§ 206. “Service.”

The object of this sub-section is to provide a uniform law for the service of civil and criminal process, for the execution of civil and criminal process, and for the execution of the judgments of the courts of the States, throughout the Commonwealth. With reference to the service, beyond the limits of a colony, of civil process issued within a colony, the constitutionality of laws passed by Colonial legislatures authorizing this to be done has often been questioned. Service, of course, is generally recognized as the foundation of jurisdiction in civil cases. No man can be legally bound by a judgment given behind his back and without his having had an opportunity of being heard. (Per Erle, C.J., in re Brook, 33 L.J. C.P. 246.) Now, the Colonial Constitutions gave authority to the Colonial legislatures to make laws for the peace, order, and good government of their respective colonies. Those legislatures were not sovereign, like the British Parliament; their powers were strictly circumscribed and defined by their respective Constitutions, and it was contended that whilst they could legislate concerning the service of process within their territorial limits, they could not, in the absence of an express grant of power from the Imperial Parliament, give their courts jurisdiction over persons and property situated outside those limits. In several cases the Colonial courts have been asked not to shrink from the responsibility of declaring void Colonial legislative enactments which purported to apply to acts done by persons residing, and property located, outside the territorial limits. In most of these cases the courts have refused to disregard the mandates of the legislative departments.

In connection with Acts which authorize the initiation of civil proceedings against defendants absent from the law-making country, two questions have to be kept steadily in view and distinguished. (1) Are these statutes valid and binding on the courts within the territory of the lawmakers? (2) Will foreign courts recognize judgments obtained in civil proceedings so initiated? Several cases have been decided, from which it appears that the first question ought to be answered in the affirmative. (Lefroy, Leg. Pow. in Can. p. 330.)

In Banks v. Orrell (1878, 4 V.L.R. [L.] 219), the question was raised as to the validity of the service in New South Wales of a writ of the Supreme Court of Victoria. By the Common Law Procedure Act, 1865 (Vic.), sec. 90, it was declared that a writ of summons in any action might be served in any part of Victoria or within fifty miles of the frontier or border thereof. Counsel in support of the service (Mr. Geo. Higinbotham, afterwards Chief Justice), admitted arguendo that the legislature had usurped jurisdiction pro tanto outside its territory, but he contended that as the power was given, the court was bound to carry it out. The Supreme Court held that every Act of the legislature must be obeyed, whatever its meaning. In Regina v. Call ex parte Murphy (1881, 7 V.L.R. [L] 113), Chief Justice Stawell said:—“It has always appeared to me to be the duty of the court to assume that Parliament will not lightly attempt to exceed its territory.”

By the Judicature Act, 1883 (Vic.), sec. 90 of the Common Law Procedure Act was repealed, and provision, founded on sec. 18 of the (Imperial) Common Law Procedure Act, 1852, (15 and 16 Vic. c. 76), was made for the issue of a writ of summons “on any defendant being a British subject residing out of the jurisdiction of the Court in any

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place;” and on proof that there is a cause of action which arose within the jurisdiction, or in respect of the breach of a contract made within the jurisdiction or the breach within the jurisdiction of a contract wherever made, or in respect of property within the jurisdiction, and that the writ has been personally served on the defendant, or that reasonable efforts were made to effect service, and that it came to his knowledge, the judge may allow the plaintiff to proceed in the action. There is a similar law in New South Wales (Common Law Procedure Act, 1899, sec. 18).

It has been held that this procedure applies to individuals and not to corporations. (Connell v. Neill and Co., 7 W.N. [N.S.W.] 6; Lempriere v. New Pinnacle Group S.M. Co. No Liab., 21 A.L.T. 182 [Vic.].)

Another provision for the extra-territorial service of civil process, applicable to minor courts, has been made by several Australian Legislatures. By the Victorian Intercolonial Debts Act, 1887, re-enacted in the County Court Act, 1890, secs. 142–4, authority is given to serve County Court Summonses on defendants out of the jurisdiction, in Australian colonies, in which there are laws in force by which effect may be given, by the local courts of such colonies, to the judgments of the County Court of Victoria. On recovering judgment against an absent defendant, within any of the reciprocating provinces or colonies, the plaintiff is enabled to procure a certificate of judgment; this certificate is sent on to the clerk of the local court of the other colony in which the absent defendant is resident, and in which execution is then issued. Similar and reciprocal Acts were passed in South Australia (Intercolonial Debts Act, 1887), and in New South Wales (Intercolonial Debts Act, 1889).

The ineffectiveness of this kind of legislation, and the necessity of a federal law regulating service of process and execution of judgment, has been recently illustrated in a striking manner in the case of Elkan v. De La Juvenay, decided by the Full Court of Victoria on the 10th August, 1900.

In March of that year, Madame De la Juvenay, of Camberwell, near Melbourne, was served at her residence with a summons issued from the local court of South Australia, claiming £9 as the amount of two promissory notes. She was domiciled and resident in Victoria, and endorsed the promissory notes there, but they were payable in Adelaide. She did not appear to answer the summons, and judgment was entered up in Adelaide by default. It was transferred to the Victorian County Court, and on 8th May Madame De la Juvenay was served with a notice of the judgment. This was followed up next morning by a writ of execution. Under protest, she paid the money, and afterwards applied to have the judgment set aside. Mr. Justice A'Beckett, however, held that the Intercolonial Debts Act of 1887, now represented by sections 138 to 145 of the County Court Act of 1890, established a system of reciprocity between Victoria and any colony as to which a proclamation had been issued. An appeal was made on the ground that as the defendant was domiciled in Victoria, and had not submitted in any way to the South Australian jurisdiction, the judgment was not enforceable against her in Victoria, and was null by international law. The Full Court allowed the appeal. The Chief Justice (Sir John Madden) pointed out that it was a well understood proposition of international law that a subject of one State was not bound to obey the judgments of another State unless he chose to submit himself to its jurisdiction. The colonies were, for a purpose of this kind, as much apart as if they were foreign States. It was now contended, practically, that whenever a cause of action arose in South Australia against a Victorian, although the Victorian had never been in the other colony at all, the South Australian court had as much jurisdiction against him as if he had lived all his life there. This would be a striking change in the ordinary principles of law, and what had happened was wrong. The Act only applied to cases in which a resident of one colony had gone to another colony; not to cases in which the defendant had never submitted to the jurisdiction of the colony in which the plaintiff sued. In the view the court took, Madame De la Juvenay was a person not liable to be sued effectually in the circumstances. The judgment was set aside, and the money paid

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upon the unlawful execution was ordered to be handed back. (The Age, 11 August, 1900; 22 A.L.T. p. 34.)

The New Zealand Parliament passed an Act (New Zealand Code, 46 Vic. No. 29, Rule 53) authorizing the courts of that colony, in any action founded on a contract made or to be performed within the colony, to decide whether they will allow a plaintiff to issue a writ and proceed against an absent defendant without service of the writ. In Ashbury v. Ellis (1893), App. Cas. 339, the Privy Council held that this was a valid law, and that it was competent for the legislature of New Zealand, under the Constitution of that colony, to subject to its tribunals persons who were neither by themselves nor their agents present in the colony, in actions founded on any contract made or entered into or wholly or in part to be performed within the colony. Referring to the argument that a judgment so obtained could not be enforced beyond the limits of New Zealand, their lordships said that “when a judgment of any tribunal comes to be enforced in another country, its effect will be judged by the courts of that country with regard to all the circumstances of the case. For trying the validity of New Zealand laws, it is sufficient to say that the peace, order, and good government of New Zealand are promoted by the enforcement of the decrees of their own courts in New Zealand.”

In reference to the second of the above questions the answer may be gleaned from numerous cases decided in England. In Simpson v. Fogo, 32 L.J. Ch. 249, it was held that the same rules are applicable in the enforcement of colonial judgments as in the enforcement of foreign judgments. In Buchanan v. Rucker, 9 East 192, the facts were that a law of the island of Tobago, a British colony, enacted that if a defendant were absent from the island he might be summoned by nailing up a copy of the declaration at the Court-house door, and this should be deemed good service. Lord Ellenborough, C.J., held that on a fair construction of the Act this must be intended to apply to one who had been present and subject to the jurisdiction; and that if it had been meant to reach strangers to the jurisdiction, it would not have bound them. The principle affirmed was that an action is not maintainable on a colonial judgment, unless it appears that the defendant was regularly served with process, and had an opportunity of defending the suit, even although it appears to be the practice of that court not to give personal notice. The rule to be deduced from the cases is, that where the defendant against whom a judgment has been obtained in a colonial court, under such local Acts as we have been considering, authorizing service of process in absentem, is, or even has been, subject to the jurisdiction of the colony, such judgment will be recognized in the courts in England where otherwise it would not be. (Lefroy, Leg. Pow. in Can. p. 332.)

Under this sub-section of the Constitution a most important power is conferred on the Federal Parliament. It will enable that Parliament to provide procedure for the service, throughout the Commonwealth, of the civil process of the courts of the States, such as writs, summonses, notices of legal applications issued in and by the courts of the States. This includes the service of the civil process of the inferior as well as the superior courts of the States; so that it will be as competent to provide for the service in one State of a summons issued by a local court or a court of petty sessions in another State, as for the service of Supreme Court writs. Such a law would appropriately specify the mode of service, whether personal or substituted, to be observed. It could also define the persons, whether private individuals or public officers, who are qualified to effect service. Another essential would be proof of service, sufficient to satisfy the adjudicating tribunal and give it jurisdiction. (Bank of Australasia v. Nias, 16 Q.B. 717.)