Commonwealth Consolidated Regulations

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FEDERAL COURT RULES 2011 - RULE 10.42

When an originating application may be served outside Australia without leave

    An originating application may be served outside Australia without leave in the following cases:

  (a)   if the proceeding is founded on a tortious act or omission:

  (i)   that was done or occurred wholly or partly in Australia; or

  (ii)   in respect of which the damage was sustained wholly or partly in Australia;

  (b)   if the proceeding is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract that:

  (i)   was made or entered into in Australia; or

  (ii)   was made by or through an agent trading or residing within Australia; or

  (iii)   was to be wholly or partly performed in Australia; or

  (iv)   was by its terms or by implication to be governed by a law of the Commonwealth, a State or a Territory, or to be enforceable or cognizable in an Australian court;

  (c)   if the proceeding is for a breach in Australia of any contract, wherever made, whether or not that breach was preceded or accompanied by a breach outside Australia that rendered impossible the performance of that part of the contract that ought to have been performed in Australia;

  (d)   if the proceeding:

  (i)   is for an injunction to compel or restrain the performance of any act in Australia; or

  (ii)   is for interim or ancillary relief in respect of any matter or thing in or connected with Australia, where such relief is sought in relation to judicial or arbitral proceedings commenced or to be commenced, or an arbitration agreement made, in or outside Australia (including without limitation interim or ancillary relief in relation to any proceedings under the International Arbitration Act 1974 or any proceedings under a law of a State or Territory relating to commercial arbitration in relation to which the Court may exercise jurisdiction); or

  (iii)   without limiting subparagraph   (ii), is an application for a freezing order or ancillary order under Division   7.4 in respect of any matter or thing in or connected with Australia;

  (e)   if the subject matter of the proceeding is land or other property situated in Australia, or any act, deed, will, instrument, or thing affecting such land or property, or the proceeding is for the perpetuation of testimony relating to such land or property;

  (f)   if the proceeding relates to the carrying out or discharge of the trusts of any written instrument of which the person to be served is a trustee and which ought to be carried out or discharged according to the law of the Commonwealth, a State or a Territory;

  (g)   if any relief is sought against any person domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not);

  (h)   if any person outside Australia is:

  (i)   a necessary or proper party to a proceeding properly brought against another person served or to be served (whether within Australia or outside Australia) under any other provision of these Rules; or

  (ii)   a respondent to a proceeding seeking contribution or indemnity in respect of a liability enforceable by a proceeding in the Court;

  (i)   if the proceeding is for:

  (i)   the administration of the estate of any deceased person who died domiciled in Australia; or

  (ii)   any relief or remedy that might be obtained in any such proceeding;

  (j)   if the proceeding arises under a law of the Commonwealth, a State or a Territory, and:

  (i)   any act or omission to which the proceeding relates was done or occurred in Australia; or

  (ii)   any loss or damage to which the proceeding relates was sustained in Australia; or

  (iii)   the law applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged; or

  (iv)   the law expressly or by implication confers jurisdiction on the Court over persons outside Australia (in which case any requirements of the law relating to service must be complied with);

  (k)   if the person to be served has submitted to the jurisdiction of the Court;

  (l)   if a claim is for restitution or for the remedy of a constructive trust and the alleged liability of the person to be served arises out of an act or omission that was done or occurred wholly or partly in Australia;

  (m)   if it is sought to recognise or enforce any judgment;

  (n)   if the proceeding is founded on a cause of action arising in Australia;

  (o)   if the proceeding affects the person to be served in respect of the person's membership of a corporation incorporated in Australia, or of a partnership or an association formed or carrying on any part of its affairs in Australia;

  (p)   if the proceeding relates to the construction, effect or enforcement of a law of the Commonwealth, a State or a Territory;

  (q)   if the proceeding:

  (i)   relates to an arbitration held in Australia or governed by a law of the Commonwealth, a State or a Territory; or

  (ii)   is to enforce in Australia an arbitral award wherever made; or

  (iii)   is for orders necessary or convenient for carrying into effect in Australia the whole or any part of an arbitral award wherever made;

  (r)   if the proceeding is for relief relating to the custody, guardianship, protection or welfare of a minor present in Australia or who is domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not);

  (s)   if the proceeding, so far as it relates to the person to be served, falls partly within one or more of paragraphs   (a) to (r) and, as to the residue, within one or more of the others of paragraphs   (a) to (r).

Note 1:   An originating application includes certain third party claims and other cross - claims--see the definitions of originating application and cross - claim in the Dictionary.

Note 2:   If a proceeding is instituted in the Court and an originating application is served outside Australia under this rule but the Court later decides that it is more appropriate that the proceeding be determined by another court, the Court may transfer the proceeding to that other court under the Jurisdiction of Courts (Cross - vesting) Act 1987 and may make an order for costs that relate to the conduct of the proceeding before the transfer.


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