Cochran v Sutton [2014] NSWCA 185

Cochran v Sutton [2014] NSWCA 185

The Industrial Court could not authorise service of its originating process outside Australia. Section 162(2)(f) of the Industrial Relations Act 1996 (NSW) did not confer an unlimited power to require service anywhere in the world, and Pt 11 of the Uniform Civil Procedure Rules 2005 (NSW) was confined to proceedings in the Supreme Court and did not apply to the Industrial Court. Because personal service outside Australia was not open, the order for substituted service on Mr Cochran in the United States had to be set aside.

Jurisdiction
Australia
Judgment Date
05 June 2014
Procedural Posture
Application for Leave to Appeal From Orders of the Industrial Court Concerning Substituted Service Outside Australia in Unfair Contract Proceedings / Leave to Appeal and Appeal Heard Concurrently in the Court of Appeal
Outcome
Leave to appeal granted; appeal upheld; Industrial Court orders set aside; substituted service order set aside; declaration made that the Industrial Court is not able to authorise service of originating process outside Australia.
Legal Topics
['service Outside Australia' 'substituted Service' 'industrial Court Jurisdiction' 'uniform Civil Procedure Rules 2005 (nsw) Pt 11' 'industrial Relations Act 1996 (nsw) S 162(2)(f)']
['civil Procedure' 'jurisdiction' 'industrial Law'] ['service Outside Australia' 'substituted Service' 'industrial Court Jurisdiction' 'uniform Civil Procedure Rules 2005 (nsw) Pt 11' 'industrial Relations Act 1996 (nsw) S 162(2)(f)']

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Procedural Posture

Application for Leave to Appeal From Orders of the Industrial Court Concerning Substituted Service Outside Australia in Unfair Contract Proceedings / Leave to Appeal and Appeal Heard Concurrently in the Court of Appeal

Legal Issues

  1. 1 ['Whether the Industrial Court of New South Wales had power to authorise service of originating process outside Australia.' 'Whether Pt 11 of the Uniform Civil Procedure Rules 2005 (NSW) applied to proceedings in the Industrial Court.' 'Whether substituted service on Mr Cochran in the United States was available where personal service outside Australia was not permitted.']

Ratio Decidendi

The Industrial Court could not authorise service of its originating process outside Australia. Section 162(2)(f) of the Industrial Relations Act 1996 (NSW) did not confer an unlimited power to require service anywhere in the world, and Pt 11 of the Uniform Civil Procedure Rules 2005 (NSW) was confined to proceedings in the Supreme Court and did not apply to the Industrial Court. Because personal service outside Australia was not open, the order for substituted service on Mr Cochran in the United States had to be set aside.

Court Disposition

Leave to appeal granted; appeal upheld; Industrial Court orders set aside; substituted service order set aside; declaration made that the Industrial Court is not able to authorise service of originating process outside Australia.

Orders

  • ['Grant the applicant leave to appeal with respect to the judgment and orders of the Industrial Court of 5 December 2013.' "Set aside the orders of that Court dismissing the applicant's notice of motion and ordering that he pay Ms Sutton's costs of the motion." "The order of 21 October 2013 directing substituted...