The Laurie v Carroll point
26 It is necessary to examine the High Court's decision carefully, because the parties sought to draw different conclusions from it. The plaintiff contends that Laurie v Carroll stands for the proposition that the Court has jurisdiction to order substituted service of originating process whenever personal service of the originating process is otherwise permitted or required. The defendant contends that in light of Laurie v Carroll , Part 9 rule 10 does not apply outside Australia; alternatively, it can only apply outside Australia if the plaintiff has complied with Part 10 rule 5 and Part 10 rule 2A.
27 In that case the plaintiffs took proceedings in the Supreme Court of Victoria against the defendant for damages for breach of an alleged contract for division of the profits of Dame Margot Fonteyn's theatrical tour of Australia, an injunction to restrain the defendant from receiving money payable to him in respect of the theatrical performances, and the appointment of a receiver for such money. The defendant was resident in London. He was in Australia for the theatrical tour, but left Victoria on the day before the proceedings were commenced. The Supreme Court of Victoria made an order for substituted service upon the defendant's Melbourne solicitor. The High Court held that there was no jurisdiction to make that order.
28 The Rules of the Supreme Court of Victoria made provision for service of a writ outside Victoria in certain listed circumstances (broadly comparable with Part 10 rule 1A, although not including rule 1A(1)(a)), but only with the leave of the court. No application was made for leave to serve the writ outside the State, and the High Court speculated (at 322) that the cause of action relied upon by the plaintiffs may have been outside the permitted circumstances. The High Court therefore treated the case as one in which substituted service was sought where the defendant was outside the jurisdiction and direct service upon him was not authorised by the rules of court.
29 The High Court's starting point was the common law doctrine that a writ does not run beyond the limits of the State (at 322). Where the action is in personam (as it was in that case and is in the present case), the common law doctrine defines the limits of the jurisdiction of the Court over the defendant (at 323). The Court explained, referring to cases decided in the nineteenth and early twentieth centuries, that the foundation of the common law doctrine lay in the power of the Sovereign, administered by the judges, to compel a person served with a writ to submit to the command made by the writ. The assumption of the older cases is that the Sovereign had no power to enforce the command made by the writ outside the physical boundaries of the State.
30 Another justification for the common law doctrine, acknowledged by their Honours at 325 and 332, is that if substituted service could be ordered with respect to a defendant who was not present within the jurisdiction at any relevant time, the strict conditions regulating and limiting service out of the jurisdiction upon a defendant resident abroad (that is, conditions such as those in Part 10 rule 1A) would be ineffective. I regard this consideration as a particularly important part of the Court's reasoning.
31 Their Honours treated the rules permitting service outside the State (that is, in Victoria at the time, the rules permitting service outside the State in certain circumstances with leave) as an extension of the common law doctrine, rather than an abrogation of it (at 322). In the Court's view, the common law doctrine continued to apply except where the extension could be invoked (also at 322).
32 The Court rejected the theory that the issue of a writ is merely an inchoate exercise of jurisdiction completed by service, preferring the theory that the critical time - the time at which, under the common law doctrine, the defendant must be personally within the jurisdiction - is the time of issue of the writ rather than the time of service (at 324-8). They pointed out (at 328) that if the former theory were correct, a defendant who became aware of the issue of a writ and went abroad in order to evade personal service would be successful in doing so, contrary to the authorities.
33 In Porter v Freudenberg [1915] 1 KB 857, Lord Reading CJ, speaking on behalf of himself and six other members of the Court of Appeal, carefully set out the authorities which support the general doctrine that there cannot be substituted service of a person on whom personal service could not be validly effected. According to Lord Reading, that general rule is not applied if the Court is satisfied that the defendant went outside the jurisdiction before the issue of the writ in order to evade service. If the defendant went outside the jurisdiction after the issue of the writ, although not for the purpose of evading service, substituted service can be allowed, in his Lordship's view, if the Court is satisfied that the issue of the writ came to his knowledge before his departure, and the case falls within the circumstances in which direct service abroad is permitted.
34 The Court criticised Lord Reading's view that substituted service can be ordered if the defendant went outside the jurisdiction before the issue of the writ in order to evade service. They said that the cases upon which Lord Reading relied do not support his propositions, and pointed out that his Lordship's observations could not have been intended as a complete statement of the law, because nothing had been said about the connection which the defendant must have with the jurisdiction (at 330-1). If his Lordship's observations were taken literally, a transient visitor who quickened his departure because of fears that a writ would be issued and served personally within the jurisdiction, would render himself liable to the exercise by substituted service of the very jurisdiction which otherwise would depend on his actual physical presence. In their Honours' view, if the defendant has left the jurisdiction before the issue of the writ, the Court cannot overcome its lack of jurisdiction by an order for substituted service, regardless of the defendant's motive in leaving (at 332).
35 That conclusion was sufficient to dispose of the case, since the defendant had left Victoria before the writ had been issued. But the High Court thought it appropriate (at 332-4) to consider whether the Supreme Court of Victoria's order for substituted service would have been supportable if Lord Reading's view of the law had been accepted. They gave a negative answer, because of the absence of any significant connection between the defendant and Victoria. The only connection between the defendant and Victoria was the fact that he had secured a contract with Dame Margot Fonteyn for a tour which included a brief season in Melbourne. Neither by reason of past history nor present domicile, residence or course of business, did the defendant stand in any general relation to the State of Victoria which would make him naturally or prima facie subject to the jurisdiction of the courts in that State. The plaintiffs might have taken proceedings in England or New South Wales, but had chosen Victoria, which was the most suitable jurisdiction for them but the least suitable for the defendant. They had purported to invoke the power of the Supreme Court of Victoria to order substituted service only for the purpose of giving that court jurisdiction where otherwise it did not exist. Their Honours concluded (at 333-4):
'In all these circumstances the substance of the matter was that, unless the case could be brought within O.XI of the Service and Execution of Process Act, a contingency that must have appeared very dubious, the Supreme Court by ordering substituted service was really asserting a jurisdiction over the defendant Laurie which otherwise it could not possess, save in so far as it arose from the accidental circumstances of his brief visit to Melbourne.'
36 In this passage their Honours acknowledged the proposition that substituted service cannot be ordered if direct personal service is not available in the circumstances - and the corollary, that if under the rules direct personal service could have been effected, although the defendant was outside the jurisdiction, then substituted service is also permissible. Their Honours were considering whether the Supreme Court's order for substituted service would have been supportable if Lord Reading's view of the law were correct, and were not purporting to state their own view of the law, but the propositions emerging from this passage receive support throughout the High Court's judgment: see p 322, 325, 329.
37 Later cases confirm that this interpretation of Laurie v Carroll is correct. Thus, in Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 60 ALJR 277, the cause of action was for breach of contract or breach of duty by a shipowner with respect to the loading, handling, custody, care and discharge of the plaintiff's cargo from a number of ports in the United States to ports in Australia, pursuant to bills of lading. Dawson J considered some ex parte applications for renewal of a writ issued for service within the jurisdiction, and for an order for substituted service on a firm of Australian solicitors. These questions arose under the rules of the High Court, which required that leave be granted for service outside the jurisdiction. The defendant was a company incorporated outside Australia and had not been present within the jurisdiction at any time.
38 Dawson J held, applying Laurie v Carroll and the authorities cited in that case, that it would not be proper for him to make an order for substituted service, no order having been made for service of the writ out of the jurisdiction. His Honour acknowledged that, having regard to a clause in the bill of lading, the parties to the contract had agreed that the courts of Australia would have jurisdiction. But there was no agreement concerning the mode of service of the originating process. In those circumstances the plaintiff should have obtained leave for service outside the jurisdiction, and could obtain an order for substituted service within the jurisdiction only if it was unable to affect service outside the jurisdiction after having made reasonable efforts to do so. This reasoning acknowledges the availability of substituted service where the defendant is abroad, but adheres to the principle that substituted service must not be used to sidestep the requirements for service abroad.
39 A similar approach can be seen in Ricegrowers Cooperative Ltd v ABC Containerline NV (1996) 138 ALR 480. In that case one of the defendants was a Luxembourg company which had no business or assets in Australia. The plaintiff did not seek leave to serve the originating process on the defendant, applying instead for an order for substituted service on the defendant's Australian solicitors. Tamberlin J cited the Mondial Trading case with approval, and set out an extract from the High Court's judgment in Laurie v Carroll , emphasising a passage in which their Honours pointed out that were the law as to substituted service otherwise, the strict requirements for service outside the jurisdiction would become ineffective.
40 In my opinion, therefore, Laurie v Carroll is authority for the proposition that substituted service of an originating process for an in personam claim can be ordered where the defendant is outside the jurisdiction, if direct personal service could have been effected under the rules of court. It follows that I do not accept the defendant's submission that according to Laurie v Carroll , Part 9 rule 10 does not ever apply to permit substituted service outside Australia. In the end, I accept the plaintiff's submission that substituted service is permissible as long as the case can be brought within one of the categories set out in Part 10 rule 1A. However, I reach this conclusion by a process of reasoning that I must explain.
41 The principle of Laurie v Carroll requires an examination to be undertaken as to whether, in the circumstances, personal service could have been effected abroad. It is a principle driven by the proposition that the plaintiff should not be permitted to use substituted service as a means of sidestepping the obstacles to personal service abroad. As I indicated earlier, there are four obstacles to personal service abroad. I shall consider the first two (namely, compliance with Part 10 rules 1A and 2A) later in this judgment. However, I should say at this stage that in my view the proceedings fall within Part 10 rule 1A and so that obstacle has been overcome, and it is not necessary in this case to comply with Part 10 rule 2A. The third and fourth obstacles relate to Part 10 rules 5 and 2, and I shall turn to them now.
42 In my opinion, Part 10 rule 5 is irrelevant to the question that Laurie v Carroll requires us to consider. The question is whether personal service could have been effected abroad. Part 10 rule 5 deals with non-personal service, such as service by post.
43 The defendant seeks to rely on BP Exploration Co (Libya) Ltd v Hunt [1980] 1 NSWLR 496. The case related to attempts by BP (a United Kingdom company) to enforce a judgment that it had obtained against Mr Hunt (a resident of Texas) in England, against Mr Hunt's Australian assets. BP registered its English judgment in New South Wales. The Master, when making an order for registration of the judgment, dispensed with personal service and ordered that service be deemed to have been effected ten days after a sealed copy of the notice of registration had been forwarded by registered air mail addressed to Mr Hunt at an address in Texas. There was no evidence before the Master, when he made the order, as to whether service by registered post was in accordance with the law of Texas, nor any evidence that it was 'impractical' within the terms of Part 9 rule 10 (1) to effect service on Mr Hunt in accordance with the rules.
44 Mr Hunt applied to this Court by notice of motion for an order to set aside the registration of the judgment, making a conditional appearance solely for that purpose. Hunt J took the view that Parts 9 and 10 of the Supreme Court Rules were irrelevant to the question before him, which concerned registration of a judgment under the Foreign Judgments (Reciprocal Enforcement) Act 1973 (NSW). Nevertheless, he considered whether, if they had been relevant, the rules had been complied with. He held that they had not, for two reasons. First, BP could not claim that posting the notice by registered post was effective service on Mr Hunt in Texas because Part 10 rule 5 'requires non-personal service outside the State [outside Australia, under the present rule] to be in accordance with the law of the country in which service was to be effected' (at 503), and there was no evidence of the law of Texas nor any presumption available to overcome the lack of evidence. Secondly, the Master's order could not be treated as an order for substituted service because there was no evidence before the Master as to why it was impracticable for any reason to serve the notice in accordance with the rules.
45 The defendant says, relying on this judgment, that any order for substituted service abroad must prescribe a method of service which complies with the law of the relevant overseas jurisdiction. In my opinion Hunt J did not reach this conclusion. He was considering whether steps had properly been taken for the registration of a judgment. He reasoned, by analogy, that the procedure adopted by the Master might be supportable if either it complied with the requirements for non-personal actual service abroad, or with the requirements for substituted service. It did not comply with the requirements for non-personal actual service because Part 10 rule 5 requires compliance with the law of Texas and there was no evidence as to what the law of Texas required; and it did not comply with the requirements for substituted service because there was no evidence that it was impracticable to effect actual service. He did not treat Part 10 rule 5 as applicable in a case of substituted service.
46 I turn to Part 10 rule 2. In Laurie v Carroll the High Court was concerned with a case where the rules of court required leave to issue originating process for service abroad. Leave had not been sought or obtained. As I read the judgment, the absence of an order granting leave would not have been fatal, if the plaintiffs could have shown that leave would have been obtained had they sought it. The crucial question was whether they were using the substituted service procedure to avoid the obstacles of personal service abroad. Since substituted service itself involves an application to the Court for orders, it can hardly be said that the substituted service procedure is a mechanism for approving the requirement to approach the Court for leave. The High Court believed the plaintiffs were seeking to avoid the rules for service abroad, but this was because their Honours doubted that the plaintiffs could have brought themselves with any of the categories of the Victorian rule broadly equivalent to Part 10 rule 1A.
47 In my opinion, therefore, the Laurie v Carroll principle does not require the Court to consider whether it would grant leave under Part 10 rule 2 for the plaintiff to proceed in the absence of an appearance by the defendant. However, it does require consideration of whether the proceedings fall within one of the categories in Part 10 rule 1A, and I now turn to that issue.