26 May 2020


International Cases

Elldog pty ltd v. Prox pty ltd

Australia

01.03.2018

Civil

Relevant Court to make the application for a summons is Supreme Court of Western Australia in its General Division and not the Court of Appeal division

Present is an application by the Respondent for leave pursuant to Order 10 Rule 7 of the Rules of the Supreme Court 1971 (WA) (Rules) to serve a 'means inquiry' summons under Section 29 of the Civil Judgments Enforcement Act, 2004 (WA) outside the jurisdiction on the second Appellant. The second Appellant appears to be an American corporation. A summons under Section 29 of the Act is a summons within the meaning of Order 10 Rule 7.

The Court, merely by issuing a summons under Section 29 of the Act, even with leave to serve out under Order 10 Rule 7, could bring about the result that a foreign national could be arrested and brought before the Court. Be that as it may, the relevant court to make the application for a summons under Section 29, seems to be the Supreme Court of Western Australia in its General Division.

It is true that, by Section 9 of the Act, any application under the Act is to be made 'to the Court that gave the judgment'. However, Section 5(a) of the Act refers, relevantly, to the 'Supreme Court' and by Section 5 of the Interpretation Act 1984 (WA) the 'Supreme Court' means the Supreme Court of Western Australia. Section 9 does not prima facie 'require' an application to be heard and determined 'by the Court of Appeal'.

Accordingly, any application made for a means inquiry summons under the Act, and any consequential application for leave to serve such a summons out of Australia under Order 10 Rules 7 of the Rules (assuming, without deciding, that such a summons falls within the meaning of Order 10 Rulr 7) are to be made to the Supreme Court of Western Australia in its General Division. Each would seem to be an application in the original jurisdiction of the Supreme Court of Western Australia rather than the appellate jurisdiction of the Supreme Court of Western Australia. That would mean that, this application ought to be brought in the General Division of the Supreme Court of Western Australia, rather than in the Court of Appeal. The Court of Appeal division of the Supreme Court has no the jurisdiction to make the orders sought in the applicant's application. Application should be brought in the General Division of present Court. Application dismissed.

Tags : Means Inquiry Application Maintainability

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