Many of us have a certain image of Australia pressed into our minds because of Hollywood. It’s either Crocodile Dundee or The Crocodile Hunter or… hang on, is there just something about crocodile guys with Down Under accents that make Americans part willingly with cash? There’s so much more to this curious country continent that it’s, well, too much for Hollywood to accurately portray, even though Mel Gibson (who is American) grew up there. For others among us, it’s the formidable structures surrounding Sydney Harbour– the Opera House, the Harbour Bridge, the dentist’s office where Dory found Nemo. (Sorry, I couldn’t resist talking about that adorable little fish and his forgetful protector.)
Despite so many differences and curiosities and cinematic stereotypes, Australia is strikingly similar to the U.S. and Canada* in terms of legal structure. All are former British colonies, all have deep-rooted common law systems in place at the national and state/provincial level, and all have a fairly liberal attitude to serving process in civil lawsuits. But that liberality doesn’t mean that certain procedures don’t have to be followed.
Service in Australia is governed by the Hague Service Convention, which means some background is in order before we get to the “how to” portion of our show.
- The roadmap to the overall process—the recipe to our Secret Sauce.
- The structure of the Convention itself is discussed in this four-part series.
- And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas. Repeat after me—you can’t just SERVE a subpoena abroad. In Australia, you have to file a Hague Evidence Request, governed by the Hague Evidence Convention. Three Cardinal Rules apply—this is dramatically different from serving a summons or notice.
Now for the “how to” of serving Down Under:
Article 5 Service
- Translate the documents? Logically, if service is effected in an English-speaking country, documents must be in English. So, game over, right? [Yay! Pack up and go home!] Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him to Australia. Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
- Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney. If it is not, make sure that the person signing is commissioned by the court.
- Send to the appropriate Central Authority, in this case the Attorney-General. Be sure to remit the proper fee for service, even though service fees seem to violate Article 12 of the Convention.
- Sit tight. It may take three or four months from submission to return of proof.
Article 10 alternative methods
- Mail service, under Article 10(a), is available. But it’s a bad idea. And it’s only available in Australia if it’s valid in the locality where it’s served. Good luck determining that for sure.
- Service via private agent (process server) seems to be available to U.S. litigants under Article 10(b). Australia’s declarations do not articulate precisely who is and who is not authorized to serve process, and the issue has not ripened in Australia’s courts (at the state or federal level) to provide a jurisprudential conclusion. However, the Attorney-General has indicated that foreign litigants may avail themselves of private process servers just as they did prior to Australia’s accession to the Convention in 2010.
Again, awfully straightforward stuff, much like serving U.S. documents in Canada.
Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client. The plaintiff may not have done it correctly.
* For the uninitiated, and completely unrelated to serving in Australia, the letter ß is not a fancy German B. It’s a different way of writing a double-S in the middle of a word. Straße is not pronounced “Straybe”, as Clark W. Griswold would have us believe. It literally says Strasse, pronounced “SHTRAH-suh”. Just a little orthographic/linguistic trivia to brighten your day.
** Commonwealth procedures may govern the manner in which Canadian process should be served in Australia. The author is not admitted to practice in any non-U.S. jurisdiction, so although the information presented here may be accurate, Hague channels may not be the only way to properly serve in Canadian causes of action.