RE 116 CARDAMON LIMITED; EX PARTE 116 CARDAMON LIMITED REGISTRATION NUMBER 06517935, A COMPANY REGISTERED IN THE UNITED KINGDOM [2016] WASC 408

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 408
Case No:	CIV:2943/2016	Heard:	13 NOVEMBER 2016
Coram:	LE MIERE J	Delivered:	13/11/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
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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

CITATION : RE 116 CARDAMON LIMITED; EX PARTE 116 CARDAMON LIMITED REGISTRATION NUMBER 06517935, A COMPANY REGISTERED IN THE UNITED KINGDOM [2016] WASC 408 CORAM : LE MIERE J HEARD : 13 NOVEMBER 2016 DELIVERED : 13 NOVEMBER 2016 FILE NO/S : CIV 2943 of 2016 EX PARTE

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…

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 Re 116 Cardamon Limited;

Details

AGLC: Re 116 Cardamon Limited; [2016] WASC 408
Case: [2016] WASC 408
Decision Date: 13 NOVEMBER 2016

CaseChat Overview and Summary

The applicant, 116 Cardamon Limited, sought an order from the Commercial Court of the Royal Courts of Justice of England and Wales for substituted service of originating process in relation to proceedings in the Federal Court of Australia. The applicant argued that it had been unable to serve the originating process on the respondent due to the respondent's inability to be located within the jurisdiction of the Federal Court. The court was required to decide whether it had the jurisdiction to make such an order, and if so, the extent of its inherent jurisdiction in this regard.

The court found that it lacked the jurisdiction or power to make the order requested by the applicant. The court held that the inherent jurisdiction of the court is limited and does not extend to making orders that would have the effect of substituting service of originating process in another jurisdiction. The court noted that such an order would have the effect of creating a new cause of action, which was beyond the scope of its inherent jurisdiction. The court also noted that the Federal Court has its own procedures for dealing with service of originating process and that it was not appropriate for the Commercial Court to interfere with those procedures.

The application was dismissed, and the court held that it lacked the jurisdiction or power to make the order asked. The court's reasoning was based on the limited scope of its inherent jurisdiction and the need to respect the procedures of other courts. The court did not make any orders beyond dismissing the application.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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