Laurie v Carroll [1958] HCA 4

Laurie v Carroll [1958] HCA 4

Because Laurie had left Victoria before the writ was issued and was not amenable to personal service of an ordinary Victorian writ, the Supreme Court could not acquire jurisdiction over him by ordering substituted service within Victoria; his alleged motive in leaving to avoid service could not create jurisdiction. His notice of motion, although seeking some relief beyond O. XII, r. 17, maintained the objection to jurisdiction and did not amount to waiver or submission. The order for substituted service and the purported service under it had to be set aside.

Jurisdiction
Australia
Procedural Posture
Appeal by Special Leave / High Court Appeal From an Interlocutory Supreme Court of Victoria Order Dismissing an Application to Discharge Substituted Service
Outcome
Appeal allowed with costs; Supreme Court order dated 5th July 1957 discharged; substituted service of the writ set aside.
Legal Topics
['substituted Service' 'personal Service' 'service Out of the Jurisdiction' 'jurisdiction in Personam' 'waiver and Submission to Jurisdiction']
['civil Procedure' 'conflict of Laws' 'jurisdiction'] ['substituted Service' 'personal Service' 'service Out of the Jurisdiction' 'jurisdiction in Personam' 'waiver and Submission to Jurisdiction']

Case Brief

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Procedural Posture

Appeal by Special Leave / High Court Appeal From an Interlocutory Supreme Court of Victoria Order Dismissing an Application to Discharge Substituted Service

Legal Issues

  1. 1 ['Whether an order for substituted service of an ordinary writ of summons in Victoria could be sustained where Laurie was not in Victoria when the writ was issued and had left before service.' 'Whether leaving Victoria to avoid service before issue of the writ could found jurisdiction by substituted service.' 'Whether Laurie waived his objection to service and jurisdiction, or submitted to the jurisdiction, by seeking relief beyond setting aside service.']

Ratio Decidendi

Because Laurie had left Victoria before the writ was issued and was not amenable to personal service of an ordinary Victorian writ, the Supreme Court could not acquire jurisdiction over him by ordering substituted service within Victoria; his alleged motive in leaving to avoid service could not create jurisdiction. His notice of motion, although seeking some relief beyond O. XII, r. 17, maintained the objection to jurisdiction and did not amount to waiver or submission. The order for substituted service and the purported service under it had to be set aside.

Court Disposition

Appeal allowed with costs; Supreme Court order dated 5th July 1957 discharged; substituted service of the writ set aside.

Orders

  • ["Allow the appeal from the order of the Supreme Court dated 5th July 1957, made by Herring C.J. on the defendant's notice of motion." 'Order that the respondents pay the costs of the appeal.' 'Discharge the said order.' 'In lieu thereof order that so much of the order dated 21st June 1957 and made ex parte by...