Re David Syme and Co Limited (Receiver and Manager Appointed) v Anthony John Earl Grey [1992] FCA 479;

Re David Syme and Co Limited (Receiver and Manager Appointed) v Anthony John Earl Grey [1992] FCA 479; - FCA 1992 case summary — Zoe

[30]

"4. (1) 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.

(2) Subject to any rules of court that may be made under

this Act, the service under this section of a writ of summons may

be effected -

(a) in the same manner as if the writ were served on the

defendant in the State or part of the Commonwealth in

which the writ was issued; or

(b) without limiting the generality of the foregoing,

where the writ of summons is to be served in a State

or Territory on a corporation that -

(i) is incorporated under a law in force in that

State or Territory relating to companies; or

(ii) is a foreign company for the purposes of, and is

registered as such a company under, such a law

of that State or Territory,

by leaving at, or by sending by post to, the place

that is, for the purposes of that law, the registered

office of the corporation the writ of summons or a

copy of the writ of summons.

5. (1) Every writ of summons for service under this Act out

of the State or part of the Commonwealth in which it was issued

shall, in addition to any other indorsement or notice required by

the law of such State or part of the Commonwealth, have indorsed

thereon a notice to the following effect (that is to say):-

'This summons (or as the case may be) is to be

served out of the State (or as the case may be) of

and in the State (or as the case may be) of'.

(2) Every such writ of summons to which, by the law of such

State or part, an appearance is required to be entered, shall have

indorsed thereon a notice to the following effect (that is to

say):-

'Your appearance to this summons (or as the case may

be) must give an address at some place within 10

kilometres of the office of the Court of

at at which address proceedings and notices

for you may be left.'

(3) Every writ of summons for service under this Act shall

also contain or have indorsed thereon or annexed thereto a short

statement of the nature of the claim made or the relief sought by

the plaintiff in the suit, and if the plaintiff sues in a

representative capacity shall also state such capacity.

....

11. (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) in a matrimonial cause -

(i) that the domicile of the person against whom any

relief is sought is within that State or part;

or

(ii) that the proceedings were instituted under the

Matrimonial Causes Act 1959-1973,

and if one of the following is also made to appear to such Court

or Judge:

(g) that the writ was personally served on the defendant;

or in the case of a corporation served on its

principal officer or manager or secretary within the

State or part in which service is effected;

(h) that reasonable efforts were made to effect personal

service thereof on the defendant, and that it came to

his knowledge or in the case of a corporation that it

came to the knowledge of such officer as aforesaid (in

which case it shall be deemed to have been served on

the defendant); or

(i) that, in a case where the defendant is a corporation

that -

(i) is incorporated under a law in force in a State

or Territory relating to companies; or

(ii) is a foreign company for the purposes of, and is

registered as such a company under such a law,

service of the writ was effected in the manner

specified in paragraph (b) of subsection (2) of

section 4,

such Court or Judge may on the application of the plaintiff order

from time to time that the plaintiff shall be at liberty to

proceed in the suit in such manner and subject to such conditions

as such Court or Judge may deem fit, and thereupon the plaintiff

may proceed in the suit against such defendant accordingly.

(2) Any such order may be rescinded or set aside or amended

on the application of the defendant.

....

13. This Part 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."

[237]

(20-23) "Reference was made to Wilson Electric Transformer Company Pty

Ltd v Electricity Commission of NSW [1968] VicRp 37; (1968) VR 330. In that case, a

worker had been killed whilst employed by the plaintiff, a Victorian

company. He was electrocuted in New South Wales at a power station

operated by the defendant, a New South Wales statutory corporation. The

plaintiff sued in the Supreme Court of Victoria for a contribution from

the defendant towards the compensation paid by the plaintiff in respect

of the death of the worker. The writ was endorsed under the SEP Act.

The right to contribution relied on was created by s.62 of the Workers

Compensation Act 1958 (Vic). Adam J rejected the proposition that the

liability so created could be described as a "contract" within the

meaning of s.11(1)(b) of the SEP Act. As to s.11(1)(d), his Honour held-

(333) "Under that paragraph the "act or thing...for which damages are

sought to be recovered" must be "done" or be "situate" in Victoria.

What is complained of in this action and that for which damages in the

shape of an indemnity against the compensation paid are sought is the

conduct of the defendant in the operation and control of its power

station in New South Wales - "acts" or "things" there "done" or

"situate". The contention that the act for which damages are sought to

be recovered was the payment of compensation in Victoria - the subject

matter of the indemnity - I find quite unconvincing. For the foregoing

reasons, it has not been made to appear to me that this case comes

within any of the cases referred to in s.11(1) of the Service and

Execution of Process Act."

No issue arises in this case as to the categorisation of the right of

action vested in the plaintiff. It is not contractual. Whilst

s.11(1)(d) is not confined to tortious claims, it is plainly applicable

to the present matter. (c.f. Ansett Transport Industries (Operations)

Pty Limited v Alenia Aeritalia and Selenia S.p.A. (ACTSC; Miles C.J.;

27/11/91; unreported). The point, however, made by Miles C.J. in the

latter case is of assistance in the present matter. The principle his

Honour affirmed was that the matter of the construction of s.11(1) of

the SEP Act is one of statutory interpretation. Referring to s.11(1)(d)

his Honour said -

(7) "Although para.11(1)(d) of the Act has been described as "the tort

provision, authorising leave to be granted in respect of actions

involving torts committed within the forum" (Law Reform Commission,

Service and Execution of Process, Report ALR 40, para. 123) it is clear

that as a matter of construction of the words used in the statute, the

ambit of the paragraph must go beyond claims in tort, and extends to any

claim for damages in which there is an act of the type contemplated

which has been done or is still to be done within the territorial limits

of the court of issue of process. The reference to "an act...to be

done" would seem to include an omission where an omission gives rise to

a right to sue."

I would respectfully support that view of s.11(1)(d).

It follows that s.11(1)(d) does not confine itself to acts or omissions

which are themselves complete causes of action. It suffices that the

act or omission satisfies the statutory description.

Any act or omission which is a constituent element of the claim for

damages, whether alone or in combination with other acts or omissions is

sufficient.

It seems to me that if a person has no right to claim damages until

some loss has been suffered then the act or omission comprising that

suffering of loss or damage is one of the acts or things to which

s.11(1)(d) refers. Insofar as Hall v ACT Electricity Authority (supra)

suggests otherwise, I decline to follow it."

[239]

(23-26) "The happening of the death of the deceased in this Territory

completed the chain of acts or omissions giving rise to the right to

claim damages. The subsequent events quantifying the extent of the

claim are not relevant. That is the distinction suggested by

Hardie Boys J in Adastra Aviation Ltd v Airparts (NZ) Ltd (supra) and I

respectfully adopt it.

I do not regard Wilson Electric Transformer Company Pty Ltd v

Electricity Commission of NSW (supra) as requiring a different

conclusion. That was a case primarily of contract. Damage is not an

ingredient of the cause of action. The place of breach is focussed upon

by s.11(1)(b) SEP Act. Section 11(1)(d) was treated as only of

peripheral relevance. The indemnity, even if not "contractual" (and

some doubt exists about the correctness of the characterisation of the

right of action) was activated not by payment which, was in Victoria,

but rather by the liability to make payment which arose in New South

Wales.

Buttigeig v Universal Terminal andStevedoring Corporation [1972] VicRp 72; (1972) VR 626,

another case referred to in Hall v ACT Electricity Authority (supra),

was not a case which related to s.11(1)(d). The validity of service in

that case relied on Rules of Court based on a ground that a "tort" was

committed within the jurisdiction". That test is different. That was

said to focus on the "act on the part of the defendant which gives the

plaintiff his cause of complaint within the jurisdiction" (Distillers

Co. (Bio-chemicals) Ltd v Thompson (1971) AC 458, 466 per Lord Pearson).

In the latter case, whilst the negligent manufacture took place in the

United Kingdom, a failure to warn the plaintiff had taken place in New

South Wales where the product was marketed.

It has been held that a test in terms of "damage suffered wholly or

partly in the state caused by a tortious act or omission however

occurring" is satisfied if the death under the Compensation to Relatives

Act 1897 (NSW) occurs in New South Wales wherever the consequential loss

of support may happen (see Keevers v O'Neill (1977) 1 NSWLR 587; Baldry

v Jackson (1977) 1 NSWLR 494). Nygh ("Conflict of Laws" 4th ed p 37)

suggests that the "damage suffered" test merely reflects the Distillers

view as opposed to that adopted by Master Sharpe in Hall v ACT

Electricity Authority (supra).

In Nominal Defendant v Motor Vehicle Insurance Trust of Western

Australia (1983) 50 ALR 511, the plaintiff sought to sue on a right

created by a Western Australian Statute. It sued in New South Wales.

The right to sue arose out of the fact that there had been personal

injury caused by the use of a Western Australian motor vehicle in New

South Wales upon which judgment was obtained in New South Wales. The

defendant did not indemnify the plaintiff. Miles J held that the cause

of action, although created by the Western Australian statute, arose

within the State of New South Wales.

It may be concluded therefore that the cause of action herein arose at

the moment of death of the deceased and not before. That death happened

in this Territory. It follows that the cause of action arose here.

That cause of action is based on two material facts. The first is

injury resulting in death which, had death not happened, would have

entitled the deceased to sue the defendant and recover damages. That

event happened in New South Wales. Its wrongful character can only

derive from the law of that State. The second material fact was the

death itself. That happened in this Territory.

It is not the function of the SEP Act to define the jurisdiction of

State and Territory Courts. It is intended to facilitate service of

process and to be supplementary to other modes of extra-territorial

service (see Flaherty v Girgis (supra)). There is no reason to suppose

that s.11(1) was intended to lead to a result that only one State or

Territory could issue enforceable process for or in respect of any one

cause of action. It does limit the range of available States and

Territories to those with which the pleaded cause of action has one or

more of the prescribed connections (in the absence of a submitting

appearance).

In this case it seems to me that, if an act or omission which is an

element of the cause of action happened in the Territory, the terms of

s.11(1)(d) are satisfied. It follows, of course, that a writ issued by

a relevant New South Wales court would also have satisfied s.11(1)(d).

The Courts of the other States and Territories could hear and determine

the cause but the defendant would not be obliged by the terms of the SEP

Act to submit to the jurisdiction of those Courts. Whether it could be

obliged to do so by Rules of Court or legislation of such States or

Territories I do not need to decide. Nor do I need to decide whether

the Cross-vesting legislation or Rules made pursuant thereto would

render the objection raised in these proceedings redundant."

At a glance

Court

Decision date

Source

Judgment (319 paragraphs)

Re David Syme and Co Limited (Receiver and Manager Appointed) v Anthony John Earl Grey [1992] FCA 479; (1992) 38 FCR 303 (1992) 115 ALR 247 (24 September 1992)

Parties

Legislation Cited (21)

Cases Cited (57)