Gosper v Sawyer [1985] HCA 19; (1985) 160 CLR 548 (20 March 1985)

HIGH COURT OF AUSTRALIA

GOSPER v. SAWYER [1985] HCA 19; (1985) 160 CLR 548

Constitutional Law (N.S.W.) - Private International Law - Service and Execution of Process - Industrial Law (N.S.W.)

High Court of Australia
Gibbs C.J.(1), Mason(2), Wilson(1), Deane(2) and Dawson(1) JJ.

CATCHWORDS

Constitutional Law (N.S.W.) - State Industrial Commission - Statutory jurisdiction to declare unfair contracts wholly or party void - Superannuation fund - Foreign trustees - Extra-territorial application of statute - Industrial Arbitration Act 1940 (N.S.W.), s. 88F(1).

Private International Law - Jurisdiction - Industrial Commission (N.S.W.) - Application for orders with respect to pension fund - Foreign trustees - Service out of jurisdiction - Industrial Arbitration Act 1940 (N.S.W.), ss. 88F(1), 130(1); Industrial Arbitration (General) Regulations, reg. 157; Supreme Court Rules (N.S.W.), Pt 10.

Service and Execution of Process - Relief in respect of or affecting a contract - Contract made or entered into within State in which writ issued - Contract of employment made within State - Membership of superannuation fund an incident of employment - Trustees of fund resident in another State - Application under statute to avoid or vary deed of trust - Service and Execution of Process Act 1901 (Cth), s. 11(1)(b).

Industrial Law (N.S.W.) - Industrial Commission - Powers - To declare void or vary any contract or arrangement whereby a person performs work in any industry - Application to vary provisions of superannuation trust deed - Industrial Arbitration Act (N.S.W.), s. 88F(1).

HEARING

1984, October 18; 1985, March 20. 20:3:1985
APPEAL from the Industrial Commission of New South Wales.

DECISION

GIBBS C.J., WILSON and DAWSON JJ. The Court has heard together an appeal from two judgments of the Industrial Commission of New South Wales ("the Commission") and an application to make absolute an order nisi for a writ of prohibition directed to the Commission. The appellants in the appeal, who are also the applicants for the writ of prohibition, are the trustees of the Shell Australia Contributory Pension Fund ("the Fund"), which is held on trusts declared in a trust deed executed on 28 July 1949 and subsequently amended from time to time, and in regulations annexed to the deed. The Fund was established for the purpose of securing pensions and other benefits for employees of the Shell Company of Australia Limited and its associated companies, which include Shell Refining (Australia) Pty. Limited ("Shell"), a company of which Mr Sawyer, who is a respondent to the appeal and to the application for prohibition, was an employee.

2. When Mr Sawyer commenced his employment with Shell, in 1973,
he was given a document which set out what were described as "The main points in regard to your engagement". The document included the following:

"Pension Fund Membership of the Pension Fund
is obligatory."
which stated that application would be made to the Commission for the following relief:

"1. That the Commission make an order and/or award
declaring void in whole or in part or varying
in whole or in part and either ab initio or
from some other time the contracts,
arrangements or conditions or collateral
arrangements relating thereto between the
applicant of the one part and the respondents
of the other part and, in particular, an
arrangement and/or a condition or collateral
arrangement relating thereto between the
applicant of the one part and the respondents
of the other part being the Shell Australia
Contributory Pension Fund.

2. That the Commission in making the order and/or
awards sought make such order as to the
payment of moneys by the Respondents as may
appear to the Commission to be just in the
circumstances of the case.

3. Such other awards or orders as to the
Commission seem proper.

4. That the Respondents be ordered to pay the
Applicant's costs of these proceedings."

The respondents to the application were Shell and the trustees of the Fund. The application was made under s.88F of the Industrial Arbitration Act 1940 (N.S.W.), as amended ("the Act"). Section 88F(1) provides as follows:

"The commission may make an order or award
declaring void in whole or in part or varying in
whole or in part and either ab initio or from some
other time any contract or arrangement or any
condition or collateral arrangement relating
thereto whereby a person performs work in any
industry on the grounds that the contract or
arrangement or any condition or collateral
arrangement relating thereto -

(a) is unfair, or

(b) is harsh or unconscionable, or

(c) is against the public interest. Without
limiting the generality of the words
'public interest' regard shall be had in
considering the question of public
interest to the effect such a contract or
a series of such contracts has had or may
have on any system of apprenticeship and
other methods of providing a sufficient
and trained labour force, or

(d) provides or has provided a total
remuneration less than a person
performing the work would have received
as an employee performing such work, or

(e) was designed to or does avoid the
provisions of an award, industrial
agreement, agreement registered under
Part VIIIA or contract determination."

3. The affidavit filed by Mr Sawyer in support of his
application alleged that he sustained an injury in the course of his employment in 1978 and that on 31 March 1983 his services with the company were terminated on the ground of redundancy and that he received from the Fund his own contributions plus interest at the rate of three per cent. The affidavit went on to claim that the operation of the pension scheme is unfair, harsh, unconscionable and against the public interest for various reasons, viz., because his employer had the power to decide whether or not he was totally and permanently incapacitated for his employment, because no trustee of the Fund was a representative of the employees who contributed to it or of their trade unions, and because the amount he received from the Fund was less than the sum which he contributed over the years having regard to the rate of inflation.

4. All the trustees of the Fund reside in Victoria. On
3 May 1983 the Deputy Industrial Registrar ordered that copies of the notice of motion and of the affidavit in support be served on the trustees and on Shell in Melbourne. Service was accordingly effected on the trustees in Victoria but neither the notice of motion nor the supporting affidavit bore any endorsement in compliance with the provisions of s.5 of the Service and Execution of Process Act 1901 (Cth), as amended. The trustees, who challenged the efficacy of the service, entered a conditional appearance. Mr Sawyer then applied to the Commission for leave to serve the originating process on the trustees out of the State of New South Wales and in the State of Victoria. The application was expressed to be made pursuant to reg.157 of the Industrial Arbitration (General) Regulations made under the Act and to Pt.10 r.2 of the Supreme Court Rules (N.S.W.). The matter came before Cahill J. who referred to the Commission in court session the question whether there is any jurisdiction in the Commission to make any binding order in favour of Mr Sawyer against the trustees in the proceedings. Before that question was argued before the Commission, the notice of motion was amended by expanding the grounds and reasons on which the orders were sought, and by adding an endorsement which was designed to satisfy s.5 of the Service and Execution of Process Act.

5. The answer to the question referred by Cahill J. to the
Commission in court session depended on the resolution of a number of subsidiary questions which were argued before and determined by the Commission. On 8 June 1984 the Commission held: (1) that the provisions of Pt.10 of the Supreme Court Rules, which permit the service of originating process outside the State in certain circumstances, are made applicable to the service of the process of the Commission by reg.157 of the Industrial Arbitration (General) Regulations; (2) that r.1 of Pt.10 of the Supreme Court Rules extends to permit service of the process in the present case outside the State of New South Wales, but that the question whether an order should be made should be left open for argument before a single member of the Commission; (3) that there was binding authority (namely Renton v. Renton [1918] HCA 57; (1918) 25 C.L.R. 291) against the submission made on behalf of the trustees that Pt.10 of the Supreme Court Rules was inconsistent with the Service and Execution of Process Act and accordingly invalid; (4) that s.11(1)(b) of the Service and Execution of Process Act was applicable to proceedings under s.88F, and (apparently) that leave to proceed could be given under that section, and (5) that the Commission had jurisdiction to make an order under s.88F, notwithstanding that the proper law of the trust was the law of Victoria. The Commission accordingly answered in the affirmative the question referred by Cahill J.

6. The matter then came again before Cahill J., who, on
26 June 1984, ordered that service on the trustees of the notice of motion be confirmed under r.2(4) of Pt.10 of the Supreme Court Rules.

7. The present appeal is brought, pursuant to special leave
granted by this Court, from the judgments of the Commission given on 8 June and 26 June 1984. It was not contested that the Commission was exercising federal jurisdiction so that this Court had power to grant special leave to appeal under s.39(2)(c) of the Judiciary Act. The writ of prohibition, which is sought under s.33(1)(b) of the Judiciary Act, requires the Commission "to abstain from the exercise of Federal jurisdiction which it does not possess namely jurisdiction against the prosecutors in proceedings ... based upon service of process effected on the prosecutors in the State of Victoria in purported reliance on the Service and Execution of Process Act". There is no inconsistency between bringing an appeal under s.39(2)(c) and making an application for prohibition under s.33(1)(b), since it is obviously possible that a court, in this case the Commission, might, in the one proceeding, in one respect be exercising the federal jurisdiction with which it is invested and in another aspect of the matter be exercising federal jurisdiction which it does not possess. In the present case the order made by the Commission on 26 June 1984 was not based on service of process effected in purported reliance on the Service and Execution of Process Act, since Cahill J. confirmed the service in reliance on the authority said to be given by Pt.10 of the Supreme Court Rules. However, both before the Commission in court session and before this Court, counsel for Mr Sawyer submitted that the case fell within s.11(1)(b) of the Service and Execution of Process Act, and the Commission so held. It is apparent that if it were held that Pt.10 of the Supreme Court Rules did not apply, the Commission would be asked to proceed under the Service and Execution of Process Act: in other words, to exercise federal jurisdiction.

8. The first question that arises is whether the process of
the Commission could validly be served on the trustees in Victoria by virtue of the law of New South Wales. There is no provision in the Act or the Industrial Arbitration (General) Regulations which in terms permits service of the Commission's process outside the jurisdiction. However, reg.157 of the Industrial Arbitration (General) Regulations provides as follows:

"Where there is no established practice or
usage of the Commission, and where none of the
rules now made is applicable, then the practice for
the time being of the Supreme Court, in its
Equitable Jurisdiction, shall, as far as is
practicable, regulate the practice of the
Commission."

The question is whether this regulation renders Pt.10 of the Supreme Court Rules applicable to the service of process of the Commission.

9. The Industrial Arbitration (General) Regulations contain
a number of provisions that deal expressly with the question of service: see regs.38, 137-141, 143. None, however, deals with service outside the jurisdiction. Regulation 157 is a general provision, but it is only "the practice of the Commission" that is in the circumstances mentioned in the regulation to be regulated by "the practice for the time being of the Supreme Court, in its Equitable Jurisdiction". The regulation is indistinguishable in material respects from s.170 of the Companies Act 1862 (U.K.) which enacted that in cases not provided for by the rules to be made under the Act the general practice of the Court of Chancery, including the practice in winding-up companies, should be retained. In In re Anglo-African Steamship Company (1886) 32 Ch.D. 348 it was held by the Court of Appeal that s.170 did not give the court jurisdiction to give leave to serve notice of orders and other proceedings in the winding-up of a company on persons residing out of the jurisdiction. Cotton L.J. said, at p.350: "This is not a question of practice but of jurisdiction"; and Lopes L.J., at p.351, said: "What we are asked to do in this case depends not on practice, but jurisdiction". The view expressed by their Lordships, that the question was one of jurisdiction, is undeniably correct; in an action in personam, the rules as to the legal service of the writ define the limits of the jurisdiction of the court and the question whether service can be effected out of the jurisdiction "does not involve a matter of procedure but an extension of jurisdiction": see Laurie v. Carroll [1958] HCA 4; (1958) 98 C.L.R. 310, at pp.322-324, 332. Further, "a power to regulate the practice of a Court does not involve or imply any power to alter the extent or nature of its jurisdiction": Attorney-General v. Sillem [1864] EngR 352; (1864) 10 H.L.C. 704, at p.721 (11 E.R. 1200, at p.1208), cited in The Commonwealth v. Limerick Steamship Co. Ltd. and Kidman [1924] HCA 50; [1924] HCA 50; (1924) 35 C.L.R. 69, at p.91. A provision framed in terms of reg.157 does not confer a power to enlarge jurisdiction by permitting service out of the jurisdiction.

10. Mr Bennett, on behalf of Mr Sawyer, relied on Black v.
Dawson (1895) 1 Q.B. 848, where it was held that an application to serve a writ out of the jurisdiction was "a step in procedure" and that an application to discharge an order permitting such service ought to be made in chambers. Mr Bennett went on to refer to a passage in the judgment of Latham C.J. in Minister for Army v. Parbury Henty & Co. [1945] HCA 52; (1945) 70 C.L.R. 459, at p.489, in support of the view that "practice" and "procedure" are convertible terms. Latham C.J. there said:

"An appeal within the Supreme Court is a matter of
procedure within that court. An appeal from that
court to another court is not a matter of procedure
in that court. In Poyser v. Minors ((1881) 7
Q.B.D. 329, at p.334) Lush L.J. said that the term
'practice' denoted the mode of proceeding to
enforce a right as distinguished from the law which
gives or defines the right, and that he took
'practice' and 'procedure', as applied to that
subject, to be convertible terms. 'Practice' in
the common or ordinary sense of the word denotes
'the rules that make or guide the cursus curiae,
and regulate the proceedings in a cause within the
walls or limits of the Court itself' -
Attorney-General v. Sillem (at p.723 (at p.1209 of
11 E.R.)) per Lord Westbury."

Although "practice and procedure" is often used as a composite phrase it is probably not correct to say that the two words are synonymous; "procedure" seems to have a more comprehensive meaning than "practice" - see White v. White [1947] VicLawRp 65; (1947) V.L.R. 434, at p.440. However, it is not necessary to pursue that question, or to inquire whether, as was held in H.C. Sleigh Ltd. v. Barry Clarke & Co. Ltd. (1954) S.A.S.R. 49, at pp.51-53, a power to make rules with respect to "practice and procedure" includes a power to make rules for service out of the jurisdiction. The meaning of "practice", like that of any other word, is governed by the context in which it appears, and there is nothing in these authorities that casts any doubt on the correctness of the decision in In re Anglo-African Steamship Company, or that would give to the word "practice" in the context of reg.157 a meaning wide enough to render applicable Pt.10 of the Rules of the Supreme Court which, if applied, would not simply regulate the proceedings within the Commission, but would enlarge its jurisdiction.

11. For these reasons, reg.157 did not render Pt.10 of the
Supreme Court Rules applicable to proceedings in the Commission, and the law of New South Wales did not authorize service of the process in the present case out of the jurisdiction. It is therefore unnecessary to consider whether Pt.10 was validly made, and, if so, whether it is inconsistent with the Service and Execution of Process Act. In the event, we did not hear argument on either of those questions and we do not intend to suggest any answer to them one way or the other.

12. The question then arises whether service of the notice
of motion might be effected outside the jurisdiction under the Service and Execution of Process Act, assuming, of course, that the notice was sufficiently endorsed as required by s.5 of that Act. Under that Act, a writ of summons issued out of any court of record of a State may be served on the defendant in any other State (s.4(1)), and if no appearance is entered or made by the defendant, the court or a judge may give the plaintiff liberty to proceed if (inter alia) it is made to appear - "that any contract in respect of which relief is sought in the suit against such defendant by way of enforcing, rescinding, dissolving, annulling, or otherwise affecting such contract, or by way of recovering damages or other remedy against such defendant for a breach thereof, was made or entered into within that State": s.11(1)(b). In the present case the contract of employment between Shell and Mr Sawyer was entered into in the State of New South Wales. It was submitted on behalf of Mr Sawyer that the relief sought in the present proceedings was by way of affecting that contract, since, by the contract of employment, the employee was obliged to become a member of the Fund and accordingly to be bound by the trust deed. However, the relief sought against the trustees was not by way of affecting the contract of employment, to which, of course, they were not parties; what was sought was relief affecting the trust deed, as the words of the notice of motion show. It was submitted, in the alternative, that the relationship of the employee and the trustees under the trust deed was itself a "contract" within s.11(1)(b). A wide meaning has been given to "contract" in s.11(1)(b); it has been held that it extends to "an implied or constructive contract for which an action in the nature of assumpsit would at common law have been available" (see Victoria v. Hansen [1960] VicRp 90; (1960) V.R. 582, at p.586) or, in other words, to "implied, constructive or fictitious contracts, without consensual element, but for purposes of the old forms of action, at any rate, deemed to amount to contract - cases where assumpsit or an indebitatus count would have been available at common law": Wilson Electric Transformer Company Pty. Ltd. v. Electricity Commission of N.S.W. [1968] VicRp 37; (1968) V.R. 330, at p.332. It seems incongruous to have to determine the meaning of s.11(1)(b) by reference to forms of action made obsolete by the Judicature Acts, but if that is an appropriate course it would not assist Mr Sawyer in the present case. It does not need the authority of Bullen and Leake, Precedents of Pleadings, 3rd ed. (1868), at pp.35-57 to establish that an application to avoid or vary a trust deed could not possibly have been made by an action of assumpsit or on an indebitatus count. Even if s.11(1)(b) is given its widest possible meaning, and if "contract" in that provision includes, not only quasi-contracts, but such things as judgments and statutes under which fixed sums of money are payable, it cannot include discretionary trusts, except perhaps in the case where the trustee has admitted that he holds trust money as that of the beneficiary (see Bullen and Leake, op. cit., at p.47). It is quite impossible to regard an application to avoid or vary the deed of trust in the present case as an application seeking relief in respect of a contract within s.11(1)(b). Moreover, even if the trust deed could be held to be a contract, it was not made or entered into in New South Wales.

13. For these reasons the Commission had no power to
authorize the service of its process on the trustees in Victoria. In any case, even if the trustees had submitted to the jurisdiction of the Commission, s.88F would have conferred no power to avoid or vary the trusts of the fund. The power given by s.88F is to declare void in whole or in part or to vary in whole or in part "any contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industry". It may be assumed, without deciding, that the phrase "whereby a person performs work in any industry" governs "contract or arrangement" and not "collateral arrangement relating thereto" and that the power extends to avoid or vary, not only the contract or arrangement of employment, but also any collateral arrangement relating thereto. It may further be assumed, again without deciding the question, that a trust deed providing pension benefits for employees is a collateral arrangement within the section. However, the fund in the present case is governed by a trust created in Victoria and (as cl.34 of the trust deed states) is governed by the law of Victoria. A New South Wales statute could not constitutionally have the effect of altering the law of Victoria as to the administration of a Victorian trust (see Permanent Trustee Co. (Canberra) Ltd. v. Finlayson [1968] HCA 85; (1968) 122 C.L.R. 338, at p.343) and if s.88F purported to have that effect it would be a nullity by the law of Victoria. However there is nothing in the words of s.88F that suggests that it was intended to give the Commission power to affect trusts governed by laws other than that of New South Wales. Under s.88F the Commission has no power to alter trusts set up in another State which provide for the establishment of a pension fund, even though employees in New South Wales are beneficiaries under the trust. This conclusion is in no way inconsistent with Ex parte Richardson; Re Hildred (1972) 2 N.S.W.L.R. 423, where it was held that the Commission could grant relief under s.88F in respect of a contract governed by the law of New South Wales, even though the contract was intended to be performed in part outside New South Wales. In the present case the contract of employment is governed by the law of New South Wales but the trust deed is not. The Commission has clear power, under s.88F, to make an order with respect to a contract of employment governed by the law of New South Wales and to avoid or vary a term of that contract which requires the employee to become a member of a pension scheme established under a trust governed by the law of Victoria. However, it is the contract, and not the trust, that the Commission has power to avoid or vary in such a case. In the present case the order sought against the trustees is to avoid or vary the trust deed, and that is beyond the power of the Commission.

14. The appeal should be allowed. The judgments of the
Commission given on 8 and 26 June 1984 should be set aside, and the question referred to the Commission should be answered by declaring that there is no jurisdiction in the Commission to make orders under s.88F against the trustees. The order nisi for prohibition (which is properly limited to an order requiring the Commission to abstain from the exercise of federal jurisdiction against the trustees based on service of process effected in purported reliance on the Service and Execution of Process Act) should be made absolute.

MASON and DEANE JJ. This case raises two distinct issues in relation to the effectiveness of the service upon the appellants/prosecutors ("the appellants") in Victoria of a copy of the originating process (a notice of motion) of proceedings in the Industrial Commission of New South Wales ("the Commission") in which the present respondent Shell Refining (Australia) Pty. Limited ("Shell") and the appellants were named as respondents. The first issue is whether reg.157 of the Industrial Arbitration (General) Regulations (N.S.W.) ("the Regulations") confers upon the Commission power to order service of its process outside the State of New South Wales. The second is whether the application to the Commission by the respondent Mr. Sawyer in the present case, if served upon the appellants in Victoria in accordance with the formal requirements of the Service and Execution of Process Act 1901 (Cth), is one in respect of which the Commission could order, pursuant to the provisions of that Act, that Mr. Sawyer be at liberty to proceed.

The Proceedings in the Commission

2. Mr. Sawyer was, for some nine and one half years, an employee of Shell in New South Wales. It was a term of his employment that he become a member of the "Shell Australia Contributory Pension Fund" ("the Fund") of which the appellants are the present trustees. The Fund was established and is apparently still administered and situate in Victoria. Over the years of his employment, Mr. Sawyer contributed to it. When his employment was terminated in March 1983, he received back from the Fund an amount equal to the total of the contributions which he had himself paid and interest thereon at the rate of 3% per annum, that is to say, an amount which was inadequate to adjust the value of his own contributions to cover the effect of inflation.

3. Mr. Sawyer's application to the Commission was made pursuant to s.88F of the Industrial Arbitration Act 1940 (N.S.W.) ("the Act"). In it, he essentially seeks, as against the appellants, orders which would have the effect of increasing the amount which he became entitled to receive from the Fund upon the termination of his employment. So viewed, the proceedings have obvious similarities with an administration action against the trustees of a trust estate and it would seem to be arguable that they should properly be seen as an action in rem aimed at establishing an increased interest in the Fund (cf., e.g., Cheshire, Private International Law, 5th ed. (1957), pp.109-110). To hold that Mr. Sawyer's proceedings against the appellants are an action in rem would, however, serve only to make more difficult his task of establishing jurisdiction in the Commission since it has not been suggested that any relevant res is situate in New South Wales. That being so, it will not be to Mr. Sawyer's prejudice if the matter is approached on the basis on which it was dealt with by the Commission and has been argued in this Court, namely, that his proceedings against the appellants were an action in personam.

Regulation 157

4. The Regulations were purportedly made pursuant to s.130(1) of the Act. As presently relevant, that sub-section confers upon the Governor the power to make regulations:

"(h) regulating the procedure to be followed in
proceedings before the commission and before
the registrar and an industrial magistrate,
and in enforcing judgments, convictions, and
orders given and made under this Act".

5. There is nothing in the Act or the Regulations which purports to confer express power upon the Commission to authorize service of its process outside the State of New South Wales. If such a power is conferred upon the Commission by either the Act or the Regulations, it is by reason of the operation of reg.157. That Regulation provides:

"Where there is no established practice or usage of
the Commission, and where none of the rules now
made is applicable, then the practice for the time
being of the Supreme Court, in its Equitable
Jurisdiction, shall, as far as is practicable,
regulate the practice of the Commission".

6. It may be assumed, for the purposes of discussion, that the Supreme Court of New South Wales in its Equitable Jurisdiction enjoys, under its Rules of Court (see Part 10, r.2), powers to order service outside the jurisdiction which would, if possessed mutatis mutandis by the Commission, enable the Commission to order the service in Victoria of the originating process in the proceedings instituted by Mr. Sawyer. On that assumption, the question arises whether, as a matter of construction, reg.157 purports to confer those powers upon the Commission. In the context of reg.157, the answer to that question turns upon whether the conferral of powers to order service of process out of the jurisdiction can properly be seen as a matter of "practice" or "practice or usage" of the Commission.

7. At the outset, a distinction should be drawn between the wide content of what is often referred to as "procedural law" or "civil procedural law" and the narrower content of what may properly be referred to as the "practice" or the "procedure" of a particular court or tribunal. The phrases "law of civil procedure" and "law of actions" have long been used to identify so much of domestic or local law as is concerned with the enforcement of civil rights and the administration of civil justice. So understood, the law of civil procedure comprises three main overlapping parts. The first is the "institutional part" which deals with the structure, jurisdiction and administration of the various courts and tribunals entrusted with the administration of civil justice. The second is the "professional part" which deals with the judiciary, the legal profession, legal administrators and the provision of legal services both within government and to the citizen. The third is the "procedural part" which deals with the practice and procedure within the established courts administering civil law at pre-trial, trial and post-trial stages (see, generally, Sir Jack Jacob, "The Reform of Civil Procedural Law", The Law Teacher, vol.14 (1980), l, at pp.2-3). In contrast, the "practice" or "practice or usage" of a particular court or tribunal comprises only those provisions of that third part which are concerned with the practice and procedure observed by that court or tribunal in the exercise of the jurisdiction with which it is entrusted: "the rules that make or guide the cursus curiae, and regulate the proceedings in a cause within the ... limits of the Court itself" (Attorney-General v. Sillem [1864] EngR 352; (1864) 10 HLC 704, at p 723 [1864] EngR 352; (11 ER 1200, at p 1209)). The references to the "practice" and "practice or usage" of the Commission in reg.157 must, in our view, be read in that limited sense. They are inadequate and inappropriate to encompass the provisions of the "institutional part" of civil procedural law which confer or define the actual jurisdiction of the relevant court or tribunal.

8. The general doctrine of the common law is that, in the absence of a submission to the jurisdiction by a defendant, civil jurisdiction is territorial, that is to say, related to the territory of whose system of government the particular court forms part. Putting to one side actions involving questions of status or succession and actions in rem (where the basis of jurisdiction may be domicile or presence of property respectively), the ordinary basis of territorial jurisdiction is the personal presence of the defendant within the court's territory (see per Lord Selborne L.C., Berkley v. Thompson (1884) 10 App Cas 45, at p 49). The usual method by which a court asserts such jurisdiction is the issue (or, arguably, the issue and service) of its writ or other process directed to the defendant. Since the effective assertion of jurisdiction is confined by the limits of actual jurisdiction, a court's power to issue process in an action in personam, where the defendant does not submit to the jurisdiction and where questions of status or succession are not involved, is prima facie exercisable only against those present within the limits of its territory at whatever be the relevant time or times (see the discussion in Laurie v. Carroll [1958] HCA 4; (1958) 98 CLR 310, at pp 324ff.): "A court cannot extend its process and so exercise sovereign power beyond its own territorial limits" (Cheshire, op. cit., pp.107-108). Conversely, a court's power to authorize service of its writ is ordinarily a measure of its jurisdiction in an action in personam (cf. John Russell and Company Limited v. Cayzer, Irvine and Company Limited (1916) 2 AC 298, at p 302).

9. In the context of the matters mentioned in the preceding paragraph, a statutory conferral of power upon a court to order service of its process outside its territory will ordinarily be construed as carrying with it an implied grant of jurisdiction to entertain an action, of which it is otherwise cognizant, against the person served: "whenever a defendant can be legally served with a writ, then the court, on service being effected, has jurisdiction to entertain an action against him" (Dicey and Morris on The Conflict of Laws, 10th ed. (1980), vol.1, p.182). That general proposition is, of course, subject to any express or implied contrary intention or qualification to be discerned in the legislative provisions authorizing service outside the limits of territorial jurisdiction. Subject to any such contrary intention or qualification, the conferral upon a court of a power to order service outside its territory will provide the basis of "an extension of jurisdiction" (cf. Laurie v. Carroll, at p 332).

10. It is possible to point to some statements in reported cases which lend at least superficial support for the view that a question of service outside territorial limits is a matter of the "practice" or "procedure" of the particular court (see, e.g., Black v. Dawson (1895) 1 QB 848, at p 849). There is much to be said for that view in a case where a court plainly has power to order service of the particular process outside its territory and what is involved is the manner of exercise of the power in the circumstances of the particular case. On the other hand, the question whether a court possesses the actual power to make an order for service outside its territory is not a mere matter of the practice or procedure observed by the particular court in the exercise of its jurisdiction. The existence of an actual power to order service outside territorial jurisdiction is a component and a measure of jurisdiction itself (see, e.g., Laurie v. Carroll, at pp 322-324; In re Anglo-African Steamship Co. (1886) 32 ChD 348, at pp 350,351).

11. Accordingly, if the Commission had been possessed of some independent substantive power to order service of its originating process outside New South Wales, there would be force in the argument that a provision that the Rules of the Supreme Court in its Equitable Jurisdiction should, mutatis mutandis, govern the manner in which that power should be invoked and exercised would relate merely to the "practice" or to the "practice or usage" of the Commission. It is not, however, suggested that, apart from the provisions of the Service and Execution of Process Act to which reference will subsequently be made, the Commission possesses any such independent underlying power. To the contrary, it is sought to derive the power itself from the provision in reg.157 that "the practice for the time being of the Supreme Court, in its Equitable Jurisdiction, shall, as far as is practicable, regulate the practice of the Commission". That involves attributing to the regulation an operation which would effect an expansion of the Commission's jurisdiction. As has been seen however, such an operation is something which the provisions of reg.157, properly understood, are simply inadequate and inappropriate to encompass. Moreover, a regulation having such an operation would be beyond the power conferred by s.139(1)(h) of the Act to make regulations "regulating the procedure to be followed in proceedings before the commission": "(a) power to regulate the practice of a Court does not involve or imply any power to alter the extent or nature of its jurisdiction" (Attorney-General v. Sillem, at p 721 (11 ER, at p 1208)).

Service and Execution of Process Act

12. The provisions of the Service and Execution of Process Act upon which reliance is placed to sustain the Commission's jurisdiction in the present case are to be found in ss.4(1) and 11(1). Section 4(1) provides that a "writ of summons" (which, by virtue of definitions contained in s.3 and subject to presently irrelevant exceptions, includes "any writ or process" by which "any suit, action or original proceeding between parties or in rem" is commenced) issued out of any Court of Record of a State or part of the Commonwealth may be served on the defendant in any other State or part of the Commonwealth. In isolation, the words of that sub-section would effect a surprisingly large expansion of the jurisdiction of all such Courts since, as has been seen, a provision that a court's writ runs outside its territorial jurisdiction will ordinarily provide the basis for a corresponding expansion of jurisdiction in relation to those matters with which the court is otherwise competent to deal. The provisions of s.11(1) of the Service and Execution of Process Act make clear, however, that that is not the effect of service pursuant to s.4(1). If a defendant does not enter an appearance, the Court whose process is served under s.4(1) is only empowered to proceed with the hearing of the matter ("order from time to time that the plaintiff shall be at liberty to proceed") if it is made to appear to that Court or to a Judge thereof that the conditions set out in s.11(1) are satisfied. It was submitted on behalf of Mr. Sawyer that his application against the appellants came within par.(b) of s.11(1) which applies if it is made to appear:

"that any contract in respect of which relief is
sought in the suit against such defendant by way of
enforcing, rescinding, dissolving, annulling, or
otherwise affecting such contract, or by way of
recovering damages or other remedy against such
defendant for a breach thereof, was made or entered
into within that State or part".

It becomes necessary to attempt to identify with some precision the "relief" which Mr Sawyer seeks in the application to the Commission against the appellants under s.88F(1) of the Industrial Arbitration Act.

13. Section 88F(1) provides, for present purposes, that the Commission may, on any one or more of a number of identified grounds, make an order or award declaring void or varying "any contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industry". There are three contracts or arrangements in the present case which it might be argued came within those words. The first is the contract between Shell and Mr. Sawyer under which Mr. Sawyer was obliged to become a member of the Fund. That was the actual contract of employment between Shell and Mr. Sawyer and was, at least while it was current, plainly a "contract ... whereby a person performs work in any industry". None of the appellants was, however, a party to that contract and it has not been argued that they are joined as necessary or proper parties to proceedings against Shell to have it varied or declared void. The second is the "arrangement" between Mr. Sawyer and the appellants or their precedessors as trustees pursuant to which Mr. Sawyer became a member of the Fund. It might be argued that that was a "collateral arrangement" relating to the employment contract. The third is the "arrangement", which is embodied in the terms of the Trust Deed and pursuant to which the Fund was established and upon the terms and conditions of which its assets are held and are to be applied. It is also arguable that that was such a "collateral arrangement".

14. Examination of the material before the Court, particularly the notice of motion which constituted the initiating process before the Commission and Mr. Sawyer's supporting affidavit, indicates that the relief sought in the purported application pursuant to s.88F is, in so far as it is brought against the appellants, in respect of the third only of those possible contracts or arrangements. The relief which the notice of motion seeks is particularized as an order or award declaring void or varying "an arrangement and/or a condition or collateral arrangement relating thereto between the applicant of the one part and the respondents of the other part being the Shell Australia Contributory Pension Fund" (underlining added). The main grounds on which relief is sought are that the provisions of the Fund or some of them are "unfair, harsh, unconscionable and/or against the public interest" or "have operated, so far as (Mr. Sawyer) is concerned, in a manner which is unfair, harsh, unconscionable and/or against the public interest". What Mr. Sawyer seeks, as against the appellants, is an order varying the effect of the actual Trust Deed to increase the amount which he became entitled to be paid from the Fund upon the termination of his employment. In that regard, it is clear enough that the relief sought in the notice of motion is not "in respect of" the limited arrangement between Mr. Sawyer and the then trustees pursuant to which Mr. Sawyer became a member of the Fund. That arrangement is neither specifically mentioned nor made the subject of attack. To the contrary, Mr. Sawyer relies upon his membership of the Fund as a basis for his claim to have the provisions of the Trust Deed governing it varied so that he will be entitled to receive more from the Fund.

15. It follows that the application against the appellants (as distinct from Shell) must be seen as related only to the third of the abovementioned possible contracts or arrangements, namely, to the arrangement embodied in the terms of the Trust Deed governing the Fund whose provisions are alleged, in the notice of motion, to be and to have operated in a manner which is "unfair, harsh, unconscionable and/or against the public interest". That being so, the critical question is whether, assuming that they be otherwise competent, proceedings seeking to have the provisions of that Trust Deed varied or avoided pursuant to s.88F are, within s.11(1)(b) of the Service and Execution of Process Act, proceedings seeking, "in respect of" a "contract" which was "made or entered into within" New South Wales, "relief ... by way of enforcing, rescinding, dissolving, annulling, or otherwise affecting such contract".

16. The word "contract" in s.11(1)(b) should not be given a narrow or technical meaning. It should be construed as extending both to the ordinary contract constituted by offer and acceptance and to imputed or quasi contracts (cf. Bowling v. Cox (1926) AC 751, at pp 754-755). The words "enforcing, rescinding, dissolving, annulling, or otherwise affecting" (underlining added) indicate that the scope of the section is not confined to traditional causes of action in contract any more than it is confined to actions for relief in respect of consensual contracts. More particularly, the words of the section are apt to refer to proceedings to have a contract declared void or varied by a court in the exercise of some special statutory jurisdiction such as that conferred by s.88F of the Act.

17. The origins and nature of contract and trust are, of course, quite different. There is however no dichotomy between the two. The contractual relationship provides one of the most common bases for the establishment or implication and for the definition of a trust. Conversely, the trust, particularly the resulting and constructive trust, represents one of the most important means of protecting parties in a contractual relationship and of vindicating contractual rights. An action to vary the terms of a trust could, in some cases, properly be seen as an action affecting a contract pursuant to whose terms the trust was established and governed. The mere fact that the purported proceedings under s.88F in the present case related to provisions of the Trust Deed pursuant to which the appellants held the Fund does not necessarily mean that those proceedings could not also be an action "affecting" a "contract" for the purposes of s.11(1)(b) of the Service and Execution of Process Act.

18. If it were possible to isolate the trust relationship between the appellants and Mr. Sawyer and to see it as a separate and independent relationship arising under the contract or arrangement pursuant to which Mr. Sawyer became a member of the Fund, it would be arguable that the various provisions of the Trust Deed regulating the rights and obligations of the appellants and Mr. Sawyer were properly to be regarded as a "contract" for the purposes of s.11(1)(b). It is not, however, possible to isolate the provisions of the Trust Deed in their operation with respect to Mr. Sawyer from the same provisions in their operation with respect to the other members of the Fund. There is but one Fund which is held upon the one set of trusts contained in the one Trust Deed. It is not possible to divide the Fund or the provisions of the trust into a separate Fund or a separate set of trusts for each individual member. That being so, and notwithstanding that some of the provisions of the Trust Deed are framed in terms of contract, there are difficulties in the proposition that the provisions of the Trust Deed governing the Fund could properly be seen as an overall "contract" in any relevant sense. It is not necessary to express a final view in that regard however, since it is plain that any such overall "contract" could not properly be held to have been made in New South Wales: the Trust Deed was made and the Fund was established in Victoria; by its express terms (cl.34), the Trust Deed is "in all respects governed by the law of Victoria"; the Fund is administered and remains situate in Victoria.

19. The only relevant contracts or arrangements made in New South Wales were the contract of employment between Mr. Sawyer and Shell and, arguably, the limited contract or arrangement pursuant to which Mr. Sawyer became a member of the Fund. It has been seen that the purported proceedings by Mr. Sawyer against the appellants under s.88F do not seek "in respect of" those contracts "relief ... by way of enforcing, rescinding, dissolving, annulling, or otherwise affecting" such contracts. Even if the purported proceedings against the appellants under s.88F can properly be regarded as proceedings "in respect of" and "affecting" a "contract" embodying the overall terms and conditions upon which the appellants held the Fund, the case does not come within s.11(1)(b) in that any such "contract" was not "made or entered into within" New South Wales.

20. We agree with the orders proposed by the other members of the Court. We also agree with the other members' comments about the jurisdiction of this Court to entertain the proceedings before it. It is unnecessary to consider the argument advanced on behalf of the appellants that if reg.157 had, upon its proper construction, purported to confer upon the Commission the actual power to order service outside the jurisdiction, it would, to that extent, have been invalid by reason of inconsistency with the Service and Execution of Process Act.

ORDER

Appeal allowed with costs against the first respondent,

Ross Arthur Lynn Sawyer.

Set aside the order of the Industrial Commission of New

South Wales made on 8 June 1984 and in lieu thereof order that the question referred to the Commission in court session be answered in the negative.

Set aside the order of the Industrial Commission of New

South Wales (Cahill J.) made on 26 June 1984.

Make absolute the order nisi for prohibition requiring

the Industrial Commission of New South Wales to abstain from the exercise of federal jurisdiction against the prosecutors in proceedings commenced by the second respondent based upon service of process effected on the prosecutors in the State of Victoria in purported reliance on the Service and Execution of Process Act 1901 (Cth), as amended.

Order that the costs of the prosecutors be borne by the

second respondent, Ross Arthur Lynn Sawyer.