Two recent amendments, which came into effect in late 2022 and early 2023, have expanded the availability and ease of serving documents on persons overseas. This is noteworthy for entities based outside of Australia as now:

  • either no leave is required, or different thresholds apply for the grant of leave by a Court, in relation to serving originating applications overseassee discussion of the new rules 10.42-10.43 of the Federal Court Rules 2011 (Cth) below; and
  • with respect to section 155 notices, it is now clear that these can be served by the ACCC on foreign personssee discussion of the amended section 155 of the Competition and Consumer Act 2010 (Cth) below.

Federal Court Rules – Originating Applications

The rules for service of Federal Court proceedings outside Australia are set out in Division 10.4 of the Federal Court Rules 2011 (Cth) (Rules). The recent passing of the Federal Court Legislation Amendment Rules 2022 (Cth) has substituted the existing division with new provisions, some of which remove leave requirements for service in various types of proceedings from 13 January 2023 onwards.

In relation to originating applications, under the former rule 10.43, service on a person in a foreign country required leave of the Court, which could only be granted if the Court was satisfied that:

(a) it possessed jurisdiction in the proceeding;

(b) it fell into a type of proceeding listed under rule 10.42; and

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

Under the new Rules, either:

  • leave is not required for overseas service of originating applications if the proceeding falls into one of the many categories listed in rule 10.42 of the Rules such as where the proceedings are based on a tortious act or omission connected to Australia, a dispute with respect to a contract connected to Australia, a cause of action arising in Australia, enforcement of any Australian law or injunctive relief; or
  • if a proceeding does not fall within a category in rule 10.42, in order to grant leave the Court needs to be satisfied, pursuant to rule 10.43 of the Rules, that:

(a) the proceeding has a ‘real and substantial connection with Australia’;

(b) Australia is ‘an appropriate forum for the proceeding’; and

(c) ‘in all the circumstances the Court should exercise jurisdiction’.

Under the new rule 10.43B, in all cases a notice containing particular information must be provided to persons served with an originating application outside Australia (Form 26A).

For documents that aren’t originating applications, leave is still required for service outside Australia, with the Court able to grant leave subject to any directions they consider appropriate, pursuant to rule 10.44.

Competition and Consumer Act – Section 155 notices

Section 155 of the Competition and Consumer Act 2010 (Cth) (CCA) sets out the ACCC’s powers with respect to sourcing information, documents and evidence from a person in relation to particular matters.

As part of the Treasury Laws Amendment (Energy Price Relief Plan) Act 2022 (Cth) (Amending Act), section 155 was amended to explicitly provide that a notice can be served on a person, whether in Australia or outside Australia. This amendment to the ACCC’s information gathering powers, which took effect on 17 December 2022, is not restricted to notices in relation to gas market instruments, but rather applies to any of the broad range of matters listed in subsection 155(2), including contraventions of the CCA.

The amendment reduces uncertainty as to the ACCC’s ability to serve section 155 notices on persons overseas. The Explanatory Materials provides that this amendment is a general clarification of the operation of subsection 155(1), being that service of section 155 notices can occur both within and outside Australia. Previously, the common understanding within the industry was that these notices could only be served on persons within Australia.

Further context on the broader gas market amendments introduced by the Amending Act can be found here.

Key takeaways

Entities based overseas should be aware that recent amendments have expanded the scope for service on persons outside Australia as:

  1. leave of the Court to serve originating applications on foreign persons is no longer needed in a broad range of proceedings – practically, this means that overseas respondents will not receive prior warning of a claim that occurred by way of the filing of a leave application, which had tended to give respondents insight into the nature of the claim and allowed time to prepare ahead of service of the originating application; and
  2. it is now clear that the ACCC is able to serve section 155 notices overseas.