 11.10 (1) (a).
participating country means:
(a) any country that is a signatory to an international convention with respect to the service of documents in that country to which Australia is a signatory, or(b) in relation to particular proceedings, any other country declared by the Attorney General, or by some other person authorised by the Attorney General for the purposes of this definition, by notice filed in the proceedings, to be a country to which this Division applies.undertaking as to expenses means an undertaking by an applicant or his or her solicitor to pay to the registrar an amount equal to the sum of all expenses incurred in consequence of the request for service.
11.10 Filing of requisite documents
(cf SCR Part 10, rules 8, 9 and 10)
(1) A person requiring a document to be served in a participating country may file the following documents in the Supreme Court:(a) an application to the principal registrar of the Supreme Court that a sealed copy of a document be transmitted to that country for service on the person specified in the application as the person to be served,(b) if the applicant requires service of the document under an international convention with respect to the service of documents to which that country and Australia are both signatories, a statement to that effect,(c) the document to be served and (unless English is an official language of the country concerned) a translation of the document,(d) if any special manner of service is required, a request for service in that manner and (unless English is an official language of the country concerned) a translation of the request,(e) an undertaking as to expenses,together with such further copies of those documents as the principal registrar may direct.(2) A translation of a document referred to in subrule (1):(a) must be in an official language of the country in which service is required, and(b) must bear a certificate by the translator, in that language, stating his or her qualifications and certifying that the translation is a correct translation of the document.
11.11 Procedure on filing and lodgment
(cf SCR Part 10, rules 11 and 12)
(1) After all relevant documents have been filed as referred to in rule 11.10, the principal registrar of the Supreme Court must seal them and send the lodged documents to the Director-General of the Attorney General’s Department for transmission for service, together with such letter of request (if any) as may be necessary.(2) A certificate as to service, attempted service or non-service of any document so sent that is issued by:(a) a judicial authority or other responsible person in the country concerned, or(b) a British or Australian consular authority in the country concerned,is evidence of the matters stated in the certificate.
11.12 Recovery of unpaid expenses
(cf SCR Part 10, rule 13)
If an applicant who has given an undertaking as to expenses does not, within 7 days after service on the applicant of an account of expenses incurred in relation to his or her application, pay to the principal registrar of the Supreme Court the amount of the expenses, the Supreme Court:(a) may order the applicant to pay the amount of the expenses to the principal registrar, and(b) may stay the proceedings, until payment is made, so far as concerns the whole or any part of any claim for relief by the applicant.
Division 3 Service of external process
(cf SCR Part 57, rule 1)
(1) Subject to subrule (2), this Division applies to the service in the State of any document that is required in connection with civil proceedings pending before a court outside the State, where:(a) a letter of request from the court has been received by the principal registrar of the Supreme Court, and(b) either:(i) the request is for service pursuant to a convention, or(ii) the Attorney General, or some other person authorised by the Attorney General for the purposes of this rule, certifies that effect ought to be given to the request.(2) This Division does not apply to the service in this State of any foreign judicial document (within the meaning of Part 11A) in accordance with a request for service made under the Hague Convention.Note. Division 4 of Part 11A deals with the service in New South Wales of foreign judicial documents originating in countries that are parties to the Hague Convention.
(cf SCR Part 57, rule 2)
In order that service may be effected in accordance with this Division, the following documents must be delivered to the principal registrar of the Supreme Court, unless the principal registrar otherwise directs:(a) the document to be served and 2 copies of it,(b) a copy of the letter of request,(c) if the document or letter is not in English, a translation of it in English and a copy of the translation.
(cf SCR Part 57, rule 3)
(1) The principal registrar of the Supreme Court is to request the Sheriff or some other person to serve the document concerned.(2) The document may be served in any manner in which originating process in proceedings in the Supreme Court may be served, including substituted service pursuant to rule 10.14.(3) Proceedings for an order for substituted service may be commenced only by the Attorney General.
(cf SCR Part 57, rule 4)
(1) After the document has been served or attempts to serve the document have failed, the Sheriff or other person requested to serve the document must make an affidavit of service, and lodge it together with such further copies of the affidavit as the principal registrar of the Supreme Court may direct.(2) The affidavit must state when, where and how service was effected or attempted, and the costs incurred in connection with the service or attempted service.
(cf SCR Part 57, rule 5)
(1) If the request for service is made pursuant to a convention, the principal registrar of the Supreme Court must give either:(a) a certificate complying with subrule (2), or(b) such other certificate as is appropriate to the terms of the relevant convention.(2) A certificate referred to in subrule (1) (a):(a) must certify:(i) that the document or a copy of it was served on the person at the time, and in the manner, specified in the certificate, or(ii) if attempts to effect service failed, that service has failed and the reasons for the failure, and(b) must certify the amount of the costs incurred.(3) If the request for service is made otherwise than pursuant to a convention, the principal registrar of the Supreme Court must give either:(a) a certificate complying with subrule (4), or(b) such other certificate as is appropriate to the terms of the letter of request.(4) A certificate referred to in subrule (3) (a):(a) must annex the letter of request, a copy of the document to be served and of any translation, and a copy of the affidavit under rule 11.16, and(b) must identify the annexures, and(c) must certify:(i) that the manner of service of the document and the proof of service are such as are required by these rules in relation to the service of originating process of the Supreme Court, or(ii) if attempts to effect service failed, that service has failed and the reasons for the failure, and(d) must certify the amount of the costs incurred.(5) In each case, the certificate is to be sealed with the seal of the Supreme Court.(6) The principal registrar of the Supreme Court must send the certificate to the Director-General of the Attorney General’s Department or, if the letter of request or any relevant convention so requires, to the appropriate consul or other authority.