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88 THE HAGUE CONVENTION on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters was concluded on 15 November 1965. It has been adopted by the following countries:
Member States: Belgium, Canada, China, Hong Kong (Special Administrative Region only), Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Greece, Ireland, Israel, Italy, Japan, Korea, Latvia, Luxembourg, Netherlands, Norway, Poland, Portugal, Slovakia, Spain, Sweden, Switzerland, Turkey, United Kingdom, United States, Venezuela
Non-member States: Antigua and Barbuda, Bahamas, Barbados, Belarus, Botswana, Malawi, Pakistan
89 Australia has not yet acceded to this Convention, although in 1996 the Australian Law Reform Commission recommended that it do so.86
90 The Convention applies “in all cases, in civil and commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad” (article 1). The phrase “civil and commercial” appears in many Hague Conventions and is open to differing interpretations.87 Common law countries generally interpret it as meaning any non-criminal matter, whereas civil law countries may take a narrower approach. McClean observes that a generous interpretation aids both plaintiffs (who may need to effect service before a judgment can be given) and defendants (who can benefit from knowledge of pending proceedings); and that a State does not commit itself to recognising any judgment the plaintiff may ultimately obtain, because service facilitates proceedings rather than authenticates them.88
91 The Convention does not apply where the address of the person to be served is not known (article 1). This exclusion leaves States free to use whatever other methods are considered appropriate, such as substituted service under English law.89
92 The Convention creates a system of Central Authorities to receive requests for service coming from other States (article 2(1)). Most States have designated their Ministries of Justice as the Central Authority. Others have placed the Central Authority within the courts service, and a small number (including the United Kingdom) have designated the Foreign Ministry.90
93 Article 3(1) provides that requests for service should be forwarded by an authority or judicial officer competent under the law of the State in which the documents originate. Some countries (including the United Kingdom) use their Central Authorities to forward requests as well as to receive them, although this additional responsibility is not required by the Convention. However, other (mainly civil law) countries adhere to a principle that outgoing requests must emanate directly from a court.91
94 An Annex to the Convention prescribes the form of a request for service. If a particular method of service is requested, then the Central Authority should comply, unless doing so would be incompatible with the law of the country receiving the request.92 In all other cases, service can be made either by the method prescribed by domestic law for serving defendants in that country, or “by delivery to an addressee who accepts it voluntarily” (article 5). If a Central Authority considers that a request does not comply with the Convention, it must inform the applicant of the reasons why (article 4). If the request does comply, then the only grounds for rejecting it are that actioning the request would infringe the sovereignty or security of the receiving State (article 13).
95 The Convention permits modes of service other than through Central Authorities, subject to any objection by the State of destination (article 21(2)(a)). These modes are:
In addition, the Convention does not affect the ability of overseas parties to serve documents within a State’s territory, by any other means permitted by that State’s internal law (article 21).
96 Article 12 states the general principle that the authorities of the State of destination seek no reimbursement of any costs incurred in the service of judicial documents. However, the applicant must pay or reimburse costs occasioned by the use of the services of a judicial officer or person competent under the law of the State of destination, or by the use of a particular method of service.
97 Articles 15 and 16 contain guarantees that balance the interests of the addressee against those of the plaintiff wishing to serve notice. Under article 15, no judgment should be entered against an absent defendant until it is established that service was effected in sufficient time for the defendant to prepare a case. Where a judgment has been entered against an absent defendant, article 16 empowers a judge to extend the appeal period if the defendant did not have knowledge of service in sufficient time, and has a prima facie defence to the action. Judgments concerning the status or capacity of persons are expressly excluded from the ambit of article 16.
98 Article 17 extends the Convention to extrajudicial documents “emanating from authorities and judicial officers of a Contracting State”. Examples of documents served under this provision are demands for payment, notices to quit, protests in connection with bills of exchange, and consents to adoption or marriage. Such documents often emanate from an official source in civil jurisdictions, but in common law countries tend to be issued by private parties. Central Authorities are encouraged to serve documents not emanating from an authority or judicial officer, if they were of a type which would normally call for the intervention of an authority in their country.93
99 At common law, service of process is the foundation of the court’s right to try an action. The court has jurisdiction only if service has taken place. Responsibility for service lies with the parties to an action, and traditionally common law countries have not impeded service of foreign process, even where the defendant is one of their own nationals. This approach contrasts with that in civil law countries, where the uncontrolled service of foreign process within their territory may raise objections on sovereignty grounds.94
100 The circumstances in which notice can be served on a defendant located outside New Zealand were outlined in the Law Commission’s first report on electronic commerce.95 The relevant statutory provisions are contained within the High Court Rules 219–220 and District Court Rules 242–243 (which are identical to the HCR). Under HCR 222, the mode for serving notice of proceedings on a defendant outside New Zealand is the same as that for service inside New Zealand,96 subject to HCR 224 which specifies the procedure to be followed if a convention for service of notice is in place with a particular country. If a convention is in place, then the Registrar should forward the request and accompanying documents to the Chief Executive of the Department for Courts, who will transmit them to the appropriate authority in the relevant country (HCR 224(3)).
101 The first inquiry is to establish whether a convention exists which governs service with the country from which the request for service has been made. If a service convention exists, then that will govern the situation under HCR 218. New Zealand is party to bilateral conventions on service and the taking of evidence abroad with a number of mainly European States.97 Most of these conventions were entered into by these States and the United Kingdom in the period between the First and Second World Wars, and were subsequently adhered to by other Commonwealth countries, including New Zealand.98 However, these conventions are somewhat inaccessible and out of date, and do not facilitate service as between Commonwealth countries.
102 There is no general Commonwealth convention governing service of foreign process. Conventions with these countries are a concession to the civil law tradition, but have not been considered necessary as between countries with the common, more informal approach to service of process. However, as more countries accede to the Hague Convention, a new set of expectations regarding procedures for foreign service may develop.99
103 HCR 213 specifies procedures for dealing with letters of request from courts or tribunals of non-Commonwealth countries. Earlier versions of HCR 213 refer to courts or tribunals “outside His Majesty’s Dominions”.100 These Rules were based on the English Rules of the Supreme Court 1883, as were the Rules of Court for most Commonwealth jurisdictions.
104 There are no equivalents to HCR 213 and 218 in the DCR (that is, none of the DCR cross-refers to HCR 213 and 218). There are provisions regarding the service abroad of New Zealand proceedings, but not vice versa, perhaps again because it was expected that service could be effected by the parties without having to go through the courts.101
105 Currently there are several countries where service of originating documents is permitted only through official channels. In some of these countries, foreign documents will be served through those official channels only if there is a convention with the country requesting service.102 Accession to the Convention on the Service Abroad of Judicial and Extrajudicial Documents would enable New Zealand proceedings to be served in these countries. In other common law countries and those countries where there is already a convention, the issue becomes one of cost, speed and convenience of the contemplated procedure. The alternative methods of service contemplated by the Hague Convention are likely to be quicker and less expensive than the use of official channels in the destination country. In practice, requests for service through official channels are not received or sent often, although this may be a reflection of the unwieldy procedure rather than a low demand for such assistance. Accession would require some amendments to the HCR (and corresponding DCR) relating to foreign service, although there do not appear to be any major inconsistencies between the provisions of the Convention and the existing limited procedures in New Zealand. The main effect of accession therefore would be to increase the number of countries to which the procedures in HCR 218 and 224 would apply (being service in or from countries with which a convention is in place). Any consequential amendments to the HCR as a result of a decision to adopt this Convention should be made by the Rules Committee.
106 The Commission agrees that accession to this Convention on the Service Abroad of Judicial and Extrajudicial Documents would be a useful reform.103 In 1978 the Commonwealth Secretariat observed that the growth of international trade and easier communications meant there was a need to rationalise and simplify these procedures.104 Over 20 years later, considering the increase in cross-border transactions associated with electronic commerce, that need is even greater. The Commission therefore recommends that the Ministry of Justice consider these issues with a view to ratifying this Convention.
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