Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered Regulationssubstitute
Division 6.8.9 Service out of Australia
Note 1 This division does not apply to a criminal proceeding (see r 4006 (Criminal proceedings—application of pt 6.8)).
Note 2 Service outside Australia under the Hague Convention is dealt with in div 6.8.12 (Service under the Hague Convention).
Note 3 Service of initiating documents in New Zealand for certain civil proceedings is dealt with in the Trans-Tasman Proceedings Act
, pt 2. See also these rules, pt 6.10A (Trans-Tasman proceedings).
6500 Meaning of Australia —div 6.8.9
In this division:
"Australia" includes the external territories.
6501
Note These rules do not include a r 6501.
The rule number has been kept to ensure that provision numbers in these rules are consistent with the Harmonised Court Rules On Service Out Of Australia.
6502 Service of originating process without leave
An originating process may be served out of Australia on a person without the court's leave in the following circumstances:
(a) if the proceeding is based on a tortious act or omission—
(i) which was done or which happened wholly or partly in the ACT; or
(ii) in relation to which the damage was sustained wholly or partly in the ACT;
(b) if the proceeding is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in relation to a breach of, a contract which—
(i) was made or entered into in the ACT; or
(ii) was made by or through an agent trading or residing in the ACT; or
(iii) was to be wholly or in part performed in the ACT; or
(iv) was by its terms or by implication to be governed by a territory law or to be enforceable or cognisable in the court;
(c) if the proceeding is for a breach in the ACT of any contract, wherever made, whether or not that breach was preceded or accompanied by a breach out of the ACT that rendered impossible the performance of that part of the contract that ought to have been performed in the ACT;
(d) if the proceeding—
(i) is for an injunction to compel or restrain the performance of any act in the ACT; or
(ii) is for interim or ancillary relief in relation to any matter or thing in or connected with the ACT, where the relief is sought in relation to judicial or arbitral proceedings started or to be started, or an arbitration agreement made, in or outside the ACT (including without limitation interim or ancillary relief in relation to any proceedings under the International Arbitration Act 1974
(Cwlth) or the Commercial Arbitration Act 2017
); or
(iii) without limiting subparagraph (ii), is an application for a freezing order or ancillary order under subdivision 2.9.4.2 (Freezing orders) in relation to any matter or thing in or connected with the ACT;
(e) if the subject matter of the proceeding is land or other property situated in the ACT, or any act, deed, will, instrument, or thing affecting the land or property, or the proceeding is for the perpetuation of testimony relating to the land or property;
(f) if the proceeding relates to the carrying out or discharge of the trusts of any written instrument of which the person to be served is a trustee and which ought to be carried out or discharged under territory law;
(g) if any relief is sought against any person domiciled or ordinarily or habitually resident in the ACT (whether present in the ACT or not);
(h) if any person out of the ACT is—
(i) a necessary or proper party to a proceeding properly brought against another person served or to be served, (whether in the ACT or outside the ACT) under any other provision of these rules); or
(ii) a defendant to a proceeding for contribution or indemnity in relation to a liability enforceable by a proceeding in the court;
(i) if the proceeding is for—
(i) the administration of the estate of a person who died domiciled in the ACT; or
(ii) any relief or remedy that might be obtained in a proceeding for the administration of the estate of a person who died domiciled in the ACT;
(j) if the proceeding arises under a territory law and—
(i) any act or omission to which the proceeding relates was done or occurred in the ACT; or
(ii) any loss or damage to which the proceeding relates was sustained in the ACT; or
(iii) the territory law applies expressly or by implication to an act or omission that was done or occurred outside the ACT in the circumstances alleged; or
(iv) the territory law expressly or by implication confers jurisdiction on the court over people outside the ACT (in which case any requirements of the territory law relating to service must be complied with);
(k) if the person to be served has submitted to the jurisdiction of the court;
(l) if a proceeding is made for restitution or for the remedy of constructive trust and the alleged liability of the person to be served arises out of an act or omission that was done or happened wholly or partly in the ACT;
(m) if it is sought to recognise or enforce any judgment;
(n) if the proceeding is founded on a cause of action arising in the ACT;
(o) if the proceeding affects the person to be served in relation to the person's membership of a corporation incorporated in the ACT, or of an association formed or carrying on any part of its affairs in the ACT;
(p) if the proceeding is about the construction, effect or enforcement of—
(i) an ACT law; or
(ii) a law of the Commonwealth (including an Imperial Act applying as a law of the Commonwealth) affecting property in the ACT;
(q) if the proceeding—
(i) relates to an arbitration held in the ACT or governed by territory law; or
(ii) is to enforce in the ACT an arbitral award wherever made; or
(iii) is for orders necessary or convenient for carrying into effect in the ACT the whole or any part of an arbitral award wherever made;
(r) if the proceeding is for relief relating to the custody, guardianship, protection or welfare of a child present in the ACT or who is domiciled or ordinarily or habitually resident in the ACT (whether present in the ACT or not);
(s) if the proceeding, as far as it relates to the person to be served, falls partly within 1 or more of paragraphs (a) to (r) and, as to the residue, within 1 or more of the other of paragraphs (a) to (r).
Note 1 Originating process includes a document that starts a civil proceeding as well as a cross-claim or third-party claim.
Note 2 If a proceeding is started in the court and originating process is served out of Australia under this rule but the court later decides that it is more appropriate that the proceeding be determined by a court of another Australian jurisdiction, the court may transfer the proceeding to the other court under the Jurisdiction of Courts (Cross-vesting) Act 1993
and may make an order for costs against the party who started the proceeding in the court rather than in the transferee court.
6503 Service of originating process with leave
(1) In any proceeding if service is not allowed under rule 6502, an originating process may be served out of Australia with the leave of the court.
(2) An application for leave under this rule must be made on notice to every party other than the party intended to be served.
(3) A sealed copy of every order made under this rule must be served with the document to which it relates.
(4) An application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the court assuming jurisdiction, including the place or country in which the person to be served is or possibly may be found, and whether or not the person to be served is an Australian citizen.
(5) The court may give leave if satisfied that—
(a) the proceeding has a real and substantial connection with the ACT; and
(b) the ACT is an appropriate forum for the trial; and
(c) in all the circumstances the court should assume jurisdiction.
6504 Court's discretion whether to assume jurisdiction
(1) On application by a person on whom an originating process has been served out of Australia, the court may dismiss or stay the proceeding or set aside service of the originating process.
(2) Without limiting subrule (1), the court may make an order under this rule if satisfied that—
(a) service of the originating process is not authorised by these rules; or
(b) the court is an inappropriate forum for the trial of the proceeding; or
(c) the proceeding has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the proceeding.
6505 Notice to person served outside Australia
If a person is to be served out of Australia with an originating process, the person must also be served with a notice informing the person of—
(a) the scope of the jurisdiction of the court in relation to proceedings against people who are served outside Australia; and
(b) the grounds alleged by the plaintiff to establish jurisdiction; and
(c) the person's right to challenge service of the originating process or the jurisdiction of the court or to file a conditional notice of intention to respond.
Note See approved form 6.5 (Service outside the jurisdiction).
6506 Time for filing notice of intention to respond
Except when the court otherwise orders, a defendant who has been served out of Australia must file a notice of intention to respond within 42 days from the date of service.
6507 Leave to proceed if notice of intention to respond not filed
(1) If an originating process is served on a person outside Australia and the person does not file a notice of intention to respond, the party serving the document may not proceed against the person served except by leave of the court.
(2) An application for leave under subrule (1) may be made without serving notice of the application on the person served with the originating process.
6508 Service of other documents outside Australia
Any document other than an originating process may be served outside Australia with the leave of the court, which may be given with any directions that the court considers appropriate.
6509 Mode of service
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.