Zurich Insurance Company Ltd v Koper [2023] HCA 25

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJ

ZURICH INSURANCE COMPANY LTD & ANOR APPELLANTS

AND

DARIUSZ KOPER & ANOR RESPONDENTS

Zurich Insurance Company Ltd v Koper

[2023] HCA 25

Date of Hearing: 13 April 2023

Date of Judgment: 8 August 2023

S147/2022

ORDER

1. Appeal dismissed.

2. The appellants pay the costs of the first respondent.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with G E S Ng for the appellants (instructed by Wotton + Kearney)

N C Hutley SC with M F Caristo and B A O'Connor for the first respondent (instructed by Piper Alderman)

S P Donaghue KC, Solicitor-General of the Commonwealth, with B K Lim and J G Wherrett for the second respondent (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Zurich Insurance Company Ltd v Koper

Practice and procedure – Jurisdiction – Service outside Australia – Where first respondent sought leave under Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ("Claims Act") to bring proceedings against appellant insurers in Supreme Court of New South Wales ("NSWSC") – Where ability of first respondent to bring proceedings under Claims Act against appellant insurers in NSWSC assumed to depend on whether notional proceedings in NSWSC could be brought against insured resident of New Zealand – Whether service of process on insured in New Zealand would have been effective by reason of ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) ("TTPA") – Whether ss 9 and 10 of TTPA have valid application to initiating document issued by State court relating to civil proceeding in State jurisdiction.

Constitutional law (Cth) – Powers of Commonwealth Parliament – Implications from Constitution – Power with respect to service and execution throughout the Commonwealth of civil and criminal process – Where ss 9 and 10 of TTPA accepted to be within legislative power of Commonwealth Parliament under s 51(xxix) of Constitution – Whether ss 9 and 10 of TTPA invalid in application to initiating document issued by State court in relation to civil proceeding in State jurisdiction – Whether capacity of Commonwealth Parliament to alter scope and reach of State judicial power subject to implied limitation derived from ss 51(xxiv), 77(ii) and 77(iii) of Constitution – Whether power of Commonwealth Parliament under s 51(xxiv) of Constitution to make laws for service of process of State courts throughout geographical area of Commonwealth inconsistent with purported implied limitation.