Civil proceedings are commenced in Australian Courts by way of the filing and service of an originating process, typically being either a Statement of Claim or Summons.

Once served with a Statement of Claim or Summons, a defendant's solicitor will usually file an Appearance. An Appearance should be filed within 28 days of the Statement of Claim being served or by the return date of the Summons.

Alternatively, in all jurisdictions in Australia, except New South Wales, a defendant may enter a Conditional Appearance. By entering a Conditional Appearance, a defendant may challenge the Australian Court's jurisdiction or the validity of the service of the originating process.

In New South Wales, the Uniform Civil Procedure Rules, Rule 12.11 provides that a party may make an application to the Court by way of Notice of Motion to have an originating process set aside.

A foreign defendant may apply to set aside the service of an Australian originating process on various grounds, including that service was not authorised by the rules of the relevant Australian Court. In New South Wales there is no need to file an appearance in order to move for service of the originating process to be set aside.

Challenging the jurisdiction of an Australian Court

If proceedings are commenced in an Australian Court against a foreign defendant, the foreign defendant may be able to challenge the jurisdiction of the Australian Court to hear the proceedings.

Grounds available to challenge jurisdiction

The following grounds may be available to challenge the jurisdiction of an Australian Court:

  1. the originating process has not been properly served>
    • this ground may be available where the plaintiff has not served the originating process in accordance with the Court's rules, for example where the originating process has not been served personally on the defendant and the rules require that it be served in that way (click here to learn more).
  2. the Australian Court is an inappropriate forum for the trial of the proceeding:
    • an Australian Court may be an inappropriate forum where:
      • litigation between the same parties and involving the same subject matter is already pending in another forum;
      • the substance of the action involves foreign conduct and is subject to foreign law; or
      • the parties have contractually agreed upon a different forum.
  3. the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the claim
    • considerations relevant to this ground include:
      • whether the claim involves a good arguable case;
      • whether the relevant subject matter is within the jurisdiction; and
      • if the claim is for injunctive relief, whether the injunction can be effect

Procedure for challenging jurisdiction

In New South Wales, the process for a defendant to challenge jurisdiction in most civil matters involves filing a Notice of Motion and accompanying affidavit with the Court within the time limit for the defendant to enter an appearance in the proceedings (28 days after service of the originating process) and serving these documents on the Plaintiff. The Notice of Motion must state the applicant's address for service.

In Queensland, the Uniform Civil Procedure Rules, provide that a party may file a conditional notice of intention to defend the proceedings with the Court. The notice must contain an address for service in Queensland.

To challenge the jurisdiction in a proceeding commenced in the Federal Court, the applicant must file an interlocutory application and a notice of address for service. If the applicant is applying to challenge the Court's jurisdiction on the basis of ineffective service, the Notice of Motion must be accompanied by an affidavit setting out the date and details of service of the originating application.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.