At Havilah Legal we undertake significant debt recovery litigation in each of the Australian states and territories. Before commencing any claims, we must be satisfied that the claim has been brought in the correct state’s jurisdiction.

Jurisdictional Considerations

In the case of legal proceedings issued out of the WA Magistrates Court, if it is held that WA was not the correct jurisdiction out of which to issue the proceedings, then such proceedings would be stayed (and ultimately dismissed) and fresh proceedings would need to be issued out of the more appropriate jurisdiction.
If an assessment as to jurisdiction is not made at the beginning of these proceedings and a claim is commenced in the incorrect state, then the claimant may be subject to an adverse cost order for having to re-locate or re-commence the claim in the correct state.

Service and Execution of Process Act 1992 (Cth)

The Service and Execution of Process Act 1992 (Cth) (SEPA) essentially allows proceedings issued in one state to be served in another state without leave of the court (s15) and SEPA applies to all Australian courts.
Section 20 of SEPA deals with the situation where one party contends that the lower court from which the proceedings have been issued is not the appropriate court to hear the matter and the matter should be stayed.
In particular, s20 (3) of SEPA provides that the court may order that the proceeding be stayed if it is satisfied that a court of another State has jurisdiction to determine all matters in issue between the parties is the appropriate court to determine those matters.
Moreover, s20 (4) of SEPA provides that:
The matters that the court is to take into account in determining whether that court of another State is the appropriate court for the proceeding include:

    • (a) the places of residence of the parties and of the witnesses likely to be called in the proceeding; and
    • (b) the place where the subject matter of the proceeding is situated; and
    • (c) the financial circumstances of the parties, so far as the court is aware of them; and
    • (d) any agreement between the parties about the court or place in which the proceeding should be instituted; and
    • (e) the law that would be most appropriate to apply in the proceeding; and
    • (f) whether a related or similar proceeding has been commenced against the person served or another person;

but do not include the fact that the proceeding was commenced in the place of issue.
These are factors that any claimant should consider before commencing any proceedings against interstate parties.
If you have an interstate debt recovery matter, please don’t hesitate to contact our Debt Recovery Team for assistance.

Bruce Havilah

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