Facts: P suffered personal injury during a rugby game in NSW, and brought a claim to recover damages for personal injury against the Ds (members of International Rugby Board, IRB, in England who controlled the rules of rugby). P alleged Ds owed DoC. P served originating process on D in England, who did not file an appearance in the proceedings, but did apply for a stay of proceedings for inappropriate forum.
Held: For a default judgment, P needs to show that the claim pleaded comes within one of the paragraphs of Pt 10 r1A (equivalent to now UCPR Sch 6), which was satisfied here. However, P had no reasonable prospect of success at trial, because he would not be able to establish a relevant DoC owed by the Ds. Hence the proceedings were terminated. The test for P’s application for leave to proceed when no appearance by D should focus on the jurisdictional nexus between the P’s pleading and the forum and should not consider the merits of the case. However, where D objects jurisdiction (application for leave to proceed is opposed, is joined with an application to set aside service or to have Court decline to exercise its jurisdiction) it is necessary to consider the “insufficient prospects of success”.
Ratio: If D fails to enter appearance, P must apply for leave to proceed (UCPR r 11.8AA). P must demonstrate that one of the paras in Sch 6 applies i.e. the claim is of the requisite kind (this depends on P’s allegations, not the strength of the claim).
Held (Gaudron, McHugh, Gummow and Hayne JJ at [50]): The HCA considers: “is the claim a claim in which the plaintiff alleges that he has a cause of action which, according to those allegations, is a cause of action arising in the State? The inquiry just described neither requires nor permits an assessment of the strength (in the sense of the likelihood of success) of the plaintiff’s claim.”
Held (at [51]): The Court of Appeal required P to establish a good arguable case. However, the HCA held that “[t]he Court of Appeal was wrong to make such an assessment in deciding whether the Rules permitted service out.” Instead, it is only required that P establish a prima facie case, saying “[t]he application of these paragraphs of r1A depends on the nature of the allegations which the plaintiff makes, not on whether those allegations will be made good at trial. Once a claim is seen to be of the requisite kind, the proceeding falls within the relevant paragraph or paragraphs of PT 10 r 1A, service outside Australia is permitted, and prima facie the plaintiff should have leave to proceed.”
Held (at [55]): There are three common grounds on which the court would decline to exercise its jurisdiction:
the case does not fall within Sch 6 (where D must be served outside Australia)
court is an inappropriate forum
P's claim has insufficient prospects of success. The test which should apply for “insufficient prospects of success” should be the same test as is applied in an application for summary judgment lodged by a D served locally.
Note: This case was before the current UCPR 2005 (NSW) existed but Pt 10 r1A is functionally equivalent to current UCPR Sch 6.