FEDERAL COURT OF AUSTRALIA

United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro (No 4) [2010] FCA 791

THE COURT ORDERS THAT:

1.                  The motions are dismissed. 

2.                  The matter be listed for directions on 31 August 2010 at 10.45 am.

3.                  There be liberty to apply.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     There are in excess of 1500 respondents to this proceeding.  It is now contended for several hundred of the respondents that have entered conditional appearances through their solicitors (the conditional respondents) that they were not personally served with the originating process some months ago.  A declaration to that effect is sought.

BACKGROUND

2                     This proceeding commenced with an urgent application for interim injunctive relief earlier this year as a result of the alleged unlawful industrial action by all of the respondents in December 2009 and January 2010.  The conduct was allegedly ongoing at the commencement of the proceeding. 

3                     Leave for the Australian Building and Construction Commissioner to intervene was granted.  The Commissioner has generally supported the positions taken by the applicants who employ the respondents.  For example, the Commissioner supported the application pursued by the applicants ex parte.  The action was said to be in contravention of the Woodside Pluto LNG Project 2009 No 2 order of Fair Work Australia dated 23 January 2010, the Building and Construction Ministry Improvement Act 2005 (Cth) (BCII Act) and the Fair Work Act 2009 (Cth). 

4                     Judgment in the first urgent matter was given in United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro (2010) 220 IR 153 (United Group No 1).  The reasons for granting urgent injunctive relief are set out therein. 

5                     A short time after granting the original orders, I made further orders extending the injunctive relief in United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro (No 2) (2010) 192 IR 160 (United Group No 2).   In United Group No 2, I noted (at [4]-[5]):

4          There are, as indicated in United Group No 1, in excess of 1500 respondents.  No affidavits have been filed by any of the respondents.  One of the main concerns in relation to granting an interlocutory injunction until trial was that none of the respondents has been given express notice of the intention to apply for such an interlocutory injunction today.  In normal circumstances, but for the considerations which appear elsewhere in these reasons, on that basis alone I would have been disinclined to grant further relief, let alone an interlocutory injunction until trial.  However, given the history disclosed on the evidence, I was persuaded that limited further orders should be made. 

5          As reflected in United Group No 1, I am satisfied on the evidence that there is an arguable case that the respondents have engaged in ‘unlawful industrial action’ (as defined there and below) at the Pluto LNG Project at the Burrup Peninsula (the Project) in contravention of the Woodside Pluto LNG Project 2009 No. 2 order of Fair Work Australia dated 23 January 2010 and in breach of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) and the Fair Work Act 2009 (Cth). 

6                     I granted an extension of the relief initially ordered after examination of the following considerations (at [24]-[29]);

24        The balance of convenience strongly favours short term relief being extended.  On the basis of the evidence at present, the effect on the applicants and the owners of the Project, Woodside Burrup Pty Ltd (Woodside), of further industrial action is most significant with an estimated direct cost alone exceeding $500,000 a day.

25        Additionally, there are potential consequences of industrial action such as damage to the reputation of the applicants and liquidated damages for delay.  Woodside, in turn, would, if the delay continued, face potential losses arising from loss of revenue due to production delay.  These considerations, extending as they do, to third parties, are nevertheless relevant:  Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87.

26        The prospect of the respondents being able to meet an award in damages for such loss is unrealistic. 

27        Moreover, the proper formulation of the test concerning the adequacy of damages is not whether they are an adequate remedy but whether it is ‘just in all the circumstances’ that the applicants should be ‘confined to a remedy in damages’:  CBI Construction Pty Ltd v Abbott per Gilmour J (at [70]). 

28        Underlying this dispute is said to be the issue concerning ‘motelling’ discussed in United Group No 1.  There is evidence that some or all respondents who fly in, fly out to their work site, oppose a circumstance in which they are required to return to different temporary accommodation from that occupied on the previous work interval.  While it might be thought that some practical measure could be adopted to address concerns arising from this complaint, the prospect of ‘motelling’ for a short term appears to be the only possible adverse consequence of restraining the respondents from engaging in further unlawful industrial action.  On the other hand, they will at least, by returning to and remaining at work, be paid in accordance with Workplace Agreements. 

29        For those reasons, as the balance of convenience strongly favours the orders being extended for a finite period, with liberty to apply being granted, I made orders for a brief period of time.  These will preserve the status quo. 

7                     I also made provision for substituted service of the orders made on that date.  That provision was made for these reasons (at [30]):

For service under 0 7 of the Federal Courts Rules, the respondents’ proper addresses are their home addresses rather than their addresses at the work site.  However they travel from their home addresses to the work site which they occupy while employed at the site.  The injunction primarily concerns their conduct at the work site.  Wide publicity has surrounded this dispute including the making or (sic-of) these and previous orders.  The Unions of which the respondents are members are and will be well aware of these and the previous orders in United Group No 1.  In accordance with the power in O 7 r 9 of the Federal Court Rules I have made provision for substituted service of the orders that are made below, as the circumstances of the case require prompt service and personal service is impractical. 

8                     On 18 February 2010, in United Group Resources Pty Ltd ABN 17 114 888 201 v Calabro (No 3) (2010) 192 IR 170 (United Group No 3), I extended the interim injunction until trial or further order of the Court. 

9                     There have been several directions hearings since that time.  Three groups of respondents have been represented at those hearings pursuant to conditional appearances or appearances.  The three groups of conditional respondents are members of three different unions.  No motion in similar terms has been made by any other respondents but some individuals have submitted that they should not have been joined at the outset.  Proceedings against some of those respondents have been discontinued. 

THESE MOTIONS

10                  By three notices of motion, the conditional respondents seek a declaration under O 9 r 7(1)(c) of the Federal Court Rules (the rules) that the originating process in this action has not been duly served on those respondents.  The motions are supported by affidavits.

11                  Following a preliminary directions hearing prior to the hearing of the motion, a request was made of the applicants’ solicitors for information confirming the method of service of the originating process on each individual respondent but no response specific to particular individual respondents was received. 

THE RELEVANT RULES

12                  Order 7 relevantly provides as follows:

1          Originating process

(1)        Subject to the provisions of this Order, originating process shall be served personally on each respondent.

(2)        The copy for service shall be signed and sealed as mentioned in Order 4, rule 7.

(3)        If a respondent to an originating process:

(a)        enters an appearance; or

(b)        files a defence; or

(c)        appears before the Court in response to the process;

the originating process is taken to have been served on the respondent personally when the earliest of those events occurred, unless personal service on an earlier day is established.

2          Personal service: how effected

(1)       Personal service of a document is effected on:

(a)        an individual — by leaving a copy of the document with him;

…

(2)        If a person refuses to accept service of a document, personal service may be effected on him by putting the document down in his presence and telling him the nature of it.

(3)       It shall not be necessary in order to effect personal service that the original document be shown.

…

3          Mode of service

A document which is not an originating process and which is required or permitted to be served in any proceeding may be served personally, but unless personal service is expressly required, it need not be served personally.

4          Ordinary service: how effected

(1)        Where personal service of a document is not required, the document may be served:

(a)        by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day on which the Registry in that State or Territory is open; or

(b)        by sending a copy of the document by pre paid post addressed to the person to be served at his or her proper address; or

(c)        where any enactment of the Commonwealth or of the State or Territory in which service is to be effected provides for service of a document on a corporation or organisation by serving the document in accordance with such provision; or

(d)        if a person to be served has filed a notice for service at an exchange box of a solicitor under paragraph 7 (1) (a) of this Order — by leaving a copy of the document, addressed to that solicitor, in that exchange box; or

(e)        if a person to be served has filed a notice for service by facsimile transmission under paragraph 7 (1) (b) of this Order — by sending the document to the facsimile number specified in the notice; or

(f)        if a person to be served has filed a notice for service by electronic communication under paragraph 7 (1) (c) of this Order — by sending the document to the email address specified in the notice.

(2)        For the purposes of subrule (1), the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left or posted pursuant to subrule (1), the person has no address for service in the proceeding, the person’s usual or last known place of business or of abode shall be the person’s proper address.

(3)        The time of service of any document for the purpose of any proceeding shall, where the copy of the document:

(a)        is sent by pre paid post in accordance with paragraph (1) (b) — be seven days after the copy is so sent; or

(b)        is left in an exchange box in accordance with paragraph (1) (d) — be two days after the copy is so left; or

(c)        is sent by facsimile transmission in accordance with paragraph (1) (e) — be one day after the copy is transmitted excluding Saturdays, Sundays and public holidays; or

(d)        is sent by electronic communication in accordance with paragraph (1) (f) — be one day after the copy is sent.

(4)        For paragraphs (3) (b), (c) and (d), mention of a day or days does not include a Saturday, Sunday or a public holiday.

…  (emphasis added)

13                  Rule 1 provides, in effect, for personal service of originating process and ordinary service of other documents.  The requirement for personal service of originating process is a requirement which is said to be strictly construed:  Ainsworth v Redd (1990) 19 NSWLR 78 at 83.  For the respondents it is argued that service of the originating process is a jurisdictional fact: see Laurie v Carroll (1957) 98 CLR 310 at 324 and Ainsworth at 84. 

14                  The onus is on the applicants to prove that the originating process has been served on the respondents in a manner which conforms with the service requirements of the rules. 

CONSIDERATION

15                  There is certainly evidence that some of the conditional respondents were not personally served with the originating process. 

16                  There is also evidence that in a small number of cases, some conditional respondents were not served in any sense with the process in that they did not at any time receive a copy of it.

17                  On the other hand, there is no evidence that any moving respondent was either unaware of the proceeding or unaware that he or she was a respondent to the proceeding.  Given the substantial publicity surrounding the commencement of the proceeding and the letters referred to below (at 25) this may not be surprising.  This is a significant issue in light of the approach taken by the courts as to what will be personal service.

18                  For the conditional respondents, it is argued that the applicants chose to join some 1500 respondents and must be taken to have been aware from the inception of the proceeding that the originating process was required to be served personally on each of them.  It had been open to the applicants, on the first return date, at the hearing of the urgent application for the applicants to seek an order for substituted service.  Although the applicants sought and obtained an order for substituted service in relation to the further or extended order made by the Court on 5 February 2010, that order was not stated to apply to either the order made on 28 January 2010 or to the originating process. 

19                  The respondents also contend that there is no adequate explanation for failure to personally serve considering that it was open to the applicants to serve the conditional respondents personally at work.  However this argument overlooks the fact that the conditional respondents were allegedly not attending work which was the very reason for the commencement of the proceeding and for the alternative measures taken to attempt to effect service.

20                  For the respondents, it is argued that the applicants have failed to adduce any evidence regarding:

(a)        the steps that they have taken to serve each of the respondents ‘personally’; or

(b)        why it is or was ‘impractical’ to serve the respondents personally with the application – see O 7 r 9(1) and Porter v Freudenberg (1915) 1 KB 857 at 888-889. 

21                  At a technical level while there is some force in these submissions, I do not accept that they are entirely correct.   The applicants have relied on affidavits of Mr Jack Peter Lee, Mr Rodney Charles Burnby and Mr Adie Rama Kadir which all relate to the steps taken to achieve service. 

22                  Mr Kadir is engaged with the Chamber of Commerce and Industry WA (CCIWA) and is an Employee Relations Advisor.  He says that after the originating application and orders were made, he assisted in relation to the instruction of the Karratha bailiff and the Dampier bailiff regarding serving the originating process and the order on each of the respondents. 

23                  Mr Kadir asked each of the applicants to send a letter to the home addresses of each of the respondents whom they employed advising them of the originating application and the orders made by this Court.  Each of the applicants posted the letter to their respective employees at their home address.  He received and annexed to his affidavit written confirmation that the applicants had posted a copy of the letter to each respondent they employed.  None of the employees responded to the correspondence seeking a further copy of the originating application or orders. 

24                  That original letter which was sent to each employee says:

We write to advise that on 27 January 2010, the Federal Court of Australia granted an interlocutory injunction restraining certain employees (including you) from continuing to take unprotected and unlawful industrial action on the Pluto LNG Project.

The interlocutory injunction will remain in force until 5.00 pm on 5 February 2010.

On or about Thursday, 28 January 2010, personal service of the following documents was effected on you in your accommodation on site:

·                      Federal Court Application for Interlocutory Injunction; and

·                      Federal Court Order of Justice McKerracher granting the Interlocutory Injunction (Order).

If you have not received copies of these documents, please contact [insert person] as soon as possible.

Yours faithfully

…

25                  Mr Lee and Mr Burnby in their affidavits, swore that they served personally as many of the respondents as they were able to find at home and for those they could not find at home, they left the originating process at the address of each of the respondents in a variety of ways. 

26                  The position as to whether the respondents actually received the originating process is not clear but it must be said that at the commencement of this proceeding a great deal of publicity occurred as disclosed on affidavit evidence.  That publicity taken together with the personal letters would explain why there is no evidence that any respondent, especially any conditional respondent, did not become aware that he or she was a party to the proceeding in the manner described in the letter forwarded by the applicants to all respondents at or about the date of the various letters.

27                  Without the letter, it must be said that simply knowing of the proceeding does not mean that one knows that one is a party to the proceeding, let alone the precise cause of action being pursued.  But the letter does at least deal with the important issue of knowledge of those matters.

28                  Importantly given that the conditional respondents each instructed the solicitors concerned to enter conditional appearances, it must be inferred that the originating process came to their notice.   

29                  In Howship Holdings Pty Ltd v Leslie [No 2] (1996) 41 NSWLR 542 (at 544) Young J said observed:

… personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial. This is clear in cases that have been considered good law over the centuries, including Hope v Hope (1854) 4 De GM & G 328 at 341-345; 43 ER 534 at 539-540; R v Heron; Ex parte Mulder (1884) 10 VLR 314 at 315; Pino v Prosser [1967] VR 835 at 838. Some of those cases were complicated by the requirement in the former statutes that a person serving initiating process had to

endorse the initiating process, but the principle is clear from them. 

If this were not so, one would get the absurd situation referred to by McInerney J in Pino v Prosser (at 837), that the conclusion would be one which is:

"... remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ ... should be held not to have been served."

30                  Recently in Metacorp Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199 Vickery J said (footnotes omitted):

84        As was pointed out by the Lord Chancellor in Hope v Hope:

The object of all service is of course only to give notice to the party to whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the court may feel perfectly confident that service has reached him, everything has been done as required.

85        To like effect were the observations of Holroyd J in Rudd v John Griffiths Cycle Co Ltd where his Honour, in the course of delivering a dissenting judgment of the Full Court, after referring to the common law history of personal service, went on to say:

Before the Common Law Procedure Act 1852, 15 and 16 Vict., c. 76, came into operation the Courts of England were in general very strict in their interpretation of what constituted personal service, but still on several occasions they declined to set aside the service where the copy of the writ had been delivered at the party’s residence to a servant or relative of his and from the facts the Judge thought it fair to infer that it came into his hands or to his knowledge so that he did or could, if he pleased, become acquainted with its contents.

86        These passages were cited with approval by McInerney J in Pino v Prosser  who observed that it would be:

... remarkable to the point of seeming absurdity, in that the defendant who, on his own affidavit admits that he received the writ ... should be held not to have been served.

87        The general principle enunciated in Hope v Hope and Rudd v John Griffiths Cycle Co Ltd, was applied by McInerney J in Pino v Prosser to the following circumstances: the relevant document, a copy writ, although left with the defendant’s wife, who was a person not capable of accepting personal service on behalf of her husband, came into the possession of the defendant on the same day when, later that night after returning from work, the defendant was handed the copy of the writ by his wife. Receipt by this means was held by the Court to be sufficient to constitute good personal service.

31                  As indicated at the outset, there is no doubt that conventional personal service has not been achieved for all of the conditional respondents. Moreover the applicants appear not to be able to say which respondent was ‘served’ in which manner, if at all. 

32                  Nevertheless it must be inferred that all of the conditional respondents are well aware that he or she is a party to the proceeding having instructed solicitors and counsel.  This is far from a situation of ‘the bailiff’ appearing on the door step for the first time to effect execution of a judgment or order.  To the extent it is relevant, which may be minimal, the proceedings are not far advanced at all.  No defences have been filed for example. 

33                  Although it is possible that there may be some respondents who were unaware of the very substantial publicity surrounding the commencement of this litigation and the real possibility that as an employee, he or she was a party to it, there is no evidence that any of the conditional respondents were in that position. 

34                  The point that no substituted service order was sought at the outset is both correct and reasonable. However given the urgency of the situation in this unusual litigation, especially the very substantial sums at risk on a daily basis, it is understandable with hindsight that not every difficulty could be foreseen.  There were concentrated service attempts which were reasonable in the circumstances.  The personal letter to all employees of the applicants was another means of bringing the proceedings to their attention.  When the difficulties became known, an application for substituted service was pursued.

35                  For others not represented, the problem has not yet arisen but could reasonably be cured with an order under r 10 if that were appropriate which does not fall for consideration at present. 

36                  In my view the declarations sought should not be made as it is clear that all of the conditional respondents have the necessary notice of the originating process.  Although they have not all been personally served in the conventional sense under the rules, the cases show that the purpose of the rules as to service has been achieved.

CORRECTIONAL ORDERS

37                  As I am not convinced that any declaration should be made, it is strictly unnecessary to deal with the correctional order issue, however as I raised the topic at least in part, myself, I would say that if I am wrong on the service point, I would grant relief in the circumstances.

38                  The applicants argue that although personal service was not effected in each case, in the alternative, that it is clear from the affidavits of Mr Lee, the Bailiff of the Karratha Police Station and Mr Burnby, the Bailiff of the Dampier Police Station that it was impractical to effect personal service of the originating application on at least some of the respondents but that steps were taken to bring the documents to their notice. 

39                  In those circumstances it is said that the jurisdiction of the Court under O 7 r 10 of the rules is enlivened and the Court should order that the originating application was served on each of the conditional respondents.

40                  The respondents contend that at this stage of the proceedings it is not appropriate for the Court ex post facto to correct defects in the service of the originating process on the respondents by making an order as the applicants seek pursuant to O 7 r 10 FCR as:

(a)        there is no motion before the Court from the applicants seeking relief under O 7 r 10; and

(b)        the evidence before the Court is not sufficient to show:

(i)         why service of the originating process on the respondents was ‘impractical’; or

(ii)        what steps were taken by the applicants to effect service of the originating process on the respondents such that the Court could be satisfied that each respondent had sufficient knowledge of the contents of the originating process to be in a position to respond to it.

41                  In the course of the hearing, I raised with counsel for the respondents the question of whether relief should be granted under O 1 r 8 of the rules which provides as follows:

8          Relief from rules

The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises.

42                  Emmett J in Sogelease Australia Ltd v Griffin (2003) 128 FCR 399 indicated that such relief in his view would be appropriate. 

43                  In the circumstances of these motions, the conditional respondents contend that excusing the non-service pursuant to O 1 r 8 FCR would not be appropriate.  In support of that submission they reiterate the argument that service of the originating process is a jurisdictional fact, a requirement which needs to be met before the Court can exercise the jurisdiction with respect to the respondents. 

44                  As to dispensing with the requirement in the Rules (and see also Lazar v Taito (Aust) Pty Ltd (1985) 5 FCR 395), it was submitted that the circumstances in which the Court will exercise the discretion to dispense with the requirement for personal service will be limited, to use the expression of McGregor J in Lazar (at 403 and at 414 per Neaves J).  In that case, a Full Court of this Court upheld the decision of a judge at first instance to dispense with personal service of the court process in the circumstances of the case.  That was, however, on the basis that the court was satisfied that the particular respondent had notice of the proceedings.  Neaves J (with whom relevantly Fox J and McGregor JJ agreed) said in relation to O 1 r 8 FCR (at 414):

In my opinion O 1, r 8 confers a very wide discretion on the court to dispense with personal service where the court considers it appropriate to do so. The power which it confers is not limited by the express requirement for personal service in O 40, r 8 though it may be accepted that in the case of contempt proceedings as, perhaps, in other cases there will be limited circumstances in which the discretion conferred by the rule should be exercised. I am satisfied that the particular circumstances of this case were such that an exercise of the discretion to dispense with personal service was justified. The appellant's submissions on this aspect of the matter are rejected.

45                  In my respectful view those observations are not only binding but make good sense.  The ‘very wide discretion’ is one which in an appropriate case may be exercised ex post facto if the interests of justice so require.  No motion for contempt is before the court which may raise different considerations.  The fact that the court may in effect regularize the initial service so that the proceedings of which the conditional respondents must be taken to have notice may move forward does not mean that on a hypothetical contempt motion against any respondent, that service or knowledge of a restraining order would be as readily inferred.  That, however is entirely hypothetical at present.

46                  Orders under either O 7 or O 1 are not necessary, but were they necessary, in my view they could be properly made in the circumstances of this case.

INFERENCE AS TO KNOWLEDGE

47                  The conditional respondents contend that it is not open to the Court to draw any inference as to their knowledge of the proceeding.  They contend that the conditional appearance was a necessary procedural step filed to enable the respondents to bring the significant defects in the service of the originating process in the proceeding to the attention of the Court (Robinson v Kuwait Liaison Office (1997) 145 ALR 68 at 75). 

48                  Two things may be said about Robinson v Kuwait.  First, as the extract below reveals, it involved specialised legislation specific to that case.  Secondly, to the extent that it made the point that filing a conditional appearance does not constitute a submission to jurisdiction, it is undoubtedly correct.  But as will be seen, that is not the argument raised for the applicants in this motion.  In Robinson v Kuwait Moore J said:

The question that arises in these proceedings is whether the Kuwait Liaison Office has entered an appearance of the type that enlivens the provisions of s 26. A person may appear in a court by announcing an appearance or, if the Rules of the Court so provide, by filing a notice of appearance. The appearance may be unconditional in which case it generally amounts to a submission to the jurisdiction of the court and a waiver of any irregularity such as one concerning the manner of service: see Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 at 539, 11 ALR 227 per Gibbs J. A conditional appearance constitutes an appearance for the purposes of the litigation, subject to a right to apply to set aside the originating process: see Trade Practices Commission v The Gillette (No. 1) (1993) 45 FCR 366 at 369-70, 118 ALR 280; Westpac Banking Corporation v P&O Containers Ltd (1991) 105 ALR 90 at 93-4; for reasons relating to service or other reasons: see Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 at 370; 136 ALR 733.

If the court does not have rules regulating the manner of appearing, then issues will arise about the consequences of a party appearing before articulating an objection to jurisdiction. In Lindgran v Lindgran [1956] VLR 215, Smith J concluded that a party had not waived an objection to jurisdiction arising from defective service of the originating process by consenting to an adjournment and, on a later occasion, by appearing through counsel who announced an appearance before raising an objection to jurisdiction. His Honour said at 220 that to waive objection to jurisdiction:

[T]here must at least be words or conduct of such a nature that an inference can properly be drawn therefrom that the party alleged to have waived the objection does not intend to rely upon it: cf Ray v the Justices of Melbourne (1891) 17 VLR 186; Brokenshire v Bacon (1895) 1 VLR 273; Re the Melbourne Democratic Club (1901) 27 VLR 88; Craine v Colonial Mutual Fire Insurance Ltd (1920) 28 CLR 305 at 326; see also Hampden v Wallis (1884) 26 Ch D 746; Rein v Stein (1892) 66 LT 469, per Cave J at 471-2.

The prosecution of an application to set aside orders on grounds that the Court did not have jurisdiction to make them because there had been ineffective service of the originating process, while raising grounds touching the merits, does not constitute a waiver of the right to object to jurisdiction: see Laurie v Carroll (1958) 98 CLR 310 at 335-36; see also National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176-183. A recent example of the application of these principles is found in Williams v The Society of Lloyds [1994] 1 VR 274 in which McDonald J concluded that a request for particulars of a claim did not constitute a waiver of the right to object to jurisdiction.

Another recent example is found in Bannerton Holdings Pty Ltd v Sydbank Soenderjylland AS (unreported, 9 February 1996, Federal Court of Australia, Nicholson J). The respondent sought orders setting aside an application and service of originating process on it in Denmark and related orders under O 9, r 7. The respondent also sought a stay of the proceedings on the basis that the Federal Court was an inappropriate forum for the litigation of the claim. To the extent that the respondent was challenging the jurisdiction of the Federal Court, the applicant argued that the respondent had accepted the court’s jurisdiction by seeking an order staying the proceedings. Nicholson J discussed the relevant principles in the following passages:

The case for the applicant also relies upon Rein v Stein (1892) 66 LT 469 at 471 where it was said by Cave J (with Williams J agreeing) that in order to establish a waiver of a right to object to jurisdiction it must be shown that the party alleged to have waived the objection has taken some step which is only necessary or only useful if the objection has been actually waived or if the objection has never been entertained at all. This statement was followed in Williams v The Society of Lloyds [1994] 1 VR 274 at 293 and National Commercial Bank v Wimborne (1979) 11 NSWLR 156.

The dicta in Rein was applied in Williams & Glyn’s Bank Plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438 at 444. It is Williams, supra, upon which the case for the respondent relies. It was there held that a summons in an English action to enforce guarantees given by two Greek companies in which they had joined a stay application together with an application to set aside the proceedings for lack of jurisdiction did not have the consequence that they had waived their objection to jurisdiction and was in no way inconsistent with maintaining that objection ...

... Williams & Glyn’s Bank, supra, is the relevant authority. It is a decision of the House of Lords and so is to be preferred as higher authority in any event if the ratio decidendi of Henry, supra, is properly to be understood as dealing with the same essential point. The reasoning in Williams & Glyn’s Bank (see particularly the speech of Lord Fraser of Tullybelton at 443-4) accords with what was said by Caves J in Rein v Stein, supra, and by Denning LJ in Re Dulles’ Settlement, supra. It also accords with the common sense notion that an appearance made under protest as to jurisdiction is inconsistent with the concept of voluntary submission or waiver of the right to object: cf Finnish Marine Insurance Co Ltd v Protective National Insurance Co [1990] 1 QB 1078. The law is so understood in Dicey and Morris on The Conflict of Laws 12th ed, 1993, vol 1 pp 311-12. Nothing said by the High Court in Laurie v Carroll (1958) 98 CLR 310 supports a contrary conclusion.

Consequently, the applicant’s argument that the respondent has voluntarily submitted to the jurisdiction cannot succeed. That resolution of law is consistent with the basis upon which the respondent appeared, namely by way of continuing objection to jurisdiction even when contending for the stay application.

In my opinion, the reference in s 26 to a foreign State “enter(ing) an appearance in a proceeding” is a reference to circumstances where the foreign State conducts itself in a way that indicates it does not challenge the jurisdiction of the court based on ineffective service. So much is apparent from the words that follow, namely “without making an objection in relation to the service of the initiating process”. Submission to jurisdiction more generally is dealt with by s 10 of the Immunities Act. Such an indication may be manifest by the unqualified announcement of an appearance on the foreign State’s behalf at a hearing or the filing of an unconditional notice of appearance. It would not be manifest by the filing of a conditional appearance at least of the type contemplated by rules such as O 9 r 6 of the Federal Court of Australia Rules of the Rules of this Court. The filing of such a conditional appearance would preserve the right of the foreign State to seek a declaration under O 9 r 7(1)(a) that, having regard to s 25 of the Immunities Act, the originating process had not been duly served.

In the present case, the filing of the “employer’s appearance” on behalf of the Kuwait Liaison Office with the Australian Industrial Registry did not, in my opinion, constitute the entering of an appearance for the purposes of s 26. First, the written direction to file it made clear that it would not deny the filing party the right to make submissions about jurisdiction which, in my opinion, would include want of jurisdiction arising from defective service of process to which ss 23, 24 and 25 of the Immunities Act applies. It was in that context that the appearance was filed. Secondly, the solicitors acting for the Kuwait Liaison office made plain, albeit several weeks later, that their client was not submitting to the Commission’s or the court’s jurisdiction. Taken together, it is evidence, in my opinion, that the Kuwait Liaison Office was not manifesting an intention of the type upon which s 26 intended to operate, that is submitting to jurisdiction notwithstanding any defect in the service of originating process. …

49                  The key analysis in Robinson v Kuwait was as to the question of whether the pursuit of an application to set aside orders on grounds that the Court did not have jurisdiction to make them because there had been ineffective service of the originating process, meant there had been a submission to jurisdiction.  It was held, consistently with Laurie v Carroll at 335-336; see also National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176-183 that it did not constitute a waiver of the right to object to jurisdiction.

50                  Nothing done by the conditional respondents has constituted a waiver of  their right to contend that there has been no valid service of the originating process so as to enliven the jurisdiction of the Court.  Nor has it constituted a submission to jurisdiction. 

51                  Consistently with the authorities discussed at [30]-[31], the only argument advanced for the applicants is that if the purpose of the rules as to service is to ensure that notice of the proceedings is given to a respondent, then in instances where it is clear that the giving of notice (even before an unconditional appearance is filed) has been achieved, then as the purpose of service is attained, it is inappropriate to make a declaration that personal service has not been effected.   This argument succeeded.  It is not the argument in Robinson (which failed), that there had been a submission to jurisdiction precluding any argument as to service being raised.

CONCLUSION

52                  For the forgoing reasons I decline to make the declarations sought and the motions seeking the declarations will be dismissed.   I will hear counsel as to any consequential orders and the making of further directions.

Associate: 

Dated:         27 July 2010

SCHEDULE A AS AMENDED