Request for service abroad of judicial documents and certificate (Form 91)

The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters came into force for Australia on 1 November 2010. Part 11A of the Uniform Civil Procedure Rules 2005 (NSW) lets a party apply to the Registrar, as forwarding authority, for a NSW document to be served in another Convention country through that country's central authority. Form 91 is the request, made under rr 11A.4 and 11A.6. Part 1 is the request itself, signed by the forwarding authority on the applicant's behalf; Part 2 is the certificate the foreign authority completes and returns, stating whether, when, where and how the document was served. Under r 11A.4(2) the application must be accompanied by 3 copies each of the draft request, the document, a summary (Form 92) and any required translation, and a translation must carry a translator's certificate (r 11A.4(5)).

When you need it

• You need to serve a NSW court document on a person in a country that is party to the Hague Service Convention.
• You want formal service through the foreign central authority, with a certificate of service you can rely on (r 11A.8).
• You may later need default judgment against a defendant served abroad, which depends on the certificate or on proof of reasonable efforts (rr 11A.10 and 11A.11).

1. 1

   Part 1: authorities and applicant

   Enter the identity and address of the forwarding authority (the court's Registrar) and of the receiving central authority in the destination country, the applicant on whose behalf service is requested, and the addressee's identity and address.

2. 2

   Part 1: method of service

   Choose (a) service by the receiving country's own method, (b) a particular method you specify, or (c) delivery to an addressee who accepts it voluntarily, and delete the options that do not apply. List the documents to be served.

3. 3

   Part 1: signature

   Part 1 is signed or stamped by the forwarding authority with the place and date. Prepare it as a draft for the Registrar.

4. 4

   Part 2: certificate

   Leave Part 2 for the receiving authority. It records the date, place and method of service and the person who received the document, or the facts that prevented service, and any expenses to be reimbursed.

• Apply to the Registrar of the court where the proceedings are. The procedure is in UCPR r 11A.4. The application must include a written undertaking, signed by the applicant's lawyer on the record or by an unrepresented applicant, to be personally liable for the costs of service abroad (r 11A.4(3)), which must be paid within 28 days of the Registrar's notice (r 11A.7).
• Include the document to be served, the summary (Form 92) and any required translation. The Department of Communities and Justice says it checks that the documents are sealed, that the required number of copies is included and that there is a certified translation into the language of the destination country, then sends the request to the Commonwealth Attorney-General's Department, Australia's Central Authority.
• For default judgment after service abroad, the Bench Book notes r 11A.10 generally requires 42 days after service for the defendant to appear, unless the court allows less time.

• Check that the destination country is a Convention party and whether it has reservations or translation requirements before you prepare the documents.
• Allow plenty of time. Where no certificate comes back, r 11A.11 requires at least 6 months since the document was forwarded before default judgment.
• Keep the returned certificate. Under r 11A.8 it is sufficient proof that service was effected by the method and on the date it states.