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Extinguishing dinosaurs: The case for technology

Extinguishing dinosaurs: The case for technology

By Sue Kee

Technology 

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Technology would improve transmission of court documents in non-criminal matters between HSC Contracted State parties.


Snapshot:

  • The Hague Conference has long supported the use of technology in implementing HSC requests but its uptake by Contracting States is variable and limited.
  • The validity of service of court documents is one of the steps in litigation that lends itself to technical skirmishes with attendant delays on the substantive dispute. Overseas service introduces a further layer of risk to the efficient and timely disposition of cases.
  • The widespread adoption by Contracting States of email as a method of communication with each other would result in faster and more efficient communications about overseas service requests.

 

In recognition of Australia’s growing engagement in international transactions Australia acceded to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 (HSC)1 on 15 March 2010. There are currently 71 contracting states (state parties), including some of Australia’s top trade partners.2

A contracting state may object, express reservation or provide clarification in relation to the scope of its accession to the HSC, as listed on the Hague Conference on Private International Law (Hague Conference) website.3

The Hague Conference is a permanent intergovernmental organisation whose purpose is to “work for the progressive unification of private international law”.4 “Special Commissions” develop and negotiate new Hague Conventions and review the practical operation of existing ones, including the HSC. Conveniently, the Hague Conference publishes a Practical Handbook on the Operation of the Service Convention (the Handbook).5

In summary, the HSC establishes a framework for the transmission of civil court documents from a requesting (or forwarding) contracting state, for service in the receiving, requested, contracting state. Importantly the HSC does not modify the substantive rules for the service of process6 which is in accordance with contracting state laws. Articles 15 and 16 provide procedural safeguards for default judgments against a party where service is contested.

Channels of transmission – overview

The system of central authorities is the main channel of transmission. The “authority” or “judicial officer”, designated competent under the law of the contracting state in which the documents originate (the requesting or forwarding authority)7 communicates the service request to the central authority of the receiving contracting state. The central authority executes, or delegates execution of, service (under the laws of the contracting state) and provides confirmation of, or the failure to effect, service to the requesting forwarding authority (Articles 3, 4 and 5).

Services of process on the ultimate addressee, not involving the central authority, are referred to as alternative channels of transmission. They are:

  • diplomatic/consular channels (direct and indirect) (Articles 8(1) and (9))
  • postal channels (Article 10(a))
  • direct communication between judicial officers, officials or other “competent persons” as determined under the law of the requesting and receiving contracting states (Article 10(b))
  • direct communication between a person interested in a judicial proceeding and a judicial officer, official or other competent person of the receiving Contracting State (Article 10(c)).

There is no hierarchy or subordination between the main and alternative channels of transmission.8 In Australian Competition and Consumer Commission v Yellow Page Marketing BV9 the Court agreed, without needing to decide the issue, with the ACCC’s submission that the alternative channel of transmission under Article 10(c) is neither “established” by nor “‘interfered’ with” by the HSC.

The procedural requirements of one channel of transmission over the other may be more or less favourable in a particular situation and the circumstances of each should be carefully considered in deciding on an appropriate channel to use.10

Central authority and additional authorities

Article 2 requires each contracting state to designate a central authority to receive requests for service. Australia’s Central Authority is the Private International Law Unit of the federal Attorney-General’s Department. Article 18 permits contracting states to designate other authorities and to determine the extent of their competence.

Each of the Supreme Courts of the states and territories and the Principal Registry of the Federal Court is an additional authority.11

The central authority and additional authorities are competent to complete a Certificate of Service (certificate) for the purposes of Article 6, although the absence of a Certificate is not necessarily conclusive. For example, under Rule 10.71 of the Federal Court Rules 2011, the power to enter default judgment arises without a certificate in specified circumstances.

Alternative channels of transmission

The Department of Foreign Affairs and Trade is the competent authority under Article 8 to serve documents on persons abroad directly through its diplomatic or consular agents. Article 8 also provides that a contracting state may declare that it is opposed to such service in its territory unless the document is to be served on a national of the contracting state in which the documents originate.

As mentioned above, and provided a contracting state does not object, the HSC does not interfere with service of court documents directly through postal channels12 (including via private courier)13 or through judicial officers, officials or other competent persons.14

Nevertheless, reliance on alternative channels of transmission may introduce undesirable risks, as exemplified by Japan’s clarification that “. . . the absence of a formal objection [to Article 10(a)] does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service”.15

Service of US court documents on a United Kingdom resident through an English solicitor and a process server have been upheld as valid under Article 10(b) or 10(c).16

Use of digital technology

There are a number of practical steps in effecting overseas service under the HSC and the applicability of the use of modern technology in each of these demands consideration, taking into account risks such as reliability and security.

The introductory remarks to the HSC are inhered with timeliness considerations:

“The States signatory to the present Convention, desiring to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time, desiring to improve the organisation of mutual judicial assistance for that purpose by simplifying and expediting the procedure, have resolved to conclude a Convention . . .”

Although the HSC was drafted with only a paper environment in mind, the special committees of 2003 and 2009 clarified that it does not restrict the use of technology. They concluded that “. . . the spirit and letter of the [Service Convention] do[es] not constitute an obstacle to the usage of modern technology and that [its] application and operation can further be improved by relying on such technologies”.17

Australia’s accession to the HSC was agreed to by the Standing Committee of Attorneys-General in 1980, however a failure to find common ground on the appropriate model of implementation saw the issue go into abeyance until revitalisation in 2006.18 Tremendous changes in technology occurred in that lacuna, notably the emergence of email as a standard form of communication.

The Hague Conference’s Central Authority information page for Australia19 states that:

“. . . in Australia service can currently take up to 3 months or more. It varies according to the state or territory that the request is sent to as they may have different ways of processing service requests. It also depends on where in Australia the person resides. If the person is in a remote location, the time for execution of the service request will be longer than if the person lives in a central location. Requests for urgent service are considered, but it may not always be possible to assist with expediting the request.”20

There is scope to improve this timeframe through the smart use of technology in communications between contracting states, without introducing risk concerning the validity of service, a mischief which the HSC is directed towards mitigating.

It is prudent initially to distinguish between use of technology in communications about an overseas service request and the effecting of service on the addressee, as even domestically there has been slow uptake of electronic service by the courts. For example, it is only since August 2017 that the Supreme Court (Chapter I Email Service Amendment) Rules 2017 require parties in civil matters to include an email address for service and provide that ordinary service may be effected by email to that address.

In 2003 the Special Committee reviewed the practical operation of the HSC and recommended “. . . that the transmission of documents internationally for the purposes of the Convention can and should be undertaken by IT-business methods including email; this is already happening and the [Special Committee] recommends that States party to the Convention explore all ways in which they can use modern technology for this purpose”.21

The 2003 Special Committee highlighted for immediate consideration:

  • communications between a requesting party and a forwarding authority
  • communications between a forwarding authority and a central authority of the requested contracting state
  • transmission of certificates to the forwarding authority.22

The Special Commissions of 2009 and 2014 concluded that such communications “can and should be performed using information technology, including email”.23

Earlier, the 2003 and 2009 Special Commissions concluded where there is doubt about the competence of a forwarding authority, the receiving requested contracting state “should seek to confirm that competence by either consulting the Hague Conference website or making expeditious information enquiries of the forwarding authorities, including by way of email”.24

Nevertheless, a 2008 contracting states’ questionnaire reported in the Handbook reveals that “[a]lmost all forwarding authorities in Contracting States mainly use the postal method to send requests for service abroad, and several use private courier services”.

These findings illustrate the shackle of dinosaur post and courier communications practices.

The Handbook includes a handy annexure25 that summarises and builds upon the previous Special Commission inquiries to support use of technology in the operation of the HSC. The central authority of China is identified as being innovative in this regard in encouraging forwarding authorities to provide a single paper copy of service documents together with a digital copy saved on disc or transmitted by email.26 In Australia, Federal Court practice is to require three hard copies of service documents to accompany a request. It is remarkable that the practical effect of the cooperative framework established by the HSC, while respecting the sovereignty of each contracting state, seems so inflexible that contracting states may operate as communications technology silos.

Conclusion

The HSC does not set a time limit for completion of a request for service, although the model form (a mandatory requirement of the main channel of transmission) states that the service request should be performed promptly. The period for performance of a service request varies from one contracting state to another, and sometimes within contracting states: there are instances where deadlines specified in the relevant court document have passed by the time of service on the addressee.27 The 2013 Special Commission has also made several recommendations for contracting states to consider in relation to timelines and associated inquiries regarding the execution of the service on the addressee.28

Where communications between a requesting party and a forwarding authority (where the two are different) and the forwarding authority and the central authority are effected by email days if not weeks will be shed from the time involved. This would be particularly helpful in cases, for example, where the turnaround time of the process to be served is typically condensed, such as where subpoenas to produce documents have been issued to parties located abroad. Documents produced under such compulsion can be of critical importance to the disposition of litigation in circumstances where the defendant’s discovery is lacking in forensic utility29 and/or is limited as a result of poor or non-existent document retention.30 As observed in Southern Pacific Hotels Services Inc v Southern Pacific Hotel Corp Ltd,31 subpoenas “. . . minimise the need for amendments of pleadings, for wasteful adjournments, and overall to enable the court to carry out its task of providing a speedy hearing of disputes”.

As set out above, there is a persuasive case for steps to be taken by contracting states to embrace the use of modern communications technologies over any other form of communication, at least in communications that do not touch on the actual service of the court process. Email alone facilitates a more effective and efficient turnaround time than conventional mail methods.

Looking to the future, despite its convenience, email is increasingly becoming problematic in terms of its security and reliability as a communications tool and it may be timely for a more robust and future proof technology to be investigated by contracting states.

 

Sue Kee is the 2017 LIV president-elect who has practised in commercial litigation and administrative law as senior associate at Arnold Bloch Leibler.

 

1. www.hcch.net.

2. As reported by David Scutt, 27 May 2016 “Table These were Australia’s top trading partners in 2015” Business Insider http://edge.alluremedia.com.au/uploads/businessinsider/2016/05/DFAT-Australias-top-trade-partners-2015.jpg.

3. Note 1 above.

4. See Glossary: Practical Handbook on the Operation of the Hague Service Convention, 4th edn, 2016 (Handbook), p XXXI.

5. The Handbook is the most recent edition.

6. With the exception of direct diplomatic or consular channels and the postal channel: see Note 4 above, paragraph 9, p5.

7. In this way private persons are not entitled to send requests to a Central Authority, although the diversity of forwarding authorities among the contracting states is great: see Note 4 above, paragraphs 122-124, p43.

8. Note 4 above, paragraphs 236-237, p75-6.

9. [2010] FCA 1218 at [17].

10. For example, Article 3(1) makes use of the Model Form mandatory when using the main channel of transmission. Note 4 above, paragraph 153, p51.

11. www.hcch.net/en/states/authorities/details3/?aid=879.

12. Article 10(a).

13. Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions (28 October to 4 November 2003), Recommendation 56.

14. Articles 10(b) and 10(c).

15. Note 13 above, Recommendation 57.

16. See paragraph 232-234, Practical Handbook on the Operation of the Hague Service Convention, (3rd edn), 2006, pp159-160 (2006 Handbook); Note 4 above, paragraph 120, p45.

17. Note 4 above, paragraph 5, Annex 8, p169.

18. National Interest Analysis [2009] ATNIA 13 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, done at The Hague on 15 November 1965 [2009] ATNIF 10.

19. Note 1 above.

20. www.hcch.net/en/states/authorities/details3/?aid=878.

21. Note 13 above, Recommendation 62.

22. Note 13 above, Recommendation 63.

23. Note 13 above, Recommendation 62. Recommendation 37 of the 2009 Special Commission and Recommendation 39 of the 2014 Special Commission: See Note 4 above, item 10, pXLVII; also Note 4 above, paragraphs 11-12, Annex 8.

24. Note 4 above, paragraph 127, p44.

25. Note 4 above, Annex 8, pp167-201.

26. Note 4 above, Paragraph 14, Annex 8, p172.

27. Note 4 above, Paragraph 195, p64.

28. Note 4 above, Paragraph 197, p64.

29. Note 1 above.

30. In Victoria the destruction of evidence which is or is reasonably like to be required in evidence in a legal proceeding is a criminal offence: s254, Crimes Act 1958.

31. [1984] 1 NSWLR 710 at 716.

 

 


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