How Is an Originating Process Served?
The case cannot be heard in court whose process cannot be served on the defendant. The general rule is that most it can be taken against defendants until they have been served with the originating process. Naturally, all jurisdictions are flexible enough to cater for ex parte applications. If necessary, a judge can grant an order over the telephone, provided the applicant undertakes to file the relevant papers as soon as the court offices open. A duty judges often rostered these emergencies.
The general rule applies to all cases in which the court is exercising a personal jurisdiction which means that all civil cases, except those involving status or claim to property or a ship would be included in this general rule. It is regarded as more than a rule of procedure. Service is regarded as being both necessary and sufficient to found the court's jurisdiction assuming, naturally, that there is no statutory restriction as to the subject matter, area or otherwise. So court has no jurisdiction unless the defendant has been served in one or other of the various ways stipulated by the rules, or unless the court exercise of power under the rules to order that the defendant be taken to have been served. Once a defendant has been served, the court has jurisdiction, no matter how inappropriate that may be. This is known as the transient rule jurisdiction, because it can be manipulated to invest the court with jurisdiction of the cases in which the parties contacts with the state may have been merely transient. For example, the New South Wales Supreme Court could be given jurisdiction over a dispute between two Canadians concerning the construction of a Canadian contract, which is to be performed solely in Canada and which is totally unrelated to Australia. All that is needed is the plaintiff to cause in New South Wales state and the claim to be served on the defendant whilst the latter is vacationing in that state.
It is important to understand how the rules of service work in relation to court matters. This is because a matter may be live in the jurisdiction of the court if it has been served. It may also be, the plaintiff believes they have a valid claim when they do not because the matter has not been served on the defendant.
The general rule applies to all cases in which the court is exercising a personal jurisdiction which means that all civil cases, except those involving status or claim to property or a ship would be included in this general rule. It is regarded as more than a rule of procedure. Service is regarded as being both necessary and sufficient to found the court's jurisdiction assuming, naturally, that there is no statutory restriction as to the subject matter, area or otherwise. So court has no jurisdiction unless the defendant has been served in one or other of the various ways stipulated by the rules, or unless the court exercise of power under the rules to order that the defendant be taken to have been served. Once a defendant has been served, the court has jurisdiction, no matter how inappropriate that may be. This is known as the transient rule jurisdiction, because it can be manipulated to invest the court with jurisdiction of the cases in which the parties contacts with the state may have been merely transient. For example, the New South Wales Supreme Court could be given jurisdiction over a dispute between two Canadians concerning the construction of a Canadian contract, which is to be performed solely in Canada and which is totally unrelated to Australia. All that is needed is the plaintiff to cause in New South Wales state and the claim to be served on the defendant whilst the latter is vacationing in that state.
It is important to understand how the rules of service work in relation to court matters. This is because a matter may be live in the jurisdiction of the court if it has been served. It may also be, the plaintiff believes they have a valid claim when they do not because the matter has not been served on the defendant.
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