HOW THE CENTRAL AUTHORITY WORKS IN AUSTRALIA

This article will provide guidance on How The Central Authority Works in Australia.  On 15th March 2010, Australia ratified the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Proceedings, 1965. Australia and the other contracting nations may now use the processes envisioned by this Convention. Click here for a video on International Process Service.

What does this mean? A designated Central Authority, the diplomatic channel, or individual service may be used to serve papers to third parties. The Central Authority for Australia is the Department of the Attorney-General in the Australian (Commonwealth) government, which then notifies its overseas equivalent of the request for service. When a request is made to the foreign counterpart of Australia’s Attorney-General’s Department, that office forwards it to the proper judicial authority for execution. Click Here for Frequently Asked Questions About Process Servers!

Serving legal papers in Australia is a challenging job. It might be difficult to keep up with Australia’s complex legal system, especially since multiple jurisdictions need to be addressed. However, at Undisputed Legal, we undertake these responsibilities with a smile. Because international service can be unreliable, we want to ensure your documents get where they should be safe.  If you found this article helpful, kindly consider leaving us a review. Click the link to share your feedback, and we would greatly appreciate a five-star review.

Background

Through the diplomatic route, requests for service are sent from the Australian embassy abroad to the Australian Department of Foreign Affairs and Trade (DFAT). The request is sent from the Australian embassy to the foreign affairs authority of the foreign nation, which then forwards it to the justice services authority and the appropriate court.

When a document must be served on a party outside of Australia, it must be done in line with the local legislation. The Central Authority verifies that applications comply with international conventions to which Australia is a party before forwarding them to the Commonwealth authorities for service through judicial or diplomatic channels. However, Australia has specific requirements for different localities within the country’s borders. For example, in New South Wales, the Prothonotary of the Supreme Court’s official seal must be affixed to the documents, and the required number of copies must be included.

What about the Non-Convention States?

In the absence of a convention or treaty, the Attorney General determines whether or not the application follows Australian Court Rules and the method permitted by the foreign nation in question. A certificate of service, attempted service, or non-service must be returned when service has been made. This must be issued by a court authority or other responsible person in the nation or a British or Australian consular authority.

Documents may be served within a country via the diplomatic route, the commercial sector, or an authorized Central Authority. The Australian Attorney-General’s Department is the country’s designated Central Authority and is responsible for forwarding service requests to the appropriate Australian judicial body, which notifies the correct Court. Service of process in a foreign country like Australia might be challenging and time-consuming. Regarding service of process in international law, accuracy, conformity with local laws, and a thorough understanding of the legal environment are of the utmost importance. Professional process servers, such as those found at Undisputed Legal, may provide invaluable insight and assistance in these cases.

The request is referred to the Attorney General to assess whether it is suitable to enable the service of papers originating from a nation that is not a convention country. If the Attorney believes service is required, they will send the papers to the Supreme Court Registrar along with a note attesting that the request should be honored. If the Attorney concludes that the papers should not be served, they are returned. It should be highlighted that the Attorney has already decided that the seeking nation is entitled to have papers served on its behalf. The Attorney’s use of this discretion is not constrained by other statutes or policies. However, it is still considered essential to examine the papers to see whether or not they need service inside the state. 

 Authorisation to Forward

New service requests submitted to the Australian Central Authority will be processed more quickly if the Requesting Authority includes [A.] a contact name; [B.] a phone number, and [C.] an email address for the Requesting Authority. Without this information, the Australian Central Authority will have difficulty communicating with the requesting authority, which might substantially affect the turnaround time for service requests.

Article 3(1) specifies that any Australian court official or other person or institution approved by the court’s rules is competent to send service requests. The Commonwealth of Australia constitutionally consists of six federated states (New South Wales, Queensland, South Australia, Tasmania (including Macquarie Island), Victoria, and Western Australia) and ten federal territories, three of which are internal territories. Consequently, the service of process needs to be addressed differently to each of them. Additionally, each state has different requirements under the Hague Service Convention, as seen further.

  1. New South Wales

At the direction of the Supreme Court of New South Wales, the Sheriff of New South Wales serves the papers personally. In order to accomplish personal service on a person, a copy of the document must be left with the person, or if the person refuses the copy, it must be laid down in the person’s presence with notice of its placement. If the intended recipient is not available to accept service of process, the papers must be left at the residence of a presumed adult (16 years or older).

When a person’s address on file is the office of a lawyer or other legal representative, service is attempted by leaving the papers with a staff member. If a document must be served on a corporation, it must be served on its registered agent or in any other way the law permits. In New South Wales, requests for service to a Post Office Box or DX number or for electronic submission of service papers are not permitted.

Article 5(3) states that translation services are unnecessary for volunteers. Please see the list below for other delivery options.  The translation must include a certificate signed by the translator saying (in English) that [A.] the translation is a true representation of the original material; [B.] the translator’s complete name and mailing address; and [C.] the translator’s experience and credentials

  1. Victoria:

 The rules for filing documents with the Supreme Court (General Civil Procedure) in Victoria, Australia, may be found in Order 80.13. Victoria must provide an affidavit of service: a document a sheriff’s deputy filled out stating whether service was completed. The Affidavit must describe the means by which the recipient was determined or the impediments to assisting. To complete the Certificate of Service, it is necessary to return all supporting papers to the Foreign Service Officer. The applicant will receive the documents back.

The same procedure is followed if the seeking authority has specified that volunteer service must be accomplished. However, the addressee may decline to receive the papers while being served by a Sheriff’s Officer via this approach. As shown by the affidavit’s return to the Court, this attempt seems unsuccessful.  Both successful and failed services incur the same AUD 32.00 cost in Victoria. This amount is due to the Sheriff’s Office upon presentation of a Certificate of Service or Non-Service. Payment may be made by credit card, bank transfer, or bank draft as specified in communication from the Supreme Court. When making a payment, provide the Sherriff’s Office reference number that may be found on the invoice.

  1. Queensland:

A court bailiff or law enforcement official may achieve service if the request meets Convention requirements. To serve someone personally, it is necessary first to find them, identify them (often by asking who they are), and then hand them the papers. If service of the papers is necessary on a corporation, then service will generally be attended to by delivering the documents and leaving them with a person at the registered address of the company. The papers must be delivered and left with a person at the business address who appears to be in charge or management if service is sought on a business that is not a registered corporation.

Service cannot be made by mailing or hand-delivering papers to a Post Office Box in Queensland. An enforcement officer or court bailiff may do voluntary duty. The person to be served will be located, identified (by requesting to confirm their identity), and then asked whether they would willingly accept service of the papers by the bailiff or enforcement officer. If so, the originals or copies of the paperwork will be given to that individual. The foreign civil process to be served must be translated into English and supplied in triplicate according to Rule 130M of the Uniform Civil Procedure Rules 1999 (in Queensland). The translator must attest that the papers being supplied are accurately translated into the target language.

  1. Western Australia:

Legal obligations are fulfilled in accordance with Order 11A of the Supreme Court Rules 1971 (WA).If these conditions are satisfied, the request is sent to the Sheriff to arrange for personal service via the Supreme Court. Once received, the Sheriff’s office will prepare an Affidavit stating that service was made by one of their officers. After the Supreme Court receives this affidavit, the Principal Registrar will sign and seal a Certificate of Service of Foreign Process. The papers that were served are the Sheriff’s Affidavit and any appendices to it, which are attached to the Certificate.

The State Solicitor’s Office will forward the Certificate, Affidavit, and any supporting documents to the appropriate agencies once they have been received. The State Solicitor’s Office requests to be credited for any service costs already paid. In cases where no translation of the documentation is provided other than the original request, service may still be completed if the person being served is willing to accept the documentation in its original form. Otherwise, the process for voluntary service is the same as described above. The Sheriff’s Officer produces An Affidavit of Service, annexing the document served.

The language of the documents being provided must be English. In addition to the original document, each translation submitted must be accompanied by a Certificate in English (signed by the translator) attesting to the accuracy of the translation, the translator’s credentials, and the translator’s complete name and address. 

  1. Free State of South Australia:

The Sheriff receives the paperwork and makes delivery arrangements with the Process Server. The Process Server will go to the provided location and make delivery attempts. Affidavit of service paperwork would be filed if the attempt was successful. If the individual no longer lives at the given location, neighbors would be contacted to learn their whereabouts.

The applicant would supply the Process Server with detailed instructions for serving the papers. One such condition is a signature from the addressee. Service using the applicant’s preferred mode will be employed if it complies with the legislation in effect in this jurisdiction.

  1. Tasmania:

Service must be made in accordance with the applicant’s specified manner if such method is consistent with the legislation in effect in Tasmania. If the applicant has not specified a specific form of service and the person receives the document freely by delivery of the document to the person to be served. A notice or document may be served to a natural person by handing it to the person, leaving it at, or mailing it to the person’s residence or place of business unless a different manner of service is specified.

Documents may be served by mail if they are properly addressed, postage-paid, and sent via the mail. In addition, service must be presumed to have been made when the letter would have been delivered in the usual course of post unless the opposite is shown. If a document has to be sent, it must be registered with the post office or delivered by certified mail under the postal rules in effect at the time. 

  1. Australian Capital Territory

For service to be completed, the request must be sent to the Supreme Court of the ACT from the Attorney General of the Commonwealth. The document to be served, a description of the document, and a copy of the request for service are all things the Court will take care of. A Supreme Court Sheriff’s Officer often handles this kind of process.

Voluntary service is carried out in the same manner as official service as indicated above, i.e., the request must be filed with the Supreme Court, which organizes for service. 

  1. Australia’s Northern Territory:

Order 7A of the Supreme Court Rules 1987 (NT) governs the process for effecting service.

Upon receiving a request for service, the Court will make the necessary arrangements to have the appropriate papers served. It is required to serve papers using a service procedure recognized under the legislation of the Northern Territory. The bailiff of the Supreme Court of the Northern Territory often personally serves papers on the defendant.

 The Registrar of the Northern Territory Supreme Court will then complete a certificate of service or non-service, affix the seal of the Court, and send it back to the originating authority along with a statement detailing the costs associated with the service or attempted service of the document.

Specifics of process service in Australia

In Western Australia, there is no cost associated with serving legal papers. In South Australia, papers may be served without paying a charge. At the moment, service in Australia may take three months or more. It differs depending on the state or region to which the request is made since they may have varied processes for processing service requests. Where a certain Australian citizen calls home is also a factor. The execution of the service request will take more time if the person requesting it is located in a more distant place. 

Requests for urgent assistance are taken into consideration, however it is not always feasible to accommodate such requests.   Australia has no objections to the process being served by mail in jurisdictions where this is allowed under Article 10(a). All correspondence requiring a receipt confirmation (declarations) must be sent by registered mail. No proof of service is required for a default judgment to be entered against a defendant in Australia under Article 15(2), provided the other requirements of that article are met. 

To effect service in accordance with the Hague Service Convention, an application must be made to a Registrar (a judicial official of an Australian Court.) Australia’s Central Authority is the Commonwealth Attorney-General’s Department, and the application is submitted by submitting a completed Hague Service Request. Once complete, the application will be sent to the Australian State or Territory Registrar, where the service is to be completed. The Court will arrange for serving of the necessary papers if the Registrar is satisfied with the application. In most cases, service in Australia in compliance with the Convention takes about three months. The recipient’s location and the State or Territory where the application is being submitted both have a role in determining the timeline. 

In addition to the Hague Service Convention approval procedure, service of an originating process in Australia may alternatively be accomplished by mailing the papers directly to the person to be served by means of registered post. This will only hold water if service by registered mail is recognized under the law of the applicable foreign jurisdiction under a reciprocal arrangement.

Alternatively, a process server in Australia may be contacted in these situations to arrange for service to be made in person. Again, service by a process server will only be legitimate if it is recognized as such under the law of the foreign nation in question. Personal service of an originating process requires [A.] the physical delivery of a copy of the originating process to the target; [B.] in the case of an individual, the personal delivery of a copy of the originating process to the target; and [C.] in the case of a corporation, the personal delivery of a copy of the originating process to the corporation’s registered office or the personal delivery of a copy of the originating process to a principal officer of the corporation. This notice is required by law and represents a core value of justice, ensuring that all parties are given a fair chance to be heard in court. Undisputed Legal aims to uphold these values and provide efficient and accurate delivery of documents.

Notary in Australia

The terms ‘notary,’ ‘public notary,’ and ‘notary’ refer to an individual who performs the same duty in Australia. A public officer, usually a solicitor or solicitor in practice, is designated as an Australian Public Notary. They are appointed for life by a State or Territory Supreme Court (or, in the case of Queensland, by an English Archbishop.) By virtue of their statutory authority, they are authorized to attest documents, administer oaths, and carry out various other practical and extensive administrative duties on a national and international level.

In addition to executing documents for domestic use in Australia, a Notary Public provides analogous services for international documents utilized outside the country. In Australia, the services rendered by a Justice of the Peace (JP) or Commissioner for Affidavits are analogous to those offered by notaries in the United States. Nevertheless, while American notaries lack the authority to attest documents intended for international use, their counterparts in Australia do. This unique privilege is reserved for Australian notaries, the nation’s only legitimate international ‘JPs.’

Notaries Public affix their engraved mark or official seal (usually an imprinted red or gold decal) to documents in close proximity to, beneath, or at the very least, beneath their signatures. They affix a ribbon on the documents with their seal so that pages cannot be added, removed, or modified. In addition, public notaries are required to register their signatures, seals, or stamps with the Supreme Court of their respective state or territory, to which they are accountable. Furthermore, if a local notary society is present in their state or territory and they are members, they are also required to do so.

The Department of Foreign Affairs and Trade (DFAT), an Australian government agency authorized to issue Apostille or Authentication Certificates attesting to the authenticity of Notaries’ signatures, seals, or stamps on Australian public documents, maintains an official database of all notarial signatures and seals.

What is the role of a Notary Public 

Primarily, a Notary Public verifies and apostille documents for use in Australia and other nations. Various legal documents, including powers of attorney, wills, deeds, and contracts, are drafted and certified for use in Australia and abroad by Notary Public. The administration of oaths for Australian and international documents, contracts, affidavits, statutory declarations, powers of attorney, and other documents valid in Australia and other countries is also done by Notaries Public.

As such, a notary public is necessary to [A.] verify the true identity of the signatory through a thorough examination of an authentic identification document, such as a valid driver’s license or passport; [B.] assess whether a signatory is legally incapable due to a physical or mental illness, congenital deficiency, physical disability, or mental incapacity; [C.] ensure that the witness is fully informed of the contents of the document that is being signed; [D.] verify that a signatory acting as an official representative of the company, such as a director or secretary of an ASIC-registered organization, has the authority to sign on behalf of the organization; and [E.] negate notarial services when a document is illegitimate or fraudulent.

The apostille may only be placed on the first copy of a document. The latter should not be damaged in any way, with stamps and autographs legible. Additionally, it should be clear of any foreign symbols or tags. Undisputed Legal provides notarization of public documents and professional translation services. Keep in mind that legalization does not guarantee that a document is genuine or that the information contained within it is accurate. A document’s authenticity is verified via a legalization process. Professional process servers, such as Undisputed Legal in Australia, may lessen the likelihood of legal repercussions from the wrong service. To ensure that you encounter no issues or hurdles in court due to our service, we are continually increasing our knowledge base.

OUR PROCESS

Documents can be faxed to (800)-296-0115, emailed to ps@undisputedlegal.com, mailed to 590 Madison Avenue, 21 Floor, New York, New York 10022, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; All documents are received by our receptionist.

DOMESTIC COVERAGE AREAS:

Alaska | Alabama | Arkansas | Arizona | California | Colorado | Connecticut | District of Columbia | Delaware | Florida | Georgia | Hawaii | Iowa | Idaho | Illinois | Indiana | Kansas | Kentucky | Louisiana | Maryland | Massachusetts | Maine | Michigan | Minnesota | Mississippi | Missouri | Montana | North Carolina | North Dakota | Nebraska | New Hampshire | New Jersey | New Mexico | Nevada | New York | Ohio | Oklahoma | Oregon | Pennsylvania | Rhode Island | South Carolina | South Dakota | Tennessee | Texas | Utah | Virginia | Vermont | Washington | West Virginia | Wisconsin | Wyoming

INTERNATIONAL COVERAGE AREAS:

Albania | Andorra | Anguilla | Antigua | Argentina | Armenia | Australia | Austria | Azerbaijan | Bahamas | Barbados| Belarus | Belgium | Belize | Bermuda | Bosnia and Herzegovina | Botswana | Brazil | British Honduras | British Virgin Islands | Bulgaria | Canada | Cayman Islands | Central and Southern Line Islands | Chile |China (Macao) | China People’s Republic | Colombia | Costa Rica | Country of Georgia | Croatia | Cyprus | Czech Republic | Denmark | Dominican Republic | Ecuador | Egypt | Estonia | Falkland Islands and Dependences | Fiji | Finland | France | Germany | Gibraltar | Gilbert and Ellice Islands | Greece | Guernsey | Hong Kong | Hungary | Iceland | India | Ireland| Isle of Man | Israel | Italy| Jamaica | Japan | Jersey Channel Islands | Jordan | Kazakhstan | Korea | Kuwait | Latvia| Lithuania | Luxembourg| Malawi | Malaysia | Malta | Mauritius | Mexico | MonacoMontenegro | Montserrat | Morocco | Namibia | Netherlands| New Zealand |Nicaragua | Norway | Pakistan | Panama | Paraguay | Peru | Philippines | Pitcairn |Poland| Portugal | Republic of Moldova | Republic of North Macedonia | Romania |Russian Federation | Saint Vincent and the Grenadines | San Marino | Saudi Arabia | Serbia | Seychelles | Singapore| Slovakia| Slovenia | South Africa | Spain | Sri Lanka | St. Helena and Dependencies | St. Lucia | Sweden | Switzerland | Taiwan | Thailand | Tunisia | Turkey | Turks and Caicos Islands | UkraineUnited Kingdom of Great Britain and Northern Ireland | Uruguay | US Virgin Islands | Uzbekistan | Venezuela | Vietnam

OFFICE LOCATIONS

New York: (212) 203-8001 – 590 Madison Avenue, 21st Floor, New York, New York 10022
Brooklyn: (347) 983-5436 – 300 Cadman Plaza West, 12th Floor, Brooklyn, New York 11201
Queens: (646) 357-3005 – 118-35 Queens Blvd, Suite 400, Forest Hills, New York 11375
Long Island: (516) 208-4577 – 626 RXR Plaza, 6th Floor, Uniondale, New York 11556
Westchester: (914) 414-0877 – 50 Main Street, 10th Floor, White Plains, New York 10606
Connecticut: (203) 489-2940 – 500 West Putnam Avenue, Suite 400, Greenwich, Connecticut 06830
New Jersey: (201) 630-0114 – 101 Hudson Street, 21 Floor, Jersey City, New Jersey 07302
Washington DC: (202) 655-4450 – 1101 Pennsylvania Avenue, N.W. Suite 300, Washington DC 20004

FOR ASSISTANCE SERVING LEGAL PAPERS IN AUSTRALIA

Pick up the phone and call Toll Free (800) 774-6922, or click the service you want to purchase. Our dedicated team of professionals is ready to assist you. We can handle all your Australia process service needs; no job is too small or too large!

Contact us for more information about our process-serving agency. We are ready to provide service of process to all our clients globally from our offices in New York, Brooklyn, Queens, Long Island, Westchester, New Jersey, Connecticut, and Washington, D.C.

“Quality is never an accident; it is always the result of high intention, sincere effort, intelligent direction, and skillful execution; it represents the wise choice of many alternatives”– Foster, William A

Sources

1. Private International and Commercial Law Section
Australian Government
Attorney-General’s Department
Robert Garran Offices
3-5 National Circuit
BARTON ACT 2600
Australia

2. A certificate of service, attempted service, or non-service must be returned when service has been made. In accordance with the Uniform Civil Procedure Rules (Part 11 Division 2.11.11), this must be issued by a court authority or other responsible person in the nation in question or by a British or Australian consular authority.

3. Persons resident in the State may be served with papers from a foreign court or tribunal in connection with civil or commercial actions taking place outside of the State in accordance with Part 57 of the Supreme Court Rules.

4. Seyfang v GD Searle & Co [1973] 1 QB 148 at 151-2 for the principle that any request from a foreign court should be considered sympathetically and comply with to the extent permitted by local law.

5. The Supreme Court must provide a certificate that conforms to the request, whether made outside of a convention or, if no specific requirements are included in the letter, a certificate that:

  1. attaching the request letter, a copy of the document, any translation, and a copy of the affidavit of service; 
  2. specifying the annexure; 
  3. attesting that the manner and proof of service are such as required by the Supreme Court for the service of originating processes or, if attempts for service failed, attesting to the failure and the reasons for the failure; and 
  4. attesting that the costs incurred are reasonable.

6. Service on a prisoner or inmate is accomplished by leaving the document in the custody of the Correctional Facility’s General Manager.

7. For papers that have not been translated, the Principal Registrar of the Western Australian Supreme Court will issue a Certificate but cannot attest to anything else being delivered.

8. Rule 11A 13(3) of the Supreme Court Rules 1971 (WA) mandates the submission of the Certificate in Western Australia.

9. Supreme Court Rules 2000 (Tas), r.970O (3)(b)

10. Section 30 of the Acts Interpretation Act 1931 (Tas)

11. Court Procedure Rules 2006 (ACT), rule 6564

12. See Court Procedure Rules 2006 (ACT), rule 6564.

13. Whether service has been achieved or not, the party filing the affidavit with the court must include the information required by Rule 7A.16 of the Supreme Court Rules 1987 (NT).

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The information contained herein has been prepared in compliance with Section 107 of the Copyright Act. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works. The articles/Images contained herein serve as criticism, comment, news reporting, teaching, educational, and research-as examples of activities that qualify as fair use. Undisputed Legal Inc. is a Process Service Agency and “Not A Law Firm” therefore the articles/images contained herein are for educational purposes only, and not intended as legal advice.