Lina v Twadle
[2025] QDC 141
•10 October 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Lina v Twadle [2025] QDC 141
PARTIES:
JAYSON LINA
(Applicant/Appellant)v
JIM TWADLE
(Respondent)FILE NO:
1653/25
DIVISION:
Civil
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
10 October 2025
DELIVERED AT:
Brisbane
HEARING DATE:
3 October 2025 (on the papers)
JUDGE:
Porter KC DCJ
ORDER:
1. The appeal is allowed.
2. The orders of the Magistrates Court made 16 May 2025 are dismissed.
3. The application filed 1 April 2025 is dismissed.
4. The parties should provide written submissions of not more than 2 pages on costs of the application and the appeal by 4pm on 16 October 2025.
Summary
Does the Magistrates Court of Queensland have jurisdiction to determine a claim in negligence for damages for property damage arising out of a car accident which occurred in Victoria involving two Victorian residents where the defendant is served under the Service and Execution of Process Act 1992 (Cth) (SEPA)?
Yes.
The proceedings below
The plaintiff sued the defendant for damages of $18,519.09, alleging that the defendant negligently caused damage to the plaintiff’s car by colliding with it when the defendant was backing out of the defendant’s driveway. It is not disputed that the collision occurred on Flemington Crescent in Werribee, a suburb of Melbourne.
The plaintiff sued in the Magistrates Court of Queensland and filed his proceedings in the central (Brisbane) registry of that Court. The defendant filed a Conditional Notice of Intention to Defend. The conditional defence alleged that the collision occurred in Victoria, the defendant resides in Victoria and does not carry on business in Queensland. It alleged that the plaintiff commenced proceedings “in the incorrect Court and/or district” and in breach of Rule 35 Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
Consistent with Rule 144(5)(a) UCPR, the defendant filed an application for an order under Rule 16. That application sought that the plaintiff’s claim be set aside pursuant to Rules 16(a) and 16(e) UCPR or stayed pursuant to Rule 16(g) as the claim was in breach of Rule 35.
Before the learned Magistrate, the parties were agreed that the collision happened when and where the statement of claim alleged it did. It was also uncontentious that the plaintiff and defendant both resided in Victoria at the time of the collision and still do and that neither operated a business in Queensland.
The hearing and decision were brief.
After appearances, this exchange occurred:
MR FITZSIMONS: …. We’ve exchanged our outlines. This is a jurisdiction question.
HIS HONOUR: Where the collision occurred in Victoria, the defendant lives in Victoria – seems fairly straightforward from my view, Mr Randall.
MR RANDALL: Your Honour, the application today that’s been filed are both rule – are both on a breach of rule 35. That’s the application that we’ve come to respond to today. Now, rule 35 is a part of division 2 of part 6 of chapter 2 of the UCPR. That is about filing in a registry other than a central registry under rule 34. So the application that’s been brought today, in my respectful submission, is misconceived because they’re relying on entirely a breach of rule 35, but they ---
HIS HONOUR: Well, Mr Randall, it’s quite clear. The proceeding’s been issued in the wrong jurisdiction. It should be in Victoria. It’s where the defendant lives. That’s where the collision occurred. It’s where the cause of action occurred. What I am – what am I missing?
MR RANDALL: Your Honour, the application that the plaintiffs – the defendant applicants have brought is not that.
…
MR FITZSIMONS: Yes, your Honour. The application is pursuant to 16(a), amongst other things, which provides that, “The court may declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started”. So, your Honour, the application is pursuant to 16(a). Notwithstanding my friend’s argument about rule 35, it’s – the application itself has been brought pursuant to that rule and further, in my submission, in circumstances where the court – where it’s abundantly clear that there’s no jurisdiction, your Honour, in my submission, can make the orders pursuant to rule 16 regardless. And pursuant to rule 156, your Honour can grant relief other than relief which is specifically sought.
HIS HONOUR: Mr Twadle. Sorry, My Randall. Apologies.
MR RANDALL: Yes, Your Honour.
HIS HONOUR: It’s your last chance to put something cogent before me.
MR RANDALL: Yes, your Honour. There is no objection in the application before you about personal jurisdiction or anything of that nature. It is the plaintiff claim against the defendant be satisfied pursuant to rule 16(a) and 16(e) of the UCPR as the plaintiff’s claim is in breach of rule 35 of the UCPR. That’s the application that’s before you. That’s the application that the defendants have brought, and there’s no doubt that this is a central registry. It’s been filed in a central registry, and rule 35 is only applicable in deciding which registry to file in other than a central registry, so it’s – in my respectful submission, they should be held to the application that they have brought.
His Honour apparently did not receive the plaintiff’s outline, and neither outline is before me.
His Honour’s reasons are brief:
HIS HONOUR: This is an ….application that the plaintiff’s claim against the defendant be set aside pursuant to rules 16(a) and 16(e) of the Uniform Civil Procedure Rules. That comes within chapter 2, part I of the Uniform Civil Procedure Rules. Rule 16 provides that setting aside the originating process, the court may declare that a proceeding for which an originating process has been issued has not for want of jurisdiction been properly started.
In support of the application is the affidavit of Mr William John Sass, deposes to the nature of the claim, that being a motor vehicle collision that occurred in Victoria, also that the defendant resides in Victoria. It is quite clear the jurisdiction for this matter resides in the Victorian court, not in the Queensland court.
As to costs, his Honour relevantly observed in awarding costs to the defendant:
HIS HONOUR: In awarding costs today, I acknowledge that the defendant has been wholly successful with his application. He was quite clear from the outset, the filing of that conditional notice of intention to defend, where it is provided that the collision occurred in Werribee in the south of Victoria. The defendant resides in Victoria. The defendant does not carry on a business in Queensland, and the complainant commenced these proceedings in the incorrect court and/or district.
Yet despite that being blatantly clear and further in consideration of rule 5 of the Uniform Civil Procedure Rules that the purpose of these rules is to facilitate the just and expeditions resolution of the real issues in civil proceedings at a minimum of expense.
The application for leave
Leave to appeal is required because the amount involved is less than the minor civil dispute limit (as it is here). Leave shall not be granted unless the Judge is satisfied that some important principle of law or justice is involved.[1]
[1] Magistrates Courts Act 1921 (Qld) s 45(2)(a).
The application for leave raises the following substantive grounds (I have articulated the points in the application for leave by reference to these material grounds):
(a)That his Honour erred in concluding the Magistrates Court did not have jurisdiction to hear the claim;
(b)That his Honour denied the applicant procedural fairness by determining the application on grounds other than that raised by the defendant’s application; and
(c)That his Honour’s conduct of the hearing gave rise to a reasonable apprehension that he had pre-determined the matter.
The applicant did not press the third ground.
There will be a grant of leave to appeal. The judgment raises an important principle concerning the jurisdiction of the Magistrates Court of Queensland within the Commonwealth, and wrongly confines the jurisdiction of the Court.
Some general principles
The word jurisdiction is protean in character. Where it is used to refer to the authority of a court to decide a dispute, the following principles apply:[2]
[2] Sportec Pty Ltd v Leatherman Tool Group Inc [2024] QDC 188.
[20]Courts have authority to decide a matter when two conditions are met:[3]
…when the exercise of judicial power resolves a justiciable controversy of a kind which falls within the Court’s limits, and when the person bound by the exercise of judicial power are amenable to its exercise. In short, the court must have subject matter jurisdiction and personal jurisdiction in order to have authority to decide any particular proceedings.
[21]That distinction is reflected in Lipohar v The Queen (1999) CLR 485, where the joint judgment observed at [79] (footnotes omitted):
“Jurisdiction” may be used (i) to describe the amenability of a defendant to the court's writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or “law area” or “law district”. The distinction between (i) and (ii) was drawn by Mason A-CJ, Wilson and Dawson JJ in Flaherty v Girgis. In passages in their joint judgment in Thompson v The Queen, Mason CJ and Dawson J used the term “jurisdiction” in all three of these senses.
[22]Similarly, in Masson v Parsons (2019) CLR 554, Edelman J observed, at [57]:
… First, there is “jurisdiction”, which means an authority to decide. Federal jurisdiction is therefore a federal authority to decide. It has a personal dimension concerning the persons over whom authority to decide is exercised. It has a territorial dimension concerning the geographical area within which authority to decide can be exercised. And it has a subject matter dimension concerning the issues in respect of which authority to decide can be exercised.
[23]In my respectful view, the tripartite articulation in those cases can sit comfortably with the subject matter/personal jurisdiction dichotomy, with territorial jurisdiction having a place in both.
[24]As to personal jurisdiction, amenability to the authority of a court primarily turns on physical presence in the court’s territorial jurisdiction. The scope of personal jurisdiction can then be extended by statutory provisions conferring jurisdiction over persons not present in the geographical jurisdiction of the court. Rule 129F UCPR is such a provision. The rules as to legal service of a claim define the limits of a court’s personal jurisdiction beyond physical presence in the territorial jurisdiction of the court.
[25]As to subject matter jurisdiction, territorial jurisdiction can inform the scope of causes of action otherwise within the subject matter jurisdiction of a court. The conduct issues give rise to issues of territorial jurisdiction in the “subject matter” sense.
[3] Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd ed, 2020) ch 1, pp. 2-3. See also, Obeid v R (2015) 91 NSWLR 226; [2015] NSWCCA 309 at [10], citing PT Garuda Indonesia Ltd v ACCC (2012) 247 CLR 240; [2012] HCA 33 at [14]-[17].
The decision in Sportec (just cited) is of interest to this application. Sportec sold goods online in Australia under the name SportsGPS. Leatherman was a U.S. incorporated company which carried on the business of making Leatherman tools. Sportec sued Leatherman for damages suffered by reason of misleading or deceptive conduct allegedly engaged in by Leatherman in breach of s. 18 Competition and Consumer Act 2010 sch 2 (the ACL). The conduct arose out of communications between Leatherman in the US and Amazon alleging that Sportec was engaged in the sale of counterfeit products.
Sportec served the proceedings on Leatherman in the USA under rule 129F UCPR. Leatherman did not challenge the validity of service, nor that the Court had personal jurisdiction over Leatherman arising from it.
Leatherman contended, however, that there was no jurisdiction because Sportec could not establish that Leatherman has engaged in conduct to which s. 18 ACL applies. In particular, Leatherman alleged that there was no conduct within Australia by Leatherman, nor was it carrying on business within Australia, and therefore the ACL did not apply to any conduct alleged.
While that case seems to resemble this on the facts, it is a salutary example of how much care must be exercised when analysing questions of jurisdiction. Leatherman’s argument arose from the interplay between the subject matter jurisdiction and the territorial scope of that conferral of jurisdiction arising out of the words of the statute that created the cause of action.
I explained the distinction in Sportec as follows:
[55]First, while the two issues raised by Leatherman might be able to be technically characterised as issues of territorial limits informing the scope of subject matter jurisdiction, they are, in substance, issues which go to the existence of the cause of action sued upon, in that each conduct issue goes to whether there is conduct capable of being conduct in breach of s. 18 ACL. There is no question that the District Court has jurisdiction over claims for damages and injunctions arising out of misleading or deceptive conduct under s. 18 ACL: see s. 86(2) CCA. The question of whether particular conduct, otherwise misleading or deceptive, was conduct which occurred in Australia (or by a person carrying on business in Australia) is closely related to the conduct element of the cause of action and, in my view, ought to be approached in a similar manner; i.e. that Sportec is entitled to have the issue determined at trial unless it can be shown, on an interlocutory basis, to lack any real prospect of success.
[56]Further, Mr Hastie submitted that the conduct issues, though involving territorial issues, are not true jurisdictional issue. I think this submission is correct. It seems to me that both conduct issues are issues of a kind which this Court could conclusively determine pursuant to the jurisdiction conferred by ss. 86(1) and (2) CAA on the Court to hear and determine “any matter arising under this Act in respect of which a civil proceeding has…been instituted”: see Bray v F Hoffman-La Roche Ltd at [197]. They are not issues which can be characterised as going to jurisdiction in the sense of comprising pre-conditions to the existence of jurisdiction of the court over the subject matter of the proceedings. They should not be treated in the same manner as jurisdictional facts which are statutory pre-conditions to a court’s jurisdiction. It is doubtful that the duty to decide such matters is the same as for statutory pre-conditions to jurisdiction.[4] Indeed such matters ought ordinarily to be dealt with at trial rather than in some form of preliminary hearing on substantive jurisdiction. In my view, in this case, they are more appropriately dealt with at trial.
[4] See Bray v F Hoffman-La Roche Ltd (2002) 190 ALR 1 at [189] to [198]. This case is also similar in that respect to East West Airlines Ltd v Turner (2010) 78 NSWLR 1, where the issue was dealt with as part of the trial.
The line between a Court’s subject matter jurisdiction on the one hand, and disputed facts as to whether conduct or a cause of action falls within it because of some extraterritorial aspect of the facts on the other, can on occasions be difficult to draw. All the more reason why caution must be exercised when dealing with applications seeking dismissal on jurisdictional grounds.
In my view, the issue raised in Sportec did not go to the jurisdiction of the District Court but to whether the cause of action over which it had jurisdiction would be made out at trial. There can be no assumption that an extraterritorial element in a proceeding automatically goes to jurisdiction.
The issues for the appeal
It is convenient to clarify the real issues in the appeal. The application below sought dismissal of the proceeding in reliance on rule 35 UCPR, which provides:
35 General rule
(1) A person must start a proceeding before a court in 1 of the following districts—
(a) the district in which the defendant or respondent lives or carries on business;
(b) if there is more than 1 defendant or respondent—the district in which 1 or more of the defendants or respondents live or carry on business;
(c) if the parties to a proceeding to be started in a Magistrates Court or the District Court consent in writing and file the consent with the registrar—
(i)for a Magistrates Court—any Magistrates Courts district; or
(ii)for the District Court—any district of the District Court;
(d) if a defendant has agreed or undertaken in writing to pay a debt or another amount at a particular place—the district in which the place is located;
(e) the district in which all or part of the claim or cause of action arose;
(f) if the proceeding is a claim for the recovery of possession of land—the district in which the land is located.
(2) However, if the proceeding is to be started in the District Court and subrule (1) does not apply—
(a) a person may, without notice to a proposed party, apply to the District Court for directions about the district in which the proceeding should be started; and
(b) the person may start the proceeding in accordance with the court’s directions.
(3) For these rules, a division of the Brisbane Magistrates Court is taken to be a district.
It is unclear whether his Honour was acting based on this rule because of the brevity of his reasons. It might be so given that his Honour’s observations matched the considerations articulated in that rule. One matter is clear, rule 35 did not apply, not least because that rule does not apply where proceedings are commenced in the central registry of the Magistrates Court (as this proceeding was). Further, non-compliance with rule 35 does not go to jurisdiction. Civil jurisdiction is conferred on the Magistrates Court and all Magistrates Courts have that jurisdiction within their respect districts to hear all actions: s. 4(1) Magistrates Courts Act 1921 (Qld). At most, commencing in breach of rule 35 is an irregularity which can be addressed by a transfer application or an order under rule 371.
I mention this because in my respectful view, there was merit in the applicant’s submission to his Honour that that was the application they had come to Court to meet. It should have been dismissed.
His Honour was of course entitled to consider for himself whether he had jurisdiction. Indeed, there is an obligation imposed on every court to consider for itself whether it has jurisdiction in relation to a proceeding. However, what is required to establish jurisdiction varies significantly from case to case, depending on the nature of the jurisdictional issue and the scope of the jurisdiction of the court.[5] While the obligation is sometimes described as the first duty of a Court, it does not have to be done immediately. A court has jurisdiction sufficient to consider its own jurisdiction. When and how a court should determine a challenge to jurisdiction is a matter for that court and, amongst other things, can be deferred until trial.[6]
[5] Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd ed, 2020) ch 2.5, pp. 35-47.
[6] Ibid p. 44.
However, if his Honour had in mind grounds other than rule 35 for dismissal, he ought in my respectful view, have given the plaintiff an opportunity to address the issues he wished to raise. The defendant’s submission that mere mention of rule 16(a) meant his Honour could dismiss the application on other grounds if he chose without an opportunity for the plaintiff to respond to a different argument was wrong, as was the defendant’s reference to rule 156, which only applies to pleadings.
That has significance in this case because the plaintiff submits that it did not file evidence of service out of the jurisdiction under SEPA because of the form of the application. In its written submissions, the plaintiff seeks leave to put evidence of service under SEPA before the Court. The defendant’s submissions did not take issue with that leave, nor did it cavil with valid service under SEPA. I therefore grant leave to the plaintiff to rely on the affidavits of Mr Vance dated 11 July 2025 and the affidavit of Mr Fenton sworn 20 February 2025.
Personal jurisdiction
In paragraphs 30 to 37 of the plaintiff’s submissions, the plaintiff sets out law applicable to service under the SEPA. The defendant does not cavil with those propositions. It is sufficient to note the following.
First, a Court has personal jurisdiction, that is jurisdiction over a defendant, whenever an originating process can be lawfully served on that defendant. It is not limited to personal service within the geographical jurisdiction of the Court.[7]
[7] Laurie v Carroll (1958) 98 CLR 310 at 322-323.
Second, service of an originating process outside of Queensland, but within Australia, is effective if it is served in accordance with SEPA.[8] As observed by Kerby J, the purpose of section 51(xxiv) of the Constitution and of SEPA was to prevent the issues arising in the United States where a court in one state did not have in personam jurisdiction over a defendant resident in another.[9]
[8] UCPR r 123(2).
[9] Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR at [116], citing the United States decision of Pennoyer v Neff 95 US 714 (1879).
Third, the effect of SEPA is to extend the personal jurisdiction of each Court in the Commonwealth to the geographical limits of Australia, such that the Commonwealth is a single jurisdictional area in so far as personal jurisdiction is concerned.[10] Accordingly, nothing more needs to be shown to establish territorial nexus between the State Court and the defendant other than service under SEPA. In Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1 at 37-38, Gaudron, Gummow and Hayne JJ observed (footnotes omitted):
In the ordinary case, where service of the proceeding is effected within the State, the territorial nexus between the proceeding and the State is evident. In some cases of so-called ‘‘long arm jurisdiction’’ where service is effected outside Australia, unless the defendant voluntarily submits to the jurisdiction, there must be some nexus between the subject matter and the State or between the defendant and the State. By contrast, where service is effected within Australia, under the Service and Execution of Process Act 1992 (Cth), no nexus must be shown.
[10] Schmidt v Won [1998] 3 VR 435 at 452; ss 12 and 130 SEPA.
So much is expressly provided by s. 12 SEPA.
Accordingly, the Magistrates Court had jurisdiction over the defendant despite the fact that he was resident in Victoria and had not been served in Queensland. To the extent that his Honour relied on the defendant’s place of residence as justifying the conclusion that the Magistrates Court did not have jurisdiction over him, his Honour erred.
Subject matter jurisdiction
It is convenient to start with the jurisdiction provision in question which is s. 4(1) Magistrates Court Act which provides:
4 Jurisdiction of Magistrates Courts
(1) Subject to this Act—
(a) every personal action in which the amount, value or damage sought to be recovered is not more than the prescribed limit, whether on a balance of account or after an admitted set-off or otherwise, including any claim for detention of goods or chattels; and
(b) every action brought to recover a sum of not more than the prescribed limit, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of the distributive share under an intestacy or of a legacy under a will; and
(c) every action in which a person has an equitable claim or demand against another person in respect of which—
(i)the only relief sought is—
(A) the recovery of a sum of money or of damages, whether liquidated or unliquidated; or
(B) the delivery of possession of goods or chattels in relation to a right, security interest, encumbrance, charge or lien; and
(ii)the amount, value or damage claimed is not more than the prescribed limit;
may be commenced in a Magistrates Court, and all Magistrates Courts shall within their respective districts have power and authority to hear and determine in a summary way all such actions.
I note the following.
First, the jurisdiction conferred is not primarily defined by cause of action, but by remedy. The section effectively confers jurisdiction to hear and determine any action for money howsoever arising. It has been given a broad construction,[11] as jurisdiction conferring provisions should be.[12]
[11] Ron Kingham Real Estate Pty Ltd v Edgar [1999] 2 Qd R 439.
[12] Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (The Federation Press, 2nd ed, 2020) p. 135.
Second, it contains no express limit arising from where the facts which give rise to the action occur. Nor does it contain any limit on where such proceedings may be brought. In my view, it confers jurisdiction in respect of all actions on all Magistrates Courts. The reference to “within their respective districts” simply recognises that Magistrates Courts sit in several districts. To the extent that gives rise to any issue, it is dealt with by rules 34 and 35 UCPR already addressed.[13]
[13] That statutory framework differs materially from that considered in Tuckerman v Neville (1992) 2 Qd R 657.
The defendant does not, and could not, cavil with the proposition that the plaintiff’s claim prima facie falls within the scope of the jurisdiction conferred by s. 4(1). A claim for damages for negligence of some $18,000 is a personal action for an amount not more than the prescribed limit.
The defendant submits, however, that claim does not fall within jurisdiction because there are no connecting factors to the State of Queensland. The argument was put as follows:
14. The jurisdiction of the Magistrates Court is, by virtue of the legislation, confined to maters “in and of Queensland”, unless expressly extended lawfully.
15. There is a presumption against extraterritoriality unless expressly or impliedly extended.[14] Absent extraterritorial effect, Queensland statutes are “…limited in (their) operation to the State of Queensland.”[15] That is the case here.
16. In Broken Hill South Ltd v Commissioner of Taxation (NSW),[16] Dixon J defined the “extraterritorial doctrine” as:
The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the State whether by domicil, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory.
17. The key to jurisdiction is that there must be “connecting factors” to the State.
[14] Commissioners of Stamps (Qld) v Arnold Wienholt (1915) HCA 49; 20 CLR 531 (2 August 1915).
[15] Ibid, per Isaacs, Gavan Duffy and Powers JJ at page 4.
[16] (1937) 56 CLR 337.
One answer to this given by the plaintiff to that proposition is to rely on the so called double actionability test set out by Brennan J in Breavington v Godleman (1988) 169 CLR 41 at 110-111. There are difficulties in relying on that test as one which goes to jurisdiction, though it has been characterised as identifying disputes in tort which are justiciable. However, the real difficulty with reliance on that case is that it is no longer the law in Australia. In John Pfieffer Pty Limited v Rogerson (2000) 203 CLR 503 at [96], the majority rejected the double actionability test for non-federal jurisdiction cases, being cases in which the courts of one State were hearing a claim based on a tort committed in another State. The majority concluded that the law governing all questions of substance in Australian torts involving an interstate element is the lex loci deliciti.
However, there is another answer to the defendant’s argument. The connecting factor which the defendant seeks is provided by the personal jurisdiction of the Court over the defendant arising from, in this case, SEPA. Once that connection is established, the only question is whether the plaintiff’s claim can be characterised as falling within the scope of the express terms of s. 4(1). That might be a complex question in cases involving unfamiliar claims arising under quite different legal systems. But that is not this case. The plaintiff’s claim is unquestionably an action for damages within the monetary limit.
That conclusion is supported by Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1. That case concerned the question of whether class action legislation in Victoria based on an opt out model that applied to all members of the defined class regardless of location and which purported to bind all class members who did not opt out was constitutionally valid. Mobil argued that there was an insufficient territorial nexus between the subject matter of the legislation and the State of Victoria. The argument focussed on application of the statute to plaintiffs, rather than defendants. It was summarised by Gleeson CJ as follows:
Mobil contends that Pt 4A represents a constitutionally impermissible attempt to confer upon the Supreme Court of Victoria ‘‘a national jurisdiction in group proceedings’’. Group members may be persons who are non-residents of Victoria, whose claims against Mobil arise from transactions or events outside Victoria, and who have not chosen Victoria as the forum for resolution of those claims in any sense other than that they have failed to ‘‘opt out’’ of the group proceedings, perhaps without knowing that the proceedings were on foot. As to group members who are residents of Victoria, Mobil appears to accept that the fact of such residence would empower the Parliament of Victoria to enact provisions of the kind found in Pt 4A if they were confined to Victorian residents, even though such residents may not know of the group proceedings. But the application of such provisions to group members resident in other States or Territories is said to exceed legislative power.
However, while considering the position of plaintiffs, the High Court accepted that the nexus between a defendant and a State was sufficiently established for constitutional purposes where that jurisdiction arose from, inter alia, service under the SEPA scheme. The Court considered those provisions were within the power of the State to legislate extraterritorially despite the constitutional limits on the power of State Parliaments to legislate in and for the State. Indeed, Mobile made no submission to the contrary.[17]
[17] See Gleeson CJ at [10] and [17], Gaudron, Gummow and Hayne JJ at [56] to [58]; Kirby J at [135] to [136].
In my view, that conclusion also is supported by a line of authority referred to in Tuckerman v Neville (1992) 2 Qd R 657. That case concerned the issue of whether the District Court had jurisdiction to hear and determine an action in which the defendant was present in the jurisdiction, but the cause of action arose outside the jurisdiction. Relevantly, Justice McPherson referred to cases which establish that inferior Courts have jurisdiction over actions arising outside the State in which they are located, subject to jurisdiction over the defendant. His Honour observed:
Both before federation and shortly after it, the question was much debated whether a District Court or its equivalent had territorial jurisdiction in cases where, even though the defendant was within territorial limits, the cause of action had arisen abroad. In Victoria it was held that no such jurisdiction reposed in the county courts of that colony: see Brooks Robinson & Co. v. Howard Smith & Sons (1890) 16 V.L.R. 245. In New South Wales the opposite approach prevailed: see Thompson v. Hood (1884) 15 L.R. (N.S.W.) 202, 204–205, where Martin C.J. said that the law had always been that a personal and therefore “ambulatory” action might be brought in a superior court although the cause of action arose in another country. He went on:
“It is said that the rule is different so far as inferior jurisdiction is concerned. I do not think there is any difference. If an action is brought in a court of inferior jurisdiction, all that must be established is that the action is within the limited jurisdiction of such court.”
When the question rose in Queensland it was resolved in favour of the New South Wales decision: see Maschwitz v. Searles [1903] St.R.Qd. 238. There the Full Court held that a defendant to a Supreme Court action, who resided and carried on business in Queensland at Longreach, could have been sued in the District Court under the equivalent of r. 9(a) even though the contract on which the action was brought was made and its breach took place in Sydney. Speaking on behalf of this Court, Griffith C.J. said that if any of the conditions specified in the contemporary analogue of r. 9 existed, the power of the Court arose. Hence, in The Distillers Company Ltd v. Hayes [1911] Q.W.N. 22, Macnaughton D.C.J. found jurisdiction in the District Court to entertain an action for goods sold and delivered in Victoria to a defendant who at the time of service was resident in Queensland at Sandgate. More recently those decisions were followed by Mills J. in National Bank of Australasia v. Trout [1979] 2 N.Z.L.R. 303, where the action was commenced by service on a resident of New Zealand of process issuing out of the magistrates court in an action commenced in that country arising out of a contract entered into in Vila in what is now Vanuatu.
These decisions seem to me to establish that, at least if the defendant is personally within the territorial jurisdiction, he may be sued in an appropriate District Court in Queensland if the action falls within one or more of the prescriptions in r. 9 or its equivalent.
The defendant might think this case assists, but the statutory context has changed. Rule 9 previously provided that the district in which an action shall be commenced was as follows:
(a)The district within which the defendant … resides or carries on business;
(b)The district within which the cause of action or claim, either wholly or in some material point, arose; and
(c)The district within which by an engagement or promise in writing given by the defendant a debt or sum of money is payable.
That rule, and its earlier statutory form considered by Griffith CJ, was taken as extending civil jurisdiction of the then District Court to all cases which fell within those parameters.
The modern equivalent of rule 9 seems to be rule 35. However, that rule is overtaken by rule 34, which by necessary implication does not recognise any requirement for connection to a district as a condition for jurisdiction over an action.
What is left is the recognition in Tuckerman v Neville (and the cases which preceded it) that inferior Courts have jurisdiction over any action which falls within its subject matter jurisdiction, even if it arises outside the State.
This is of course consistent with the general principle that a proceeding which comes within the subject matter jurisdiction involving a defendant over whom the Court has personal jurisdiction, is a proceeding which is within jurisdiction.
Once that is established, it is a matter for Queensland choice of law rules (or Australian choice of law rules if one is speaking of single common law of the Commonwealth) as to the proper law for the resolution of that action.
Appropriate forum issues
It might be that Victoria is a more appropriate forum for the determination of these proceedings. However, that is a matter which can be pursued by an application under s. 20 SEPA. No such application was brought before his Honour. Issues of jurisdiction and discretion should not be confused.
Orders
For the reasons I have given, the appeal is allowed, the orders the Magistrate Court made 16 May 2025 are set aside and the application filed 1 April 2025 is dismissed.
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