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(3) Jurisdiction  Jurisdiction determines the court’s power (& duty) to  *TJM sued the business owner for breach of s 52 (Federal adjudicate upon cases brought before it. matter), and breach of confidence (State matter).  Types of limits imposed on a court’s jurisdiction:  No common substratum of facts between the breach of s 52 matter, and the breach of confidence matter, because  The nature of dispute that can be heard (subject matter jurisdiction); they involve totally different sorts of evidence:  The geographic limits of jurisdiction (territorial  S 52 action requires market survey of consumers jurisdiction); being misled; and  Monetary limits;  Breach of confidence requires evidence of employees obtaining secret info & using that info in their new  Types of remedies that may be granted; and/or employment.  The existence of certain facts, which exist when the cause of action arose as described in the Pl’s pleadings.  So the 2 actions can’t be heard together.  Sometimes both the Federal and State courts have jurisdiction over the same dispute. State jurisdiction  State Courts’ jurisdictions are not limited to certain subject Actions in rem & Actions in personam matter. (Inferior cts limited by type of matter & disputed amt)  If an action is in rem (ie. action to do with land/admiralty), it  S 77 Constitution allows State Courts to exercise Federal can only be begun in a court which has geographic jurisdiction where legislation provides. sovereignty over the land/ship.  Eg. all Federal crimes are heard by State courts, because  There is geographic sovereignty when the land/ship is Federal Courts don’t have juries. (Judiciary Act) inside the court’s jurisdiction’s territory.  The cross-vesting scheme (for State Supreme Courts) and s 20 Service & Execution of Process Act (for inferior State courts)  If an action is in personam (ie. action to do with personal rights) it can be begun in a court which has personal makes subject matter jurisdiction of State courts nationwide. jurisdiction over the Def.  Acquire personal jurisdiction thru valid service. [See PERSONAL (IN PERSONAM/TERRITORIAL) personal jurisdiction section.]

JURISDICTION

DETERMINING JURISDICTION SUBJECT MATTER JURISDICTION Federal jurisdiction  High court has original jurisdiction over matters listed in ss 75 & 76 Constitution, and appellate jurisdiction.  Federal courts have jurisdiction over matters conferred by statute (s 19 Federal Court Act, s 39B Judiciary Act) – basically matters which arise under Federal legislation. Accrued jurisdiction of Federal Court  Fencott v Muller: Accrued jurisdiction allows the Federal Court to determine matters of State jurisdiction which arise as part of a Federal controversy.  In other words, the Federal Court can hear a State matter if it has a common substratum of facts with the Federal matter (such that it would be unjust not to hear the 2 cases together).  Philip Morris v Adam P Brown (Fed Court had jurisdiction to decide a passing off claim in an action which also involved an alleged contravention of the TPA)  Kennedy v A/Asian Coal & Shale Employees Federation  *Pl sought declaration that he can join the Def union (a matter of federal law).  *Def said Pl cannot join, because he was unemployed.  *Pl sought declaration that he was employed (a matter of State contract law).  The 2 actions could be heard together. Whether Pl was employed was tied up with whether Pl was an union member  there is a common substratum of facts such that if the 2 actions were not heard together, there would be injustice.  TJM Products v A & P Tyres: No accrued jurisdiction if the 2 actions involve different sorts of evidence.  *Ex-employees of TJM worked for a competing business nearby.

 A Court has no personal jurisdiction over the Def until the issued summons is served on the Def.  Summary: A court can only have personal jurisdiction over a matter (ie. can only serve process on a Def) if:  Def is present in Australia at the time without fraud (Laurie v Carrol; S&EP Act); or  Def submitted to the Court’s jurisdiction (eg. by filing an appearance or by contract); or  the cause of action occurred within its territory (SCR/FCR). Location of Def Service within jurisdiction  Laurie v Carrol: Can serve process on a Def who is present in the Court’s territorial jurisdiction.  It doesn’t matter why or for how long the Def is present in the territory, unless he was induced to enter the jurisdiction by fraud. Service outside jurisdiction, but within Australia [Basically, Service & Execution of Process Act allows a Court to exercise personal jurisdiction over Defs present in other Australian states  gives State courts nationwide personal jurisdiction.]  S 15 Service & Execution of Process Act 1992 (Cth): Process issued out of a State court can be served on persons in any other State, provided that the service is effected in the same manner as required to validly serve in the State.  S 9 Service & Execution of Process Act 1992 (Cth): A company operating in another State may be served by leaving process at, or posting process to, the company’s registered office.  S 10 Service & Execution of Process Act 1992 (Cth): An unregistered body corporate operating in another State may be served by leaving process at, or posting process to, the place fixed by the other State’s law – or where no place is fixed by the law, by leaving process at, or posting process to, the body corporate’s principal office or place of business.  S 11 Service & Execution of Process Act 1992 (Cth): Proof of service requirements:

(3) Jurisdiction Service on Special parties Where personal service is required, service is only proved where the following are stated on affidavit:  Serving Companies:  The identity of the person who served process;  S 109X Corporations Act: Any document may be served  The time & day on which process was served; on a company by:  The place at which process was served;  Leaving it at, or posting it to, the company’s  The way in which process was served; and registered office; (or liquidator/admin’s office) or  The manner in which the person served was  Delivering it personally to a director. identified.  S 601CX Corporations Act: A document may be served  Where postal service is permitted, it must be proven that on registered foreign companies doing business in the documents were sent by pre-paid post to the relevant Australia, by: person’s last known address, known address for service,  Leaving it at, or posting it to, the company’s or solicitor’s address – and the day of posting. registered office; or  A prescribed notice must be attached to process when served.  Leaving it at, or posting it to, the company’s Australian agent’s address. Service overseas  Serving Partnerships:  SCR 36.01: A partnership carrying on business within the  SCR 18.02: If serve process outside Australia, and Def fails to jurisdiction: enter an appearance, leave is required from the court to  can sue or be sued in the firm name; and proceed. Leave will be granted if:  may be served by serving one/more of the partners  [for contract] the contract was made, breached or agreed [in usual way], or by leaving process at the principal to be heard inside SA jurisdiction; place of partnership business.  [for tort] the tort was committed or the damage suffered  If the partners do not carry on business within the in SA jurisdiction; jurisdiction, they must sue or be sued individually.  [for property] the property was located in SA jurisdiction.  FCR O 8 r 2: To serve process overseas from the Federal Court, leave of court is required. Time for service / Renewal of summons  Circumstances relevant to discretion in giving leave are: situs  SCR 10.03: A Pl has 3 months from the date of issue of of CoA, proper law applicable to the CoA, existence of summons to serve it. pending action in a foreign forum, geographic areas where the  SCR 10.06: After this time, the summons goes stale and parties conduct business, number & location of witnesses cannot be served. residing outside jurisdiction, comparison of costs between  SCR 10.03: A Pl may apply to have a summons renewed. The proceeding inside jurisdiction and proceeding in foreign court has discretion to renew if satisfied that Pl has made jurisdiction. reasonable efforts to serve, or for other good cause.  Service must be personal, unless another mode of service is authorised by the law of the country where service occurs (eg. Limitation of actions thru diplomatic channels).  Limitation of actions creates a time bar to the initiation of civil proceedings. Manner of service  Effectively: If the specified limitation period for an action has expired, the Court has no jurisdiction to entertain it. Personal service (SCR 12-20, MCR 47)  Limitations of Actions Act 1936 (SA): The limitation period  Personal service (SCR 12) is required for originating for: proceedings. Personal service is effected by:  Breach of contract & quasi contract actions = 6 yrs;  leaving the process documents with the Def (no need for  Personal injury torts & defamation = 3 yrs; Def to take physical possession, so can be left on a desk  Torts generally = 6 yrs; or with a person who is with Def at the time); or  Recovery of property = 15 yrs.  [if the Def refuses to accept service] putting down the  Time runs from the date the Pl’s cause of action accrues. process documents in the Def’s presence & explaining the  In contract, this happens when the contract is breached; nature of the documents.  In tort, if proof of damage is required, limitation period  Proof of personal service: The server must file an affidavit of commences when the damage occurs (not necessarily service with the Court (a sworn statement that they have when injuries manifest themselves). delivered the summons personally to the recipient).  Exceptions: Service can be achieved without personal service, Extensions where:  If Pl seeks an extension of the limitation period, this must be  The Def’s lawyer has specific instructions to accept stated on the face of the Summons. Plead reasons for the service [& undertakes to enter an appearance] [… address extension in the SoC. for service = solicitor’s address];  S 48 Limitations of Actions Act 1936 (SA): The Court may  The parties have agreed that service need not be personal; grant an extension of the limitation period, where:  Service occurs outside of jurisdiction in accordance with  The justice of the case requires it; the law of the place of service;  New facts material to Pl’s case were ascertained within  Pl successfully applies to Court for substituted service on 12 months of the expiration of the limitation period; or the ground that personal service is impracticable (eg.  Pl’s delay in taking action was caused by Def’s advertise in newspaper, post process to Def’s last known representations or conduct. address);  The Court’s power to grant extension is discretionary. It will  Making ex parte application; or balance the prejudice to Def, the reason for the delay, hardship  [Serving interlocutory process, where ordinary service is to Pl, whether Pl is likely to succeed, and Def’s conduct. sufficient]. 

CHALLENGING JURISDICTION

(3) Jurisdiction 

LACK OF JURISDICTION  When proceedings are commenced in the wrong jurisdiction, the Def can:  Apply for a stay of proceedings;  Apply to the court to set aside service, or set aside the originating process (SCR 22.01);  Commence proceedings in the proper court & apply for a transfer of proceedings under Jurisdiction of Courts (Cross-Vesting) Act;  Commence proceedings in the proper (domestic) court & apply for an anti-suit injunction (whereby the proper court prohibits Pl from pursuing proceedings in the foreign jurisdiction) (Akai v People’s Insurance);  Object to jurisdiction in the Defence (SCR 22); or  (If judgement is obtained by the opponent in a foreign court,) oppose enforcement on the basis of lack of jurisdiction (s 7 Foreign Judgements Act 1991 (Cth)).

EXCLUSION OF JURISDICTION – STAY OF PROCEEDINGS Even if the court has jurisdiction to hear the matter, it has statutory & inherent power to stay proceedings if:  1) The proceeding is commenced in an inappropriate forum (forum non conveniens doctrine, s 20 S&EoP Act);  2) The parties have agreed, by way of a choice of jurisdiction clause, that the proceedings should be heard elsewhere (KC Park Safe v Adelaide Terrace Investments);  3) The parties have agreed, by way of a dispute resolution clause, that the dispute should be determined other than by litigation (s 53 Commercial Arbitration Act 1986 (SA));  4) The proceeding is res judicata or subject to issue estoppel (Port of Melbourne Authority v Anshun);  5) The proceeding is an abuse of process (Williams v Spautz); or  6) A party has diplomatic/foreign state immunity. 1a) Forum non conveniens  Voth v Manildra Flour Mills: [in cases where the jurisdictional conflict is between an Australian and an overseas jurisdiction] If the Pl’s selected forum is a clearly inappropriate forum for the dispute, the court will issue a stay of proceedings.  Test = Is the forum chosen by the Pl in the interests of justice?  Pl has prima facie right to choose forum + Def bears a persuasive burden  test favours Pl’s choice of forum.  Pegasus Leasing v Balescope: [in cases where the competing courts are all within Australia] Forum non conveniens is satisfied if there is a more appropriate forum to determine the matter.  Test = On balance, which is the most appropriate court in the interests of justice? [same as the test for transfer under cost-vesting legislation]  No burden Def must meet in order to convince the Court to stay/transfer.  Spiliada v Cansulex (approved in Oceanic Sun Line v Fay): Factors relevant to a decision on forum non conveniens include:  Residency of parties;  Location of witnesses & other evidence;  Subject matter (ie. cause of action);  Relative financial costs & other benefits;  Conduct of parties (eg. forum shopping, delay);

Have proceedings been issued in other jurisdiction (and stayed/refused);  Usual forum for party issuing process (presumption that party can use forum that they normally invoke);  Applicable law;  Limitation period in usual forum.  Example: Voth v Manildra Flour Mills  *Pls were NSW companies.  *Def was US Missouri citizen, tax accountant.  *Pls commenced proceedings against Def for professional negligence, in NSW SC.  *Def entered conditional appearance, and applied to have service set aside & reissued in USA.  Factors in favour of stay (& FNC):  Cause of action arose in Missouri (all the relevant acts occurred there);  Def resided & worked in Missouri  was subject to Missouri accounting standards  any issue of negligence must be resolved by Missouri law;  All the witnesses resided & worked in Missouri;  Most evidence (including of damage) would be found in Missouri.  Factors against stay:  Damage was suffered in NSW;  Pl resided in NSW;  Pl barred from bringing action in Missouri;  Costs awarded in Missouri might not include attorney’s fees;  Rules on awarding interest are less rewarding for Pl in Missouri than in NSW.  Pl has a prima facie right to choose the forum.  But in this case, NSW was a clearly inappropriate forum. 1b) S 20 Service & Execution of Process Act 1992 (Cth)  S 20 Service & Execution of Process Act: The Def may apply to an inferior court for a stay. The court may order it if it is satisfied that another State’s court is the appropriate court to determine the matter. 2) Jurisdiction clauses  Akai v People’s Insurance: If parties agree to resolve their dispute in a foreign court, but Pl initiates proceedings in a local court, the local court must follow the jurisdiction clause (ie. stay proceedings) unless the clause is contrary to public policy in an Australian statute.  [A Jurisdictional clause in Insurance contract giving English court jurisdiction was contrary to public policy in Insurance statute  void clause  can bring action in Australian court.] 3) Dispute resolution clauses  s 53 Commercial Arbitration Act: If parties agree to arbitrate the dispute prior to proceedings, the court will uphold the DR clause and stay proceedings, unless Pl can demonstrate a sufficient reason to proceed. 4) Res judicata & Issue estoppel (if got prior judgement)  Res judicata doctrine: A judgement given on the substantive merits of the case (not interlocutory/procedural matters) is final & binding on the parties to the action  the parties to the action cannot reargue the matters by reissuing proceedings again.  Issue estoppel: Issues that have, or should have, been raised in a case cannot be reargued by anyone (not just the parties to the action).

(3) Jurisdiction court”), it must transfer the proceeding to another  Eg: Sue for damage done to car, and win. Later want to sue participating court (“receiving court”) if: for damage done to the contents of the car.  [related proceedings] (b)(i) a related proceeding is  Res judicata does not apply. The judgement did not cover pending in the receiving court, and it is more appropriate damage done to the contents.  But Issue estoppel applies. The 2 actions cover the same that the proceeding be determined by the receiving court; or grounds & should have been argued in the 1st case.  [natural forum] (b)(ii) it is more appropriate that the proceeding be determined by the receiving court, having 5) Abuse of process regard to:  Superior courts have inherent power to prevent abuse of their  (A) whether the proceeding would have been capable processes, by: of being instituted in the transferring court (apart  Dismissing/staying proceedings; from any cross-vested or accrued jurisdiction);  Striking out defences (or any document);  (B) whether the proceeding involves interpretation of  Curtailing abusive discovery; a law falling outside of the transferring court’s  Setting aside oppressive subpoenas; jurisdiction (apart from any cross-vested or accrued  Preventing litigation proceeding as a class action. jurisdiction); and  Abusive tactics can also give rise to liability in tort, under  (C) interests of justice; or TPA, and in equity.  [interests of justice] (b)(iii) it is otherwise in the interests of justice to transfer the proceeding.  Williams v Spautz: If Pl institutes proceedings for an improper  S 8 Jurisdiction of Courts (Cross-vesting) Act: A Supreme purpose, the court will stay the proceedings. Court has power to remove proceedings from an inferior court  “Improper purpose” = a purpose which falls outside the to itself for the purpose of considering transfer under s 5. results that the law can provide (ie. outside the remedies provided by the CoA). Eg. to bankrupt/embarrass/threaten opponent, to silence critics, to delay/influence other proceedings.  White Industries (Qld) v Flower & Hart: Groundless proceedings can be stayed.  Haines v ABC: The court can stay a multiple of successive proceedings that relitigate the same (or substantively similar) matters. (where the doctrines of res judicata & issue estoppel do not prevent the relitigation)  State Bank of NSW v Stenhouse: Whether relitigation of an issue constitutes an abuse of process, depends on the circumstances of each case.  Johnson Tiles v Esso: Proceedings issued as a class action may, in rare cases, be an abuse of process.

CROSS-VESTING SCHEME [exists between State Supreme Courts, Federal Court & Family Court]  The Scheme has 2 components:  1) Investment/conferral of each participating court’s jurisdiction in/on each of the other participating courts; and  2) Transfer of proceedings to the best suited court.  Re Wakim: Cross-vesting provisions that purport to vest State jurisdiction in Federal courts are invalid  It remains valid between State courts, and from Federal to State courts. Vesting of additional jurisdiction  S 4 Jurisdiction of Courts (Cross-vesting) Act:  The State’s Supreme Ct has jurisdiction with respect to a federal civil matter.  Another State’s Supreme Ct has jurisdiction with respect to the State’s civil matters.  The scheme has the effect of vesting subject matter jurisdiction of a court in the...