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Lecture 2

LWB431 Lecture Notes - Lecture 2: Court Costs, Justiciability, Income Tax Assessment Act 1936


Department
Law
Course Code
LWB431
Professor
All
Lecture
2

Page:
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Paul Judge 2009 LWB431 Law of Commercial Entities
Jurisdiction & Cross-vesting
JURISDICTION & CROSS-VESTING
Prior to the initiation of proceedings or the bringing of an appeal it is necessary to determine the appropriate
court in which to commence your proceedings.
Two types of jurisdiction (court must have both)
1. Territorial Jurisdiction – Refers to the persons or bodies over whom the court may exercise jurisdiction
2. Subject Matter Jurisdiction – Refers to the nature of the disputes which may be decided by the particular
court
1. DOES THE COURT HAVE TERRITORIAL JURISDICTION?
Territorial jurisdiction deals with the persons or bodies over whom the court may exercise jurisdiction and is
also known as in personam jurisdiction. The distinction between subject matter jurisdiction and territorial
jurisdiction is that subject matter jurisdiction deals with the nature of the dispute which may be decided by the
court.
Can be established in 3 ways:
1. defendant’s presence in the jurisdiction
2. defendant’s submission to the jurisdiction
3. statutory extensions by service
[1] IS [DEFENDANT] PRESENT IN THE JURISDICTION?
Presence of the defendant within the jurisdiction is the principal basis for exercising territorial jurisdiction:
Laurie v Carroll.
>>>If Supreme court of X State and service on defendant in X state
The issue of an originating process is the exercise of jurisdiction over the defendant and the obligation
of its command falls upon the defendant where the defendant is present within the jurisdiction at the
time of issue of the originating process. Service must be effected to perfect the duty of obedience to the
command of the originating process.
>>>If defendant present in jurisdiction
It will be sufficient to bring the defendant under the command of that process if, as here, the
defendant is present in the jurisdiction at the time of service: Laurie v Carroll. (SEPA becomes
relevant only where service is to be effected outside the State of issue)
NB. Laurie v Carroll:
It does not matter if the defendant is a foreigner or subject of the Crown;
It does not matter how temporary the presence in the jurisdiction is;
It does not matter why the defendant is in the jurisdiction unless the defendant has been
fraudulently enticed there to effect service;
Jurisdiction will not be lost if the defendant leaves jurisdiction after being served
>>>If defendant not present in jurisdiction
It will be sufficient to bring the defendant under the command of that process if the defendant is
present in the jurisdiction at the time of service: Laurie v Carroll. However, [defendant] was not
present at the time.
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Paul Judge 2009 LWB431 Law of Commercial Entities
Jurisdiction & Cross-vesting
>>>If Supreme court of X State and defendant in Y state
The court’s jurisdiction cannot extend to persons not in the territory unless validly extended by
substituted service and the Service and Execution of Process Act 1992 (Cth): Laurie v Carroll (1958)
98 CLR 310.
GOTO [3].
>>>If Supreme court of X State in Y country and defendant in Z country
The court’s jurisdiction cannot extend to persons not in the country by either substituted service or the
SEPA.
GOTO [3].
Laurie v Carroll
Facts:
Carrolls were theatrical entrepreneurs in Melbourne, organised dance tour with Laurie who was theatrical agent in London. The
Plaintiff issued a writ of summons out of the Supreme Court Victoria, the day after the defendant, Laurie, had left Victoria with no
intention of returning. The plaintiff obtained orders which included an order giving leave to serve the writ of summons within the
jurisdiction by substituted service, being service upon a nominated firm of solicitors who had acted for Laurie. Laurie applied,
without entering an appearance or a conditional appearance, to discharge the ex parte order for substituted service, and service
pursuant to it, and also to discharge other orders which had been made. The application was dismissed and the defendant by special
leave, appealed to the HC.
Held:
(per Dixon, Williams & Webb JJ)
@322-3:
CL doctrine is that writ does not run beyond the limits of the State.
@ 323:
“The service of the writ, or something equivalent thereto, is absolutely essential as the foundation of the court’s jurisdiction. Where a
writ cannot legally be served upon a defendant the court can exercise no jurisdiction over him. In an action in personam the converse
of this statement holds good, and wherever a defendant can be legally served with a writ, there the court, on service being effected,
has jurisdiction to entertain an action against him. Hence, in an action in personam, the rules as to the legal service of a writ define
the limits of the court’s jurisdiction.”
@ 333:
Laurie neither by reason of past history / present domicile / residence / course of business stood in any general relation to the State of
Victoria which would make him prima facie subject to Victorian jurisdiction. He was about to leave shortly, he merely accelerated
departure due to the threat of suit. Unless brought within Supreme Court Rules or SEPA, the Supreme Court by ordering substituted
service was asserting jurisdiction over a defendant which (except for accidental circumstances – his brief visit to Melbourne) it could
not possess.
Where a writ cannot be legally served upon a defendant, the court can exercise no legal jurisdiction over him/her. Hence Sup C of Vic
had no jurisdiction in this case.
[2] HAS [DEFENDANT] SUBMITTED TO THE JURISDICTION?
Submission to the jurisdiction: Where the defendant voluntarily submits to the jurisdiction of the court, it is
possible for that court to exercise territorial jurisdiction over that defendant. [Defendant]’s conduct must be
inconsistent with the maintenance of an objection to the court’s jurisdiction.
[2.1] Submission
Entering into an unconditional appearance – unconditional entering of a Notice of Intention to Defend
(NOITD), which indicates that the defendant intends to defend the matter constitutes a submission to the
jurisdiction: r 144(6); Perkins v Williams
In an action in contract, the parties may submit to the jurisdiction by express agreement in the contract
that disputes be referred to a particular court: Vogel v Kohnstamm.
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Paul Judge 2009 LWB431 Law of Commercial Entities
Jurisdiction & Cross-vesting
[2.2] Not submission
Not entering into an appearance and protesting the jurisdiction of the court is not submitting to the
jurisdiction of the court: Re Dulles Settlement.
A clause which permits a choice of law does not amount to submission: Dunbee v Gilman & Co;
Williams & Glyn’s Bank Plc v Astro Dinamico Cia Naviera SA.
[3] DOES THE STATUTORY EXTENSION PROVIDE TERRITORIAL JURISDICTION?
>>>If Supreme court of X State and defendant in Y state
The Supreme Court of [State] has jurisdiction irrespective of the cross-vesting scheme because Court
now has Australia-wide in personam jurisdiction. The Service and Execution of Process Act 1992
(Cth) enables the initiating process of a State court to be served out of the State of issue anywhere in
Australia. Valid service is the basis of in personam jurisdiction: Laurie v Carroll. The Act therefore
enables a [State] Court to assume jurisdiction over [defendant] without having to show a territorial
nexus with the State of issue: Kontis v Barlin (1993) 115 ACTR 11 at 18-19 per Master Hogan.
NB. Section 130 SEPA makes it clear that any State rules requiring a nexus between the issuing state
and the defendant will no longer limit service ex juris within Australia.
>>>If Supreme Court of Queensland
The application of the Act to service outside Qld but within Australia is expressly recognised by
r 123 UCPR (Qld) which requires originating process to be served in accordance with SEPA.
>>>If District court of X State and defendant in Y state
SEPA applies to District courts as well as Supreme Courts: s 15(1) (initiating process issued in a State
may be served in another State). In effect, that Act will therefore confer “Australia wide” in personam
jurisdiction upon District Courts. Valid service is the basis of in personam jurisdiction: Laurie v
Carroll. The Act therefore enables the [State] District Court to assume jurisdiction over [defendant]
without having to show a territorial nexus with the State of issue: Kontis v Barlin (1993) 115 ACTR 11
at 18-19 per Master Hogan.
NB. Need subject jurisdiction (see 2. at [5] below) Eg. The action is clearly a claim for damages for
person injuries and within the monetary limit of the District Court jurisdiction.
NB. Are there any procedures available to [party] to prevent proceedings continuing in the
District Court of [X State]?
The District Court may stay its own proceedings if it is satisfied that a court of another state has
jurisdiction and is the appropriate court to determine the matter: s 20(3) SEPA. In making a decision
whether to grant a stay, the Court must take into account: s 20(4) SEPA
(a) The place of residence of the parties and of the witnesses likely to be called in the proceeding;
(b) The place where the subject matter of the proceeding is situated;
(c) The financial circumstances of the parties so far as the court is aware of them;
(d) Any agreement between the parties about the court or the place in which the proceeding should
be instituted;
(e) The law that would be most appropriate to apply in the proceeding; and
(f) Whether a related or similar proceeding has been commenced against the person served or
another person
but not the fact that the proceeding was commenced in the place of issue.
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