Gosper v Sawyer (1985) 160 CLR 548

Facts: An employee applied to the NSW Industrial Commission to avoid the variation of a superannuation fund of which he was a member under Industrial Arbitration Act 1940 (NSW). Fund membership was a condition of his employment. Sawyer was employed in NSW; however, the fund trustees were based in VIC. The Registrar ordered that process to be served on the trustees in VIC.

Held: The Industrial Commission had no power under NSW law to order service outside of NSW. The general rule is that the Supreme Court will have power to hear and determine an action when the defendant is physically present in the relevant state or territory at the time of service. Similarly, the Federal Court and the High Court will have power to hear and determine an action when the defendant is physically present in Australia at the time of service. Here, the Industrial Commission was not FC or HCA and therefore, the registrar could not enlarge jurisdiction by permitting service out of NSW.

Held (Mason & Deane JJ at [564]): Since the effective assertion of jurisdiction is confined by the limits of actual jurisdiction, a court’s power to issue process in an action in personam, where the Def does not submit to the jurisdiction and where questions of status or succession are not involved, is prima facie exercisable only against those present within the limits of its territory at whatever be the relevant time or times.

Ratio: The ordinary basis of territorial jurisdiction is the personal presence of D within the court’s territory.