Recent Cases

Zurich Insurance PLC v Koper [2022] NSWCA 128 (20 July 2022) (Bell CJ, Ward P and Beech-Jones JA)


Catchwords:


CIVIL PROCEDURE – jurisdiction – exercise of non-federal jurisdiction by State Court – territorial limits – where applicant for leave under s 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) must be capable of properly bringing proceedings against insured in New South Wales – where insured is New Zealand company in liquidation with no presence in New South Wales – where claimant is domiciled in New Zealand – where insured did not submit to jurisdiction of Supreme Court of New South Wales – where relevant loss and damage occurred entirely in New Zealand – where service on insured not authorised by schedule 6 to the Uniform Civil Procedure Rules 2005 (NSW) – whether service pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) generated personal jurisdiction over insured in New South Wales – whether those provisions are invalid under the Constitution as vesting Supreme Court of New South Wales with non-federal jurisdiction

CIVIL PROCEDURE – jurisdiction – multiple meanings – personal jurisdiction – distinct from subject matter jurisdiction and federal jurisdiction – importance of distinction

CIVIL PROCEDURE – service outside Australia – service under Trans-Tasman Proceedings Act 2010 (Cth) – where underlying claim in New South Wales against New Zealand domiciled defendant is not in federal jurisdiction – where chapter III of the Constitution carries negative implication that Commonwealth Parliament cannot vest Supreme Court of New South Wales with non-federal jurisdiction – where underlying claim could not proceed but for service on defendant pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) – whether ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) are invalid under the Constitution – whether those provisions vest the Supreme Court of New South Wales with non-federal jurisdiction

CONSTITUTIONAL LAW – Commonwealth Constitution – legislative power – external affairs – principles of construction – heads of legislative power to be given broad plenary construction without limitation or implication not found in express words – heads of legislative power not to be read down by reference to other heads of power – whether external affairs power in s 51(xxix) capable of supporting law as to service and execution of process of Australian courts in New Zealand – where external affairs power is subject to chapter III of the Constitution – where s 51(xxiv) makes provision for service and execution of process throughout Commonwealth

CONSTITUTIONAL LAW – the judiciary – chapter III – federal jurisdiction – Court of a State – negative implication that Commonwealth Parliament cannot confer State Court with non-federal jurisdiction – where claim brought in New South Wales against New Zealand domiciled defendant in non-federal jurisdiction – where claim could not proceed but for service on defendant pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) – whether those provisions confer Supreme Court of New South Wales with federal jurisdiction and are therefore invalid under the Constitution – whether argument for invalidity inconsistent with decision of High Court in Flaherty v Girgis (1987) 162 CLR 574

INSURANCE – third party claim – application for leave to bring proceedings against insurer pursuant to s 5 of Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – where insured is New Zealand company in liquidation with no presence in New South Wales – where claimant obtained judgment against insured in New Zealand proceedings concerning subject matter with no connection to New South Wales – where territorial hinge of Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) is that claimant must be capable of properly bringing proceedings against insured in New South Wales – where service on the insured not authorised by schedule 6 to the Uniform Civil Procedure Rules 2005 (NSW) – whether service pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) resulted in Supreme Court of New South Wales having personal jurisdiction over insured – whether those provisions are invalid under the Constitution

PRIVATE INTERNATIONAL LAW – jurisdiction – personal jurisdiction – service outside of the jurisdiction – Trans-Tasman Proceedings Act 2010 (Cth) – where underlying claim against New Zealand domiciled defendant is not in federal jurisdiction – where chapter III of the Constitution carries negative implication that Commonwealth Parliament cannot vest Supreme Court of New South Wales with non-federal jurisdiction – where underlying claim could not proceed but for service on defendant pursuant to ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) – whether ss 9 and 10 of Trans-Tasman Proceedings Act 2010 (Cth) are invalid under the Constitution