Wong on Family Law

Select topics on Family Law in Australia -- Service, Family Law Act 1975 (Cth)

Work-in-progress, 11 April 2025 (last updated)


[A] Service

> Rule 2.49(1): Hague Service Convention countries -- Part IIAB of the Family Law Regulations. 

> Rule 2.49(2): Non-Hague Service Convention countries: "A person may serve a document on a person in a non-convention country:  (a)  in accordance with the law of the non-convention country; or (b)  if the non-convention country permits service of judicial documents through the diplomatic channel--through the diplomatic channel."

> Rules of Court 2012 (Malaysia), Order 10, Rule 1: "General provisions (O. 10, r. 1) 1. (1) Subject to the provisions of any written law and these Rules, a writ shall be served personally on each defendant or sent to each defendant by prepaid A.R. registered post addressed to his last known address and in so far as is practicable, the first attempt at service must be made not later than one month from the date of issue of the writ." <https://www.malaysianbar.org.my/cms/upload_files/document/Rules%20of%20Court%202012.01.07.2012.pdf>, archived at <https://perma.cc/W7RQ-56FL>. 

> O 65 Rules 2A, 3: "Alternative mode of service of foreign legal process (O. 65, r. 2A) 2A. (1) Subject to rule 3, this rule applies in relation to the service of any process required in connection with civil proceedings pending before a Court or other tribunal of a foreign country where rule 2 does not apply or is not invoked. (2) The service of any such process within Malaysia may be effected by a method of service authorized by these Rules for the service of analogous process issued by the Court. (3) This rule shall apply notwithstanding that the foreign process is expressed to be or includes a command of the foreign sovereign. 3. ... Civil Procedure Convention".

-> Federal Court of Australia: Fletcher v Capstone Aluminium SDN BHD, in the matter of McLay Industries Pty Ltd (in Liq) [2016] FCA 1459 <https://jade.io/article/507767>: "[19]  Rule 10.43(7)(b) requires the applicants to show that service was permitted pursuant to a Convention, if a Convention applies; or service was permitted under the Hague Convention if that Convention applies; or, in any other case, the law of the foreign country. No relevant Civil Procedure Convention with Australia applies in relation to Malaysia or Singapore: para 5(a), affidavit of Mr Shane Bruce Roberts sworn 11 November 2016. Malaysia and Singapore are not parties to the Hague Convention: paras 4 and 6 of the affidavit of Mr Roberts. [20]  Thus, the applicants rely upon service on each respondent in the foreign country according to the law of the foreign country. [21]  As to the requirements of the law of the foreign country, the applicants rely upon the affidavit of Mr Roberts sworn 11 November 2016. Mr Roberts is a partner in the firm Holman Webb Lawyers, the solicitors for the applicants. Mr Roberts gives evidence of the relevant law of Malaysia on the basis of advice provided in writing by letters of advice dated 10 November 2016 and 11 November 2016 from Mr Dhinesh Bhaskaran and Ms Serena Azizuddin, lawyers with Shearn Delamore & Co in Kuala Lumpur, Malaysia. Mr Bhaskaran is a partner in that firm. Ms Azizuddin is an employed lawyer in that firm. Mr Roberts gives evidence of the relevant law of Singapore on the basis of advice provided in a letter of advice dated 11 November 2016 from Abraham Vergis and Asiyah Arif, lawyers practising in Singapore with a firm called Providence Law Asia LLC (described as a “Law Corporation”). [22]  The evidence of Mr Roberts (based on the opinion letters as described earlier) as to the relevant law of Malaysia and Singapore is this. In both Malaysia and Singapore service of foreign proceedings is permitted pursuant to O 65 of an instrument in each jurisdiction called the “Rules of Court” (otherwise described as the “Malaysian ROC” and the “Singapore ROC”). Order 65 in each case is in the same terms. [23]  Order 65, r 2 of the Malaysian ROC “applies” in relation to service of any process required in connection with civil proceedings before a court or other tribunal of a foreign country where a letter of request from such a court or tribunal “requesting” service on a person in Malaysia (or in Singapore under O 65, r 2 of the Singaporean ROC) of any such process sent with the letter is received by the Minister and is sent by him to the High Court “with an intimation that it is desirable that effect should be given to the request”. [24]  Order 65, r 2(2) to (5) address aspects of that process. [25]  Order 65, r 2A is in these terms: 2A.Alternative mode of service of foreign legal process (O 65, r 2A) (1)Subject to rule 3, this rule applies in relation to the service of any process required in connection with civil proceedings pending before a Court or other tribunal of a foreign country where rule 2 does not apply or is not invoked. (2)The service of any such process within Malaysia may be effected by a method of service authorised by these Rules for the service of analogous process issued by the Court. (3)This rule shall apply notwithstanding that the foreign process is expressed to be or includes a command of the foreign sovereign. [emphasis added] [26]  Order 65, r 3 applies where service of any process of a foreign court or tribunal is sought to be undertaken pursuant to a subsisting Civil Procedure Convention between the country of the court or tribunal in question and Malaysia (or Singapore for the purposes of the Singaporean ROC). No such Civil Procedure Convention subsists between Australia and Malaysia or between Australia and Singapore. Order 65, r 2A applies “where r 2 does not apply or is not invoked”. As to the circumstances where r 2 does not apply, the Singapore Court of Appeal expressed the following observations in Fortune Hong Kong Trading Ltd v Costco Feoso (Singapore) Pte Ltd [2000] SGCA 24 per Yong Pung How CJ, LP Thean JA and Chao Hick Tin JA (with the judgment of the Court delivered by LP Thean JA: 15In our opinion, the learned judge’s construction of O 65 r 2, with respect, ignores the express provisions therein. Giving the rule its plain and ordinary meaning, we are firmly of the opinion that the rule applies only where a letter of request for service from a foreign court or tribunal is received by the Minister for Law and is subsequently sent by him to the Supreme Court with an intimation that it is desirable that effect should be given to the request. In cases where no such letter of request is received, r 2 simply has no application. A similar view to this effect is stated in the 1979 edition of The Supreme Court Practice on O 69 r 2 of the RSC then in force, which we have quoted earlier. It seems to us that O 65 r 2 is not intended to govern the service of all foreign processes in Singapore issued by the courts or tribunals of non-convention countries. The question we need to consider now is what the procedure there is, which has been provided for service of foreign process emanating from a court or tribunal of a non-convention country, in the absence of a letter of request from the court or tribunal. If no such procedure has been provided, does it follow that the foreign process cannot be served in Singapore as submitted by counsel for the respondents? We think not. … 31In our judgment, the service of foreign process in Singapore need not invariably go through official channels. As we have held, it clearly could not have been intended that O 65 r 2 should be an exhaustive and all, encompassing provision governing the service of all foreign processes in Singapore. Order 65 r 2 applies only where a letter of request for service from a foreign court or tribunal is received by the Minister for Law and is subsequently sent by him to the Supreme Court with an intimation that it is desirable that effect should be given to the request. Where no such letter of request is received, r 2 has no application. Procedure in the absence of a letter of request 32We now turn to consider what the proper procedure is for service in Singapore of a foreign process emanating from a court or tribunal of a non-convention country, where there is no letter of request from the court or tribunal, as in the present case. … … 35In our judgment, in the case of service of the foreign process emanating from a court or tribunal of a non-convention country, where no letter of request is issued by such court or tribunal, the service should be effected by personal service on the defendant in accordance with O 10 r 1, read with O 62 and, in the case of a body corporate, read with the relevant provisions of the Companies Act (Cap 50). Although these rules by their express terms apply only to an originating process issued locally, we see no reason in principle why that mode of service prescribed for service of an originating process issued in Singapore cannot and should not be followed and adopted in the absence of any rule of procedure to the contrary. This mode of service fulfils, at least, the vital function of service of legal process. [emphasis in italics is the original emphasis; emphasis in bold added] [27]  Thus, O 65, r 2A “applies”. Order 65, r 2A(2) provides that service of the foreign process may be effected by a method authorised by the Rules for service of “analogous process” issued by the court (that is, process of the Malaysian Court or the Singapore Court). Mr Roberts gives evidence based on the opinions expressed by the Malaysian lawyers and the Singaporean lawyers that an “originating application” filed in the Federal Court is analogous for the purposes of the Malaysian ROC and the Singaporean ROC with a “writ” or “originating summons”. [28]  Each respondent is an incorporated entity (a company). [29]  Order 62, r 4 of the Malaysian ROC provides that where an action is against a corporation, the writ may be served, relevantly, by “leaving a copy of it at the registered office (if any) of the corporation”. Thus, the originating application of the Federal Court of Australia may be served in the same way. [30]  Order 10, r 1 of the Singaporean ROC provides that “[s]ubject to the provisions of any written law and these Rules, a writ must be served personally on each defendant”. Order 10, r 5 provides that O 10, r 1 also applies to an “originating summons”. The Singaporean lawyers say that the Singaporean ROC is supplemented by s 387 of the Companies Act of Singapore (Revised Edition, 31 October 2006; Originating Enactment: Act 42 of 1967) which provides for service of a document on a company by “leaving it at or sending it by registered post to the registered office of the company”. [31]  Service was effected upon the first respondent on 24 October 2016. Ismail Bin Marajas, a clerk employed by Shearn Delamore & Co attended the registered address of the first respondent (as to which see para 4 of the affidavit of Mr Marajas affirmed on 31 October 2016 and handed to a man (who acknowledged that the premises were the registered office of the first respondent) the following documents: (i)Letter from Holman Webb Lawyers to the first respondent dated 21 October 2016; (ii)Originating Application filed by the liquidators in the Federal Court of Australia on 11 November 2015; (iii)The Genuine Steps Statement of the Applicants; (iv)Order of the Court made in these proceedings on 9 August 2016; (v)Letter from Shearn Delamore & Co to the first respondent dated 24 October 2016. [32]  Mr Marajas says in his affidavit that the individual he engaged with accepted service of the documents on behalf of the first respondent (in the manner described at para 6 of his affidavit). [33]  Service was effected upon the second respondent in the way described in the affidavits of Tan Sheng Min (Chen Shengmin) affirmed on 7 November 2016 and 10 November 2016. The deponent is a clerk employed by Providence Law Asia LLC. He says that on 24 October 2016 at 12.50pm he attended the registered office of the second respondent (as to which see para 4 of his affidavit affirmed on 7 November 2016) and handed a copy of the following documents to the Receptionist at the registered address: (i)Letter Holman Webb Lawyers to the second respondent dated 21 October 2016; (ii)Originating Application filed by the liquidators in the Federal Court of Australia on 11 November 2015; (iii)The Genuine Steps Statement of the Applicants; (iv)Order of the Court made in these proceedings on 9 August 2016; (v)Affidavit of Tracy Lee Knight in these proceedings sworn 10 November 2015. [34]  Tan Sheng Min says that the individual to whom he handed the documents accepted service of them (in the manner described at para 5 of his affidavit of 7 November 2016). [35]  Rule 10.43(7), for the purposes of r 10.43(6) requires the applicants to satisfy the Court that there is “a sufficient explanation for the failure to apply for leave”. An explanation for the failure to apply for leave is set out in the affidavit of Mr Roberts filed 11 November 2016. The explanation given by Mr Roberts involves these considerations. First, limited documents of McLay were provided to the liquidators. Second, a public examination is being carried out. Third, the public examination process is ongoing and has taken longer than the advisers to the applicants anticipated due to the volume of documents produced in response to various summonses; the range of areas of examination identified by the liquidators; and the need to summon additional examinees. Fourth, Mr Roberts has been acting with some haste in working on the various examinations. Fifth, Mr Roberts was anxious to ensure service on each respondent before 11 November 2016. [36]  I am satisfied that the factors identified by Mr Roberts in his affidavit demonstrate a sufficient explanation for the failure to apply for leave. I accept that it is correct to say that there is a residual discretion as to whether the Court ought exercise a discretion to confirm service. I am satisfied that there is no consideration which warrants refusing an order confirming service, for all of the reasons identified in these reasons for judgments. One further matter should be mentioned. The underlying payments made by McLay to the Singapore entity (the second respondent) may be payments made pursuant to a contract which engages the provisions of the Sale of Goods (Vienna Convention) Act 1986 (Qld) (the “Vienna Convention Act”). If so, the contract has been performed and the question that arises is whether the making of the payment to the Singapore entity engages a contravention of the Corporations Act 2001 (Cth) in the way earlier described in these reasons. I am satisfied that a prima facie case on that footing arises. I am also satisfied that should the underlying transaction engage the Vienna Convention Act, that Act has no impact upon the question of whether the making of the payment engages a contravention of the Corporations Act 2001 (Cth). No question arises of the application of the Vienna Convention Act in relation to the first respondent as Malaysia is not a signatory to the Convention."

-> Analogous process, query application of Rules of Court 2012 O 10 r 1; DMP Rules 1980. 

-> See also, 'Malaysia' (International Association of Defense Counsel, 2014) <https://www.iadclaw.org/assets/1/7/SILP_Malaysia.pdf>, archived at <https://perma.cc/5NGZ-YZV8>, p 13.

> Divorce and Matrimonial Proceedings Rules 1980 (PU(A) 32/1980), r 12 

--> <https://www.studocu.com/my/document/bac-education-group/common-law-reasoning/divorce-and-matrimonial-proceedings-rules-1980-p/69739221>.  

> Resorts World at Sentosa Pte Ltd v Lim Soo Kok [2016] MLJU 700, [16]-[21] (High Court, Kuala Lumpur), archived at <https://perma.cc/4SCL-HYYA>: "Whether Service of The Singapore Cause Papers Is Irregular [16]  The Judgment Debtor in the Judgment Debtor’s Affidavit in Support and in the Judgment Debtor’s Affidavit in Reply has attempted to raise the issues that the service of the Singapore Cause Papers on him is irregular. The Judgment Debtor also stated he has applied to set aside the service of the Singapore Cause Papers, the Order for Substituted Service dated 10.11.2014 and the Singapore Judgment dated 8.12.2014 in the Singapore High Court. [17]  The Judgment Creditor submitted that the Singapore Cause Papers were duly served on the Judgment Debtor in accordance with Order 65 Rule 2A(2) of the Rules of Court. “Order 65, r. 2A, Alternative mode of service of foreign legal process” (1)... (2)The service of any such process within Malaysia may be affected by a method of service authorized by these Rules for the service of analogous process issued by the Court.” [18]  The Judgment Creditor relied on the authority of the High Court in Malayan Banking Berhad v Ng Man Heng [2005] 1 MLJ 470 where it was held at 491A as follows: “... I am of the considered view that the service of the writ on the Judgment Debtor in Malaysia through a private agent is proper and valid.” [19]  The affidavit evidence shows that the Judgment Debtor’s application to set aside the service of Singapore Cause Papers, the Order for Substituted Service dated 11.11.2014 and the Singapore Judgment dated 8.12.2014 was dismissed by the Assistant Registrar of the Singapore High Court on 31.7.2015. [20]  The evidence also shows that the Judgment Debtor then appealed against the Assistant Registrar’s decision. The Appeal was dismissed by the Singapore High Court on 22.9.2015. There were no further appeals filed by the Judgment Debtor and the time for the Judgment Debtor to file an appeal against the decision has lapsed. [21]  Accordingly, the issues on the irregularity and the validity of the service of the Singapore Cause Papers, the Order for Substituted Service dated 10.11.2014 and the Singapore Judgment dated 8.12.2014 are now irrelevant as the Singapore High Court has dismissed the Judgment Debtor’s application."

> Malayan Banking Berhad v Ng Man Heng [2005] 1 MLJ 470, [59] (High Court, Johor Bahru), archived at <https://perma.cc/Y9CK-2K22>: "Order 65 r 2 of the RHC only applies when the minister receives a letter of request from a foreign tribunal seeking assistance to serve a foreign process on a person in Malaysia, and its ambit does not extend beyond this. It does not contain a peremptory order to foreign tribunals to send a request to the Minister in every case where a foreign process is to be served on a defendant in Malaysia. The service of the writ on the judgment debtor in Malaysia through a private agent is proper and valid (see paras 48, 49 and 52). ... 59 For the foregoing reasons, I am of the considered view that the service of the writ on the judgment debtor in Malaysia through a private agent is proper and valid."

> ** Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 3 MLJ 159 (Federal Court, Malaysia), archived at <https://perma.cc/J7QM-H7K8>; see also <https://www.zulrafique.com.my/ckfinder/userfiles/files/case%20update%20judgment/GohTengWhooTanHwaChengvAmpleObjectivesSdnBhd.pdf>, archived at <https://perma.cc/KM7K-57RE>. 

-> proof of posting creates a presumption of service: [30]-[36]. Where service of a writ was alleged to have been effected by way of sending the same to a defendant by AR registered post pursuant to O 10 r 1(1) of the Rules, the court could not seal a JID where the affidavit of service did not exhibit the AR registered card containing an endorsement as to receipt by the defendant himself or someone authorised to accept service of the same on his behalf: [43].

> Joseph Kalang Tie v Ikram Suria Sdn Bhd [2021] MLJU 2740, [23]-[26] (High Court, Kuching), archived at <https://perma.cc/KLA2-GZG2>: "[23]  The Learned SCJ had judiciously applied the following correct principles of law to the above relevant considerations for proof of postage is indeed not conclusive proof of service, not being immediate like personal service by hand. Non-personal service of an originating process via postal service creates a rebuttable presumption of service upon reading O. 62 r. 4(1)(b), O. 62 r. 4(2) (provision stating O. 62 r. 4 does not prohibit operation of other laws on service) and Section 12 Interpretations Act 1948 & 1967 (the phrase “unless the contrary is proved” appears in Section 12). There is nothing in Section 12 Interpretations Acts that says posting by registered post is conclusive proof of service. [24]  The Federal Court in Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] 4 CLJ 348 has decisively and authoritatively pronounced that service by any kind of “post” (registered post (O. 62 r.4(1)(b) or AR registered post (O. 10 r.1(1)) is not conclusive proof of service. Section 12 of the Interpretation Acts provides that service is “presumed” “until the contrary is proved”. A rebuttable presumption of law that can be displaced by evidence to the contrary. [25]  When contrary evidence is shown, the presumption is rebutted and the court will make a finding that there is no service of the document in an application for setting aside. It is anathema to justice and fair play that a Defendant who has no knowledge of the action is attached with liability without being given the opportunity to explain why default judgment should not be entered against it. Here the Respondent had shown and produced to court Exhibit D4 to show that there was no service on 09.03.2021. [26]  The failure of the Plaintiff to produce publicly available evidence of service from POS Malaysia’s Tracking Service corroborates the fact that the Defendant was never served as alleged and therefore the presumption of service under Section 12 of the Interpretation Acts have been rebutted by the Defendant on the balance of probabilities. Since the rebuttal evidence shows that service was on 11.5.2020 and the Plaintiff caused the JID to be entered 4 days later on 15.5.2020, the JID is irregular for being in breach of O. 12 r. 4(b) and O. 13 r.1(1) RC2012 with an entry of JID before the time limited for appearing. Furthermore, the impugned JID was irregularly entered under both O. 13 r. 1 AND O. 19 r.2 RC2012 which was disjunctive provisions. ... [35]  In this appeal, the learned SCJ in her grounds had highlighted that the reason in allowing the setting aside of the JID entered against the Defendants in the court below is mainly due to the service of the Writ and Statement of Claim. In gist, applying the principles in MBF Finance Bhd v Tiong Kieng Seng [2001] 4 CLJ 38 where the Court of Appeal held that the written receipt given under the Post Office Rules constitutes prima facie and not conclusive proof of service. It is a rebuttable one if the Defendant can show irregularities in the service the presumption of service that arises under the Interpretation Act."

> Chung Wai Meng v Perbadanan Nasional Bhd [2017] MLJU 814, [28]-[34] (Court of Appeal, Putrajaya), archived at <https://perma.cc/T7F4-7LRV>: "[28]  There is no proof by the Respondent that the Writ and SOC which were sent by AR registered post to the Appellant’s Jalan Inai address had been duly served on the Appellant. The AR registered acknowledgement card duly signed by the Appellant has not been produced. [29]  The Appellant averred that he had been occupying a subsequent address at No. 76, Persiaran Duta Nusantara, Jalan Sri Hartamas 1, 50480 Kuala Lumpur (“subsequent address”) until January 2013, instead of the Jalan Inai address. The subsequent address has been recognised by the Respondent in the substituted service for bankruptcy proceedings against the Appellant. The Appellant on oath had stated that he was completely unaware of the JID until 22.4.2015 when he was in Sabah and his credit card was blocked because of a substituted service for bankruptcy proceedings, and thus, the present recent Application to set aside the JID [RR 2(1) pg 123]. [30]  From the Appellant’s evidence, it is clear that he was not served with the Writ and SOC. [31]  With respect, despite the decisions in Sivamurthy (supra), and Yap Kee Huat (supra), we take note of the majority of the High Court decisions and authorities in Malaysia, and Commonwealth cases, to which we agree, on the requirement that the AOS [Affidavit of Service] must be “proving due service of the writ on the defendant” as provided in O.13 r.7(1)(b) of the ROC. [32]  In the local textbook on civil procedure, Malaysian Civil Procedure, it is categorically stated that the AR card duly acknowledged (in the case of service by AR registered post) must be produced to prove effective service (1AB A/Tab 32). [33]  In Public Bank Bhd v. Rasatulin Holdings Sdn Bhd & Ors [1989] 1 MLJ 47, Siti Norma Yaakob J (as she then was) held as follows: “In this instant case, rather than sending the notices by ordinary post, the solicitors for the plaintiff chose to send them by way of AR registered post and by doing so, the plaintiff has varied cl 8 of both guarantees. By so choosing, the plaintiff has also burdened themselves with the added responsibility of seeing that the AR cards shall be returned to them duly acknowledged by the fourth and fifth defendants, for there to be proper service of such notices on them. In this case both the AR cards were returned with the endorsements ‘kembali tidak boleh dituntut’. As there is no proper and effective service of such notices on the fourth and fifth defendants, this in itself a defence to both of them.” (emphasis added). [34]  Following the above decision, if a party entitled to utilise the registered post method chooses instead to use AR registered post, it is then incumbent on the party to produce the AR card to evidence acknowledgement of receipt."


© Jing Zhi Wong, 2023-2025