Conflict of Laws

1
Conflict of Laws

• Part 2.1.3 Jurisdiction Service outside
  Australia

2
Service Outside Jurisdiction

• Service can be effected on a defendant who is
  outside a law district and either
• Outside of Australia (Rules of Court)
• Within Australia (SEPA 1992 (Cth))

3
Outside AustraliaTDO 63

• A superior court has jurisdiction over a
  defendant who is outside the law district and
  outside Australia if the defendant has been
  served with an originating process in accorance
  with the Rules of Court for service outside of
  jurisdction
• Victoria - Order 7 of SCV Rules

4
Historical Origins - 19th C

• Rising levels of commercial activity
  extra-territorial connections
• Personal service often impossible, i.e. defendant
  resident abroad
• Common law rules of jurisdiction inadequate
• Common Law Procedure Act 1852 (UK) passed to
  enable service outside of England on British
  non-British
• Exercise of exorbitant jurisdiction tightly
  controlled
• Forms basis of modern day Rules of Court - these
  reveal expansion of possible actions in which
  service ex juris allowed

5
Rules of Superior Courts

• Rules differ slightly b/n States, Territories
  Cth, but same for the most part.
• Two general common issues
• Must be nexus b/n forum and subject matter of, or
  the parties to, the action
• Plaintiff must usually obtain leave of the Court
  for service outside of Australia
• Time at which leave must be sought differs b/n
  law districts.

6
Rules of Court SCV - Order 7

• The legal basis for service ex juris
• The requisite procedures for service ex juris
• When service is allowed outside of Australia
• Rules 7.01 - 7.08
• Service in a Foreign Country
• Rules 7.09 - 7.14

7
Order 7, Rule 7.01

• Rule 7.01 lists types of claims where Court can
  order service ex juris. Includes, inter alia
• Subject matter of the proceeding concerns land
  situated in Victoria
• Defendant domiciled or ordinarily resident within
  Victoria
• Breach of contract, subject to particular
  circumstances
• Parties have agreed to Courts jurisdiction
• Tort committed, or damage suffered, within
  Victoria
• Injunction sought to prohibit/restrict
  Defendants actions in Victoria
• Proceeding is already on foot and a necessary or
  proper party is out of Australia.

8
Indorsement - Rule 7.02

• Indorsement on OM at time of service on defendant
• r.7.02 (1)
• Indorsement to state facts and relevant paragraph
  of r.701 relied upon
• r.7.02 (1)
• Can amend OM later, if filed without indorsement
• r.7.02 (2)-(4)

9
Mode of Service - Rule 7.03

• Personal service not mandatory for service
  outside of Australia
• Service outside Australia must be effected in
  accordance with rules of relevant foreign country

10
No Appearance by Defendant

• No appearance by Defendant does not prevent
  action from going ahead
• see r.7.04 (1)
• Court will make order to proceed if satisfied
  subject matter falls within r.7.01
• see r.7.04 (1)
• Plaintiffs application must be supported by
  relevant affidavit/evidence
• r.7.04 (2)

11
What if Defendant Objects?

• Refer to Rule 8.09 - r.7.05 (1)
• Court can set aside order for service ex juris
  if
• service not authorised by SCV Rules - r.7.05
  (2)(a)
• Victoria not a convenient forum - r.7.05 (2)(b)
• Can make order to set aside service if no
  application or order made under 7.04 to proceed -
  r.705 (3)

12
Service in Foreign Country

• Rules 7.09-7.14 provide legal basis and
  procedural requirements/procedures for effecting
  service in a foreign country
• Must make translations of documents into official
  language of country in which service is to occur
• A-Gs involvement may be required in certain
  circumstances

13
Inferior Courts

• Extra-territorial jurisdiction becoming more
  important issue
• limits rising significantly
• Types of cases that can be heard before
  County/District Courts changing
• Problems with jurisdiction

14
Jurisdiction Problem with Inferior Courts

• Falls Creek Ski Lifts P/L v Yee (1995) 37 NSWLR
  344 (TDO 68-69)
• Skiing accident in Victoria by NSW resident
  medical treatment etc. in Sydney
• Action commenced in District Court of NSW -
  inferior court whose subject matter and personal
  jurisdiction determined by statute
• Statutory provisions enlivened DCs jurisdiction
  on basis of connection between forum and event -
  either cause of action occurred within NSW
  defendant resident in NSW or within Australia at
  time of service
• CofA held that the statutory provisions at that
  time denied jurisdiction to District Court
• Compare this outcome with Supreme Court NSW -
  would it have had jurisdiction in same
  circumstances? Why?

15
Agar v Hyde2000 HCA 41 TDO 69

• What were the facts of this case?
• How did the issue of service ex juris arise?
• What does the applicant for leave to proceed
  against a foreign defendant have to show?
• Nexus requirements of rules of court?
• What did the court say about the time at which
  the plaintiff must obtain leave of the court?
• As a matter of course?
• When defendant fails to enter appearance?

16
Other Cases to ConsiderSee Reading Guide - Part
2.1.3

• Williams v Society of Lloyds
• What are the facts of this case?
• How did the issue of service outside jurisdiction
  arise and how did the Court deal with it?
• CBA v White
• Recall facts of this case from Part 2.1.2
• What was the Courts opinion on service outside
  of Australia in this case?

17
Other Cases to ConsiderSee Reading Guide - Part
2.1.3

• James Hardie v Putt
• What are the facts of this case?
• What was the Courts opinion on service outside
  of Australia in this case?
• Gutnick v Dow Jones
• What are the facts of this case?
• How did the issue of service outside jurisdiction
  arise?
• What was the Courts opinion on this issue?