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[1987] HCA 17
High Court of Australia
1981-11-19
Dawson JJ, Hunt J
Original judgment source is linked above.
High Court of Australia Mason A.C.J. Wilson, Brennan, Deane and Dawson JJ. Flaherty v Girgis [1987] HCA 17
1987, May 14 Mason A.C.J., Wilson and Dawson JJ.
The respondent is the plaintiff in an action commenced in the Supreme Court of New South Wales seeking damages for injuries which she suffered in Queensland on 19 November 1981 when she was hit by a motor vehicle driven by the appellant. The respondent normally lives in New South Wales but at the time of the accident she was on holiday in Queensland. The injuries which she suffered were severe. After her discharge from hospital in Queensland the respondent returned to New South Wales where she continued to receive treatment. The damages which she claims include the cost of medical treatment received by her in New South Wales and future economic loss based upon the prospective diminution of her earning capacity there.
Under the New South Wales Supreme Court Rules 1970 ("the Supreme Court Rules") provision is made for the service of originating process outside the State in certain specified cases: see Pt 10, r. 1. It was held in the Court of Appeal, and has not been contested before us, that these proceedings fall within Pt 10, r. 1(e) which, as it was then worded, applied "where the proceedings are founded on, or are for the recovery of, damage suffered wholly or partly in the State caused by a tortious act or omission wherever occurring". There is, therefore, no occasion to examine the reasoning which lies behind this conclusion and we do no more than observe that it is supported by authority in New South Wales: Brix-Neilsen v. Oceaneering Australia Pty. Ltd. [1] ; Challenor v. Douglas [2] .
Part 10, r. 2 provides that service of originating process outside the State is not valid unless prior leave of the Court is given or if the Court, upon being satisfied that the conditions for granting leave have been met and the failure to apply for leave has been sufficiently explained, confirms service or where the person served waives objection by entering an appearance.
Section 4 of Pt II of the Service and Execution of Process Act 1901 Cth also provides for the service of originating process, referred to as a writ of summons, out of a State or part of the Commonwealth in any other State or part of the Commonwealth. It will be necessary to refer in some detail to that legislation but for the moment it is sufficient to note that, whilst service under s. 4 is not expressed to be limited to any particular class of cases, the plaintiff is required under s. 11 to obtain leave in order to proceed where no appearance is entered by the defendant. Leave to proceed may only be granted where the subject-matter of the suit is of a specified kind and it is common ground that none of the six classes of cases specified fit the present proceedings. Under s. 5 a writ of summons, in order to be effective for service, is required to be indorsed with a notice specifying the State out of which the summons is to be served and the State in which it is to be served and with a notice requiring any appearance to the summons to give an address for service within 10 km of the court.
This action was commenced by statement of claim which under Pt 4, r. 1 of the Supreme Court Rules serves as originating process in New South Wales. The statement of claim was filed together with a draft order and affidavit in support of an application for leave to serve the statement of claim out of New South Wales in Queensland. By some administrative error, the respondent was required to file another statement of claim, this time indorsed in accordance with s. 5 of the Service and Execution of Process Act. That statement of claim was, without leave having been obtained, served upon the appellant, the defendant in the action, in Queensland. Subsequently the appellant adopted the procedure afforded by Pt 11, r. 8 of the Supreme Court Rules by entering a conditional appearance and seeking by notice of motion to set aside the service upon him of the originating process.
Upon the return of the notice of motion Hunt J. took the view that the indorsements under the Service and Execution of Process Act were mere surplusage and, pursuant to Pt 10, r. 2, confirmed service of the statement of claim upon which those indorsements appeared. He refused the appellant's application to set aside service.
The appellant appealed to the Court of Appeal where it was contended that upon its proper construction Pt 10, r. 1(e) was not applicable and that in any event it was beyond the power of the New South Wales Parliament, not being a law for the peace, welfare and good government of the State within the meaning of s. 5 of the Constitution Act 1902 NSW. It was also contended that Pt 10, r. 1, in providing for the service of originating process out of the State and within the Commonwealth, is inconsistent with the provisions of the Service and Execution of Process Act for the service of civil process throughout the Commonwealth and hence invalid under s. 109 of the Constitution. The appeal was dismissed by the Court of Appeal and special leave to appeal was granted by this Court. Upon the appeal before us the only point argued was that of inconsistency.
The inconsistency was said to arise because the federal Act is intended to be a complete and exhaustive statement of the circumstances in which service of the civil process of a State court might be made out of its jurisdiction and within the Commonwealth. Some resistance to that submission was to be expected by the appellant since the Service and Execution of Process Act was one of the early Acts to be passed by the first Commonwealth Parliament and has consistently been treated for over eighty years as being facultative only, allowing extraterritorial service within the Commonwealth to be effected in accordance with its own provisions or in accordance with such other provisions as might exist from State to State. Nevertheless, the submission is not without force and requires examination of the circumstances in which the Commonwealth legislation was enacted.
At federation each of the States provided for service out of the jurisdiction in specified classes of cases. In some respects the State provisions were wider than those contained in the federal Act and in some respects they were narrower. Generally they were similar. However, in New South Wales the Service of Equitable Process Act 1897 NSW was significantly wider and allowed service out of the jurisdiction by leave where "any relief is sought against any person domiciled or ordinarily resident within the jurisdiction" (s. 3(d)) and where "any person out of the jurisdiction is a necessary or proper party to a suit or proceeding properly brought against some other person duly served within the jurisdiction": s. 3(h). These grounds found no equivalent in s. 11 of the Service and Execution of Process Act which, when it was enacted, provided as follows:
(1) When no appearance is entered or made by a defendant to a writ of summons served on him under this Act, if it is made to appear to the Court from which the writ was issued or a Judge thereof -
(a) that the subject-matter of the suit so far as it concerns such defendant is -
(1) land or other property situate or being within the State or part of the Commonwealth in which the writ was issued; or
(2) shares or stock of a corporation or company having its principal place of business within that State or part; or
(3) any deed, will, document, or thing affecting any such land, shares, stock, or property; or
(b) 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; or
(c) that the relief sought against the defendant is in respect of a breach, within that State or part, of a contract wherever made; or
(d) that any act or thing sought to be restrained or removed, or for which damages are sought to be recovered, was done or is to be done or is situate within that State or part; or
(e) that at the time when the liability sought to be enforced against the defendant arose he was within that State or part; or
(f) that the domicile of the person against whom any relief is sought in a Matrimonial cause is within that State or part
Section 11(1) has remained in the same form as set out above save that par. (f) was amended to include proceedings under the Matrimonial Causes Act 1959 Cth.
The Australasian Civil Process Act 1886 had been passed by the Federal Council of Australasia and it provided for the service of process out of one colony and in another and while it was not identical to the Service and Execution of Process Act, it was obviously its precursor. Section 22 of the Federal Council of Australasia Act 1885 Imp provided that if any Act of the Federal Council should be repugnant to, or inconsistent with, the law of any colony affected thereby, the former should prevail and the latter should have no operation to the extent of the repugnance or inconsistency. New South Wales never joined the Council but in the case of the colonies which did, no question appears to have been raised of inconsistency between their provisions for service out of the jurisdiction and the provisions of the Australasian Civil Process Act. Whilst the Federal Council of Australasia Act was repealed by covering cl. 7 of the Commonwealth of Australia Constitution Act 1900 Imp, laws made by the Council were preserved, subject to repeal by the Commonwealth Parliament. The Australasian Civil Process Act was repealed by s. 2(1) of the Service and Execution of Process Act.
The present provisions in New South Wales which are said to give rise to inconsistency are those contained in Pt 10 of the Supreme Court Rules made under Pt IX of the Supreme Court Act 1970 NSW. We have, we think, already described sufficiently the operation of those rules, save to observe that, in accordance with the procedure laid down, service out of the jurisdiction under those rules may be effected in twenty-three categories of cases which extend far beyond the six categories provided for in the federal Act. The category in question in this case is not provided for at all in the federal Act.
Turning to the Service and Execution of Process Act, service of originating process throughout the Commonwealth is authorized by s. 4 of that Act. Sub-section (1) of that section now provides:
A writ of summons issued out of or requiring the defendant to appear at 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. "Writ of summons" is now defined in s. 3 to include "any writ or process by which a suit is commenced or of which the object is to require the appearance of any person against whom relief is sought in a suit or who is interested in resisting relief sought in a suit".
Section 4(1) is in general terms and is not expressed to be limited in its operation by reference to any class of case. In Luke v. Mayoh [3] it was held that no such limitation was to be read into s. 4(1) by reason of s. 11. A defendant might be validly served under s. 4(1), so it was held, even if the cause of action did not fall within any of the classes specified in s. 11, because he might appear to the writ and so submit to the jurisdiction, thereby relieving the plaintiff of any obligation to obtain leave to proceed under s. 11. The view which the Court expressed [4] was:
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. This view was doubted by Dixon C.J. and Fullagar J. in Tallerman & Co. Pty. Ltd. v. Nathan's Merchandise (Victoria) Pty. Ltd. [5] in the following passage: If the matter had been free of authority, one would have thought that the power given in general terms by s. 4 of that Act ought to be regarded as limited by implication to the classes of case specified in s. 11. Great difficulty, however, is occasioned by the decision of three justices of this Court in Luke v. Mayoh, in which it is important to note that a conditional appearance had been entered by the defendant. A practice, which has much to recommend it, but is difficult to reconcile with Luke v. Mayoh appears to have become established in New South Wales by Ex parte Walker; Re Caldwell's Wines Ltd. [6] ; see also Blunt v. Collingwood Pty. Tinmining Co. N.L. [7] ; Clarke & Co. Pty. Ltd. v. Kerin [8] ; Braemar Woollen Mills Co-op. Ltd. v. Poinsettia Hosiery Mills Pty. Ltd. [9] ; Re Fowles [10] (in which an escape was found from the dilemma which Luke v. Mayoh might be thought to pose) and Friedman v. Kemp's Nurseries Ltd. [11] . That practice is to follow the same course as that provided for cases where a writ has been served out of the jurisdiction under a State law: see General Rules of the Supreme Court of New South Wales 1952, Order IX, r. 6, and cf. Rules of Supreme Court of Victoria, Order XII, r. 30; Annual Practice 1956, pp. 144, 145. The defendant enters a conditional appearance, objecting to the jurisdiction, and then applies by summons to have the writ set aside. If the defendant establishes that the case does not fall within any of the classes specified in s. 11 of the Service and Execution of Process Act, an order is made setting aside the writ. (Strictly speaking, it would seem that the service of the writ, and not the writ itself, should be set aside.) If it appears that the case falls within one of the classes mentioned in s. 11, the appearance becomes unconditional. 1. (1921) 29 C.L.R. 435. 2. (1921) 29 C.L.R., at p. 439. 3. (1957) 98 C.L.R. 93, at p. 107. 4. (1931) 31 S.R. (N.S.W.) 494, at pp. 503, 504; 48 W.N. (N.S.W.) 189, at p. 192. 5. (1903) 20 W.N. (N.S.W.) 158. 6. [1926] V.L.R. 559. 7. (1933) 51 W.N. (N.S.W.) 6. 8. [1936] V.L.R. 96. 9. [1954] V.L.R. 336.
Dixon C.J. and Fullagar J. went on to observe that Luke v. Mayoh may one day have to be reconsidered, but pursued the matter no further themselves.
The practice which is described in the passage just set out may indeed be difficult to reconcile with Luke v. Mayoh since, as described, it involves setting aside a writ or the service of a writ which, under the view taken of s. 4(1) in that case, has been validly issued and served. However, in Ex parte Walker; Re Caldwell's Wines Ltd. the case which is said to have established the practice, this is not what was done. In that case a writ issued in New South Wales properly indorsed for service under the Service and Execution of Process Act was served in South Australia. The defendants moved to set aside the writ and the service of the writ. The court accepted upon the authority of Luke v. Mayoh that both the issue and service of the writ were good. The point in question was whether it was open to the defendants to challenge the jurisdiction of the court without entering an appearance and without waiting for the determination of an application by the plaintiff under s. 11(1) for an order giving leave to proceed. Of course, any order under s. 11(1), if wrongly made, could have been rescinded or set aside or amended on the application of the defendant under s. 11(2). The latter was the procedure adopted in Re Fowles and described by Dixon C.J. and Fullagar J. as an escape from the dilemma which Luke v. Mayoh might be thought to pose. If it was an escape, then it was an escape afforded by the statute itself.
In Ex parte Walker; Re Caldwell's Wines Ltd. the New South Wales Supreme Court took the view that the provision which was made in its rules for the entry of a conditional appearance indicated an appropriate procedure, provided it was adapted in accordance with the observation of the Court [12] : "The rule in question contemplates a motion to set aside the writ, but if, as is argued the decision in Luke v. Mayoh indicates, that is not the proper method of procedure, we are of opinion that the Court has inherent jurisdiction to stay proceedings in circumstances such as are referred to above, and on application for a stay the Court should act on the principles which guided the Courts in England on applications to set aside a writ and the service of the writ under the old practice." The defendants were given leave to amend by asking for a stay and on the motion as amended a stay of proceedings was ordered. Such a course does not appear to us to be exceptionable. If no unconditional appearance was to be entered and an application for leave to proceed could not properly succeed, the proceedings were bound to fail and might, in accordance with ordinary principle, be stayed. There is no reason, unless required by some specific rule of procedure, why even a conditional appearance should be required merely for the purpose of making an application for a stay.
It is true that in Blunt v. Collingwood Pty. Tinmining Co. N.L. [13] the writ was set aside in circumstances similar to those which arose in Ex parte Walker; Re Caldwell's Wines Ltd., but the former case was decided before Luke v. Mayoh. In Clarke & Co. Pty. Ltd. v. Kerin [14] an application to set aside the writ and service of the writ was refused upon the authority of Luke v. Mayoh and in Braemar Woollen Mills Co-op. Ltd. v. Poinsettia Hosiery Mills Pty. Ltd. Street J. refused to set the writ aside but allowed an amendment in order to grant a stay. In Friedman v. Kemp's Nurseries Ltd., O'Bryan J. refused to set aside service of a writ under the federal Act but, because there were disputed questions of fact, refused a stay, granting leave to the defendant to enter an appearance under protest for the purpose of contesting jurisdiction upon trial.
Since the decision in Tallerman & Co. Pty. Ltd. v. Nathan's Merchandise (Victoria) Pty. Ltd., the procedure approved in Ex parte Walker; Re Caldwell's Wines Ltd. has been followed in W. A. Dewhurst & Co. Pty. Ltd. v. Cawrse [15] and Victoria v. Hansen [16] . In Gilchrist v. Dean [17] , Sholl J. recognized the right of a defendant under the provisions of the Service and Execution of Process Act to serve in Queensland a third-party notice issued in Victoria and summarized the position reached by the cases as follows [18] :
Therefore, it may, according to existing authority, validly be served in Queensland, and the service cannot be set aside, even if the Victorian Court would later, under s. 11, refuse the defendant leave to proceed in the event of the third party not appearing; see Luke v. Mayoh; Clarke & Co. Pty. Ltd. v. Kerin. The theory is that if the third party appears, he submits to the jurisdiction, and no question of jurisdiction can thereafter arise; if the third party does not appear, the defendant must bring his claim within s. 11, or otherwise he cannot proceed. This may place the third party, if he does not appear, in a difficult position, but he may, if necessary, apply under s. 11(2) to set aside any order actually made and giving his opponent leave to proceed; see Re Fowles [19] ; or he may without appearing apply on motion to stay the proceedings on the ground that the case does not fall within any of the paragraphs of s. 11, though he may then find his application adjourned to the trial if the question of jurisdiction or no jurisdiction depends on disputed facts; see Ex parte Walker [20] ; Friedman v. Kemp's Nurseries Ltd. [21] . This seems to us to be an accurate statement of the position and it was adopted by the Full Court of the Federal Court in Victorian Broadcasting Network Ltd. v. Whitlam [22] . 1. [1960] V.R. 278; (1959) 2 F.L.R. 184. 2. [1960] V.R. 582. 3. [1960] V.R. 266; (1958) 2 F.L.R. 175. 4. [1960] V.R., at pp. 272-273; (1958) 2 F.L.R., at p. 182. 5. [1936] V.L.R. 96. 6. (1931) 31 S.R. (N.S.W.) 494. 7. [1954] V.L.R. 336. 8. (1980) 42 F.L.R. 256, at pp. 264-265.
The practice which has developed has much to recommend it, as Dixon C.J. and Fullagar J. recognized in Tallerman & Co. Pty. Ltd. v. Nathan's Merchandise (Victoria) Pty. Ltd. [23] , and, at least as it is now explained, it requires no reconciliation with the decision in Luke v. Mayoh [24] . The latter decision has stood for over sixty years and gives to the relevant provisions of the Service and Execution of Process Act a construction which has enabled them to operate in a practical and effective manner. If it ever were appropriate to reconsider Luke v. Mayoh, that time has in our opinion now passed and the case should be accepted as having been correctly decided.
We have already referred to ss. 4 and 11 of the Service and Execution of Process Act. The indorsements required by s. 5(1) and (2) are a notice identifying the State or part of the Commonwealth out of which the writ is to be served and the State or part of the Commonwealth within which it is to be served and a notice requiring an address for service to be indorsed upon any appearance. Section 5(3) requires the writ to contain or have indorsed thereon a short statement of the nature of the claim or relief sought. Under s. 6 unless a writ bears these indorsements it is ineffective for service under the Act. Section 8 prescribes the minimum times which may be limited by the writ for appearance, which are otherwise to be prescribed by the rules of the court out of which it is issued. Section 10 enables a defendant to apply for an order that the plaintiff give security for costs. Section 12 provides that when a judgment is given or made against a defendant who has been served under the Act, such judgment shall have the same force and effect as if the writ had been served on the defendant in the State or part of the Commonwealth in which the writ was issued. Section 13 provides that Pt II of the Act dealing with service of process "does not confer on any Court jurisdiction to hear or determine any suit which it would not have jurisdiction to hear and determine if the writ of summons had been served within the State or part of the Commonwealth in which the writ was issued".
Part IV of the Act deals with the enforcement of judgments. Under s. 20 any "person in whose favour a judgment is given or made, whether before or after the commencement of this Act, in a suit by any Court of Record of any State or part of the Commonwealth" may obtain a certificate of judgment. That certificate may, under s. 21, be registered in a court of like jurisdiction or a court otherwise appropriate within the Commonwealth and be enforced as a judgment of that court.
The way in which the appellant put his case upon inconsistency does not call for an extensive examination of the authorities upon that topic. No question of invalidity arises, except in the s. 109 sense. Clearly the federal Act is within the power given to the Commonwealth Parliament by s. 51(xxiv) of the Constitution to make laws with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States. The State parliaments have concurrent power, subject to s. 109, to make laws with respect to the service of the process of their courts and the execution of judgments. The mere fact that both the Commonwealth and the States have made laws does not of itself result in inconsistency within the meaning of s. 109, particularly as the nature of those laws is to enable rather than to proscribe. Section 109 is concerned with inconsistency between laws and not powers: Reg. v. Winneke; Ex parte Gallagher [25] . Of course, where both Commonwealth and State legislation confer concurrent or parallel powers in relation to the same matter or thing, an inconsistency may arise in their practical application, which is to be resolved by giving supremacy to the Commonwealth legislation in the particular situation: Victoria v. The Commonwealth ("The Kakariki") [26] ; Carter v. Egg & Egg Pulp Marketing Board (Vict.) [27] . However, inconsistency of that sort is not alleged in this case, it being apparent that the relevant provisions of the federal Act and Supreme Court Rules may operate without any conflict arising in practice. In speaking of the Supreme Court Rules, it may be observed that the law of the State which is alleged to be inconsistent with the Service and Execution of Process Act is ultimately s. 122 of the Supreme Court Act which authorizes the rules, but the inconsistency is to be found initially in a comparison of the federal Act with the rules to the extent to which they purport to deal with extraterritorial service within the Commonwealth.
Inconsistency is said to arise because the Service and Execution of Process Act is intended to cover the field of extraterritorial service of civil process within the Commonwealth so that the operation of the federal law would be impaired if State law were allowed to regulate that subject-matter at all. It has long been recognized that inconsistency of that kind is encompassed by s. 109 of the Constitution with the effect of rendering the State law inoperative: Clyde Engineering Co. Ltd. v. Cowburn [28] ; H. V. McKay Pty. Ltd. v. Hunt [29] ; Hume v. Palmer [30] ; Ex parte McLean [31] ; Viskauskas v. Niland [32] . Whether inconsistency in this sense exists "depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed": Ex parte McLean [33] , per Dixon J.
Emphasis was placed by the appellant in argument upon s. 11(1) of the Service and Execution of Process Act. The limited categories of case in which a plaintiff might obtain leave to proceed in the absence of an appearance constitute, so it was submitted, a real protection against the exercise of an extraterritorial jurisdiction in inappropriate cases to the unfair disadvantage of an absent defendant. Such protection would, it was contended, be impaired if service out of the jurisdiction within the Commonwealth might be effected otherwise than under the provisions of the federal Act. For it was said that the authorization of a limited, compulsory, extraterritorial jurisdiction exercisable only in specified circumstances and subject to defined conditions, necessarily exhibits an intention to exclude the exercise of such a jurisdiction otherwise than in those circumstances and under those conditions.
The appellant called in aid other provisions of the Act in support of this argument. It was submitted that protection was afforded a defendant not only by s. 11(1), but also by s. 8 in prescribing minimum times for the entry of an appearance and s. 10 in providing for an order to give security for costs in favour of a defendant. It may, we think, be said immediately that whilst s. 8 can be regarded as operating to protect a defendant it is more in the nature of a machinery provision and whilst s. 10 no doubt facilitates the grant of an order for security for costs, the remedy is discretionary and is only to be made in circumstances which warrant it. The latter is nevertheless a safeguard against abuse of the provisions of the legislation (see McGlew v. New South Wales Malting Co. Ltd. [34] ) but an order for security for costs has always been an available protection under State law both before and after the enactment of the federal Act. Whilst an order is not usually granted in favour of a defendant where the plaintiff is resident or has sufficient assets within the jurisdiction, it might be made even in those circumstances in an exceptional case: In re Milward & Co. [35] .
The appellant also placed reliance upon the specific limitation imposed upon the operation of certain sections by reference to service "under this Act": see ss. 4, 5, 6, 9, 10, 11 and 12. The use of these words was said to be the equivalent of a reference to extraterritorial service within the Commonwealth, since the Act was meant to provide an exclusive code governing service of that kind. That, of course, begs the question, for it might equally be said that the words contemplate extraterritorial service within the Commonwealth only in those cases to which the Act is to apply. Moreover, the use of the words is not uniform: some sections, e.g. ss. 7 and 8, being expressed in an unrestricted form. The use of the words "under this Act" is, on any view, equivocal and little, if anything, is to be drawn from it.
It is also to be remembered that the legislative power conferred on the Commonwealth by s. 51(xxiv) did not authorize the Parliament to cover the entire field of extraterritorial service of the process of State courts. That power was limited to the service and execution throughout the Commonwealth of the process and judgments of such courts and did not extend to the service of civil process beyond the Commonwealth.
Attention was drawn to Pt IV of the Service and Execution of Process Act and it was submitted that unless the provisions relating to the service of originating process were exclusive in their operation, ss. 20 and 21 would permit the enforcement of judgments obtained through service out of the jurisdiction effected under State law which could not have been effected under federal law. Such a result, it was said, would defeat the federal policy to be found in s. 11(1) of the federal Act. That argument also, in our view, begs the question but it may be said in addition that Pt IV of the Act actually exhibits a wider federal policy than is to be found in s. 11(1). It clearly envisages the enforcement within the Commonwealth of judgments of State courts obtained pursuant to service outside the Commonwealth, an area to which Pt II of the Service and Execution of Process Act does not extend. Moreover, it applies to judgments "given or made, whether before or after the commencement of this Act" and so includes judgments obtained pursuant to service out of the jurisdiction and within the Commonwealth pursuant to State law at least before the commencement of the Act: see s. 20. This being so, there does not appear to be any reason to construe Pt IV restrictively and, rather than suggesting that the provisions for service out of the jurisdiction in Pt II of the Act were intended to be exclusive, it suggests the opposite conclusion.
The appellant placed particular reliance upon two decisions in the United Kingdom that service of process outside the territorial limits of England and Wales is confined to those cases specified in O. 11 of the Rules of the Supreme Court UK: In re Busfield [36] ; Waterhouse v. Reid [37] . Those cases, however, throw no light upon the problem in this case which arises from the existence of concurrent legislative powers in a federal setting and calls for the application of principles which have no relevance in the United Kingdom. As Lord Diplock pointed out in Siskina (Cargo Owners) v. Distos S.A. [38] , O. 11 constitutes an exception to the general rule that the jurisdiction of an English court is territorial and the exception is limited to the cases mentioned in that order. The Service and Execution of Process Act was introduced in Australia at a time when there were existing provisions in the States for extraterritorial service and the question which arises - a question which could not arise in the United Kingdom - is whether there is inconsistency between the State provisions and the relevant provisions of the federal Act.
Reference was also made to the State Laws and Records Recognition Act 1901 Cth (now the State and Territorial Laws and Records Recognition Act) which was introduced into Parliament in the same session as the Service and Execution of Process Act. The former Act provides in s. 19 that:
The provisions of this Act shall be in addition to and not in derogation of any powers existing at common law, or given by any law at any time in force in any State. The omission of such a provision in the Service and Execution of Process Act, an almost contemporaneous enactment, was said to indicate a contrary intention, namely, that its provisions were to have effect to the exclusion of State law. Such a conclusion hardly follows. Whilst s. 19 may have been thought necessary in order to avoid the exclusive effect which the State Laws and Records Recognition Act would otherwise have had, no such provision may have been thought necessary in the case of the Service and Execution of Process Act, because of the apparent intention that the latter Act should supplement rather than supplant State laws upon the subject of service out of the jurisdiction within the Commonwealth. Reference to the Parliamentary Debates of the time, which was invited by the appellant pursuant to s. 15AB of the Acts Interpretation Act 1901 Cth, does not lead to any contrary conclusion. There is no positive statement to be found that the Service and Execution of Process Act was intended to render inoperative the laws of the States. Nor is there any statement to the contrary effect. One would expect that if State laws relating to service out of the jurisdiction were to be cut down in important respects, there would be some reference to the fact. Moreover, Mr. Barton was the Minister who moved that the Bill be read a second time in the House of Representatives and, if his speech on that occasion was equivocal, his view of the matter was made clear in Renton v. Renton [39] when, as Barton J., he said: I would add that sub-secs. xxiv and xxv of sec. 51 of the Constitution cannot be relied on for a general displacement of State legislation by Federal legislation on the matters there mentioned. Those powers are given as concurrent with the powers of the States. They are intended to be of assistance in obtaining as well as enforcing judgments of the State Courts. I see nothing in the Federal Service and Execution of Process Act to show that anything that might be done under the Act in question here would be in conflict with the former Act. The Act in question was a South Australian Act providing for the service out of the jurisdiction and within the Commonwealth of a summons for maintenance. Even if the context of the passage which we have cited may reflect views which are no longer tenable following the decisions in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers' Case") [40] and Clyde Engineering Co. Ltd. v. Cowburn [41] , there can be little doubt about the view which Barton J. held concerning the intended scope of the federal Act. 1. (1918) 25 C.L.R. 291, at p. 298. 2. (1920) 28 C.L.R. 129. 3. (1926) 37 C.L.R. 466.
Nor does the view of Barton J. stand alone, for in Laurie v. Carroll [42] this Court was clearly of the view, although the point was not directly involved in the case, that State provisions for service out of the jurisdiction and within the Commonwealth might validly co-exist with the provisions of the Service and Execution of Process Act. The following passage appears [43] :
The common law doctrine is that the writ does not run beyond the limits of the State. By the federal Service and Execution of Process Act 1901-1953, however, it may, if endorsed under that statute, be served elsewhere within the Commonwealth and its Territories, the conditions in which this may be done and the consequences being defined by the provisions of the Act. Further, by rules made under s. 139 of the Supreme Court Act 1928 replacing, but based upon, the fifth schedule of that Act and now contained in O. XI, rr. 1-5 of the Rules of the Supreme Court 1957, it is provided that in cases answering any of the descriptions in r. 1, service of the writ or of notice of the writ in any place outside Victoria may be allowed by the court or a judge. It may be that the cause of action which the plaintiffs seek to set up will fall neither within any of the paragraphs of r. 1 of O. XI nor within any of those of s. 11 of the Service and Execution of Process Act 1901-1953. If so that may explain the importance apparently attached by the parties to this appeal. For except for these extensions of the principle of the common law, it remains true that a writ issued out of the Supreme Court of Victoria does not run outside that State. And in actions in personam this must determine the jurisdiction of the court over the defendant. 1. (1958) 98 C.L.R. 310. 2. (1958) 98 C.L.R., at pp. 322-323.
Moreover, in Luke v. Mayoh itself it was assumed that the provisions of the South Australian Supreme Court Rules for service out of the jurisdiction were valid despite the enactment of the Service and Execution of Process Act. In speaking of service out of the jurisdiction the Court said [44] :
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. In Aston v. Irvine [45] this Court, in speaking of s. 51(xxiv) of the Constitution, said: It is a power to be exercised in aid of the functions of the States and does not relate to what otherwise is a function of the Commonwealth. 1. (1921) 29 C.L.R., at pp. 438-439. 2. (1955) 92 C.L.R. 353, at p. 364.
In the Supreme Courts of the States the suggestion of inconsistency between State law and the federal Act upon the subject of extraterritorial service within the Commonwealth has never been accepted: Dowd v. Dowd [46] ; Kuhndt v. Kuhndt and Smith [47] ; Jones & Co. Ltd. v. Gardner Bros. [48] ; Ex parte Iskra; Ex parte Mercantile Transport Co. Pty. Ltd. [49] . A submission that there was inconsistency was rejected by O'Bryan J. in K.W. Thomas (Melbourne) Pty. Ltd. v. Groves [50] and he made this observation [51] :
It is somewhat late in the day to contend that this Federal Statute which in six States of the Commonwealth has for fifty-six years been thought to operate amicably alongside State legislation in the same field - was really intended by the Parliament to cover the whole ground and to abrogate State legislation in that area. 1. [1946] S.R.(Qd) 16. 2. [1927] S.A.S.R. 426. 3. (1921) 23 W.A.L.R. 23. 4. (1962) 80 W.N. (N.S.W.) 923. 5. [1958] V.R. 189. 6. [1958] V.R., at p. 193.
Of course, if there were inconsistency, the passage of time would not remove it, the question being one of intention. It was submitted on behalf of the respondent that the amendment of the Service and Execution of Process Act a number of times over the years during which it has consistently been interpreted as having no exclusive operation with respect to the service of process, indicates the tacit appproval of the Commonwealth Parliament and provides a guide to its intent. That is to overstate the position somewhat. Whilst it is true that, where an inference can be drawn from the terms in which subsequent legislation has been passed that Parliament itself has approved of a particular judicial interpretation of words in an earlier statute, a court should adhere to that interpretation, the difficulty is in discerning the existence of parliamentary approval: see Geelong Harbour Trust Commissioners v. Gibbs Bright & Co. [52] . Mere amendment of a statute not involving any re-enactment of the words in question could seldom if ever constitute approval of an interpretation of those words. Even re-enactment of the words in circumstances not involving any reconsideration of their meaning, as e.g., in a consolidating statute, does not do so: Williams v. Dunn's Assignee [53] ; Melbourne Corporation v. Barry [54] . At most the principle affords a presumption of no great weight concerning the meaning of the words used and cannot be relied upon to perpetuate an erroneous construction: Salvation Army (Victoria) Property Trust v. Fern Tree Gully Corporation [55] . Indeed, in Reg. v. Reynhoudt [56] Dixon C.J. said:
In any case the view that in modern legislation the repetition of a provision which has been dealt with by the courts means that a judicial interpretation has been legislatively approved is, I think, quite artificial. To repeat what I have said before, the mechanics of law-making no longer provide it with the foundation in probability which the doctrine was supposed once to have possessed. For the reason given by Dixon C.J., the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct. In any event, the circumstances which would justify its application are lacking in this case. 1. (1974) 129 C.L.R. 576, at p. 584; [1974] A.C. 810, at p. 820. 2. (1908) 6 C.L.R. 425, at p. 441. 3. (1922) 31 C.L.R. 174, at pp. 186-188. 4. (1952) 85 C.L.R. 159, at pp. 174, 182. 5. (1962) 107 C.L.R. 381, at p. 388.
Nevertheless, having regard to the construction which the relevant provisions of the Service and Execution of Process Act have consistently been given since its enactment, this Court should not be astute to find inconsistency in the absence of any clear indication of an intention to legislate completely or exhaustively upon the subject of extraterritorial service of process within the Commonwealth. There is no actual conflict in the co-existence of the laws of the States and the federal provisions dealing with that subject-matter nor does the nature of the subject-matter preclude concurrent or parallel powers. Indeed, the apparent aim of the federal legislation is to overcome the jurisdictional impediment of State boundaries in the service of process and the execution of judgments within the Commonwealth and this would not suggest any intention of preventing proper efforts on the part of the States towards the same end.
It was suggested during argument that conflict arises between the provisions of the Service and Execution of Process Act and State laws relating to extraterritorial service if a defendant is unable to discern under which law he has been served. No leave is required to effect valid service under the federal Act although if an appearance is not entered leave to proceed is required. Under the State laws leave is generally required before service out of the jurisdiction may be validly effected, but in New South Wales, as this case illustrates, service made without leave may be confirmed. The advisable course for a defendant served out of the jurisdiction may differ according to whether the service is under federal or State law. Ordinarily the indorsements required by s. 5 of the federal Act will indicate if service is effected under that Act, but that need not necessarily be so. As this case again illustrates, a defendant may have to contemplate the possibility that he has been served under federal law or State law and act accordingly. That does not, however, result in inconsistency between the laws, even in a practical sense, for there is no reason why a plaintiff should not rely upon both federal and State law in effecting service out of the jurisdiction within the Commonwealth, provided that he complies with the requirements of each.
It may be desirable that a plaintiff should be required to specify the provisions upon which he relies in effecting service out of the jurisdiction. Neither the Service and Execution of Process Act nor the Supreme Court Rules impose such a requirement, although, as we have seen, the former requires an indorsement as a condition precedent to resort to its provisions. The absence of such a requirement does not give rise to conflict, whatever difficulty it may create for a particular defendant. Any inconvenience may be corrected since the practice and procedure in connexion with the service of process, including service under the Service and Execution of Process Act, may be regulated by the various courts of the States: see s. 27.
With this situation may be contrasted the conflict which was alleged in Ffrost v. Stevenson [57] to arise between the provisions of the Service and Execution of Process Act relating to criminal process and the provisions of the Fugitive Offenders Act 1881 Imp relating to the surrender of fugitives. Since the latter Act was an Act of the Imperial Parliament, the Court was concerned with repugnancy rather than inconsistency because under s. 2 of the Colonial Laws Validity Act 1865 Imp, which applied at the time to Commonwealth legislation, Imperial laws prevailed over Commonwealth laws to the extent of any repugnancy. Upon that question the Court was divided, but such conflict as there was arose from the differing rights and duties which flowed from the adoption of the procedures under one Act or the other including different rights of appeal. It was this which led Dixon J. [58] to conclude that the co-existence of the two sets of provisions would produce "an antinomy inadmissible in any coherent system of law". The Service and Execution of Process Act in relation to the extraterritorial service of civil process is, however, essentially enabling and the adoption of its procedures has no other significant result than to render service out of the jurisdiction valid, in circumstances in which it might otherwise be legally ineffective. Thereafter, the consequences flow, not from the federal Act, but from the law of the place out of which service is effected.
It was, however, contended by the appellant that different consequences do flow from the use of the federal Act on the one hand and the use of State law on the other to effect service out of the jurisdiction. The different consequences, it was said, arise from the fact that in an action commenced by service under the federal Act the jurisdiction exercised by a State court to determine the matter will be federal jurisdiction and subject to the restrictions imposed by s. 39A(1) of the Judiciary Act 1903 Cth. The appellant rejected the view expressed in Lorenzo v. Carey [59] that State jurisdiction remains available notwithstanding the investiture of a State court with federal jurisdiction and relied upon the views expressed in Felton v. Mulligan [60] and Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. [61] that where federal jurisdiction arises it excludes the exercise of any State jurisdiction which would otherwise be exercisable. But the commencing point of the argument is to be found in certain remarks made in the judgment of the majority in Gosper v. Sawyer [1] . In that case a notice of motion returnable before the Industrial Commission of New South Wales had been served in Victoria. The question arose whether the Commission had jurisdiction and that question was referred to the Commission in court session. Before it was argued, the notice of motion was amended by adding an indorsement intended to satisfy s. 5 of the Service and Execution of Process Act. The Commission ruled in court session that service of the notice of motion might be effected either under Pt 10 of the Supreme Court Rules or under the Service and Execution of Process Act upon the basis, apparently, that leave to proceed could be given under s. 11(1)(b) of that Act. Subsequently, service was confirmed under Pt 10, r. 2(4) of the Supreme Court Rules. An appeal was brought to this Court by special leave against the rulings of the Commission and the confirmation of service. The power of this Court to entertain the appeal was dependent upon the exercise by the Commission of federal jurisdiction. Recognizing that the order confirming service was made pursuant to the Supreme Court Rules, the majority said [1] :
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. Those words, by reason of the reference to s. 11(1)(b), were clearly intended to refer to the grant or refusal of liberty to proceed under the Service and Execution of Process Act. 1. (1921) 29 C.L.R. 243, at p. 252. 2. (1971) 124 C.L.R. 367, at pp. 373, 411-413. 3. (1980) 145 C.L.R. 457, at p. 471. 4. (1985) 160 C.L.R. 548, at pp. 556-557. 5. (1985) 160 C.L.R. 548, at pp. 556-557.
The jurisdiction which is exercised in granting or refusing leave to proceed under the federal Act is clearly federal; it could be no other. But their Honours were not intending to suggest that leave having been granted and service having been effected, any jurisdiction to be thereafter exercised by the Commission would be federal. The question to be determined in Gosper v. Sawyer was whether the process of the Commission might be served out of New South Wales and in Victoria. In relation to the Service and Execution of Process Act the issue was, as it was put by Mason and Deane JJ. [2] , "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 comment made by the majority about the exercise of federal jurisdiction did not extend beyond that point.
It is true to say, as was said by this Court in Laurie v. Carroll [3] , that where an action is in personam and transitory, the jurisdiction of a court of unlimited jurisdiction does not depend upon subject-matter but upon the amenability of the defendant to the writ expressing the Sovereign's command. At common law the writ does not run beyond the limits of the State. If extraterritorial service is permitted the territorial jurisdiction of the court is extended. But there is a distinction to be drawn between territorial jurisdiction and jurisdiction over the subject-matter of the action, the latter being determined otherwise than by the rules governing service. The distinction is recognized in s. 13 of the Service and Execution of Process Act which provides that Pt II of that Act does not confer on any court jurisdiction to hear or determine any suit which it would not have jurisdiction to hear and determine if the writ of summons had been served within the State or part of the Commonwealth in which it was issued.
Whilst the determination of any question under the Service and Execution of Process Act regarding service involves the exercise of federal jurisdiction, jurisdiction over the subject-matter of the action, once service has validly been effected, derives from the same source whether or not the service is extraterritorial. It is only if the authority of the court to decide the matter, questions of service apart, is derived from federal law that it will be exercising federal jurisdiction in determining the matter. Section 51(xxiv) of the Constitution, under which the Service and Execution of Process Act is enacted, envisages an extension in the reach of the process of the courts of the States and does not speak in terms of the investiture of the State courts with a new substantive jurisdiction. It is in conformity with that legislative power that the provisions of the federal Act are framed as they are.
For all of these reasons we do not think that there is any inconsistency between the provision made by the Service and Execution of Process Act for the extraterritorial service of civil process and that made by the Supreme Court Rules. We would dismiss the appeal.
The plaintiff in a personal action in the Supreme Court of New South Wales (the respondent) caused her originating statement of claim to be served on the defendant (the appellant) in Queensland. Part 10 of the Rules of the Supreme Court of New South Wales authorizes service out of the State of originating process in certain categories of cases including cases "where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring": r. 1(1)(e). The present case falls into that category. Extraterritorial service is not valid under the Rules, however, unless the Court gives leave to serve prior to service or subsequently confirms the service or the person served waives objection to service by entering an appearance: r. 2(1). Here the plaintiff caused originating process - the statement of claim - to be served without prior leave, but she applied for an order confirming the service. The statement of claim bore the indorsements prescribed by s. 5 of the Service and Execution of Process Act 1901 Cth ("the Act"). An application by the defendant to set aside service of the statement of claim was refused and service on the defendant in Queensland was confirmed by Hunt J. The Court of Appeal (Kirby P. and Samuels J.A., McHugh J.A. dissenting) dismissed the defendant's appeal against those orders. The question on which the Court of Appeal was divided and which has been argued on this appeal is whether Pt 10 of the Supreme Court Rules is inconsistent with the Act and on that account is inoperative by force of s. 109 of the Constitution. The starting point is the common law which the Act and Pt 10 modify according to their respective terms.
At common law, extraterritorial service of a writ of summons in a personal action is a nullity: McGlew v. New South Wales Malting Co. Ltd. [4] . (It will be convenient hereafter to describe any originating rocess as a writ.) As jurisdiction to entertain a personal action depends on effective service (Laurie v. Carroll [5] ; Gosper v. Sawyer [6] ), a court has no jurisdiction to entertain a personal action when the writ is served out of the jurisdiction except in cases where the defendant in the character of plaintiff has selected the forum for the proceedings in which he is afterwards sued, or he submits to the jurisdiction by voluntarily appearing, or he has contracted to submit himself to the jurisdiction of the court out of which the writ issues (Emanuel v. Symon [7] ; Vogel v. Kohnstamm Ltd. [8] ) or, perhaps, in cases where the defendant was within the jurisdiction when the writ was issued and substituted service is ordered: Laurie v. Carroll [9] . The principles of private international law may, of course, be modified by statute. In this case, the possibility of inconsistency arises because a law of a State and a law of the Commonwealth both authorize service of writs out of the jurisdiction within Australia and thus modify the principles of private international law, but in somewhat different ways. The nature of the problem addressed by the two sets of laws may be briefly stated.
The legislature of each of the Australian colonies possessed, and the legislature of each State possesses, power to enact laws authorizing the service of writs issued by the courts of that colony or State outside its territory: Ashbury v. Ellis [10] ; Renton v. Renton [11] . In all the States, this power has been exercised under delegation to make rules of court providing for extraterritorial service of writs. As the domestic laws of a State bind its courts, extraterritorial service in accordance with that State's domestic laws is valid in the eyes of the courts of that State. But the courts of another State are not bound by those laws. Therefore the laws of each State which authorize extraterritorial service of writs issued out of the courts of the State were and are ineffective by themselves to secure recognition by the courts of other States of the validity of extraterritorial service of such writs or of judgments given in the exercise of jurisdiction founded merely on that service. Statute apart, a judgment in a personal action founded on extraterritorial service of the writ is not recognized outside the territory of the court out of which the writ is issued, even though service is effected in accordance with a domestic law which binds the issuing court and the judgment of that court is entered in accordance with that domestic law: Sirdar Gurdyal Singh v. Rajah of Faridkote [12] ; City Finance Co. Ltd. v. Matthew Harvey & Co. Ltd. [13] . The rules of court of a State court were and are insufficient by themselves to ensure recognition by the courts of other States of a judgment in a personal action founded on extraterritorial service of a writ in accordance with those rules.
In this situation, s. 51(xxiv) of the Constitution conferred on the Parliament a power to make laws with respect to -
The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States. The power was speedily exercised when the Act was enacted in 1901. Part II of the Act deals with service of process and Pt IV with enforcement of civil judgments. Section 4(1) of the Act provides: A writ of summons issued out of or requiring the defendant to appear at 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. This provision applies to extraterritorial service within the Commonwealth of all writs issued out of an Australian court of record: Luke v. Mayoh [14] . As part of the laws of the Commonwealth, the Act binds the courts, judges and people of every State (covering cl. 5 of the Constitution), so that the writ of every court of record within the Commonwealth is recognized by all Australian courts as running throughout the Commonwealth provided it bears the indorsements prescribed by s. 5 (s. 6 makes the prescribed indorsements mandatory). Section 4(1) of the Act does not purport to authorize service outside the Commonwealth. 1. (1921) 29 C.L.R. 435.
Although s. 4(1) authorizes extraterritorial service within the Commonwealth of any writ, the Act does not confer jurisdiction on or affirm the jurisdiction of the court out of which the writ is issued to entertain every action commenced by the issue of a writ thus served. In any case in which the defendant does not appear, s. 11 requires a plaintiff to obtain liberty to proceed and limits the categories of cases in which liberty to proceed can be ordered. If the defendant appears or liberty to proceed is ordered, the court out of which the writ is issued has jurisdiction to hear and determine the action. Then, a judgment founded on extraterritorial service under the Act has the effect which the judgment would have had if the writ had been served on the defendant within the jurisdiction of the court of issue: s. 12. Thus the validity of any judgment of a State court of record in a personal action would be recognized by the courts of other States if the judgment were founded on service of a writ under the Act. The problem of non-recognition of a judgment founded on extraterritorial service of the writ is overcome by Pt II. But if, after service of a writ under the Act, the defendant does not appear and liberty to proceed is not or cannot be ordered, the Act creates no jurisdiction to hear and determine the action founded on that service.
Part IV of the Act provides for the enforcement throughout the Commonwealth of the judgments of any court of record of any State or part of the Commonwealth. Part IV thus makes enforceable throughout the Commonwealth any judgment of a State court of record in a personal action which is regularly obtained according to the domestic law of that State, whether or not the jurisdiction of the court to enter the judgment would otherwise be recognized outside the State. As Pt II has been regarded, throughout the long history of the Act, as operating in parallel with State laws providing for extraterritorial service, Pt IV has been understood as extending to enforcement of a judgment founded on extraterritorial service, whether the service is effected under the Act or under a State law (typically, under a rule of court). We are not directly concerned with the operation of Pt IV in this case, except to the extent that its operation throws light on the meaning and effect of Pt II.
Part II is facultative: it authorizes effective extraterritorial service of a writ and confers or affirms jurisdiction in the court out of which the writ is issued, subject to stated conditions, to hear and determine proceedings founded on service under the Act and, overriding the common law, Pt II requires all courts throughout the Commonwealth to recognize the validity of service under the Act and the jurisdiction of the issuing court founded on that service. The rules of court are facultative also. A facultative law of a State is not necessarily inconsistent with a facultative law of the Commonwealth dealing with the same subject: Victoria v. The Commonwealth ("The Kakariki") [15] . There is no necessary inconsistency when both laws confer authority to do the same thing but, if authority is conferred by the respective laws on different conditions or so as to attract different legal consequences, a single exercise of the authority conferred cannot attract both sets of conditions and consequences. Either the laws are inconsistent and s. 109 resolves the inconsistency so that the Commonwealth law confers the only authority or the authority conferred by each law is strictly alternative to the authority conferred by the other. In order to determine whether State laws authorizing extraterritorial service are inconsistent with the Act or whether the authority conferred by the State law is alternative to the authority conferred by the Act, it is necessary to examine the respective provisions authorizing service and the respective conditions and consequences attached to service under each law.
Part II of the Act authorizes extraterritorial service of all writs issued out of a court of record which bear the indorsements prescribed by s. 5. No judicial order is necessary to authorize service under the Act. Service of a writ under the Act does not, without more, found jurisdiction to hear and determine the action commenced by the writ: the jurisdiction of the court further depends on the defendant's appearance to the writ or on the making of an order giving liberty to proceed under s. 11. The scheme of the Act is not to empower a court to authorize service out of the jurisdiction; the scheme is to permit service generally but to limit the jurisdiction of the court to entertain the action. The operation of the Act may be contrasted with the operation of a scheme for extraterritorial service pursuant to a prior judicial order which Mason and Deane JJ. described in Gosper v. Sawyer [16] :
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. The jurisdiction of a State court which is founded on extraterritorial service under the Act does not flow from any curial power to order extraterritorial service of the writ. No curial order in that behalf is necessary or appropriate. No jurisdiction is conferred or affirmed by the Act merely upon extraterritorial service of the writ: jurisdiction under the Act depends on service under the Act and on satisfaction of one or other of the conditions prescribed by s. 11. The categories of cases mentioned in s. 11 therefore become material only if the defendant does not appear: if there is no appearance, the court's jurisdiction under the Act is limited by those categories, but if the defendant appears the categories are immaterial. 1. (1985) 160 C.L.R., at p. 565.
The Act and the rules of a State court may prescribe different periods as the minimum times limited for appearance. The times limited for appearance to a writ for service under the Act are prescribed by s. 8. The periods prescribed by the Act may exceed the times prescribed under the relevant rules of court, but they cannot be shorter than the time prescribed by those rules. Also, there may be differences relating to appearance and security for costs. An appearance to a writ served under the Act which does not give an address for service within 10 km of the court may be set aside as irregular: s. 9. A defendant served under the Act has a statutory right to apply for security for costs (s. 10), which may be ordered in exercise of federal jurisdiction: see McGlew [17] . The Act thus establishes a particular regime governing service out of the jurisdiction within the Commonwealth of all writs issued out of a court of record (ss. 4, 5, 6, 8) prescribing conditions upon the jurisdiction of the court under the Act to proceed to hear and determine the action (s. 11), and attaching consequences to service under the Act: ss. 9, 10.
The regime established by the Rules of Court of the Supreme Court of New South Wales is different. Part 10 of the Rules (and the rules of other courts which adopt the general form of O. 11 of the English Rules of the Supreme Court) provide for service out of the jurisdiction of particular classes of writs only. The Court has no power to give leave to serve a writ out of the jurisdiction in cases which do not fall within the categories set out in Pt 10, r. 1: In re Busfield [18] ; Waterhouse v. Reid [19] ; Siskina (Cargo Owners) v. Distos S.A. [20] . Part 10 relates to extraterritorial service of particular classes of writs; s. 4(1) of the Act relates to extraterritorial service within the Commonwealth of all writs issued out of a court of record. Under the Rules, a plaintiff who has filed originating process does not generally require the leave of the Court before taking a further step in the proceeding (Pt 11, r. 2), though prior leave to serve or subsequent confirmation of service is needed if a writ is to be or is served out of the jurisdiction unless the defendant waives objection by entering an appearance: Pt 10, r. 2. If prior leave is given under the Rules, the jurisdiction of the Court to entertain the action once service is effected is unconditional whether or not the defendant enters an appearance. If the writ is served without prior leave, confirmation of service is necessary if no appearance is entered but, unlike an order giving liberty to proceed under s. 11 of the Act, an order of confirmation under the Rules cannot be made without proof that the plaintiff "has a prima facie case for the relief which he seeks": Pt 10, r. 2. The times limited for appearance under Pt 7, r. 5(1) of the Rules are different from those specified in s. 8 of the Act, though r. 5(2) provides, in somewhat delphic terms, that r. 5(1) "has effect subject to the Service and Execution of Process Act 1901". The Rules contain quite detailed provisions relating to appearance and address for service: Pt 11, rr. 3-7; Pt 9, r. 6. No right is expressly given to a defendant served out of the jurisdiction to apply for security for his costs (Pt 53, r. 2 does not mention service out of the jurisdiction as a case in which security for costs may be ordered), though the defendant may presumably invoke the inherent jurisdiction of the Court to make such an order.
The regime prescribed by the Act with respect to extraterritorial service of writs is different from the regime prescribed by the Rules. The respective regimes contain inconsistent rules applicable to the steps to be taken in a proceeding. It is impossible to apply both regimes to a single extraterritorial service of a writ: to any particular extraterritorial service of a writ one regime or the other must apply. The problem is to define the principles by reference to which the applicable regime is ascertained.
When a writ has been served under the Act, ss. 9, 10 and 11 of the Act are expressed to apply to the proceedings. Neither the court nor any of the parties can choose to treat those provisions as inapplicable to proceedings in which the writ is served under the Act. The regime prescribed by the Act must, by force of s. 109 of the Constitution, have a clear field of operation in cases to which it applies (University of Wollongong v. Metwally [21] ) so that the parties to a proceeding commenced by a writ served under Pt II of the Act may ignore the provisions of any rules of court which are inconsistent with the Act: Metwally [22] . If a particular writ is indorsed for service under the Act and is served out of the jurisdiction and service is effected in conformity with the provisions of both the Act and the rules of a State court of record, the writ is none the less served "under the Act" and the Act prescribes rules applicable to the proceedings. The rules of court may supplement the provisions of the Act but may not effectively prescribe a rule governing a matter which is governed by the Act. What the rules cannot do is to prescribe a procedure applicable to a particular proceeding inconsistent with the regime prescribed by the Act as applicable to that proceeding.
To say that rules of court are inoperative to the extent of inconsistency with the Act when a writ is served under the Act is not to say that the regime prescribed by the rules can never have any operation. There are two possibilities: the Act may be an exhaustive code with respect to extraterritorial service within the Commonwealth of writs issued out of a court of record or the Act may apply to the exclusion of inconsistent rules only where the writ is served "under the Act".
The weight of opinion in this Court (see Renton v. Renton [23] ; Luke v. Mayoh [24] ; Laurie v. Carroll [25] ) and the course of authority in the Supreme Courts of the States are against the proposition that the Act is an exhaustive code, though the question has not hitherto fallen for decision by this Court. However, an argument in favour of the proposition that the Act is an exhaustive code can be derived from the general terms of Pt IV of the Act. There may seem to be some incongruity in the Act if Pt IV provides for the enforcement throughout the Commonwealth of any judgment of a State court of record while s. 11 imposes a limitation on the court's jurisdiction under the Act to entertain some categories of cases unless the defendant appears. Can the Parliament have intended that a judgment of a State court of record which is founded on extraterritorial service under State law should be enforceable throughout the Commonwealth although that court would have had no jurisdiction to proceed to judgment under Pt II of the Act in the absence of appearance by the defendant or an order giving liberty to proceed? If Pt IV operates on all judgments of a court of record, State laws can expand the extraterritorial jurisdiction of State courts of record as they see fit without the judgments given in exercise of that jurisdiction being visited with non-recognition by the courts of the other States or parts of the Commonwealth in which the judgment is to be enforced. A particular State's avidity for jurisdiction would thus go unchecked either by the common law or by the domestic laws of other States. That may seem to be an unwanted result of the broad language of the Act. The assumption by State courts of extraterritorial jurisdiction which would otherwise have been unrecognized outside the territory of the forum has not occasioned much difficulty in Australia but that may be due to the relatively insignificant differences which have hitherto existed between the various State laws which provide for extraterritorial service of process. Some may think that Pt IV and Pt II should be read so as to cover the same cases - either by reading down Pt IV so that it covers judgments founded on extraterritorial service only if jurisdiction is exercised in conformity with the provisions of Pt II of the Act, or by construing Pt II as an exhaustive code which precludes the entering of judgments founded on extraterritorial service unless the jurisdiction to enter the judgment is conferred or affirmed by Pt II of the Act. Part IV cannot be read down in the way suggested. It applies to judgments founded on extraterritorial service outside the Commonwealth and to judgments entered before the commencement of the Act (s. 20) - judgments in cases to which Pt II could not apply - and there is no reason to be derived from the text of the Act for confining the operation of Pt IV with respect to judgments founded on extraterritorial service to judgments founded on service under the Act. That leaves the construction of Pt II for consideration. Notwithstanding the traditional view, should Pt II be construed as an exhaustive code in order to dispel the prospect of a competition for jurisdiction among State courts? That prospect should not be dispelled at this time by judicial decision. If a problem emerges - and the present case may be a harbinger of future difficulty - a restrictive amendment to Pt IV might require consideration.
Although Pt II of the Act does not prescribe an exclusive regime for extraterritorial service within the Commonwealth of the writs of State courts of record, when a writ is served "under the Act" the regime prescribed by the Act prevails over any inconsistent rule of court. As inconsistent regimes cannot operate with respect to proceedings consequent on the extraterritorial service of a particular writ, the authority for service of a particular writ must be attributed either to the Act or to a rule of court. It is necessary to determine in each case whether or not the service on which the jurisdiction of the court is founded is service under the Act; if it is service under the Act, it cannot be treated as service under a rule of court.
What attracts the operation of the Act to extraterritorial service of a writ issued out of a court of record? Part II applies to the extraterritorial service within the Commonwealth of any writ issued out of a court of record only if the writ bears the indorsements prescribed by s. 5; otherwise the writ is "ineffective for service under this Act": s. 6. If a writ bears those indorsements, its service out of the jurisdiction is governed by Pt II of the Act and the Act prescribes the conditions and consequences of service of that writ out of the jurisdiction. It is erroneous to regard the s. 5 indorsements as mere surplusage having no legal significance unless the plaintiff chooses subsequently to rely on the Act: by indorsing a writ in accordance with s. 5, a plaintiff stamps the writ with the character of a writ for service under the Act. If a writ issued out of a court of record is so indorsed, its service out of the jurisdiction is service "under the Act" by virtue of s. 4(1). Extraterritorial service of a duly indorsed writ attracts the operation of the Act irrespective of the plaintiff's intention at the time of issue or of service or subsequently. Once a writ has been indorsed for service "under the Act", the Act governs its extraterritorial service within the Commonwealth, and once it is served under the Act, the Act prevails over any inconsistent rule of court applicable to the proceeding. If service of the writ could be effected indifferently under Pt II and under State rules of court, the requirements relating to the defendant's address for service, the right of the defendant to apply for security for costs, and the jurisdiction of the court to proceed in the event of non-appearance by the defendant would be governed by inconsistent laws. The laws governing the times limited for appearance might also be inconsistent in some cases. If the service of the writ were treated as effective under both laws, s. 109 would not be available to resolve the inconsistency. Yet, if an inconsistency between such laws exists, there is no other rule than that laid down by s. 109 by which inconsistency may be resolved (Metwally [26] , per Gibbs C.J.), and to admit the concurrent existence of inconsistent regimes would produce intolerable confusion.
In the present case, the originating statement of claim bore the indorsements prescribed by s. 5. It was served out of the jurisdiction. It specified a time for service which complied with the requirements of s. 8. The service was therefore effective service under the Act: s. 4(1). Having procured the issue of a writ for service under the Act and having served the writ under the Act, the plaintiff cannot now repudiate the Act as the source of the authority for service and, by treating the indorsements as mere surplusage, avoid the requirements of s. 11 and seek to proceed as though the service was effected solely under the Rules of Court. A plaintiff in the Supreme Court of New South Wales may, if he wishes, rely on the provisions of the Rules of that Court to authorize extraterritorial service of a writ though such service is not universally recognized as valid according to private international law, and Pt IV will permit him to enforce any judgment founded on that service throughout the Commonwealth. But if he effects service of his writ under the Act, he cannot then seek to rely on the Rules to escape the conditions which s. 11 of the Act imposes.
There are some cases where a plaintiff may need to invoke the provisions of Pt II of the Act in order to found the jurisdiction of a State court: e.g., when the case is not within the categories for which a State law provides authority for extraterritorial service, or when it is intended to seek recognition of a judgment by an overseas court which would look to the provisions of Pt II in order to satisfy itself as to the validity according to the principles of private international law of the service outside a State of a writ issued out of a State court. There are other cases where a plaintiff may wish to avoid the conditions affecting service under the Act and where he may opt for the alternative regime prescribed by the rules of court. But there are no cases where a plaintiff may invoke the provisions of Pt II of the Act by serving a duly indorsed writ out of the jurisdiction and then avoid the conditions imposed by that Part and the consequences which such service entails.
In this case, Hunt J. was right to dismiss the defendant's application to set aside service of the originating statement of claim upon him. Service was regularly effected under the Act. But that conclusion leaves no room for the procedure of confirming service for which Pt 10 of the Rules provides. Once service is effected under the Act, the requirements of s. 11 of the Act cannot be circumvented by the procedural legerdemain of invoking the regime prescribed by the Rules.
I would dismiss the appeal against the order of the Court of Appeal so far as it dismissed the appeal against the order of Hunt J. dismissing the defendant's application to set aside service. I would allow the appeal against the order of the Court of Appeal so far as it dismissed the appeal against the order of Hunt J. affirming service and in lieu thereof I would order that the application to confirm service be dismissed. In accordance with the condition imposed on the grant of special leave, the appellant must pay the respondent's costs.
Section 51(xxiv) of the Constitution confers on the Parliament of the Commonwealth legislative power with respect to the service and execution throughout the Commonwealth of the process and the judgments of State courts. Where questions of service outside territorial jurisdiction are concerned, jurisdiction in an action in personam ordinarily depends upon effective service: see Gosper v. Sawyer [27] . That being so, a valid law of the Commonwealth conferring or restricting authority to serve the initiating process of a State court outside the territory of the State effectively extends or confines the jurisdiction of that court. Where such a valid law of the Commonwealth requires, as an element of effective service of the originating process of a State court outside the territorial limits of the State, the exercise by the State court of judicial functions, those functions will be exercised under the Commonwealth law and will involve an exercise by the State court of federal jurisdiction. Once that federal jurisdiction in relation to service has been exercised and service has been effected however, it is State jurisdiction which is subsequently exercised pursuant to that service except, of course, to the extent that the determination of the substantive issues involves an exercise of federal jurisdiction.
The object of the conferral of the legislative power contained in s. 51(xxiv) would seem to have been to enable the Parliament of the Commonwealth, subject to the possible restraints of s. 118 of the Constitution (the "full faith and credit" clause), to enact a "uniform law" regulating the service and execution of the process and the enforcement of the judgments of State courts throughout the nation: see Quick & Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 614 and, as to the position before federation, ibid., pp. 614-619. Such a uniform law would be expected to replace the previous disorder with a comprehensive scheme governing the service within the Commonwealth of State process outside the territorial limits of the particular State and thereby to promote consistency in the extent of the jurisdiction of the courts of the various States with respect to persons within other parts of the Commonwealth.
Were the slate clean, I would have been inclined to view the legislative scheme which was enacted, pursuant to the legislative power conferred by s. 51(xxiv), in the Service and Execution of Process Act 1901 Cth ("the Commonwealth Act") as intended to constitute such a comprehensive uniform law defining exhaustively, rather than supplementing, the procedures pursuant to which the process of State courts might be served throughout the Commonwealth upon persons outside the territorial jurisdiction of the particular State. However, the slate is not clean. As the judgment of Mason A.C.J., Wilson and Dawson JJ. demonstrates, the settled practice and the unbroken trend of judicial decisions over the years since 1901 when the Service and Execution of Process Act was enacted has been to the effect that the provisions of that Act should not be construed as intended to be exhaustive. If the Commonwealth Parliament desires to institute such a comprehensive scheme defining the extraterritorial service of State process within the Commonwealth, it would, as I presently see the matter, be competent so to do pursuant to the provisions of s. 51(xxiv) of the Constitution. On balance, however, the weight of long-entrenched practice and the clear and settled trend of judicial authority is such as to prevail over other considerations and effectively to preclude a conclusion that the Commonwealth Act should be construed as embodying such a comprehensive legislative scheme or as intended to exclude the operation of the provisions of State laws authorizing service. That being so, I regard myself as constrained to agree with the other members of the Court that the provisions of the Commonwealth Act should be construed as generally supplemental of the provisions of State law relating to the service of the process of State courts outside territorial jurisdiction.
That conclusion does not, however, suffice to dispose of the problem involved in the present case. The fact that there is no overall inconsistency, for the purposes of s. 109 of the Constitution, in the concurrent existence of Commonwealth and State laws authorizing the service of State process outside the jurisdiction does not mean that the Commonwealth law does not cover the field in the narrower or operative sense of precluding reliance upon the State law in a particular case where the procedure under the Commonwealth law has been invoked. In his judgment in the present case, Brennan J. convincingly demonstrates that the plain inference to be discerned in the Commonwealth Act is that the regime which it establishes was intended to have a clear field of operation in cases in which it is invoked and that there is inconsistency, for the purposes of s. 109 of the Constitution, to the extent that the State Rules of Court would otherwise authorize the application to the same case of the regime which they establish. I also agree, for the reasons which Brennan J. gives, that the regime established by the Commonwealth Act had been invoked in, and made applicable to, the present case with the result that the provisions of the Rules of Court upon which the respondent seeks to rely were invalid, by reason of the provisions of s. 109 of the Constitution, to the extent that they would otherwise have been applicable to confer authority for service outside the jurisdiction. Indeed, if one were to require an example of the potential confusion and disorder which would be involved if the Commonwealth Act were construed as not intended comprehensively to confer the authority to serve outside the jurisdiction and to define the procedure to be followed in the cases to which the regime which it establishes has been made applicable, one would need to look no further than the present case where the appellant, who was a twenty-one-year-old storeman who had "lived as a permanent resident of Queensland all [his] life", is being sued in the Supreme Court of New South Wales for alleged negligence in his driving on a Queensland road. It would not only have been impossible for the appellant, as a layman, to tell from an examination of it that the initiating process of the Supreme Court of New South Wales was served upon him in Queensland pursuant to the Rules of the Supreme Court of New South Wales but examination of that process by a lawyer would have wrongly indicated that it was being served pursuant to the Commonwealth Act.
Flaherty
Girgis