Aichhorn & Co KG v The Ship MV Talabot [1974] HCA 21

High Court of Australia Stephen J. McTiernan A.C.J. Menzies, Gibbs and Mason JJ. Aichhorn & Co KG v The Ship MV Talabot

ORDER Appeal dismissed with costs.

Cur. adv. vult.

Stephen J.

By this application the defendant seeks to have set aside service of notice of the plaintiffs' writ of summons upon a number of grounds which, in argument, come down to the objection that because the action took the form of a writ in rem service of notice of the writ on the defendant ship in Singapore, out of the territorial jurisdiction of this Court, was a nullity. It was said that it is essential to proceedings in rem that service be effected within the jurisdiction, such proceedings being of their nature wholly inconsistent with the absence of the ship from the Court's territorial jurisdiction.

Under the Rules of Court in force prior to 1952 no question of service of a writ in rem out of the jurisdiction could have arisen since the rules then provided, by O. 42 A, r. 14, that in Admiralty actions in rem the writ of summons should be served by the Marshal of the Court or his officer. In this respect they followed the English practice as it formerly existed under the rules of 1875 (O. 9, rr. 9 & 10), and see O. 42 A, r. 1. However the present Rules of this Court, adopted in 1952, omit the former O. 42 A, which dealt exclusively with Admiralty actions; many of its provisions are retained but are now to be found dispersed throughout the rules; the equivalent of old r. 14 of O. 42 A now appears as O. 9, r. 10, but is concerned, as its English equivalent has long been, only with service of warrants of arrest, there now being no requirement that the writ of summons be served by the Marshal. Service out of the jurisdiction is regulated by O.10 of the rules; it makes no special mention of Admiralty actions generally or of actions in rem in particular.