Meridian Oil Nl v Smyth - [2007] WASC 57

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MERIDIAN OIL NL -v- SMYTH & ORS [2007] WASC 57

CORAM: MASTER SANDERSON

HEARD: 5 & 18 DECEMBER 2006

DELIVERED : 14 MARCH 2007

FILE NO/S: CIV 1208 of 1995

BETWEEN: MERIDIAN OIL NL
Plaintiff
AND
PETER MARK SMYTH
First Defendant
DAVID ALEC ANDREW FLEMING
Second Defendant
CHRISTOPHER PAUL McDONALD MAIN
Third Defendant
MICHAEL JOHN FULLER
Fourth Defendant
CECIL DENNISTON BURNEY
Fifth Defendant
LINDSAY GERALD DAVEY CAMERON
Sixth Defendant
ROSS PHILIP GLOSSOP
Seventh Defendant
RICHARD WEBB
Eighth Defendant

Catchwords:

Practice and procedure - Application for third party discovery against party resident out of jurisdiction - Turns on own facts

Legislation:

Service and Execution of Process Act 1992 (Cth), s 27

Result:

Application refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr J T Bishop
First Defendant             :     Mr J C Vaughan
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance
Seventh Defendant        :     No appearance
Eighth Defendant          :     No appearance

Solicitors:

Plaintiff:     Hotchkin Hanly
First Defendant             :     Freehills
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance
Fifth Defendant            :     No appearance
Sixth Defendant            :     No appearance
Seventh Defendant        :     No appearance
Eighth Defendant          :     No appearance

Case(s) referred to in judgment(s):

Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158

MASTER SANDERSON: This was the plaintiff's application for third party discovery. Discovery was sought from Sheahan Lock Partners, an accounting firm in Adelaide. The documents in question related to nine corporations. In correspondence dated 29 November 2006, Sheahan Lock indicated they had documents in relation to eight of the corporations. How they came into possession of these documents is not presently relevant. The correspondence further indicated that subject to the payment of their fees, they were prepared to give the discovery sought. The first defendant opposed the making of the orders.
At the conclusion of the hearing, I indicated I would dismiss the plaintiff's application and that I would publish reasons at a later date. These are those reasons.
It was the first defendant's position that the Court did not have the jurisdiction to make the orders sought. The firm against whom the order was to be made is based in Adelaide and has no presence within this jurisdiction. That being so, it was the first defendant's submission that there was no jurisdiction to make the orders sought.
It was the plaintiff's submission that an order could be made because Sheahan Lock had submitted to the jurisdiction of the Court. In support of this submission, reliance was placed on the correspondence to which I have already referred. This letter was written after the chamber summons seeking the order for discovery was served on the firm. The letter does not, by its terms, actually submit to the jurisdiction of the Court. What is said is that the firm does not intend to appear at the hearing and, by implication, does not intend to oppose the making of the orders. That position might be contrasted with that of a party who, when served with a writ of summons, enters an unconditional appearance. There can be no doubt in that circumstance there is submission to the jurisdiction. But that is not the case here. Indeed, given that what was served on Sheahan Lock was a chamber summons, there was no capacity for them to enter an appearance to the summons.
On behalf of the first defendant it was submitted that service of a document under s 27 of the Service and Execution of Process Act 1992 (Cth) ("SEPA") does not make it clear to its recipient upon what basis and authority service is effected. It was said this has the propensity to create assumptions as to jurisdiction which are not justified. Section 27 is not a provision by which a person not otherwise subject to the Court's jurisdiction becomes so subject. That is dealt with by the arrangements for initiating process as defined. Section 27 is to be seen in the context of the arrangements set out in the SEPA as a whole. These arrangements contain detailed provisions for the service of initiating process (and subpoenas) and have annexed thereto the requisite notices explaining the basis of service and the authority of the issuing court.
The arrangements also provide for the ability of a party so served to enter an appearance stating an address for service outside the State of Western Australia. There would thus be occasion, which would not ordinarily arise in a purely domestic Western Australian matter, for an address for service to be outside the State. Section 27 provides the mechanism whereby ordinary process, in a matter in which the interstate party has already become subject to the Court's jurisdiction, can be served. The difference between the materials provided upon service of the initiating process and upon service of the ordinary process is marked. The SEPA does not contemplate the service of ordinary process which causes the recipient not otherwise subject to the issuing court's jurisdiction to become so subject.
In response to these submissions, counsel for the plaintiff referred to the decision of the Full Court in Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158. This case concerned the consequences of the appellant attempting to serve a writ of summons after the 12‑month period of validity prescribed under O 7 r 1(1) had expired. The case also concerned the utility of attempting to obtain orders extending the validity of the writ thereafter.
In the course of his judgment, Ipp J had this to say at par 38:
"In determining whether steps taken by a party in the course of proceedings amount to a submission to jurisdiction, the question to be considered is whether the steps were necessary or useful to any action taken by the party other than in objecting to the jurisdiction. A step that is not consistent with or relevant to the challenge to the jurisdiction, will usually be a submission to that jurisdiction. The court must consider the matter objectively and, where the steps relied on are the actions of a solicitor, they must be considered in the context of all the relevant circumstances."
In this case, I am not satisfied that there has been a submission to the jurisdiction. In my view, the letter from Sheahan Lock is, at best, equivocal. The application was supported by an affidavit of Ian Leslie Veale sworn 20 November 2006. There is nothing in that affidavit which provides evidence of consent to jurisdiction. At par 22 Mr Veale says that he has been informed by his solicitors that Sheahan Lock indicated they would only provide discovery if ordered to do so by the Court. In my view, that could not be seen as a submission to jurisdiction.
In any event, I have some doubts as to whether or not it could be said that there is any process or proceeding to which Sheahan Lock are submitting. They were served with a chamber summons, not with initiating process. While that might be proper and appropriate when a party is resident within the jurisdiction, I find it difficult to see how there is any proper process initiated when the chamber summons is served out of the jurisdiction. However, given that I am not satisfied that under any circumstances there has been a submission to the jurisdiction, I need not express a concluded view on this issue.
In passing, I would make the point that dismissing this application does not hold dire consequences for the plaintiff. It is always open to them to issue a subpoena and obtain copies of the documents. In the circumstances, that may be the best alternative.
For these reasons, I dismiss the application with costs.