New rules in the Supreme Court of Western Australia for serving proceedings on defendants outside Australia

29th April, 2024

New amendments to the Rules of the Supreme Court of Western Australia 1971 (Supreme Court Rules) came into effect on 9 April 2024 which make it easier for Australian companies and individuals to serve proceedings commenced in Western Australia on parties based overseas.

The new rules have been implemented to harmonise the position in Western Australia with the position in the Federal Court of Australia, other states of Australia and in New Zealand.

It was previously the case that a prospective claimant in the Supreme Court of Western Australia needed to apply to the Court for leave to serve proceedings on a defendant outside Australia (other than in New Zealand). The Court’s power to grant leave was restricted to a substantially narrower set of permissible categories of actions or claims having a connection to Australia.

The position now is that under the new Order 10 Rule 5 of the Supreme Court Rules, an originating process may be served outside Australia without any requirement for the leave of the Court in a wide range of cases having some connection with Australia (not just Western Australia), including:

  • claims for damages for breach of contract, or other contractual remedies, in respect of contracts made or entered into, or to be partly performed, in Australia, or which by their terms are governed by Australian law or enforceable in an Australian Court
  • claims which affect a person’s shareholding of a company incorporated in Australia;
  • when the claim arises under Australian legislation and any act or omission to which the claim relates was done or occurred in Australia, or loss or damage was sustained in Australia;
  • claims based on tortious acts or omissions which occurred in Australia, or in respect of which damage was sustained wholly or partly in Australia;
  • any matter where any person outside Australia is a necessary or proper party to a proceeding properly brought against any other person who is served under any other provision of the Supreme Court Rules; or
  • when the claim is founded on a cause of action arising in Australia.

For any other proceedings for claims which do not fall under the categories in Order 10 Rule 5 where leave is not required, an originating process may be served outside Australia only with the leave of the Court, provided that the Court is satisfied of the following matters:

  • the claim has a real and substantial connection with Australia;
  • Australia is an appropriate forum for the trial of the proceeding; and
  • in all the circumstances the Court should assume jurisdiction.

Service of an originating process and other judicial documents that relate to civil proceedings in the Supreme Court of Western Australia must be served on defendants outside Australia in accordance with the methods of service and related requirements specified in the Supreme Court Rules. Order 11A sets out the requirements for service in countries which are parties to the 1965 Hague Convention, and the requirements for service in other countries are set out in Division 4 of Order 10 of the Supreme Court Rules.

MPH regularly advises clients in relation to cross-jurisdictional disputes and litigation and is available to assist at short notice. Should you have any questions regarding cross-jurisdictional disputes, please contact Nigel Pakes or Daniel Murdzoski by email npakes@mphlawyers.com.au or dmurdzoski@mphlawyers.com.au or on +61 (0) 8 9221-0033.

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