Super Entertainment Centre Ltd v Chan [2003] SBHC 109; HC-CC 231 of 2002 (9 July 2003)

IN HIGH COURT OF SOLOMON ISLANDS

Case No 23102

BETWEEN

SUPER ENTERTAINMENT CENTRE Ltd
Plaintiff

And

DICKSON CHAN
Defendant

Mr Radclyffe for Plaintiff
Hearing 9^th July 2003

Registrar Chetwynd - This is an ex parte application for leave to serve out of the Jurisdiction and for substituted service. I heard briefly from Mr Radclyffe and read the affidavit filed 10^th October 2002.

The Rules as to service out of the Jurisdiction are, like most of our Rules, outdated, outmoded and intended for a different kind of World. I have referred to the case of China Navigation Co Ltd -v- Sanwa Trading Co Ltd ^[1]. In that case Muria CJ indicated that service out of the jurisdiction could be effected, “Under the High Court Rules (i.e our rules) or under private international law (Convention).” Looking at Rule 11 I have no doubt that this is a proper case to allow service out of the Jurisdiction. The affidavit evidence makes that quite clear.

How then is service to be effected. This is the question which concerned Muria CJ in the China Navigation case. I would suggest that in addition to the method s discussed by the learned Chief Justice in that case there is another method. In my respectful view it could be said that none of the offices mentioned in Order 11 rule 7 exist any more. There is no clear indication that those offices were superseded by local offices or authorities on Independence. It is extremely doubtful that there was or is a local equivalent to the office of Her Majesty’s Secretary of State for the Colonies. That is or was an office of the Government of the United Kingdom. The whole of Order 11 Rule 7 may then have fallen by the wayside and Order 71 comes into play.

In my respectful view it can be said that there is no provision in our Rules for Service out of the jurisdiction or at least no workable provision. I should therefore refer to “the procedure practice and forms in force for the time being in the High Court of Justice in England”.^[2] That means referring to the existing Rules of the Supreme Court, the English Rules. Having looked at the latest version of the RSC available to me, the 1995 White Book, it seems to me that there are several different sets of circumstances which can apply under English law. The actual mode of service depends on a number of Conventions and Treaties. In short, service on a Country within the European Union is treated differently from service in say America or Mongolia. There are other Treaties and Conventions (all listed in the White Book) which give effect to particular rules in particular countries. In so far as Australia is concerned, it seems that as an, “independent Commonwealth Country” service out of the jurisdiction is effected on a person in that Country in the manner recognised by that State or Country. In brief, if a particular method of service is recognised in that Country as good service then it can be used to effect service out of the Jurisdiction.

The Plaintiff has asked that if leave is given for service out of the jurisdiction then an order for substituted service also be made namely for service to be effected by sending the Writ and or Notice by registered post to the Defendant’s address in Australia. As far as I am aware, such a method of service would not offend against the rules applicable in Australia and in particular in the State of New South Wales.

In my opinion therefore the Plaintiff has two choices. He can use the method suggested by the learned Chief Justice in the China Navigation case at pages 4 and 5 or he can serve the Writ by registered post sent to the Defendant’s New South Wales address. I should say at this stage that under the modern English Rules the requirement of having to send a notice as opposed to the Writ itself has been abolished.

The order I make is therefore:

1. The Plaintiff is given leave to serve the Writ and or Notice of Writ out of the Jurisdiction;
   
2. The Plaintiff can serve the Writ by sending it by registered post to the Defendant’s address, namely 95 Tower Street, Panania 2213 Sydney New South Wales giving the Defendant 28 days in which to acknowledge service;
   
3. Alternatively the Plaintiff can send the Writ to me as Registrar of the High Court of Solomon Islands for onward transmission to the Central Authority of the Australian State, namely the Federal Government of Australia with a request for that Central Authority to arrange service on the Defendant by way of registered mail;
   
4. Costs in the cause.
   

Dated this 9^th July 2003

R D Chetwynd
Registrar High Court

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^[1]Unreported case Number 02401 Judgment of Muria CJ given 4^th July 2001

^[2]Order 71 High Court (Civil Procedure) Rules 1964