Workcover Corporation v Bae Systems Plc [2004] SAWCT 126

"It is a settled rule that the process of the Court does not run beyond its territorial jurisdiction, so that service of a summons outside that jurisdiction is prima facie a nullity. The legislative authority may, however, by appropriate legislation as we have indicated, get over this difficulty. This is generally done by express provisions for service of the writ abroad, or, if the defendant is in a foreign country, for service of the notice of the writ."

"... in construing the Act for the purpose of seeing whether it means to give jurisdiction over an absent defendant, we have to remember that such a course is unusual, and requires exceptional and distinct provision." per Isaacs J at p 64.

18 Mr Wells made particular reference to Ex parte Iskra; Ex parte Mercantile Transport Co Pty Ltd (1964) NSW WN 923, which concerned the jurisdiction of the NSW Court of Petty Sessions and the extent to which that Court by its process could invoke and exercise jurisdiction over persons outside New South Wales. Sugerman J, at p 925, said that the jurisdiction of a court in which proceedings are commenced by the service of originating process is normally achieved by service of the process upon the defendant when he is physically present within the territorial limits of the state. The exception to this is where the legislature of the state has effected an extension of the jurisdiction by expressly authorising service of defendants at places outside its territorial limits. It was Mr Wells' position that there is no such express statutory authority in this Act.

19 Mr Crawley, counsel for the applicant, submitted that it is implicit that there is no restriction at all on the territorial application of the Act either as to subject matter or person. He submitted that this position is demonstrated by s 54(7a) which ensures that the claimant has the right to recover compensation in relation to any court action that arises out of the occurrence of the compensable disability, irrespective of where the disability occurred and irrespective of whether the action is brought in this state, or some other state, territory or country.

20 In the alternative, Mr Crawley argued that, if such an implication is not made out, then s 88E of the Act (the rule making power), together with r 4 of the Workers Compensation Tribunal Rules ("the Rules"), and the Supreme Court Rules, combine to extend the jurisdiction of the Tribunal over a wrongdoer served with proceedings in another country.

21 The only provision of the Act which deals explicitly with service is s 88D which provides as follows:-

"88D. (1) If it is not practicable to serve any process, notice or other document in the manner otherwise prescribed or contemplated by law, the Tribunal may, by order¾

(b) make any other provision that may be necessary or desirable for service.

(2) Any process, notice or other document served in accordance with an order under subsection (1) will, despite any other law, be taken to have been duly served."

22 That provision does not address the issue of service upon a person outside Australia and s 54 itself contains no such provision. Thus the Act contains no express authorisation of service of a respondent at a place outside the territorial limits of the State and the Commonwealth.

23 Whilst Mr Crawley put to me that s 54(7a) has the effect of extending a right of recovery to actions brought elsewhere, that does not assist in determining whether this Tribunal can effect good service upon a respondent outside the jurisdiction. It is essentially a subsection giving the Tribunal jurisdiction over the subject matter of an action and does not specifically extend jurisdiction in relation to persons. I would conclude that the Tribunal has no such jurisdiction unless Mr Crawley's alternative position as to the operation of the Rules is made out.

24 Mr Crawley submitted that r 4 and its specific reference to r 18 of the Supreme Court Rules, which deals with service outside the jurisdiction, is the source of the Tribunal's jurisdiction over the respondent.

25 This argument depends upon the construction of the rule making provision of the Act and the relevant Rules. S 88E of the Act gives the President of the Tribunal the power to make rules as follows:-

"88E. (1) The President may make Rules of the Tribunal¾

(a) regulating the business of the Tribunal and the duties of the various officers of the Tribunal; and

(b) authorising conciliation and arbitration officers to exercise any part of the jurisdiction of the Tribunal; and

(c) regulating the practice and procedure of the Tribunal; and

(d) imposing mutual obligations on parties to proceedings in the Tribunal to disclose to each other the contents of expert reports or other material of relevance to the proceedings before the proceedings are brought to trial; and

(e) regulating the form in which evidence may be taken; and

(g)

dealing with any other matter necessary or expedient for the effective and efficient operation of the Tribunal.

26 It is only s 88E(g) which has any specific relevance in the instant matter.

27 R 1 of the Rules provides their scope and purpose. R 1(1) is as follows:-

(1) "These Rules govern the procedures to be used in the Workers Compensation Tribunal ("the Tribunal") and they shall be referred to in these Rules as "the Rules". Their purpose is to assist in the just, speedy and inexpensive determination of every matter to which they apply and they shall be construed and administered accordingly."

28 The Rules in general are directed to assisting in the determination of matters before the Tribunal.

29 R 34 is the only Rule dealing specifically with s 54 applications and it provides as follows:-

"An action for recovery under s 54 of the Act shall proceed with such changes as are necessary in accordance with the Supreme Court Rules and upon lodgement may be referred to a Presidential Member for directions."

30 The application of the Supreme Court Rules to such actions, with such changes as are necessary, as specified in r 34, has two bases. Firstly, as the claimant in a recovery action:-

"... will have to prove the wrongdoer's outstanding legal liability to the worker and the extent of the likely damages and be ready perhaps to resist an argument of contributory negligence"

the action will take on many of the features of an action for damages. (Alsafe Safety Industries Pty Ltd and Friebe's Leasing Pty Ltd v Workers Rehabilitation and Compensation Corporation and Industrial Court of South Australia (1990) 54 SASR 320 at 328). In those circumstances it is convenient and efficient to conduct the proceedings in accordance with the Rules which apply to actions for damages in the Supreme and District Courts. However, the Rule also recognises that changes or modifications may be necessary in recognition of the overriding purpose of the Rules which is to assist:-

"in the just, speedy and inexpensive determination of every matter to which they apply." (r 1(1))

31 I regard r 34 to be a facilitative rule allowing the provisions of the Supreme Court Rules relating to the initiating process, pleadings and relevant pre-trial processes to be utilised in a s 54 action to the extent required in the circumstances of the particular action and to be determined at the discretion of a Presidential Member. Mr Crawley did not put any contrary submission.

32 R 4, which has general application to all proceedings before the Tribunal, specifically adopts the Supreme Court Rules in certain circumstances. It provides as follows:-

"RULE FOUR - APPLICATION OF THE SUPREME COURT RULES

In any case not provided for by the Rules or by the Act, the general principles of the practice of the Supreme Court of South Australia, Part 1 of the Supreme Court Rules as in force from time to time and any relevant forms used in connection therewith, may be adopted and applied in matters before the Tribunal with such modifications as the circumstances in any particular case may render necessary. Accordingly, for example, the Supreme Court Rules concerning the following matters shall generally apply as if such rules and related forms were part of the Rules:

•

the computation of time (SCR 6.01)

•

service of proceedings (SCR 12.01-12.06)

•

proof of service (SCR 13)

•

service upon particular parties (SCR 15.01-15.03)

•

service out of jurisdiction (SCR 18.02-18.07)

•

service under convention (SCR 19)

•

appearances (SCR 21.01-21.08)

•

submission to jurisdiction (SCR 22.01-22.05)

•

default of appearance (SCR 23.01-23.05)

•

default of appearance out of jurisdiction (SCR 24.01-24.02)

•

representation of beneficiaries by trustees (R 30.01-30.03)

•

death or bankruptcy of a party (SCR 31.01-30.06)

•

parties under a disability (SCR 35.01-35.14)

•

firms and societies (SCR 36.01-36.13)

•

third party proceedings (SCR 37.01-37.11)

•

the form of pleadings (SCR 46.04-4.10 and 46.12)

•

admissions (SCR 54.01-54.09)

•

interrogatories (SCR 57.01-57.07)

•

discovery (SCR 58.0158.09)

•

production (59.0159.08)

•

discovery against a party not a party and before action (SCR 60.0160.05)

•

affidavits (SCR 83.01-83.13)

•

taxation of costs (SCR 101.9-101.14, 101.16-101.18)

•

documents (SCR 102.01-102.9)

This list is not intended to be exhaustive nor is it intended to indicate that other procedures, rules or forms cannot be adopted and applied by the Tribunal. A sample of some of the relevant forms is included in the First Schedule."

33 The introductory passage of r 4 has two functions. Firstly, in the absence of a relevant rule within the Workers Compensation Rules, it seeks to generally apply the nominated provisions of the Supreme Court Rules to "matters before the Tribunal" as though they were the applicable rules. However, it also provides a residual discretion to adopt and apply the nominated provisions and any other relevant provision of the Supreme Court Rules with modifications tailored to the specific circumstances of a particular matter. (see Bilac v WorkCover/Allianz Australia (Silver Fleece Knitting Mills Pty Ltd) [2003] SAWCT 82 Olsson J)

34 R 18.02 of the Supreme Court Rules which provides for service of a summons outside Australia is nominated as one of the provisions of general application. It provides for such service outside the jurisdiction without leave in the case of certain specified subject matter set out in subpars (a) - (n). The subject matter purported to be relevant here is (f) "Torts committed in the State" and more specifically (fa) which provides:-

"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;"

35 Leaving aside, at this point, whether an action pursuant to s 54 of the Act is or relates to a matter contemplated by r 18.02(fa), the question arises whether express inclusion of r 18.02 of the Supreme Court Rules, through r 4 and the rule making power, s 88E, can extend the statutory jurisdiction and power of the Tribunal, or operates only within the Tribunal's existing statutory jurisdiction.

36 In my view the latter circumstance applies. The rule making power provides the express statutory power to regulate the practice and procedure of the Tribunal and in doing so it assumes the existence of the Tribunal's jurisdiction as prescribed elsewhere in the Act. It does not constitute a source of additional jurisdiction. Any Rule made pursuant to the rule making power must therefore possess a procedural, rather than a jurisdictional character.

37 To the extent that r 4 purports to adopt r 18.02 for the purposes of serving a respondent outside of Australia, it oversteps the procedural line and intrudes into the impermissible area of extending jurisdiction not provided for in the Act.

38 This position is supported by Gosper and others v Sawyer and another (1984 - 85) [1985] HCA 19; 160 CLR 548, a case concerning the jurisdiction of the New South Wales Industrial Commission with respect to unfair contracts. One of the issues in that case was whether the Commission could order service of process outside the jurisdiction and in the State of Victoria.

39 The Industrial Arbitration Act 1940 (NSW) and the Industrial Arbitration (General) Regulations made pursuant to that Act contained no express provision authorising service of its process outside the State of New South Wales.

40 However reg 157 of the Industrial Arbitration (General) Regulations provided as follows:-

"Where there is no established practice or usage of the Commission, and where none of the Rules now made is applicable, then the practice for the time being of the Supreme Court, in its Equitable Jurisdiction shall, as far as is practicable, regulate the practice of the Commission."

41 Service was effected relying upon reg 157 and the relevant provisions of the Supreme Court Rules.

42 The High Court unanimously decided that the regulation, insofar as it purported to incorporate the practice for the time being of the Supreme Court in its equitable jurisdiction, did not incorporate the jurisdiction of the Supreme Court in relation to defendants outside New South Wales.

43 In the joint judgment of Gibbs CJ, and Wilson and Dawson JJ and also that of Mason and Deane JJ, drawing upon earlier authority (In re Anglo-African Steamship Co (1886) 32 Ch D 348; Laurie v Carroll and others [1958] HCA 4; (1957-58) 98 CLR 310; A-G v Sillam (1864) X HLC 704; The Commonwealth and another v Limerick Steamship Co Ltd and Kidman and others [1924] HCA 50; (1924) 35 CLR 69), the point was made, that the power to order service outside jurisdiction is a "component and measure of jurisdiction itself" and not:-

"a mere matter of the practice or procedure observed by the particular court in the exercise of its jurisdiction"

"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". (Gosper pp 558 and 566)

44 Mr Crawley submitted that, in considering the application of Gosper's case, it is important to note that the High Court did not overrule the decision of H C Sleigh Ltd v Barry Clarke and Co Ltd (1954) SASR 49, in which the Full Supreme Court held that a power to make rules with respect to practice and procedure includes a power to make rules for service outside of the jurisdiction. Furthermore, he sought to distinguish Gosper's case on the basis that the regulation there in question was expressed in very general terms whereas r 4 specifically seeks to adopt particular provisions of the Supreme Court Rules as part of the general practice of the Tribunal. In my view the principle expressed in Gosper's case is not influenced by the form of the rule.

45 Moreover, the statutory context in which the HC Sleigh case (supra) was decided explains the conclusion in that case that rules as to practice and procedure include a power to make a rule as to service outside the jurisdiction, and explains why that case is of no assistance to the respondent here. It is not necessary to deal with the Sleigh case in any detail except to make the point that the foundation of the power to serve a defendant outside the jurisdiction emanated from the Supreme Court Acts of 1853, 1856 and 1935, which provide the express statutory authority for service outside the jurisdiction, and the Supreme Court Act of 1954, which gave any promulgated Rule the same force as a provision of the Act. Accordingly, in the Sleigh case, the rule as to service outside the jurisdiction had statutory force.

46 In Gosper (supra) Mason and Deane JJ said that reference to the Supreme Court Rules attributed to the Regulation an operation which would expand the Commission's jurisdiction, a matter which went beyond the scope of the rule making power pursuant to the Act.

47 The instant matter is analogous and by operation of s 13 of the Acts Interpretation Act 1915, r 4 should be read down to sever that part of the Rule which is beyond power.

48 Section 13 provides as follows:-

"13. A statutory or other instrument made pursuant to a power conferred by or under an Act will be read and construed so as not to exceed that power, so that, where a provision of the instrument, or the application of a provision of the instrument to any person or circumstances, is in excess of that power, the remainder of the instrument, or the application of the provision to other persons and circumstances, is not affected."

49 As r 18 and, for that matter r 19, which deals with service by Convention, are contained in that part of r 4 which lists examples of the provisions of the Supreme Court Rules of general application, the functionality of r 4 is not compromised by severing reference to those specific provisions.

50 The Act and Rules do not authorise service outside Australia. It is therefore unnecessary to deal with the alternative arguments relating to the application of r 18.02 of the Supreme Court Rules, or whether service was effective in this particular case. I set aside the service upon the respondent and will hear the parties as to any other consequential orders.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.