Flaherty v Girgis

Flaherty v Girgis - [1987] HCA 17 - HCA 1981 case summary — Zoe

[29]

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.

[41]

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.

[54]

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.

[68]

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] :

[87]

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.

[93]

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.

[96]

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.

[104]

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.

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Judgment (104 paragraphs)

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