Gosper v Sawyer

Gosper v Sawyer - [1985] HCA 19 - HCA 1984 case summary — Zoe

[22]

The Industrial Arbitration (General) Regulations contain a number of provisions that deal expressly with the question of service: see regs. 38, 137-141, 143. None, however, deals with service outside the jurisdiction. Regulation 157 is a general provision, but it is only "the practice of the Commission" that is in the circumstances mentioned in the regulation to be regulated by "the practice for the time being of the Supreme Court, in its Equitable Jurisdiction". The regulation is indistinguishable in material respects from s. 170 of the Companies Act 1862 UK which enacted that in cases not provided for by the rules to be made under the Act the general practice of the Court of Chancery, including the practice in winding-up companies, should be retained. In In re Anglo-African Steamship Co. [19] it was held by the Court of Appeal that s. 170 did not give the court jurisdiction to give leave to serve notice of orders and other proceedings in the winding up of a company on persons residing out of the jurisdiction. Cotton L.J. said [20] : "This is not a question of practice but of jurisdiction"; and Lopes L.J. said [1] : "What we are asked to do in this case depends not on practice, but jurisdiction." The view expressed by their Lordships, that the question was one of jurisdiction, is undeniably correct; in an action in personam, the rules as to the legal service of the writ define the limits of the jurisdiction of the court and the question whether service can be effected out of the jurisdiction "does not involve a matter of procedure but an extension of jurisdiction": see Laurie v. Carroll [2] . Further, "a power to regulate the practice of a Court does not involve or imply any power to alter the extent or nature of its jurisdiction": Attorney-General v. Sillem [3] , cited in The Commonwealth v. Limerick Steamship Co. Ltd. and Kidman [4] . A provision framed in terms of reg. 157 does not confer a power to enlarge jurisdiction by permitting service out of the jurisdiction.

[27]

The question then arises whether service of the notice of motion might be effected outside the jurisdiction under the Service and Execution of Process Act, assuming, of course, that the notice was sufficiently indorsed as required by s. 5 of that Act. Under that Act, a writ of summons issued out of any court of record of a State may be served on the defendant in any other State (s. 4(1)), and if no appearance is entered or made by the defendant, the court or a judge may give the plaintiff liberty to proceed if (inter alia) it is made to appear - "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": s. 11(1)(b). In the present case the contract of employment between Shell and Mr. Sawyer was entered into in the State of New South Wales. It was submitted on behalf of Mr. Sawyer that the relief sought in the present proceedings was by way of affecting that contract, since, by the contract of employment, the employee was obliged to become a member of the Fund and accordingly to be bound by the trust deed. However, the relief sought against the trustees was not by way of affecting the contract of employment, to which, of course, they were not parties; what was sought was relief affecting the trust deed, as the words of the notice of motion show. It was submitted, in the alternative, that the relationship of the employee and the trustees under the trust deed was itself a contract within s. 11(1)(b). A wide meaning has been given to contract in s. 11(1)(b); it has been held that it extends to "an implied or constructive contract for which an action in the nature of assumpsit would at common law have been available" (seeVictoria v. Hansen [11] ) or, in other words, to "implied, constructive or fictitious contracts, without consensual element, but for purposes of the old forms of action, at any rate, deemed to amount to contract - cases where assumpsit or an indebitatus count would have been available at common law": Wilson Electric Transformer Co. Pty. Ltd. v. Electricity Commission (N.S.W.) [12] . It seems incongruous to have to determine the meaning of s. 11(1)(b) by reference to forms of action made obsolete by the Judicature Acts, but if that is an appropriate course it would not assist Mr. Sawyer in the present case. It does not need the authority of Bullen and Leake, Precedents of Pleadings, 3rd ed. (1868), pp. 35-57, to establish that an application to avoid or vary a trust deed could not possibly have been made by an action of assumpsit or on an indebitatus count. Even if s. 11(1)(b) is given its widest possible meaning, and if "contract" in that provision includes, not only quasi-contracts, but such things as judgments and statutes under which fixed sums of money are payable, it cannot include discretionary trusts, except perhaps in the case where the trustee has admitted that he holds trust money as that of the beneficiary: see Bullen and Leake, op. cit., p. 47. It is quite impossible to regard an application to avoid or vary the deed of trust in the present case as an application seeking relief in respect of a contract within s. 11(1)(b). Moreover, even if the trust deed could be held to be a contract, it was not made or entered into in New South Wales.

[29]

For these reasons the Commission had no power to authorize the service of its process on the trustees in Victoria. In any case, even if the trustees had submitted to the jurisdiction of the Commission, s. 88F would have conferred no power to avoid or vary the trusts of the Fund. The power given by s. 88F is to declare void in whole or in part or to vary in whole or in part "any contract or arrangement or any condition or collateral arrangement relating thereto whereby a person performs work in any industry". It may be assumed, without deciding, that the phrase "whereby a person performs work in any industry" governs "contract or arrangement" and not "collateral arrangement relating thereto" and that the power extends to avoid or vary, not only the contract or arrangement of employment, but also any collateral arrangement relating thereto. It may further be assumed, again without deciding the question, that a trust deed providing pension benefits for employees is a collateral arrangement within the section. However, the Fund in the present case is governed by a trust created in Victoria and (as cl. 34 of the trust deed states) is governed by the law of Victoria. A New South Wales statute could not constitutionally have the effect of altering the law of Victoria as to the administration of a Victorian trust (see Permanent Trustee Co. (Canberra) Ltd. v. Finlayson [13] ) and if s. 88F purported to have that effect it would be a nullity by the law of Victoria. However, there is nothing in the words of s. 88F that suggests that it was intended to give the Commission power to affect trusts governed by laws other than that of New South Wales. Under s. 88F the Commission has no power to alter trusts set up in another State which provide for the establishment of a pension fund, even though employees in New South Wales are beneficiaries under the trust. This conclusion is in no way inconsistent with Ex parte Richardson; Re Hildred [14] , where it was held that the Commission could grant relief under s. 88F in respect of a contract governed by the law of New South Wales, even though the contract was intended to be performed in part outside New South Wales. In the present case the contract of employment is governed by the law of New South Wales but the trust deed is not. The Commission has clear power, under s. 88F, to make an order with respect to a contract of employment governed by the law of New South Wales and to avoid or vary a term of that contract which requires the employee to become a member of a pension scheme established under a trust governed by the law of Victoria. However, it is the contract, and not the trust, that the Commission has power to avoid or vary in such a case. In the present case the order sought against the trustees is to avoid or vary the trust deed, and that is beyond the power of the Commission.

[40]

At the outset, a distinction should be drawn between the wide content of what is often referred to as "procedural law" or "civil procedural law" and the narrower content of what may properly be referred to as the "practice" or the "procedure" of a particular court or tribunal. The phrases "law of civil procedure" and "law of actions" have long been used to identify so much of domestic or local law as is concerned with the enforcement of civil rights and the administration of civil justice. So understood, the law of civil procedure comprises three main overlapping parts. The first is the "institutional part" which deals with the structure, jurisdiction and administration of the various courts and tribunals entrusted with the administration of civil justice. The second is the "professional part" which deals with the judiciary, the legal profession, legal administrators and the provision of legal services both within government and to the citizen. The third is the "procedural part" which deals with the practice and procedure within the established courts administering civil law at pre-trial, trial and post-trial stages: see, generally, Sir Jack Jacob, The Reform of Civil Procedural Law, The Law Teacher, vol. 14 (1980) 1, at pp. 2-3 . In contrast, the "practice" or "practice or usage" of a particular court or tribunal comprises only those provisions of that third part which are concerned with the practice and procedure observed by that court or tribunal in the exercise of the jurisdiction with which it is entrusted: "the rules that make or guide the cursus curiae, and regulate the proceedings in a cause within the limits of the Court itself: Attorney-General v. Sillem" [15] . The references to the "practice" and "practice or usage" of the Commission in reg. 157 must, in our view, be read in that limited sense. They are inadequate and inappropriate to encompass the provisions of the "institutional part" of civil procedural law which confer or define the actual jurisdiction of the relevant court or tribunal.

[49]

The provisions of the Service and Execution of Process Act upon which reliance is placed to sustain the Commission's jurisdiction in the present case are to be found in ss. 4(1) and 11(1). Section 4(1) provides that a "writ of summons" (which, by virtue of definitions contained in s. 3 and subject to presently irrelevant exceptions, includes "any writ or process" by which "any suit, action or original proceeding between parties or in rem" is commenced) issued out of 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. In isolation, the words of that sub-section would effect a surprisingly large expansion of the jurisdiction of all such courts since, as has been seen, a provision that a court's writ runs outside its territorial jurisdiction will ordinarily provide the basis for a corresponding expansion of jurisdiction in relation to those matters with which the court is otherwise competent to deal. The provisions of s. 11(1) of the Service and Execution of Process Act make clear, however, that that is not the effect of service pursuant to s. 4(1). If a defendant does not enter an appearance, the court whose process is served under s. 4(1) is only empowered to proceed with the hearing of the matter ("order from time to time that the plaintiff shall be at liberty to proceed") if it is made to appear to that court or to a judge thereof that the conditions set out in s. 11(1) are satisfied. It was submitted on behalf of Mr. Sawyer that his application against the appellants came within par. (b) of s. 11(1) which applies if it is made to appear: "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". It becomes necessary to attempt to identify with some precision the "relief" which Mr. Sawyer seeks in the application to the Commission against the appellants under s. 88F(1) of the Industrial Arbitration Act.

At a glance

Court

Decision date

Before

Source

Judgment (57 paragraphs)

Parties