Full Court Minute Books

Case S147/2022

Zurich Insurance PLC  & Anor v. Koper & Anor

Case No.

S147/2022

Case Information

Lower Court Judgment

20/07/2022 Supreme Court of New South Wales (Court of Appeal) (Bell CJ, Ward P, Beech-Jones JA)

[2022] NSWCA 128

Catchwords

Civil procedure – Jurisdiction – Exercise of non-federal jurisdiction by State court – Service outside Australia – Service under Trans-Tasman Pacific Act 2010 (Cth) ("TTPA") – Where first respondent domiciled in New Zealand and registered proprietor of residential apartments designed and constructed by BMX NZ, entity incorporated in New Zealand, and without any assets or presence in Australia – Where BMX NZ insured by appellants under program of professional indemnity insurance – Where registered proprietors of apartments, commenced proceedings in High Court of New Zealand against BMX NZ and its principal, KNZ International Co Limited ("KNZ"), seeking damages in respect of various defects – Where damages awarded against BMX NZ and KNZ – Where, by summons filed on 1 April 2021 in Supreme Court of New South Wales, first respondent sought leave, pursuant to s 5 of Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) ("Claims Act"), to bring representative proceedings under s 4 against first appellant – Where s 4 provides if insured person has insured liability to person, that person ("claimant") may recover amount of insured liability from insurer in proceedings before court of New South Wales – Where primary judge granted leave, holding Claims Act could not apply where claimant's claim against insured person could not properly have been brought in court of New South Wales, but, even though first respondent's claim against BMZ NZ was claim against New Zealand company, without Australian assets, arising out of tort committed in New Zealand, first respondent could bring claim in reliance on Pt 2 of TTPA – Where Pt 2 of TTPA applies to "civil proceeding commenced in Australian court" – Where, pursuant to s 9 of TTPA, initiating document issued by Australian court that relates to civil proceeding may be served in New Zealand under Pt 2 – Whether ss 9 and 10 of TTPA can validly operate to authorise, or to deem as effective, service of process of State court outside territory of Commonwealth except in matters that engage federal jurisdiction – Whether first respondent could properly have brought claim against BMX NZ in connection with design or construction of apartments in court of New South Wales.

Constitutional law – Legislative power – Heads of power – External affairs – Service and execution of process throughout Commonwealth – Whether, having regard to terms of s 51(xxiv) and Ch III of Constitution, s 51(xxix) empowers Commonwealth Parliament to make laws with respect to service, outside Commonwealth, of process of State courts in matters that would not engage federal jurisdiction.

Documents*

10/11/2022 Determination (SLA, Canberra)

21/11/2022 Notice of appeal

09/01/2023 Written submissions (Appellants)

09/01/2023 Chronology (Appellants)

06/02/2023 Written submissions (First Respondent)

06/02/2023 Written submissions (Second Respondent)

02/03/2023 Reply

*The due dates shown for documents on this page are indicative only.