Victorian Broadcasting Network Ltd v Whitlam, Edward Gough

Re: VICTORIAN BROADCASTING NETWORK LIMITED
And: EDWARD GOUGH WHITLAM (1980) 42 FLR 256
F.G. No. 9 of 1979
Service out of the Jurisdiction - Practice - Courts and Judges

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Blackburn(1), Franki(1) and Keely(1) JJ.

CATCHWORDS

Service out of the Jurisdiction - one defendant out of jurisdiction - whether shown to be joint tortfeasor with defendants in jurisdiction.

Service out of the jurisdiction - setting aside writ - stay of proceedings - which is appropriate where case not within s.11 of Service and Execution of Process Act 1901.

Practice - Procedure - Service out of jurisdiction - Application to set aside writ and service of writ - Whether court may set aside writ or service - Whether court may stay proceedings - Service and Execution of Process Act 1901 (Cth), s. 11 - Australian Capital Territory Supreme Court Act 1933 (Cth), s. 11 (a).

Practice - Procedure - Service out of jurisdiction - Appellant out of jurisdiction - Whether appellant joint tortfeasor with defendants within jurisdiction.

Courts and Judges - Service out of jurisdiction - Order for stay of proceedings - Whether court has jurisdiction to order stay of proceedings - Inherent jurisdiction - Australian Capital Territory Supreme Court Act 1933 (Cth), s. 11 (a).

HEADNOTE

The appellant was a company incorporated in Victoria. It was not and never had been registered in the Australian Capital Territory nor did it carry on business or have a place of business there. None of the appellant's telecasts were capable of being received within the Australian Capital Territory. At the material time there existed an arrangement between the appellant and Trans Media Pty. Ltd. whereby the appellant was permitted to televise within its viewing area a series of television programmes produced by Trans Media Pty. Ltd. and known as "Willesee at 7". The respondent commenced proceedings in the Supreme Court of the Australian Capital Territory against fourteen defendants (including Trans Media Pty. Ltd. and the appellant) claiming damages for libel allegedly published during a television programme "Willesee at 7". The action was with respect to publication in the Australian Capital Territory and it was alleged that the appellant was a joint tortfeasor being engaged in a joint venture with Trans Media Pty. Ltd. and others for the purpose of publication throughout Australia of "Willesee at 7". The writ of summons had been served on the appellant under the provisions of the Service and Execution of Process Act 1901 ("the Act"). By notice of motion the appellant sought orders that the writ of summons and the service of it be set aside as against the appellant. No order was sought by the appellant that the action against it be stayed. No statement of claim had been served and no appearance or conditional appearance had been entered by the appellant nor had an application been made for liberty to proceed under the provisions of s. 11 (1) of the Act when the…