Babcock and Brown DIF III Global Co-Investment Fund, LP v The Royal Bank of Scotland Plc

Babcock and Brown DIF III Global Co-Investment Fund, LP brought an action against The Royal Bank of Scotland Plc in the Supreme Court of Victoria. The dispute arose from an alleged failure to comply with statutory requirements in the service of legal documents, specifically under the Service and Execution of Process Act 1992 (Cth). The respondent, Royal Bank of Scotland Plc, filed a conditional appearance, accepting service of the writ but reserving the right to challenge the validity of the service. The primary issue before the court was whether the conditional appearance constituted a submission to the court's jurisdiction, thereby affecting the respondent's ability to contest the service under Rule 8.08 of the Supreme Court (General Civil Procedure Rules 2005).

The court considered whether the conditional appearance, coupled with the respondent's failure to file and serve an application to set aside service within the extended time, constituted a waiver of the right to challenge the validity of service. The respondent argued that despite the conditional appearance, they had not waived their right to contest the service on the basis of non-compliance with section 16 of the Service and Execution of Process Act 1992 (Cth). The court noted that Rule 8.08(3) required the respondent to file and serve an application within the specified time, which they had failed to do even after the time was extended. The court held that the conditional appearance, when combined with the failure to comply with the procedural requirements, effectively rendered the conditional appearance a submission to the court's jurisdiction.

The Supreme Court rejected the respondent's application to further extend time to file and serve an application under Rule 8.08(3). The court reasoned that Rule 8.08(3) clearly stipulated the procedural steps to be followed and that the respondent's conditional appearance, in light of the procedural rules, constituted a submission to the court's jurisdiction. Consequently, the respondent's ability to challenge the service was significantly restricted. The court concluded that the respondent had waived their right to contest the validity of service by not adhering to the procedural requirements within the extended time frame.