Hague Service and Evidence Conventions: A Plain-English Guide

The Hague Service Convention sets agreed ways to deliver court papers in a civil or commercial case to someone in another country. The Hague Evidence Convention lets a court in one country ask a court in another to help collect evidence. Australia is a party to both, with the Attorney-General's Department as Central Authority. Neither is the Apostille Convention.

Key takeaways

• Three different Hague treaties get confused: Apostille (proving signatures), Service (delivering court papers) and Evidence (collecting evidence).
• Both the Service and Evidence Conventions cover civil or commercial matters, not criminal cases.
• In Australia, the Attorney-General's Department is the Central Authority for both. State and territory Supreme Courts can also receive some requests.
• The Evidence Convention does not apply automatically between all its parties. Each pair of countries may need to accept the other.
• Requests coming into Australia must be in English or translated into English.
• These conventions are used by courts and lawyers. A notary has no role in sending requests, though notarised documents often appear alongside them.

Why are there three Hague conventions?

The Hague Conference on Private International Law, known as the HCCH, has produced many treaties on cross-border legal problems. Three of them come up in ordinary cross-border paperwork, and people often mix them up because they share the word "Hague".

The Apostille Convention deals with proving that a signature or seal on a public document is genuine. In Australia, DFAT issues apostilles. The Service Convention deals with getting court papers formally delivered to a person abroad. The Evidence Convention deals with getting evidence, such as testimony or documents, from a person abroad for a court case. They solve different problems, have different members, and are run by different Australian agencies. Our guide to the Apostille Convention covers the first one.

What does the Service Convention do?

It gives courts an agreed route for sending court papers, such as a claim or summons, to a person in another member country, and for proving the papers were delivered. Each member names a Central Authority to receive requests. The foreign authority completes the Convention's model form and sends it with the papers. The receiving country then arranges service under its own law and returns a certificate saying whether and how service was made.

Australia is a party. The HCCH status table for the Service Convention shows Australia's accession entered into force on 1 November 2010. The Convention also allows other routes, such as post or private process servers, but each country chooses which it accepts. Australia, for example, does not object to service by post where Australian law would allow post in the same situation, which for an individual it usually does not.

What does the Evidence Convention do?

It lets a court in one member country collect evidence in another. The main tool is a Letter of Request: the foreign court asks the other country's authorities to take evidence under their own law, for example by examining a witness on set questions or ordering specific documents to be produced. The Convention also allows, with permission, evidence to be taken by a diplomatic or consular officer of the foreign country, or by a person the foreign court appoints.

Australia became a party to the Evidence Convention in 1992, as its HCCH status table shows. One feature surprises people: the Convention does not automatically apply between every pair of members. A country that joins by accession must be accepted by each other member before the Convention operates between them. The Attorney-General's Department advises checking those acceptances before relying on the Convention.

Question	Service Convention	Evidence Convention
What it does	Delivers court papers abroad	Collects evidence abroad
Australia in force	1 November 2010	December 1992
Central Authority in Australia	Attorney-General's Department	Attorney-General's Department
Also accepted by	State and territory Supreme Court registries	Supreme Court registries, for Letters of Request
Applies between all members?	Yes, subject to each country's declarations	Not automatically; acceptances may be needed
Language for requests into Australia	English or English translation	English or English translation
Who uses it	Court registrars and authorised people	Foreign courts, through their lawyers

How does a request reach Australia?

For both conventions, a foreign request can go to the Attorney-General's Department, which is the Central Authority, or in many cases directly to the Supreme Court registry of the state or territory where the person is. The department's private international law pages explain each route. For service, the local authority tries to serve the papers, usually by handing them to the person at a full street address. For evidence, a state or territory government solicitor usually applies to the relevant Australian court, which then takes the evidence.

Requests must be in English or come with an English translation. For service, the translation must carry a translator's statement giving their name, address and qualifications and confirming accuracy. Australian authorities cannot generally help find a person's address, and Australian courts do not act as investigators. A Letter of Request must name the person and describe exactly what evidence is wanted.

What positions has Australia taken?

Countries can make declarations and reservations when they join, and Australia's matter in practice. Under the Evidence Convention, Australia has declared that it will not execute Letters of Request for pre-trial discovery, the broad process some systems use to make a party list and produce all relevant documents. A request must ask for specific documents or specific questions. The Attorney-General's Department also says Australia does not treat the Evidence Convention as mandatory, so parties can use other procedures under Australian law if they prefer. And Australia does not object to people here giving evidence voluntarily to a foreign court by video link, with no permission needed if they face no penalty for declining.

Under the Service Convention, Australia's positions shape how papers can reach people here. Post is possible only where Australian law would allow it. Private process servers must be authorised under the law of the state or territory where service takes place.

What do the conventions not cover?

Criminal matters. Both conventions are limited to civil or commercial matters, which the Attorney-General's Department describes as generally including disputes involving individuals, families and companies. Criminal cases use separate mutual assistance arrangements between governments. The conventions also do not decide whether a court has jurisdiction, whether a judgment can be enforced, or whether a document is valid. They only deal with the mechanics of delivering papers and gathering evidence.

Nor do they replace the Apostille Convention. A document served under the Service Convention does not need an apostille for that purpose. But an affidavit or power of attorney you sign in Australia for a foreign case is a separate matter. The receiving authority may still want it notarised and apostilled or legalised by DFAT.

Where does a notary fit in?

Not in the conventions themselves. Requests are made by courts, registrars and authorised people, and handled by the Attorney-General's Department and the courts. A notary public does not send, receive or serve them. Where a notary does appear is in the documents around a case. Someone in Australia may swear an affidavit for a foreign court, sign a power of attorney so a foreign lawyer can act, or provide certified copies of original records. Those documents are witnessed or certified by a notary, checked against photo identification, and then usually legalised by DFAT. A Justice of the Peace's witnessing is generally not accepted by a foreign court. Our guides to notarising an affidavit and court document notarisation cover that side.

How can you tell whether a convention applies?

1. Check the kind of case. The conventions cover civil or commercial matters only.
2. Check both countries are parties. Use the HCCH status table for the right convention.
3. For evidence, check acceptances. Confirm the Evidence Convention operates between the two countries.
4. Check the other country's declarations. Each country chooses which routes, such as post, it accepts.
5. Consider a direct route. A willing witness, or a direct application to an Australian court, can be simpler.
6. Arrange translations early. Requests into Australia must be in English or translated.
7. Get a lawyer to run it. These are court processes; members of the public do not send requests themselves.

Common mistakes to avoid

The most common mistake is asking DFAT for an apostille on court papers that need to be served abroad. DFAT legalises documents; it does not serve them. The second is assuming the Evidence Convention applies because both countries are members, without checking acceptances. The third is sending a Letter of Request for broad discovery to Australia, which Australia has declared it will not execute. The fourth is supplying an address that is only an email or a PO box. The last is forgetting translations, which must accompany requests into Australia.

Here is an illustration, not a real case.

A company in Melbourne is sued in France. The French claimant's lawyer has the claim served through the Service Convention: it arrives with an English translation and is handed to the company at its registered office. Later, the Australian company wants evidence from a former supplier in Spain who will not cooperate. Its French lawyer asks the French court to send a Letter of Request to Spain under the Evidence Convention, after checking that it operates between France and Spain. Separately, the company's director signs a power of attorney for the French lawyer before an Australian notary, and DFAT adds an apostille.

In short

The Hague Service Convention sets routes for delivering court papers abroad. The Hague Evidence Convention lets a court ask another country to help collect evidence. Australia is a party to both, with the Attorney-General's Department as Central Authority and Supreme Court registries as an alternative route. Both cover civil or commercial matters, and requests into Australia must be in English. Neither is the Apostille Convention, which DFAT administers. Our document translation services page covers translating papers for cross-border cases.

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