Laurie v Carroll [1958] HCA 4

High Court of Australia Dixon C.J. Williams and Webb JJ. Laurie v Carroll [1958] HCA 4

ORDER 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 Herring C.J. in chambers be discharged as orders that, in lieu of personal service of the writ of summons, service thereof may be effected in the manner stated in such order and that the purported service of such writ in pursuance of such order be set aside; and further order that the plaintiffs (respondents in this appeal) pay the costs in the Supreme Court of the defendant Laurie of such motion.

Cur. adv. vult.

The Court delivered the following written judgment:—

1958, Mar. 11 Dixon C.J., Williams and Webb JJ.

This is an appeal by special leave from an order of the Supreme Court of Victoria made by Herring C.J. on 5th July 1957. His Honour pronounced two orders in the action upon that date but the order appealed from is that which dismissed with costs an application by the appellant, who is a defendant in the action, seeking the discharge of certain parts of an order dated 21st June 1957 which his Honour had made in chambers. The order of 21st June 1957 was made ex parte upon the application of the plaintiffs, who are the respondents in this appeal. Among other things for which the order provided it was ordered that in lieu of personal service upon the defendant-appellant of the writ of summons in the action and of a notice of motion, service of the writ of summons and of any other notices documents or proceedings including the order itself might be effected by leaving the said documents or true copies thereof with a named firm of solicitors for the defendant-appellant at their place of business in Melbourne during office hours. The notice of appeal, which is by no means as specific as it might be, appears to be chiefly if not entirely directed to this provision of the order of 21st June 1957 which the order of 5th July 1957 now appealed against refused to set aside. At all events the question in the appeal is whether an order for substituted service upon the defendant-appellant can be sustained. He maintains that it cannot be supported because he does not belong in any way to the State of Victoria, that is to say he is not connected with the State by birth, domicile or residence, if these things matter, or in any other way, and he was not within the State when the writ (one for service within the jurisdiction) was issued nor at any time afterwards. The plaintiffs-respondents support the order on the ground that he had been within the State of Victoria for two or three days in connexion with a transaction portion of the profits whereof arose in Victoria and had left the State in anticipation of the issue of the writ and to avoid service. For the plaintiffs-respondents it is also said that the defendant-appellant in his application to the Chief Justice of Victoria to set aside his Honour's order of 21st June 1957 went further in the relief sought than could be warranted by an objection that jurisdiction over him could not be obtained by substituted service and that accordingly the order for such service and substituted service under it should be set aside. By doing this, so the plaintiffs contend, the defendant-appellant waived the objection to service of the writ and to the jurisdiction of the Victorian court.