by Jie (Jeanne) Huang, Associate Professor of the University of Sydney Law School, Jeanne.email@example.com
Recently, in Australian Information Commission v Facebook Inc ( FCA 531), the Federal Court of Australia (‘FCA’) addresses substituted service and the Hague Service Convention in the contexts of the COVID-19 pandemic. This case is important on whether defendants located outside of Australia in a Hague Convention state can be served by substituted service instead of following the Convention.
Facebook Inc is a US company (‘Facebook US’) and Facebook Ireland is incorporated in Ireland. Due to the Analytica scandal, the office of the Australian Information Commission has investigated Facebook since April 2018 and hauled Facebook into the FCA on 9 March 2020. According to the Commission, Facebook Inc and Facebook Ireland breached the Privacy Act (Cth) from 12 March 2014 to 1 May 2015.
Both defendants appointed King & Wood Mallesons (‘KWM’) to respond to the Commission’s inquiries before the FCA proceeding was initiated. However, KWM indicated that it had no instructions to accept the service of the originating process.
Consequently, the Commission sought orders under Federal Court Rules (‘FCR’) 2011 rr 10.42 and 10.43(2) for leave to serve Facebook US and Facebook Ireland through the central authorities according to Article 5 of the Hague Convention and by substituted service under r 10.24. The proposed substituted service was to email the judicial documents to the named persons at KWM and the Head of Data Protection and Privacy and Associate General Counsel at Facebook Ireland.
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