Laurie v Carroll

1 November 1994 Application for the issue of an examination summons filed. 25 November 1994 Order made for the examination of Mr Joye under s596B of the Corporations Law. 6 December 1994 Summons directed to Mr Joye to attend examination issued. 9 December 1994 Solicitors for the applicant provide the Sydney legal firm Speed & Stracey by facsimile transmission with a letter advising of the making of the order and the issue of the summons and seeking advice as to whether that firm has instructions to accept service on behalf of Mr Joye. A copy of the order and summons is also provided by facsimile transmission. (The original letter and copy order and summons are posted to Messrs Speed & Stracey and apparently received by them on 13 December 1994). 13 December 1994 Mr Joye leaves Australia (and does not subsequently return). 16 December 1994 Messrs Speed & Stracey by letter advise the solicitors for the applicant that they do not have instructions to accept service on behalf of Mr Joye. 2 February 1995 By Notice of Motion the applicant seeks an order for substituted service upon Mr Joye. 7 February 1995 The Registrar authorises substituted service upon Mr Joye. 14 February 1995 Substituted service is effected as authorised by the order of the Registrar. By Notice of Motion dated 17 March 1995 application was made on behalf of Mr Joye for the order authorising substituted service on Mr Joye to be set aside and for a declaration that the order and summons have not been duly served upon him. An oral application was made upon the first return of the Notice of Motion for an extension of time within which to apply to the Court to review the exercise of a power of the Court by the Registrar (Federal Court Act 1976 s35A(5); Federal Court Rules O46 r7B). The issue raised by the Notice of Motion is an important one going to the Court's jurisdiction. An extension of time until 17 March 1995 was allowed. Section 35A(6) of the Federal Court Act provides as follows:- "The Court may, on application under subsection (5) or of its own motion, review an exercise of power by a Registrar pursuant to this section and may make such order or orders as it thinks fit with respect to the matter with respect to which the power was exercised." In my view this provision provides for the Court to reconsider in the light of evidence before it and the law as at the time of the review, the rights of the parties (Builders Licensing Board v Sperway Constructions (Syd.) Pty Ltd (1976) 135 CLR 616 per Mason J at 619-625; Wigg v Architects Board of South Australia (1984) 36 SASR 111). EVIDENCE NOT RECEIVED When the Notice of Motion came on for hearing Mr Coles QC, who appeared with Mr Jackman for Mr Joye, made application to place in evidence affidavits filed on behalf of Mr Joye. I ruled against the admission of certain of these affidavits. It is appropriate to record here my reasons for so ruling. The first affidavit which I refused to allow into evidence was an affidavit of Mr Jonathan Charles Clarke ("Mr Clarke") sworn on 21 March 1995. Mr Clarke is a partner of the firm Cowell Clarke, solicitors for Mr Joye in these proceedings. The affidavit deals with two matters. First it annexes an unsigned copy affidavit prepared by Mr Clarke with the intention that it should be sworn by Mr Joye. Mr Clarke deposes to having spoken to Mr Joye by telephone and to having been advised by him that the contents of the affidavit were true and that he (Mr Joye) would arrange for the affidavit to be appropriately executed and returned to Mr Clarke with instructions for its filing in this Court. Secondly the affidavit refers to a telephone conversation between Mr Clarke and Mr Robert Horsell ("Mr Horsell") during which Mr Horsell informed Mr Clarke that for the financial year ending 30 June 1991 he had been the accountant who prepared Mr Joye's income tax return to be filed in Australia, and that such income tax return had been filed with a statement that Mr Joye's permanent place of residence became during the year of income ending 30 June 1991, England. Mr Sulan QC, who appeared with Ms Hurford for the applicant, objected to the affidavit of Mr Clarke sworn 21 March 1995 being received into evidence. He drew attention to the terms of Federal Court Rules O33 r2 which are as follows:- "(1)This rule applies only to evidence other than evidence on an issue at a trial and only where the circumstances are such that undue delay or inconvenience would otherwise be caused. (2)Where a statement on information and belief is made by a deponent in an affidavit, or by a witness being examined orally, and the deponent or witness gives the source and ground of the information, the Court or Judge may admit such statement notwithstanding that it is hearsay. (3)Where a deponent swears in an affidavit .... that a document is a copy of an original, the Court or Judge may admit the document as evidence of the contents of the original notwithstanding that the original is not produced." Mr Sulan submitted that no undue delay or inconvenience would be caused by a refusal to admit into evidence the unsigned copy affidavit exhibited to Mr Clarke's affidavit as at least a copy of the sworn affidavit was available to be placed in evidence. In such circumstances, he argued, it would be inappropriate to allow Mr Clarke to give evidence concerning the unsworn copy. As to Mr Clarke's evidence concerning his telephone conversation with Mr Horsell, Mr Sulan argued that it had not been shown that delay or inconvenience would be caused by Mr Horsell himself swearing an affidavit. He indicated, however, that he had no objection to the tender of the copy statement as to Mr Joye's permanent place of residence referred to in Mr Clarke's affidavit. Such statement was tendered. It reads as follows:- "IAN EDWARD JOYE 1991 INCOME TAX RETURN FILE NO: [given but not here reproduced] The permanent place of residence of the taxpayer became during the year of income ended 30th June, 1991, England. Accordingly, this is a Final Return and future returns will only be lodged if the taxpayer derives Australian assessable income." I agree with Mr Sulan that it would be inappropriate in the circumstances of this case to allow proof of Mr Joye's evidence by the admission into evidence of Mr Clarke's affidavit of 21 March 1995. I feel strengthened in this conclusion by the fact that a later affidavit filed by Mr Clarke shows that the affidavit in fact sworn by Mr Joye differs in some respects from the copy unsworn affidavit exhibited by Mr Clarke to his affidavit of 21 March 1995. As to the evidence of Mr Horsell, once the copy statement itself was received into evidence the remaining evidence from him contained in Mr Clarke's affidavit became, in my view, irrelevant. Mr Coles then sought to file in Court and have received into evidence an affidavit of Mr Joye sworn in the State of Hawaii on 27 April 1995. This affidavit is in similar but not identical terms to the copy unsworn affidavit exhibited to Mr Clarke's affidavit of 21 March 1995. As is mentioned above and discussed further below, a copy of this affidavit is annexed to an affidavit sworn by Mr Clarke on 28 April 1995. Mr Sulan made it clear that he wished to cross-examine Mr Joye but he did not oppose the filing of the affidavit of Mr Joye. The affidavit was filed in Court. Mr Sulan objected to the affidavit being received into evidence without Mr Joye attending for cross-examination. He placed reliance on O14 r9 of the Federal Court Rules. Order 14 rule 9, so far as is here relevant, provides as follows:- "(1)A party may require the attendance for cross-examination of a person making an affidavit. (2)A requirement under sub-rule (1) shall be made to the party filing or proposing to use the affidavit. (3)Where the attendance of a person is required under sub-rule (1) and he does not attend, his affidavit shall not be used without the leave of the Court." The rule does not set a time limit for the giving of notice that the person making an affidavit is required for cross-examination. I agree with Lockhart J, whose decision is referred to without adverse comment by the Full Court of the Federal Court in Little v Registrar of the High Court of Australia (1991) 29 FCR 544 at 554, that O14 r9 requires that notice be given within a time that is reasonable in all the circumstances. The solicitors for the applicant gave notice on 18 May 1995 to the solicitors for Mr Joye that they required the attendance of Mr Joye for cross-examination at the hearing of this matter. The hearing was scheduled for, and took place upon 23 May 1995. On 19 May 1995 the solicitors for Mr Joye responded to the notice given on behalf of the applicant. Their response reads in part:- "Our client is overseas. We have been unable to make contact with our client for the past week. We presently have no instructions as to his whereabouts. Our most recent attempt to contact him by facsimile was unsuccessful." The response went on to assert that in the circumstances the timing of the request was unreasonable. Application of O14 r9 in the circumstances of this case involves difficulties. First, there was no compliance by those acting on Mr Joye's behalf with the time-table set by the Court for the filing and serving of affidavits or with O14 rr6 and 7(1) of the Federal Court Rules so far as Mr Joye's affidavit is concerned. Although an affidavit sworn by Mr Clarke exhibiting a copy of a facsimile copy of Mr Joye's affidavit had been earlier filed, and as I understand served, Mr Joye's actual affidavit was only filed during the course of the hearing before me. It was not suggested that it had earlier been served on the applicant and I assume that it had not been (other than in the form referred to above as an exhibit to an affidavit of Mr Clarke). In my view the failure of those acting on Mr Joye's behalf to file the original and serve a copy of the affidavit of Mr Joye a reasonable time before the hearing of this matter had the result that on a strict reading of O14 rr6, 7 and 9 the applicant was not in a position to give what would otherwise be considered reasonable notice pursuant to O14 r9 of a requirement that Mr Joye attend for cross-examination. A party who chooses to file during the course of a hearing an affidavit upon which he or she wishes to rely faces the risk that the deponent will be required for cross-examination, and in my view, ought in caution to have the deponent available for cross-examination unless he or she has reached an agreement with the other side that it is not necessary to do so. In this case it had been stated during the course of directions hearings by those representing the applicant that the filing of an affidavit sworn by Mr Joye would be likely to result in his being required to attend for cross-examination. The applicant was placed on notice by the filing of affidavits sworn by Mr Clarke that reliance might be sought to be placed on copy affidavits sworn by Mr Joye. Notice was given on behalf of the applicant that he required the attendance of Mr Joye for cross-examination. In my view such notice was not required by O14 r9 to be given before the filing of Mr Joye's affidavit although, in the circumstances, the good sense of its having been given is apparent. Were the notice one given pursuant to the requirements of O14 r9 I doubt that it could be found to have been given within a reasonable time in all of the circumstances which include Mr Joye's absence from Australia. I note, however, that a notice given a week earlier, which I consider would have constituted reasonable notice in all of the circumstances, would apparently have been equally unlikely to have come to Mr Joye's attention before the scheduled hearing date. In my view, once Mr Sulan had invoked the provisions of O14 r9 with respect to Mr Joye's affidavit filed in court the leave of the Court was required before Mr Joye's affidavit could be used. In a case of this kind in which the validity of service upon a person who at the time of such service was out of Australia is in issue, it would not, I consider, be appropriate to require that person to return to Australia for the purpose of being cross-examined. Any defect in service could be redressed upon his or her return to Australia. However it is possible for a party outside of Australia to be cross-examined in the course of a hearing within Australia. Against this background I accept the submission of Mr Sulan that it is reasonable in the circumstances of this case for the applicant to require that Mr Joye be available for cross-examination. The circumstances in which Mr Joye left Australia and his state of knowledge of these proceedings at that time are potentially important issues in these proceedings. Although these topics are dealt with briefly in Mr Joye's affidavit, Mr Sulan suggests, with some justification in my view, that the wording of the affidavit is careful. No other evidence has been placed in this Court which touches directly on these issues so as to minimise the importance of cross-examination of Mr Joye. Mr Sulan applied on behalf of the applicant for orders:- (a) that Mr Joye be cross-examined by telephone or video-link; and (b) that the hearing be adjourned to allow arrangements for such cross-examination to take place. Mr Sulan informed the Court that he was instructed that his client would agree to pay the costs thrown away of Mr Joye by reason of any such adjournment. Mr Coles responded that his client opposed any adjournment, although no prejudice to his client other than that of a likely delay in the conclusion of the proceedings was identified. Mr Coles made reference to principles of orderly case management. I advised counsel that I favoured deferring further consideration of the application to rely upon the affidavit of Mr Joye and adjourning the hearing of this matter for a period in the order of one month to allow those representing Mr Joye to seek to make arrangements for him to be cross-examined by telephone or video-link. I indicated (on reflection perhaps somewhat unfairly to the applicant) that this should be on the basis that the applicant pay Mr Joye's costs thrown away by reason of the adjournment. Mr Coles indicated that he was instructed to oppose any adjournment for such purpose and that it was recognised by those who instructed him that a consequence of such opposition might be that Mr Joye's affidavit would not be received in evidence. I thereupon declined to receive the affidavit of Mr Joye into evidence. An application was then made by Mr Coles to place into evidence an affidavit of Mr Clarke sworn 28 April 1995. In this affidavit Mr Clarke deposes to receiving by facsimile transmission an affidavit sworn by Mr Joye. A copy affidavit is exhibited to the affidavit: it is a copy of the affidavit of Mr Joye sworn 27 April 1995 discussed above. No other evidentiary material is contained in or exhibited to the affidavit of Mr Clarke. In view of my ruling with respect to the affidavit of Mr Joye I declined to receive into evidence the affidavit of Mr Clarke dated 28 April 1995. ADDITIONAL FACTS The only matters of fact seriously in dispute before me concern Mr Joye's knowledge (if any) of these proceedings when he left Australia on 13 December 1994 and his then intention (if any) concerning service of the order and summons. On the view which I have taken of the law these matters are not of significance. I have nonetheless considered it appropriate to make certain findings of fact. There is no direct evidence before me as to Mr Joye's knowledge of, or intentions concerning, the service of the order and summons as at 13 December 1994. Certain surrounding circumstances have been established. I am satisfied on the evidence before me that:- (a) the permanent place of residence of Mr Joye became during the twelve month period ending 30 June 1991, England. (I note that there is no evidence other than that mentioned in sub-paragraphs (c) and (f) below as to Mr Joye's place of residence later than this time); (b) the Sydney legal firm Speed & Stracey are, and were during 1994, the solicitors for Mr Joye in Action No. SG 111 of 1993. Mr Joye and the applicant are parties to those proceedings; (c) in May and September 1994 Messrs Speed & Stracey filed documents in Action No. SG 111 of 1993 on behalf of Mr Joye in which his address is given as Pyrmont, NSW. One such document is an affidavit sworn by Mr Joye in Sydney on 1 September 1994 in which he is described as "of 235 Pyrmont Street, Pyrmont in the State of New South Wales"; (d) at least from 1 November 1994 until 13 December 1994 Mr Joye was continuously present in Australia; (e) on 9 December 1994 Messrs Speed & Stracey were advised by the solicitors for the applicant of the making of the order in this matter dated 25 November 1994 and of the issue of the summons dated 6 December 1994 directed to Mr Joye. Copies of the order and summons were provided to Messrs Speed & Stracey on that day; (f) on 13 December 1994 Mr Joye departed Australia from Sydney. He indicated on his outgoing passenger card:- (i) that he was an Australian resident departing temporarily for the main reason of a holiday; (ii) that he intended to stay abroad for two months; and (iii) that he lived in the State of New South Wales; (g) by letter dated 16 December 1994 Messrs Speed & Stracey advised the solicitors for the applicant that they did not have instructions to accept service on Mr Joye's behalf; (h) Mr Joye has not returned to Australia since his departure on 13 December 1994. Mr Joye's affidavit not having been received into evidence, there is no evidence from him before me as to his knowledge, if any, of these proceedings when he departed Australia on 13 December 1994 or of his intentions, if any, at that time concerning service upon him of the order and summons. Nor has evidence been placed before me from any person connected with the firm Speed & Stracey as to the actions, if any, undertaken by that firm following the receipt of the advice and documentation provided by the applicant's solicitors on 9 December 1994. Messrs Speed & Stracey were the solicitors for Mr Joye in these proceedings until 20 March 1995. It has not been suggested that any difficulties have stood in the way of the obtaining of such evidence on behalf of Mr Joye, or that such evidence would be privileged. I assume that such evidence, if obtained, would not assist Mr Joye (Jones v Dunkel (1959) 101 CLR 298). In the circumstances that:- (a) Messrs Speed & Stracey were in December 1994 acting for Mr Joye in ongoing proceedings in this Court; (b) they were, in effect, requested by the applicant's solicitors to seek instructions with respect to the acceptance of service by them on Mr Joye's behalf of the order and summons; (c) Mr Joye was apparently using a Sydney address at about this time; and (d) Messrs Speed & Stracey's letter of 16 December 1994 to the applicant's solicitors does not refer to an inability to contact Mr Joye; I am satisfied on the balance of probabilities that:- (a) Messrs Speed & Stracey contacted Mr Joye following their receipt of the facsimile transmission dated 9 December 1994 from the solicitors for the applicant; (b) Mr Joye learned from Messrs Speed & Stracey earlier than his departure from Australia on 13 December 1994 of the institution of these proceedings by the applicant, and of the desire of the applicant's solicitors to effect service of process upon him. I am so satisfied notwithstanding that a weekend intervened between 9-13 December 1994. However I consider the evidence before me insufficient to establish that Mr Joye saw the letter of 9 December 1994 from the applicant's solicitors or that he saw the copy order and summons. Nor do I consider such evidence sufficient to establish that Mr Joye left Australia on 13 December 1994 by reason of his learning of the institution of these proceedings: it is at least equally likely on the evidence that his plans to leave Australia on that day were already in place. It was not suggested by either counsel that it is necessary for me to make any finding as to Mr Joye's place of permanent residence in December 1994 or concerning his continued absence from Australia since 13 December 1994. THE JURISDICTION OF THE COURT The jurisdiction of this Court is Australia wide (Federal Court Act s18). The question of whether it was competent for the Registrar to make the order for substituted service of the order and summons in this matter is one of jurisdiction. The action is one in personam and thus, as Lockhart J pointed out in Re Deposit and Investment Company Limited (Receiver appointed) (1991) 30 FCR 463 at 464, the Court's jurisdiction at common law is dependent upon Mr Joye's presence within Australia or his submission to the jurisdiction. There is no question in this case of submission to the jurisdiction. Section 59 of the Federal Court Act authorises the making of Rules of Court by the Judges of the Court or a majority of them which make provision for or in relation to "the service and execution of the process of the Court, including the manner in which and the extent to which the process of the Court, or notice of any such process, may be served out of the jurisdiction of the Court". Order 8 of the Federal Court Rules contains the rules made by the Judges of the Court concerning service out of the jurisdiction. SUBMISSIONS It was submitted by Mr Coles, first that neither Order 8 of the Federal Court Rules nor any legislative provision has altered the common law position so far as service upon Mr Joye of the order and summons in this matter is concerned. Secondly Mr Coles submitted that the common law position is that a person not present in Australia at the time of service cannot validly be served with process of the Court and that an order for substituted service upon such person cannot validly be made. Mr Sulan took issue with Mr Coles on each aspect of his submissions. First Mr Sulan submitted that the relevant point of time so far as the Court's jurisdiction is concerned is the time of the issue of process: in this case the summons to Mr Joye dated 6 December 1994. As Mr Joye was present in Australia at this time, Mr Sulan contended that an order for substituted service could subsequently validly be made. In the alternative Mr Sulan submitted that it was open to the Court to grant leave pursuant to O8 r2 of the Federal Court Rules to serve outside the jurisdiction the summons directed to Mr Joye. As part of this submission Mr Sulan sought to distinguish s596B of the Corporations Law from the provisions earlier considered in Re Austral Oil Estates Limited (In Liquidation) (1986) 7 NSWLR 440 and Re Deposit and Investment Company Limited (Receiver appointed). THE TIME AT WHICH PRESENCE IN THE JURISDICTION IS ESSENTIAL The common law position is plain that a court has jurisdiction to entertain an action in personam against any person who is within the jurisdiction of the Court at the time that its authority is exercised over that person. What is less plain is whether such authority is exercised at the time for service of the process by which jurisdiction is asserted or the time of issue of such process. In this case Mr Joye was within the jurisdiction at the date of the issue of the summons but not at the date of the purported substituted service. In Laurie v Carroll (1958) 98 CLR 310 at 323-4 the High Court quotes a passage from Dicey - Conflict of Laws 6th Ed (1949) at p.172 in which the learned author asserts that "the court has jurisdiction to entertain an action in personam against any defendant who is in England at the time for the service of the writ". The Court goes on:- 'It will be noticed that in this passage presence within the jurisdiction at the time of service is regarded as essential .... what is of great importance for the purposes of the case in hand is that to insist on the presence of the defendant within the jurisdiction at the time of service is to exclude the possibility of substituted service when he is no longer within the jurisdiction. In some measure the view that the defendant must be within the jurisdiction at the time of service may depend upon what is conceived to amount to the exercise of the sovereign authority, the issue of the command or the communication of the command. Of this two views have been expressed. "The mere issue of a writ", wrote F.T. Piggott in his Service Out of the Jurisdiction (1892) at page lvii "is not of itself an act of jurisdiction: it is but an inchoate command until it is served on the person to whom it is addressed. The service perfects the exercise of jurisdiction ....". The other view is taken by Dr Schmitthoff in his book The English Conflict of Laws, 3rd ed. (1954), p.428: "The decisive moment when the defendant must be within the jurisdiction is that of the issue and not of the service of the writ. If after the issue of the writ the defendant has left the jurisdiction (even though not for the purpose of evading service) so that personal service cannot be effected, an order for substituted service .... [deletion in the original] may be granted".' Later in the judgment in Laurie v Carroll the Court, in the course of discussing the established proposition that "where a writ may not be served on a party personally, it cannot be effected indirectly by substituted service", said of the decision in Trent Cyde Co. (Ltd.) v Beattie (1879) 15 TLR 176 in which substituted service was ordered against a defendant who had left England to avoid service, that:- "It appears simply to have been assumed that it was enough that the defendant had been liable to personal service of the writ and had evaded it by going abroad. The assumption is not consistent with the theory that the issue of the writ is merely an inchoate exercise of jurisdiction completed by service. For upon that theory the defendant would be beyond personal service before the inchoate exercise of the jurisdiction had been completed. If jurisdiction had not been exercised over him by means of an ordinary writ while he was still amenable to the jurisdiction logic would seem to demand that resort must be had to the rules governing the exterritorial exercise of jurisdiction by service (or notice) out of the jurisdiction. But the rival theory that the critical time is the issue of the writ means that the issue of the writ is the exercise of jurisdiction over the defendant and accordingly it is enough that he is then present within the jurisdiction. At that moment he may be regarded as falling under the command of the writ as an exercise of jurisdiction. The obligation of its command falls upon him in virtue of his presence within the jurisdiction and his consequent amenability to the writ. Service remains necessary as a condition of his incurring the consequences of default and in that way as a condition perfecting the duty of obedience to the command of the writ. If a defendant knowing of the issue of the writ goes abroad before personal service or, although he does not positively know of the fact of the issue of the writ, goes abroad to evade service, doubtless he may be treated as under notice of the obligation of its command. But without deserting the traditional principle which has governed the jurisdiction of our courts in actions in personam and finding a new basis of jurisdiction it is impossible to go back to a point when no writ had been issued, no exercise of jurisdiction had taken place, and to say that because there had been a time when the defendant was amenable to the jurisdiction so that it might then have been exercised over him and because he had quitted the jurisdiction in order that he might cease to be amenable to it, he none the less remained subject to the jurisdiction. For it means that, jurisdiction being based on personal presence it must have ceased when he left, yet none the less he is subject to the jurisdiction still. It must mean this if he is to be served with the writ, not as an extra-territorial exercise of jurisdiction by means of a writ for service out of the jurisdiction, but by substituted service within the jurisdiction of an eight day writ". (p.328) I do not find Laurie v Carroll an easy judgment. I do not understand the High Court to have unequivocally favoured one of the competing theories as to the basis of jurisdiction in personam over the other. I note, however, that in Eason v 3AW Broadcasting Company Pty Ltd (1984) 81 FLR 229 at 231 Hunt J cited Laurie v Carroll as authority for the proposition that the "relevant time is when the originating process is issued". See also Chappell v Coyle [1985] 2 NSWLR 73 at 87. Cases such as Perrett v Robinson [1985] 1 Qd R 83 and Cotter v Workman (1972) 20 FLR 318 must, it seems to me, be understood against the background that their respective facts made the difference between the competing theories irrelevant. Laurie v Carroll does not, as I read the decision, cast doubt on the authority of judicial statements and decisions to the effect that substituted service can be ordered where a defendant has left the jurisdiction with knowledge of the issue of a writ in order to evade service (i.e. Wilding v Bean (1891) 1 QB 100; Trent Cyde Co. (Ltd.) v Beattie, supra). Such decisions, as the High Court points out in the passage from the judgment set out immediately above, are not consistent with the theory that the crucial time for the exercise of jurisdiction is the service of the writ. In Myerson v Martin [1979] 1 WLR 1390 at 1394 Lord Denning MR stated:- "The weight of authority is overwhelming that one should look at the time when the writ was issued. If the defendant was in fact outside the jurisdiction at the time the writ was issued - and the plaintiff in ignorance of it issued a writ for service within the jurisdiction - then the plaintiff must wait until the defendant comes back within the jurisdiction and serve him personally on his return. There cannot be substituted service on the defendant. If the defendant was in fact within the jurisdiction at the time the writ was issued - and the plaintiff issues a writ for service within the jurisdiction - the plaintiff can get an order for substituted service on him, even if he has gone overseas since the issue of the writ." I do not understand Walters J in Atco Industries (Aust.) Pty Ltd v Ancla Maritima S.A. (1984) 35 SASR 408 at 413-4 to be expressing a contrary view. Indeed at p.414 His Honour refers to the dicta of Lord Denning MR in Myerson v Martin with apparent approval. The issue before the Full Court in the Atco Industries Case was, of course, different from that in this case. In my view the better view is that this Court exercised authority over Mr Joye at the time of the issue of the summons to him of 6 December 1994. That is, that the issue of the summons was itself an act of jurisdiction and not merely an inchoate command which would be perfected upon service of the summons on Mr Joye. Mr Joye was in Australia on 6 December 1994. Consequently I consider that substituted service on him thereafter may validly be ordered. In view of my above conclusion it is not necessary for me to consider Mr Sulan's alternative argument that it is open to the Court to now grant leave to serve the summons on Mr Joye outside the jurisdiction pursuant to O8 r2 of the Federal Court Rules. Having regard to the whole of the evidence before me and the law as I understand it to be I see no reason to disturb the order of the Registrar. The Notice of Motion will be dismissed with costs. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice Branson. Associate: Dated: Counsel for the Applicant : Mr J Sulan QC with him Ms K Hurford Solicitors for the Applicant: Piper Alderman Counsel for the Respondent : Mr B Coles QC with him Mr I Jackman Solicitors for the Respondent : Cowell Clarke Hearing Date : 23 May 1995