Argyle Diamonds Limited v Fluor Australia Pty Ltd - [2018] WASC 356

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ARGYLE DIAMONDS LIMITED -v- FLUOR AUSTRALIA PTY LTD [2018] WASC 356
CORAM:   QUINLAN CJ
HEARD:   12 NOVEMBER 2018
DELIVERED          :   12 NOVEMBER 2018
PUBLISHED           :   16 NOVEMBER 2018
FILE NO/S:   CIV 2037 of 2017
BETWEEN:   ARGYLE DIAMONDS LIMITED
First Plaintiff
ARGYLE DIAMOND MINES PTY LTD
Second Plaintiff
AND
FLUOR AUSTRALIA PTY LTD
Defendant

Catchwords:

Practice and procedure - Application to set aside service of writ - Incomplete form attached to writ - Omission of name of process and issuing court - Substantial compliance with prescribed form

Legislation:

Acts Interpretation Act 1901 (Cth), s 2, s 25C
Migration Act 1958 (Cth)
Rules of the Supreme Court 1971 (WA)
Service and Execution of Process Act 1992 (Cth)
Service and Execution of Process Regulations 1993 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	S Penglis
Second Plaintiff	:	S Penglis
Defendant	:	S K Dharmananda SC & T J Porter

Solicitors:

First Plaintiff	:	DLA Piper Australia - Perth
Second Plaintiff	:	DLA Piper Australia - Perth
Defendant	:	Jones Day

Case(s) referred to in decision(s):

Carron Investments Pty Ltd v George Lang [2016] VSCA 287
MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156
Russell Kennedy Pty Ltd v Laila Kahn [2015] VCC 1262
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487
SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1
Timbercorp Finance Pty Ltd (In Liq) v Allan (2016) 312 FLR 259

QUINLAN CJ:

(This judgment was delivered extemporaneously on 12 November 2018 and has been edited from the transcript.)

Background

This is an application brought by the defendant to set aside service of a writ of summons issued by this court on 23 June 2017. The writ was served on the registered office of the defendant on 20 June 2018 at approximately 2.20 pm. The writ was served with a covering letter, and attached to the writ was a 'Form 1 - Notice to Defendant' under the Service and Execution of Process Regulations 1993 (Cth) (SEPR 1993).[1] I will refer to this form as Form 1.
[1] Affidavit of Mary Mavroudis sworn on 15 August 2018 [10].
The Form 1 was not amended to amend or include certain matters referred to in the notice that I will come to later.
The defendant entered a conditional appearance in the proceedings on 10 July 2018. At that time, the defendant's appearance was expressed to be conditional on the basis that the dispute resolution clause in the contract between the first plaintiff and the defendant had not been complied with.
The defendant's appearance was stated to be 'conditional until the Court determines the question of the invalidity of the Writ of Summons caused by the First Plaintiff's failure to satisfy the mandatory preconditions to the commencement of litigation in the Contract'.
After the conditional appearance was filed, the defendant filed a chamber summons, as required by O 12 r 6(2) of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASC 356
Decision Date: 16 NOVEMBER 2018

CaseChat Overview and Summary

Argyle Diamonds Limited sought to set aside the service of a writ issued by Fluor Australia Pty Ltd, on the basis that the writ was served with an incomplete form. The writ was issued in the Federal Court of Australia, and the application was brought before the Court to determine whether the service was valid despite the incomplete form. The key issue before the court was whether the incomplete form attached to the writ constituted substantial compliance with the requirements of the Court's rules and regulations. The court had to determine if the omission of the name of the process and issuing court in the form attached to the writ rendered the service invalid, or if there was substantial compliance with the prescribed form.

The court referred to the decision in SZJDS v Minister for Immigration and Citizenship, which distinguished between using the incorrect form and not accurately completing the correct form. The court held that the question of substantial compliance must be judged by reference to compliance with the overall form, rather than individual parts of the form. In this case, the court found that the information contained in the documents provided, including the supplementary statement and the covering letter from the migration agent, sufficiently revealed the basis of the claim. The court concluded that there was substantial compliance with the form, as the essential purpose of the form had been achieved, and the purposes of both Parts C and D of Form 866 were substantially satisfied.

The Federal Court of Australia dismissed the application by Argyle Diamonds Limited to set aside the service of the writ issued by Fluor Australia Pty Ltd. The Court found that there was substantial compliance with the prescribed form, despite the omission of the name of the process and issuing court in the form attached to the writ.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Their Honours then referred to the earlier decision of SZJDS v Minister for Immigration and Citizenship,[5] which drew a distinction between using the incorrect form and not accurately completing the correct form. Their Honours stated that:[6]This analysis does not seem to us to be required or appropriate absent a comparison of the application that was in fact made with the application as it should have been made in the approved form. It is only that comparison which will show whether there has been substantial compliance with the (approved) form.[5] SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1.[6] MZAIC v Minister for Immigration and Border Protection [24]. In determining that factual question the purpose of the form will be relevant. It is therefore necessary to identify the purpose of the particular form as required by the legislature. In this regard, I refer to MZAIC at [54], where Kenny, Tracey, Robertson and Mortimer JJ adopt the following passage in the judgement of Black CJ and Allsop J in SZGME v Minister for Immigration and Citizenship:[7][7] SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 [78] - [84].The Regulations did not stipulate or specify different application forms for those applicants who claimed to have separate claims and those who relied on family membership. Rather, Form 866 had distinct parts and directed different parts to be filled in depending on the nature of the application.In this context, we agree with the submission of the Minister that the question of substantial compliance is judged by reference to compliance with Form 866 and not by reference to the individual parts. As was said in Bal 189 ALR 566 at [39] - [40]:'In Shahabuddin [[2001] FCA 273] the applicant gave more detail of the 'political opinion' ground on which he relied, stating that he had been a member of the Bangladesh Freedom Party and adding that a 'statement would be sent very shortly'. Katz J followed Hill J in Nader [(2000) 101 FCR 352 at [4] and Tamberlin J in Myint [[2001] FCA 122] at [15], in holding that substantial compliance was to be assessed by reference to the purpose of the form in eliciting the applicant's claim to be a refugee within the Convention and that the questions posed in the form were only guidelines to that end. Accordingly, so his Honour held, it was not necessary to be able to distil from the applicant's responses, answers to all questions on the form.We agree with the approach taken to the notion of 'substantial compliance' in the present context by Heerey J in Nie [[2000] FCA 347] and Katz J in Shahabuddin, outlined above. (See too, Wu [(1996) 64 FCR 245] at 280 per RD Nicholson J; Minister for Immigration & Multicultural Affairs v A per Merkel J at [43], [44]; Li v Minister for Immigration & Multicultural Affairs[2000] FCA 421 (Heerey J) at [49].)' (Emphasis added.)The Minister submitted that the material submitted to the delegate substantially conveyed both the basis of the independent claims of SZGME and of her family status. Thus, it was submitted, the purposes of both Parts C and D of Form 866 were substantially satisfied and complied with.As to the former, the document together with the Part B provided a tolerably clear basis for understanding the mother's claim to be a refugee. The questions posed in Part C were a guide to that. Part C contained numerous questions which were not addressed by SZGME: education, past employment, method of leaving Armenia. The essential or substantial purpose of Part C was, however, to elicit and express the basis of the claims for protection. The document sent by the migration agent to the Department did that.The purpose of Form 866, including Part D, was to provide a framework for the assertion of a claim to be a 'member of the same family unit' as the primary applicant: see cl 866.222(a) in force at the relevant time....The information contained in the Part B signed by SZGME, the supplementary statement signed by her sent by her migration agent and her migration agent's covering letter made clear that she claimed to be a member of the family unit which included her daughter. The documents made clear the family relationship. To the extent that the daughter needed to be a 'dependent child of the family head' for the purposes of reg 1.12(1)(b), or otherwise to fall within reg 1.12(1)(d), the information provided revealed that the daughter was 20 years old, and a bookkeeper, though not currently employed. The joint statement stated that '[t]hey are fully supported by family' in Australia. Whilst this information may have been less than clear as to the elements of the definition, it was sufficient for the delegate to conclude, as she did, that SZGME was a member of the family unit of which the daughter was part. The contents of the documents provided were sufficient to reveal the basis of the claim to be a member of the family unit of which the daughter was part. Thus, although Part D was not filled in, Form 866 was substantially complied with in this respect.