Re 116 Cardamon Limited;
[2016] WASC 408
•13 NOVEMBER 2016
RE 116 CARDAMON LIMITED; EX PARTE 116 CARDAMON LIMITED REGISTRATION NUMBER 06517935, A COMPANY REGISTERED IN THE UNITED KINGDOM [2016] WASC 408
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 408 | |
| Case No: | CIV:2943/2016 | 13 NOVEMBER 2016 | |
| Coram: | LE MIERE J | 13/11/16 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | 116 CARDAMON LIMITED REGISTRATION NUMBER 06517935, A COMPANY REGISTERED IN THE UNITED KINGDOM ALAN RAMSAY MACALISTER BIRGITT ALICE MACALISTER |
Catchwords: | Practice and procedure Power of court to make order for substituted service of originating process in the Commercial Court of the Royal Courts of Justice of England and Wales Whether court has jurisdiction to make order Extent of inherent jurisdiction The court lacks jurisdiction or power to make order asked |
Legislation: | Criminal Property Confiscation Act 2000 (WA), s ? Rules of the Supreme Court 1971 (WA), O 11A, O 11A r 15, O 72 Supreme Court Act 1935 (WA), s 16 The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters made at The Hague in 1965 |
Case References: | Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
116 CARDAMON LIMITED REGISTRATION NUMBER 06517935, A COMPANY REGISTERED IN THE UNITED KINGDOM
Plaintiff
AND
ALAN RAMSAY MACALISTER
First Defendant
BIRGITT ALICE MACALISTER
Second Defendant
Catchwords:
Practice and procedure - Power of court to make order for substituted service of originating process in the Commercial Court of the Royal Courts of Justice of England and Wales - Whether court has jurisdiction to make order - Extent of inherent jurisdiction - The court lacks jurisdiction or power to make order asked
Legislation:
Criminal Property Confiscation Act 2000 (WA), s ?
Rules of the Supreme Court 1971 (WA), O 11A, O 11A r 15, O 72
Supreme Court Act 1935 (WA), s 16
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters made at The Hague in 1965
Result:
Application dismissed
Category: A
Representation:
Counsel:
Plaintiff : Ms H Tiplady
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Clayton Utz
First Defendant : No appearance
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97
- LE MIERE J:
(This judgment was delivered ex tempore on 13 November 2016 and has been edited from the transcript.)
1 The plaintiff has applied for the following order:
For the purpose of O 11A r 15(3)(a) of the Rules of the Supreme Court 1971 (WA) (RSC), the documents listed in the schedule and a copy of the order for substituted service are to be served on the first and second defendant by:
(a) being placed in the letterbox or by the gate of the property or the street address of 379 Summerfield Road, Serpentine, WA 6125;
(b) being placed in the letterbox or by the front gate or door marked to the attention of Mr Cameron Macalister of the property or the street address of Unit 33/20 Royal Street, East Perth WA 6004;
(c) by being emailed to [email protected].;
(d) being sent by prepaid post to the following addresses:
(i) 379 Summerfield Road, Serpentine WA 6125; and
(ii) care of Mr Cameron Macalister of Unit 3/20 Royal Street, East Perth WA 6004.
- The plaintiff also seeks additional consequential orders.
2 I am satisfied from the affidavits that have been read in this matter that appropriate efforts have been made to attempt to serve the defendants, that it is not practicable to do so and that the method of substituted service proposed is likely to bring the documents to the attention of the defendants. If the court has power to make orders for substituted service it would be appropriate to do so.
3 However, I am not satisfied that the court has the power or the jurisdiction to make the orders sought. In essence the plaintiff asks this court to make an order for the substituted service of originating process in the Commercial Court of the Royal Courts of Justice of England and Wales. The plaintiff submits that this court has the necessary jurisdiction or power to grant the orders sought as part of its inherent jurisdiction.
4 The court has inherent jurisdiction, which has a number of facets to it. At [1.0.5(a)] of the Red Book the learned authors say that the court is a superior court of record of unlimited jurisdiction and is vested, by virtue of s 16 of the Supreme Court Act 1935 (WA), with the jurisdiction, including, of course, the inherent jurisdiction, of the superior courts of England as at 1861. The expression 'inherent jurisdiction' has come to be used not so much to refer to the authority of the court to decide matters before it but rather to describe the power which it has independent of statutory authority, express or implied. The court has inherent power to control its own proceedings. It has inherent power to prevent its processes being abused and corresponding power to protect their integrity once they are set in motion.
5 The court has inherent jurisdiction which arises in a number of different matters in relation to proceedings within, or commenced within, the court. The court does not have inherent jurisdiction in respect of proceedings commenced in the High Court of Justice in the Royal Courts of Justice of England and Wales.
6 The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters made at The Hague in 1965, which has been ratified by Australia, provides for the service in a Convention country of proceedings in another Convention country. The effecting of service of process in another jurisdiction is an administrative or ministerial act, not a judicial act.
7 Order 11A of the RSC deals with the service by this court of process of another court in a Convention country. The steps which the rules provide for this court to take are administrative or ministerial actions. They do not involve the exercise of judicial power.
8 The plaintiff submits that this court may exercise its inherent jurisdiction in respect of all matters regulated by the Rules of the Supreme Court. The plaintiff referred to the decision of the Court of Appeal in Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97 and in particular, the statement of Buss JA at [181] that:
The court may, of course, exercise its inherent jurisdiction in respect of matters regulated by a statute or the rules of court, but only if this can be done without contravening the statute or rules.
- In that case, the appellant had sought leave to appeal and to appeal from a decision dismissing its application for an extension of time in which to file an objection to the confiscation of property under the Criminal Property Confiscation Act 2000 (WA) (CPC Act). The CPC Act conferred on the court jurisdiction over the matter. The question concerned the power of the court to extend time to file an objection. It does not stand for a proposition in the wide terms stated by the plaintiff.
9 RSC O 72 is concerned with service of the process of this court. It does not of itself confer power to make orders about the service of process issued by a foreign court. In its terms, O 72 r 1 refers to:
… any document which, by virtue of these rules, is required to be served on any person
- and then goes on to make provision in relation to it. It is not these rules which require service upon the defendants. It is the request issued by the High Court of Justice of England and Wales, and that request is to effect personal service upon the defendants.
10 In short, this court does not have jurisdiction or power to make the orders sought, and the application will be dismissed.
1
4