JOHNSON v ALEXANDER [2002] NSWSC 824

JOHNSON v ALEXANDER [2002] NSWSC 824

The Statement of Claim served on the first defendant in Canberra was not duly served because it did not comply with the interstate service requirements of the Supreme Court Rules and was not accompanied by the notice required by s16 of the Service and Execution of Process Act 1992 (Cth). No waiver had occurred, and the plaintiff could not avoid the interstate service regime merely by noting a New South Wales address for the first defendant in the originating process.

Jurisdiction
Australia
Judgment Date
11 September 2002
Procedural Posture
Defamation Proceedings; Application Concerning Service of Originating Process / Notice of Motion by the First Defendant for a Declaration Pursuant to SCR Pt 11 R 8(1)(c) That the Originating Process Had Not Been Duly Served on Him
Outcome
The first defendant's motion was granted; the Court declared that the Statement of Claim had not been duly served on the first defendant and ordered the plaintiff to pay the first defendant's costs of the motion.
Legal Topics
['interstate Service of Originating Process' 'service and Execution of Process Act 1992 (cth)' 'supreme Court Rules Pt 11 R 8(1)(c)' 'waiver of Defective Service']
['civil Procedure' 'defamation'] ['interstate Service of Originating Process' 'service and Execution of Process Act 1992 (cth)' 'supreme Court Rules Pt 11 R 8(1)(c)' 'waiver of Defective Service']

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Procedural Posture

Defamation Proceedings; Application Concerning Service of Originating Process / Notice of Motion by the First Defendant for a Declaration Pursuant to SCR Pt 11 R 8(1)(c) That the Originating Process Had Not Been Duly Served on Him

Legal Issues

  1. 1 ['Whether the Statement of Claim served on the first defendant in Canberra was duly served despite non-compliance with SCR Pt 10 r 2B and absence of a notice under s16 of the Service and Execution of Process Act 1992 (Cth).' 'Whether any defect in interstate service had been waived by the first defendant.' 'Whether the plaintiff could avoid interstate service requirements by stating a New South Wales address for the first defendant in the originating process.' 'Whether s81 of the Supreme Court Act could cure the defects in service.']

Ratio Decidendi

The Statement of Claim served on the first defendant in Canberra was not duly served because it did not comply with the interstate service requirements of the Supreme Court Rules and was not accompanied by the notice required by s16 of the Service and Execution of Process Act 1992 (Cth). No waiver had occurred, and the plaintiff could not avoid the interstate service regime merely by noting a New South Wales address for the first defendant in the originating process.

Court Disposition

The first defendant's motion was granted; the Court declared that the Statement of Claim had not been duly served on the first defendant and ordered the plaintiff to pay the first defendant's costs of the motion.

Orders

  • ['I declare, pursuant to Pt 11 r 8(1)(c) of the Supreme Court Rules, that the Statement of Claim issued out of the Registry of this Court on 30 April 2001 has not been duly served on the first defendant.' "I order the plaintiff to pay the first defendant's costs of this motion." 'I reserve the question of any...