Topic – Territorial Jurisdiction in Defendant’s presence.
Facts –
An employee applied to the Industrial Commission of NSW to avoid the variation of a superannuation fund of which he was a member under Industrial Arbitration Act 1940 (NSW).
Membership of the fund was a condition of his employment. The fund was administered by trustees who were ordinarily resident in Victoria.
The Registrar ordered that process to be served on the trustees in Melbourne.
It was held that the Industrial Commission had no power under NSW law to order service outside of NSW.
Issue – What is the importance of the presence of the defendant while determining territorial jurisdiction.
Judgement –
Being physically present in the relevant state or territory at the time of service is sufficient.
The general rule is that a Supreme Court will have power to hear and determine an action when the defendant is physically present in the relevant state or territory at the time of service.
It does not matter that the defendant’s presence is temporary
However, no jurisdiction if the defendant were only in the forum’s airspace at the time initiation process was issued.
Exception – Defendant left the forum after initiating process was issued, either knowing that process had been issued, or leaving to evade service of process.
The Federal Court and the High Court (in its original jurisdiction) will have power to hear and determine an action when the defendant is physically present in Australia at the time of service.
Here, the Industrial Commission of New South Wales would have jurisdiction over the trustees in Melbourne based on their presence in New South Wales at the date of service of the originating process.
The Industrial Arbitration (General) Regulations (NSW), reg 157, conferred power only to regulate proceedings that were within the jurisdiction of the commission. It did not confer power to enlarge jurisdiction by permitting service out of the jurisdiction.
