ON APPEAL FROM THE SUPREME COURT OF Private International LawJurisdiction-Action in personam-In Supreme Court
of Victoria-Service of writ of summons-Defendant resident in England Not connected with Victoria except that visiting State on business--Departure 1957,
from State prior to issue of rit-Whether jurisdiction to order substituted MELBOURNE,
service-Notice of motion by defendant to set aside ex parte order for substituted Oct. 30, 31
service-Claim for further relief going beyond objection that jurisdiction over him Nov. 1;
could not be obtained by substituted service-Whether waiver of right to object 1958,
to jurisdiction-Rules of the Supreme Court of Victoria relating to Civil Pro- ceedings 1957, O. IX, r. 2; O. XI, rr. 1-5; O. XII, r. 17.
Except in cases within the provisions of the Service and Execution of Process Act 1901-1953 (Cth.) or of the Rules of the Supreme Court 1957 (Vict.) O. XI, rr. 1-5, a writ of summons issued out of the Supreme Court of Victoria does not run outside the State.
In actions in personam the rules as to legal service of a writ define the limits of the court's jurisdiction.
If a defendant is within the jurisdiction at the time of issue of a writ for service within the jurisdiction but subsequently leaves, the foundation for an order for substituted service may exist. If, however, there could not be personal service of such writ at the time of issue, an order may not be made for substituted service.
Watt v. Barnett (1878) 3 Q.B.D. 183 363 not followed, observations by Lord Reading C.J. in Porter v. Freudenberg (1915) 1 K.B. 857, at pp. 887, 888, not followed.
Order XII, r. 17 of the Rules of the Supreme Court 1957 (Vict.) provides that a defendant before appearing shall be at liberty without obtaining an
order to enter or entering a conditional appearance to serve notice of motion to set aside the service upon him of the writ or of notice of the writ or to discharge the order authorising such service. A defendant against whom an order for substituted service had been made ex parte without entering an appearance or conditional appearance served notice of motion to discharge the order and the service thereunder and a notice of motion on behalf of the plaintiff and affidavits in support thereof. He also sought the discharge of another order restraining him and a co-defendant from receiving and third parties from paying certain moneys and appointing a receiver of such moneys.
Held, that the defendant had not waived his right to object to the jurisdiction.
Decision of the Supreme Court of Victoria (Herring C.J.), reversed.
APPEAL from the Supreme Court of Victoria.
On 14th June 1957 Garnet Hannell Carroll, Catherine Stewart Carroll and John Garnet Hannell Carroll commenced an action in the Supreme Court of Victoria against James Thomas Laurie, James Laurie &Associates Ltd., J. C. Williamson Theatres Ltd. and the Education in Music and Dramatic Arts Society. So far as…
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.
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AGLC
Laurie v Carroll [1958] HCA 4
Case
[1958] HCA 4
Decision Date
CaseChat Overview and Summary
The parties to this appeal were James Thomas Laurie (the appellant) and Garnet Hannell Carroll, Catherine Stewart Carroll, and John Garnet Hannell Carroll (the respondents). The dispute concerned the jurisdiction of the Supreme Court of Victoria to order substituted service of a writ of summons on Laurie, who was resident in England and had departed Victoria prior to the writ's issue. The respondents sought damages for breach of contract, an injunction, and the appointment of a receiver concerning profits from theatrical performances.
The central legal issue before the High Court was whether the Supreme Court of Victoria had jurisdiction to make an order for substituted service of a writ of summons on a defendant who was not within the jurisdiction at the time the writ was issued and had subsequently departed. This involved determining the scope of the court's power under the Rules of the Supreme Court of Victoria, particularly Order IX, Rule 2, and considering whether the defendant's actions constituted a waiver of his right to object to the jurisdiction.
The High Court held that the Supreme Court of Victoria lacked jurisdiction to order substituted service in this instance. The Court reasoned that for an action in personam, the court's jurisdiction is fundamentally based on the defendant's amenability to the writ, which traditionally requires presence within the jurisdiction at the time of service. While the rules allow for substituted service, this is only permissible if personal service could have been legally effected. The Court found that the appellant, Laurie, had no substantial connection with Victoria beyond a brief business visit and had departed before the writ was issued. The Court rejected the argument that Laurie's departure to avoid service, or his seeking further relief in his notice of motion, constituted a waiver of his objection to jurisdiction. The Court distinguished the present case from situations where a defendant leaves the jurisdiction after the writ has been issued and knowledge of it has come to their attention, or where there is a clear intention to evade service while still within the jurisdiction. The Court found that the cases relied upon by the respondents, particularly *Porter v. Freudenberg*, did not support the exercise of jurisdiction in these circumstances, as the cited authorities were either distinguishable or did not provide a sound basis for extending jurisdiction in this manner.
The High Court reversed the decision of the Supreme Court of Victoria. The Court ordered that the order for substituted service of the writ of summons be discharged.