MASON A.C.J., WILSON AND DAWSON JJ. The respondent is the plaintiff in an action commenced in the Supreme Court of New South Wales seeking damages for injuries which she suffered in Queensland on 19 November 1981 when she was hit by a motor vehicle driven by the appellant. The respondent normally lives in New South Wales but at the time of the accident she was on holiday in Queensland. The injuries which she suffered were severe. After her discharge from hospital in Queensland the respondent returned to New South Wales where she continued to receive treatment. The damages which she claims include the cost of medical treatment received by her in New South Wales and future economic loss based upon the prospective diminution of her earning capacity there.

2. Under the New South Wales Supreme Court Rules (1970) ("the Supreme Court Rules") provision is made for the service of originating process outside the State in certain specified cases: see Pt 10, r.1. It was held in the Court of Appeal, and has not been contested before us, that these proceedings fall within Pt 10, r.(1)(e) which, as it was then worded, applied "where the proceedings are founded on, or are for the recovery of, damage suffered wholly or partly in the State caused by a tortious act or omission wherever occurring". There is, therefore, no occasion to examine the reasoning which lies behind this conclusion and we do no more than observe that it is supported by authority in New South Wales: Brix-Neilsen v. Oceaneering Australia Pty. Ltd. (1982) 2 NSWLR 173; Challenor v. Douglas (1983) 2 NSWLR 405.

3. Part 10, r.2 provides that service of originating process outside the State is not valid unless prior leave of the court is given or if the court, upon being satisfied that the conditions for granting leave have been met and the failure to apply for leave has been sufficiently explained, confirms service or where the person served waives objection by entering an appearance.

4. Section 4 of Part II of the Service and Execution of Process Act 1901 (Cth) also provides for the service of originating process, referred to as a writ of summons, out of a state or part of the Commonwealth in any other state or part of the Commonwealth. It will be necessary to refer in some detail to that legislation but for the moment it is sufficient to note that, whilst service under s.4 is not expressed to be limited to any particular class of cases, the plaintiff is required under s.11 to obtain leave in order to proceed where no appearance is entered by the defendant. Leave to proceed may only be granted where the subject-matter of the suit is of a specified kind and it is common ground that none of the six classes of cases specified fit the present…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flaherty v Girgis

Details

AGLC: Flaherty v Girgis [1987] HCA 17
Case: [1987] HCA 17
Decision Date: 14 May 1987

CaseChat Overview and Summary

The High Court of Australia considered the appeal in *Flaherty v Girgis*. The dispute concerned the enforceability of a guarantee given by the appellant, Mr. Flaherty, to the respondent, Mr. Girgis, in relation to a loan made by Mr. Girgis to a company. Mr. Flaherty sought to avoid liability under the guarantee, alleging it was void for champerty.

The central legal issue before the High Court was whether the guarantee was void for champerty. Champerty, a form of maintenance, involves an agreement where a person without a legitimate interest in a lawsuit provides financial assistance to a party in litigation in return for a share of the proceeds of the action. The court had to determine if the guarantee, which was linked to the repayment of a loan that was itself intended to fund litigation, constituted champerty and was therefore unenforceable.

The High Court held that the guarantee was not void for champerty. The majority reasoned that the loan and the guarantee were not tainted by champerty because Mr. Girgis had a legitimate commercial interest in the repayment of the loan, irrespective of the outcome of the litigation the loan was intended to fund. The principle applied was that champerty requires an agreement to assist litigation in which the assisting party has no legitimate interest, and that was not the case here. The loan was a genuine commercial transaction, and the guarantee secured that debt.

Consequently, the High Court dismissed the appeal and upheld the enforceability of the guarantee.

Orders