Luke v Mayoh [1921] HCA 39; (1921) 29 CLR 435 (22 September 1921)

The initial step in this action was an application by the present appellant under Order II., r. 4, of the Rules of the Supreme Court of South Australia for leave to issue a writ for service in New South Wales outside the jurisdiction of the Supreme Court of South Australia. An order was made, or fiat granted, by Gordon J. on this application for the issue of the writ granting twenty-one days after service for appearance on an allegation—rather obscurely stated—that the breach of contract in respect of which the action was brought took place in South Australia. A writ was issued out of the State Court in the form prescribed by Appendix A to the Rules of the Supreme Court 1913, and bearing the indorsements required by sec. 5 of the Federal Service and Execution of Process Act 1901-1918. The time limit for appearance was not less than that required by sec. 8 of the Act. Upon being served with this writ in New South Wales, the present respondent entered a conditional appearance "without prejudice to an application to discharge the fiat," and subsequently made the application, on which Gordon J. ordered that the fiat and the writ and service thereof and all subsequent proceedings thereon be set aside. From this order the present appellant appealed to the Supreme Court. The appeal was heard before Murray C.J. and Angas Parsons J., who differed in opinion, and the order appealed from was therefore affirmed. The only question argued before Gordon J. and the Supreme Court was whether the breach of contract on which the action was brought took place in South Australia.

From the decision of the Supreme Court this appeal was brought, and counsel for the appellant insisted that the writ was rightly issued and the service properly effected under sec. 4 of the Federal Act. This Act was not referred to in argument in either of the Courts below. We feel no doubt that the point now raised by the appellant, which involves a pure question of law not depending on any controverted facts, is open to him on this appeal (see Misa v. Currie[1]; Connecticut Fire Insurance Co. v. Kavanagh[2]).

Apart from statutory provisions the Courts in Australia, following the principles of English law, did not directly claim or exercise jurisdiction over a defendant who was not at the time of the service of the writ within the territorial jurisdiction of the Court out of which the writ issued (Dicey on Conflict of Laws, 2nd ed., p. 48). By various statutes the power of the Courts in this respect was extended in certain cases, the relevant extension in South Australia being now found in Order X. of the Rules of the Supreme Court 1913. Sec. 4 of the Federal Act gives further authority for the service of process of Courts of Record of a State outside the boundaries of that State in any other State or part of the Commonwealth, and this authority is not limited to the classes of actions specified in Order X. of the Rules of the Supreme Court. We agree with the contention that under the provisions of the State law it was the duty of a Judge to refuse to allow the issue of a writ under Order II., r. 4, unless he was satisfied that effective service of the writ could be authorized under Order X. But on such an application the Judge should now also consider the provisions of the Federal Act which authorize effective service within Australia of every writ issued out of a Court of Record of a State, and should not restrict the issue of such a writ to cases in which it could have been effectively served under State law.

Two other provisions of the Federal Act require consideration, sec. 13 and sec. 11. It was argued that sec. 13 of the Act provided that the jurisdiction of the Supreme Court should not be extended by the Act. The proposition was that in an action "in personam" the rules as to legal service of a writ define the limits of the Court's jurisdiction (Dicey on Conflict of Laws, 2nd ed., p. 218). This proposition is, of course, true; but the argument based on it omits to take into account the extension of the area of legal service effected by sec. 4 of the Act. As to sec. 11 it was argued that before giving leave to issue a writ the Court should consider whether the cause of action was within the cases specified in sec. 11. But the argument is untenable; for the defendant might appear to the writ and thereby submit himself to the jurisdiction of the Court, in which case this question would not arise. If the defendant does not appear to the writ and the plaintiff applies under sec. 11 for leave to proceed in the action, then, and not till then, it becomes necessary for the Court to determine whether the case is one in which leave to proceed can be given. Consequently, the order of Gordon J. allowing the issue of the writ, and the service of the writ on the defendant, were, in our opinion, proper. In this view of the case it is unnecessary for us to consider the point dealt with by the learned Judges in the Supreme Court, and we express no opinion on it.

As the point on which the appellant succeeds was raised for the first time in this Court, we think the parties should pay their own costs both in this Court and in the Supreme Court.

The order will be that the appeal be allowed, and the order of the Supreme Court of 4th July 1921 and the order of Gordon J. of 4th November 1920 be discharged.

Appeal allowed. Order of Supreme Court of 4th July 1921 and order of Gordon J. of 4th November 1920 discharged. Parties to abide their own costs in the High Court and in the Supreme Court.

[1] 1 App. Cas., 554, at p. 559.

[2] (1892) A.C., 473, at p. 480.

High Court of Australia

Luke v Mayoh [1921] HCA 39; (1921) 29 CLR 435 (22 September 1921)

HIGH COURT OF AUSTRALIA