Re QBE Insurance Ltd; Ex Parte DARMOKO - [2002] WASC 34

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: RE QBE INSURANCE LTD; EX PARTE DARMOKO [2002] WASC 34

CORAM: TEMPLEMAN J

HEARD: 31 JANUARY 2002

DELIVERED : 8 MARCH 2002

FILE NO/S: CIV 1652 of 2001

MATTER :An application for a Writ of Prohibition against the District Court of Western Australia and QBE Insurance Ltd
EX PARTE
ANDREW ARIEF DARMOKO
Applicant

Catchwords:

Administrative law - Writ of prohibition sought to restrain District Court of WA from taking any steps in relation to an action

Practice and procedure - Service out of jurisdiction - Conditional appearance becoming unconditional - Whether submission to the jurisdiction - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr D E Eley
Respondent: Mr P K Walton

Solicitors:

Applicant: Eley Palmer Archer
Respondent: Jackson McDonald

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

Afro Continental Nigeria Ltd v Meredian Shipping Co SA [1982] 2 Lloyds Rep 241
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529
Hewitson v Fabre [1888] 21 QBD 6
Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 64 ALR 155

Case(s) also cited:

BP Australia Ltd v Kirki Shipping Corporation & Anor, unreported; SCt of WA; Library No 940612; 1 November 1994
Craig v South Australia (1995) 184 CLR 163
Golden Ocean Assurance Ltd and World Mariner Shipping SA v Martin & Ors ("The Goldean Mariner TGM") [1990] 2 Lloyds Rep 215
Hill v King (1993) 31 NSWLR 654
King-Brooks v Roberts (1991) 5 WAR 500
Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874
Lindgran v Lindgran [1956] VLR 215
Monger, Re; ex parte Dutch & Ors [2001] WASCA 220
Porter v Freudenberg [1915] 1 KB 857
R v Coburn; Ex parte Fomin (1981) 9 NTR 1
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Re Family Court of Australia; Ex parte Herbert [1991] 65 ALJR 688
Smith & West Australian Development Corporation; Ex parte Rundle & Ors (1992) 5 WAR 295
Waterside Workers Federation of Australia v Gilchrist Watt & Sanderson Ltd (1924) 34 CLR 482

TEMPLEMAN J: The applicant, Andrew Arief Darmoko, is an Indonesian national who lives in Indonesia. The applicant seeks a Writ of Prohibition to prohibit the District Court of Western Australia from taking any steps in relation to an action which has been brought against him by QBE Insurance Ltd ("QBE").
The grounds on which the applicant claims relief are:
1.There has been no leave granted by the District Court of Western Australia to issue the Writ 463 of 2000 for service out of the jurisdiction, pursuant to O 5 r 9 of the Rules of the Supreme Court.
2.On 27 September 2000 the District Court of Western Australia through the decision of Deputy Registrar Harman refused an application by QBE … for retrospective leave pursuant to O 5 r 9 of…

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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Details

Case: [2002] WASC 34
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Re QBE Insurance Ltd; Ex Parte Darmoko involves an Indonesian national, Andrew Arief Darmoko, who seeks a writ of prohibition against the District Court of Western Australia and QBE Insurance Ltd. The applicant alleges that the writ was issued and served without proper authorization under the Rules of the Supreme Court 1971 (WA), specifically under Orders 5 and 10. The applicant contends that the writ was served out of jurisdiction without leave and that the service was defective as it was made on the notice of the writ instead of the writ itself. The applicant further argues that he never received proper service, and therefore, the court lacks jurisdiction over him.

The primary legal issues in this case revolve around the validity of service of the writ out of jurisdiction and the applicant's submission to the court's jurisdiction. The court must determine whether the writ was issued and served in accordance with the rules and whether the applicant's conditional appearance became an unconditional one, thereby waiving any defects in service. Templeman J considers the procedural irregularities and the applicant's actions, including the conditional appearance and the request for consolidation of actions, to assess whether these actions amount to a submission to the court's jurisdiction.

Templeman J concludes that despite the procedural defects in the issuance and service of the writ, the applicant's conditional appearance became unconditional, which indicates a submission to the court's jurisdiction. The court deems the applicant to have waived any defects in service by not challenging the jurisdiction promptly. Consequently, the application for a writ of prohibition is dismissed. The court finds that the applicant's actions, including the request to consolidate the actions, do not constitute a challenge to the jurisdiction but rather an engagement with the proceedings. Therefore, the applicant cannot complain about the procedural errors, and the application is denied.

Orders