Topic – Territorial Jurisdiction in Private International Law
Facts –
There was a contractual dispute between Laurie (a theatrical agent in London) and Carrol (a theatrical entrepreneur in Melbourne).
The writ was issued one day after Laurie had left Melbourne. Laurie was aware that Carrol might sue.
He left Australia on 20th June, at that time the writ was not served. After Laurie left Australia, the plaintiff (Carrol) applied for a substitute service of the writ on Laurie’s solicitors in Melbourne.
Laurie then applied to have the substitute service order set aside.
The important point for this case is that Laurie left the jurisdiction before the writ was issued.
It was held that , since Laurie had left Victoria one day before the writ was issued, and therefore outside the jurisdiction of the Victorian Supreme Court.
Jurisdiction is established when the defendant is served within the forum, even if he subsequently leaves.
It follows that, jurisdiction is not generally established over a person who is in the forum at the time initiating process is issued but who leaves before it can be served.
High Court on appeal:
Set aside order for substituted service. o Laurie had left Victoria one day before the writ was issued, and was therefore outside the jurisdiction of that State’s Supreme Court.
There is no jurisdiction over a person who has been in the territory of the forum, but who left it before initiating process was issued (i.e. before court registry dates and stamps it)
Issue– When can the jurisdiction for defendant be established.
Judgement –
The case illustrates at common law, a plaintiff’s right to a court’s jurisdiction can depend on where the defendant was when the initiating process was issued or served.
The basic principle on which jurisdiction rests, according to Dixon CJ and Williams and Webb JJ, is that, at the issue of the writ, the defendant “may be regarded as falling under the command of the writ as an exercise of jurisdiction”.
The important point is that, it is the service of the writ which perfected the defendant’s duty to obey its command to appear before the court.
Therefore, jurisdiction is established when the defendant is served within the forum, even if the defendant subsequently leaves.
It follows that, jurisdiction is not generally established over a person who is in the forum at the time initiating process is issued but who leaves before it can be served.
However, a person who left the place after initiating process was issued and who either knew that process had been issued or who left to evade service of process will be regarded as within the jurisdiction of the court.
Obiter dicta
Issue of writ: defendant may be regarded as falling under the command of the writ as an exercise of jurisdiction. However, it was the service of the writ that perfected the defendant’s duty to obey its command to appear before the court.
there is jurisdiction if D is served within the forum even if D subsequently leaves
It does not matter if presence was temporary as long as service happens in jurisdiction
If D leaves before served, no jurisdiction unless: §D left after the issue of initiating process and knew that process had been issued or who left to evade service -court can order substituted service
