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FEDERAL COURT RULES 2011 - RULE 10.43

Application for leave to serve originating application outside Australia

             (1)  Service of an originating application on a person in a foreign country is effective for the purpose of a proceeding only if:

                     (a)  the Court has given leave under subrule (2) before the application is served; or

                     (b)  the Court confirms the service under subrule (6); or

                     (c)  the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01.

Note:          A respondent may apply to set aside an originating application or service of that application--see rule 13.01.

             (2)  A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.

             (3)  The application under subrule (2) must be accompanied by an affidavit stating:

                     (a)  the name of the foreign country where the person to be served is or is likely to be; and

                     (b)  the proposed method of service; and

                     (c)  that the proposed method of service is permitted by:

                              (i)  if a convention applies--the convention; or

                             (ii)  if the Hague Convention applies--the Hague Convention; or

                            (iii)  in any other case--the law of the foreign country.

             (4)  For subrule (2), the party must satisfy the Court that:

                     (a)  the Court has jurisdiction in the proceeding; and

                     (b)  the proceeding is of a kind mentioned in rule 10.42; and

                     (c)  the party has a prima facie case for all or any of the relief claimed in the proceeding.

Note 1:       The law of a foreign country may permit service through the diplomatic channel or service by a private agent--see Division 10.5.

Note 2:       Rules 10.63 to 10.68 deal with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.

Note 3:       The Court may give permission under subrule (4) on conditions--see rule 1.33.

             (5)  A party may apply to the Court for leave to give notice, in a foreign country, of a proceeding in the Court, if giving the notice takes the place of serving the originating application.

             (6)  If an originating application was served on a person in a foreign country without the leave of the Court, a party may apply to the Court for an order confirming the service.

             (7)  For subrule (6), the party must satisfy the Court that:

                     (a)  paragraphs (4)(a) to (c) apply to the proceeding; and

                     (b)  the service was permitted by:

                              (i)  if a convention applies--the convention; or

                             (ii)  if the Hague Convention applies--the Hague Convention; or

                            (iii)  in any other case--the law of the foreign country; and

                     (c)  there is a sufficient explanation for the failure to apply for leave.



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