Darc Rasmussen v Eltrax Systems Pty Ltd & ors (No. 4) [2006] NSWIRComm 225

The Court held that the applicant had proved service of the second amended summons on the fifth respondent in accordance with the laws of Georgia and Minnesota and with the required notice for service outside Australia. The Court accepted legislative websites as reliable sources for the relevant foreign service laws and rejected the fifth respondent's attempt to put the applicant to strict proof where no positive case of defective service was advanced. The notice of motion for leave did not require the same strict proof applicable to originating process and had in any event been received by the fifth respondent. The applicant showed a good arguable case and serious issue to be tried...

Jurisdiction: Australia
Judgment Date: 14 July 2006
Procedural Posture: Proceedings Under S 106 of the Industrial Relations Act 1996 Concerning Alleged Unfairness in a Contract of Employment and Related Share Option Arrangements / Interlocutory Judgment on Competing Notices of Motion: Applicant Sought Leave Under Rule 112(4) to Proceed Against a Non Submitting Foreign Respondent; Fifth Respondent Sought Dismissal, Service and Jurisdictional Relief Under Rule 82
Outcome: Applicant's notice of motion upheld; fifth respondent's notice of motion dismissed; leave granted to proceed against the fifth respondent.
Legal Topics: ['service Outside Australia' 'leave to Proceed Against Foreign Respondent' 'proof of Foreign Law' 'jurisdiction Under S 106 of the Industrial Relations Act 1996' 'collateral Arrangements Related to Employment' 'setting Aside Service' 'forum and Inconvenience']

['industrial Relations' 'civil Procedure' 'private International Law' 'evidence'] ['service Outside Australia' 'leave to Proceed Against Foreign Respondent' 'proof of Foreign Law' 'jurisdiction Under S 106 of the Industrial Relations Act 1996' 'collateral Arrangements Related to Employment' 'setting Aside Service' 'forum and Inconvenience']

Case Brief

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Procedural Posture

Proceedings Under S 106 of the Industrial Relations Act 1996 Concerning Alleged Unfairness in a Contract of Employment and Related Share Option Arrangements / Interlocutory Judgment on Competing Notices of Motion: Applicant Sought Leave Under Rule 112(4) to Proceed Against a Non Submitting Foreign Respondent; Fifth Respondent Sought Dismissal, Service and Jurisdictional Relief Under Rule 82

Legal Issues

1 ['Whether the applicant could prove proper service of the second amended summons on the fifth respondent.' 'Whether the second amended summons was served on the fifth respondent in accordance with the laws of Georgia and Minnesota and with the required notice for service outside Australia.' 'Whether any service should be set aside.' 'Whether the Court had jurisdiction over the fifth respondent in respect of the s 106 proceedings.' 'Whether the Court should decline to exercise jurisdiction or refuse leave because of forum, inconvenience, annoyance, costs, or delay.' 'Whether leave should be granted under Rule 112(4) to proceed against the fifth respondent.']

Ratio Decidendi

Court Disposition

Applicant's notice of motion upheld; fifth respondent's notice of motion dismissed; leave granted to proceed against the fifth respondent.

Orders

['Leave is granted to the applicant under Rule 112(4) to proceed against the fifth respondent.' "The applicant's motion is upheld." "The fifth respondent's motion is dismissed." 'The applicant is to have the costs of both sets of proceedings in an amount assessed under the Legal Profession Act in default of...