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 the Rules of the Supreme Court 1971 (WA), to have the question raised by the conditional appearance decided. That chamber summons originally sought an order that the proceedings be dismissed or, alternatively, that they be stayed.
On 15 August 2018, the chamber summons was amended to seek a further order, namely that the service of the writ of summons be set aside.
There is no contest that the issue as to the validity of service pursuant to the Service and Execution of Process Act 1992 (Cth) (SEPA) was not a matter raised by the conditional appearance but, rather, became apparent to the defendant after it had filed its original chamber summons.
The plaintiffs do not take issue with the fact that the conditional appearance was, in its terms, confined to the preconditions to the contract. They accept that the conditional appearance may be treated as a conditional appearance for all purposes and, accordingly, provides no impediment to the defendant raising the issue of service that it now raises. The defendant no longer pursues its challenge to the proceedings based upon the alleged non-compliance with the dispute resolution clause. The defendant's application is therefore confined to the issue of service.
I turn then to the question of service.

Service under SEPA and SEPR 1993

In the present case, as the defendant's registered office was in Melbourne, the proceeding having been issued out of this court, the provisions of SEPA apply. Order 10 r 1A of the Rules of the Supreme Court 1971 (WA) directs attention to SEPA for the purposes of service in another state and, in any event, SEPA expresses in its own terms that it is a code in relation to the matters to which it applies.
Section 8(4) of SEPA provides that:
Subject to this Act, this Act applies to the exclusion of a law of a State (the relevant State) with respect to:
(a)the service or execution in another State of process of the relevant State that is process to which this Act applies …
Accordingly, it is necessary to go to the requirements of SEPA rather than anything contained in the Rules of the Supreme Court.
The provisions of SEPA that are relevant for the purposes of this application are s 9 and s 13 - s 16.
In relation to service on companies, s 9(1) provides that:
Service of a process, order or document under this Act on a company is to be effected by leaving it at, or sending it by post to, the company's registered office.
In relation to an initiating process, such as a writ of summons, Part 2, Division 1 of SEPA applies. Section 13 provides that that Division applies to civil proceedings in a court.
Section 15(1) provides that:
An initiating process issued in a State may be served in another State.
Section 15(3) provides that:
Service on a company or on a registered body must be effected in accordance with section 9.
The critical provision in the present case is s 16, which provides, under the heading 'Information to be provided':
Service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served.
The relevant prescribed notices at the time of the service in the present case are those set out in Regulation 4 of SEPR 1993. Regulation 4(1)(a) provides that the prescribed notice for the purposes of s 16 is a notice in the form of Form 1.

The Issue in this Application

I will turn to the detail of Form 1 a little later but note that it is a form applying in relation to all initiating processes, which makes provision for certain information to be inserted in the document or to be otherwise amended as the circumstances require.
There is no dispute that the failure to comply with s 16 of SEPA would render ineffective service of the initiating process in the present case. In that regard, I need refer only to Timbercorp Finance Pty Ltd (In Liq) v Allan.[2]
[2] Timbercorp Finance Pty Ltd (In Liq) v Allan (2016) 312 FLR 259.
The question in the present case is whether s 16 was complied with.
In that respect, an issue arises as to whether strict compliance with Form 1 is required or whether it is sufficient that there is substantial compliance with the form. In that context, s 25C of the Acts Interpretation Act 1901 (Cth) provides:
Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.
Two issues that arise in this application are therefore:
(a)whether s 25C of the Acts Interpretation Act applies to s 16 of SEPA with the effect that 'substantial compliance' with the form is sufficient; and
(b)if so, whether there was substantial compliance with the form in the present case.
In relation to the first question, s 2(2) of the Acts Interpretation Act provides that:
… the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
This is a matter in relation to which there have, on occasion, been issues concerning whether strict compliance is required with forms under the Migration Act 1958 (Cth). See, for example, MZAIC v Minister for Immigration and Border Protection.[3]
[3] MZAIC v Minister for Immigration and Border Protection (2016) 237 FCR 156.
In the present case, however, the defendant accepts that the application of s 25C is not excluded by SEPA and, accordingly, that substantial compliance with the form or notice required by s 16 of SEPA will be sufficient.
As a result it is only the second question which must be determined in this case, namely, whether there has been 'substantial compliance' within the meaning of s 25C.
Whether or not there is substantial compliance is ultimately a question of fact and requires a comparison between the form used by the plaintiffs and what was required by the approved form at the time of its use.
In that respect, the defendant refers to, and I accept, the statement of principles which appears in the reasons of Kenny, Tracey, Robertson and Mortimer JJ in MZAIC.[4]
[4] MZAIC v Minister for Immigration and Border Protection [22], [24].
At [22], their Honours said:
[t]he questions raised by the appeal can only be answered, in the present circumstances, by comparing what it was the appellant submitted in the form he used, with what was required by the approved forms or forms at the time of his application to the Tribunal.
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.
Two matters arising from this passage are, in my view, of particular significance:
(a)Where a form has distinct parts and directs different parts to be filled in, the question of substantial compliance is to be judged by reference to compliance with the form as a whole and not by reference to individual parts; and
(b)Substantial compliance is to be assessed by reference to the purpose of the form.
Applying this approach, it is necessary to look to the purpose of Form 1 being attached to the relevant writ of summons.
In that respect, the defendant refers to the decision of the Victorian Court of Appeal in Carron Investments Pty Ltd v George Lang.[8] That case concerned an application to set aside a default judgment, in circumstances where the Court was not satisfied that the Form 1 had been attached to the initiating process at all.
[8] Carron Investments Pty Ltd v George Lang [2016] VSCA 287.
In identifying the purpose of the requirement to attach the notice, Warren CJ and Ferguson JA said, at [49]:
It is important to note that the Form 1 notice is required by SEPA for interstate service as it includes details such as which jurisdiction the defendant must respond to in order to defend the claim. Such information may or may not be on the original complaint or writ. It is vital to ensure that the defendant is able to understand the next steps necessary.
A similar purpose was identified by Anderson J in Russell Kennedy Pty Ltd v Laila Kahn.[9] In that case, his Honour referred to several contextual matters relevant to the construction of s 16 of SEPA. These matters were the purpose of the legislation, the requirements of s 16 and its likely purpose, and the need for the Form 1 notice to be read as a whole so that the significance of any lack of compliance with the form might be assessed.[10]
[9] Russell Kennedy Pty Ltd v Laila Kahn [2015] VCC 1262.
[10] Russell Kennedy Pty Ltd v Laila Kahn [12].
Those statements of principle set out by Anderson J, in my view, properly identify matters relevant to the determination of whether there has been 'substantial compliance'. In that regard, I conclude that the purpose of the notice is to inform the recipient of their rights and the processes (or 'next steps necessary') by which they might defend themselves.
I should say that the circumstances in Russell Kennedy were somewhat different to the present in that the form in that case included incorrect information. The issuing court in that case was the County Court of Victoria; whereas the form, in three places, referred to the Supreme Court of Victoria.
In that case, notwithstanding that the form may have had the capacity to mislead the defendant as to the court from which the proceeding was issued, Anderson J held that there was substantial compliance with the Form 1.
In assessing whether the Form 1 in the present case was in substantial compliance, it is necessary to read the Form 1 together with the initiating process itself. That is for two reasons.
First, the requirement is that the Form 1 be attached to the issuing process. It is clear that the issuing process is intended to be read at the same time as the form. Indeed, the second line on Form 1 provides 'PLEASE READ THIS NOTICE AND THE ATTACHED DOCUMENT VERY CAREFULLY'.
Secondly, it is apparent from Form 1 itself that, without reference to the attached issuing process, it would not be possible for the recipient of the form to know whether it was directed to them or not. That is because Form 1 does not require that the name or other identifying feature of the defendant be set out on the form. It is simply headed 'NOTICE TO DEFENDANT'.
The only way, for example, in the present case, that Fluor Australia Pty Ltd could know that the form was directed to it was by reference to the writ of summons itself, which identifies it as the defendant.

Application - Substantial Compliance

I turn then to consider the Form 1 which was attached to the writ of summons in the present case. A reproduction of this form appears as a Schedule to these reasons.
I am satisfied that the Form 1 attached to the writ of summons in the circumstances of the present case was in substantial compliance with the required form and that, accordingly, the service was effective pursuant to s 16 of SEPA.
I reach that conclusion for the following reasons.
First, as I have indicated, it is necessary, in all cases where Form 1 is used, that it be read with the attached document. In the present case, it is necessary that the form be read with the writ of summons.
Secondly, much of the form concerns matters that do not require information to be entered in the form. Indeed, in this case, a person reading the writ of summons and the Form 1 together would inevitably receive notice of all of the matters of which he or she is required to have notice.
Thirdly, looking at the Form 1 attached to the writ in the present case:
(a)the first three lines of the form, which are in bold and in capital letters, read:
NOTICE TO DEFENDANT
PLEASE READ THIS NOTICE AND THE ATTACHED DOCUMENT VERY CAREFULLY
IF YOU HAVE ANY TROUBLE UNDERSTANDING THEM, YOU SHOULD GET LEGAL ADVICE AS SOON AS POSSIBLE
These lines are all strictly compliant with Form 1 (without the need for amendment as might in other cases be required by footnote 1) and provide that important information to the recipient of the form.
(b) The next sentence in the form provides:
Attached to this notice is a (name of process) ('the attached process') issued out of the (issuing court).
The form does not, by its terms, require the matters in italics and in brackets to be filled in, although I accept that it is implied. Nevertheless, a person in receipt of this form attached to the writ of summons, given that the person would inevitably have to look at the writ of summons and read it carefully in order to identify themselves as the defendant, would see that the very first line is headed, 'IN THE SUPREME COURT OF WESTERN AUSTRALIA' and that the document is identified as a Writ of Summons.
Any person reading the Form 1 together with the writ of summons would be put on notice that it was a writ of summons issued out of the Supreme Court of Western Australia. That may not necessarily be the case in relation to other kinds of process issued in other places throughout Australia, bearing in mind that this form could be used in relation to a Supreme Court, a District Court, a Magistrates Court or other local court.
(c)The next line reads:
Service of the attached process outside (State or Territory of issue) is authorised by the Service and Execution of Process Act 1992.
Again, the words 'State or Territory of issue' appear in italics in brackets. This implies that the words 'Western Australia' were intended to be inserted in the form in this particular case. Nevertheless, it is clear from the sentence as a whole that it is giving notice to the defendant that service of the process outside of the State of its issue is authorised by SEPA.
That sentence is important because it makes clear to the recipient that the fact that the person has been served with an out of State process is nevertheless authorised by SEPA.
(d)The form then provides, under the heading 'YOUR RIGHTS':
If a court of a State or Territory other than (State or Territory of issue)[11] is the appropriate court to determine the claim against you set out in the attached process, you may be able to:
[11] Again, the form provided in this case did not replace the words 'State or Territory of issue' with the words 'Western Australia'. Nevertheless, in my view, a reasonable person reading the form received with the writ would be given the requisite notice that this was a reference to Western Australia.
have the proceeding stayed by applying to the (issuing court).
apply to the Supreme Court in the (State or Territory of issue) to have the proceeding transferred to another Supreme Court, or another superior court.
While the form contemplates (by reference to the footnotes on the form) that only the first of these alternatives should be included where the issuing court is a Supreme Court, again, in my view, it is clear from the notice read as a whole that the person receiving the form would be informed of their rights to apply to the Supreme Court if it were not the appropriate court to determine the claim.
(e)The next sentence, 'If you think the proceeding should be stayed or transferred you should get legal advice as soon as possible' is, of course, strictly compliant with the form and provides the requisite notice to the recipient.
(f)The final paragraph is headed, 'CONTESTING THIS CLAIM'. It reads:
If you want to contest this claim, you must take any action set out in the attached process as being necessary to contest the claim.
This sentence is in strict compliance with the prescribed form and, again, refers to the process itself, confirming that the two documents are to be read together.
(g)The next sentence reads:
If you want to contest this claim, you must also file an appearance in the (issuing court).
This sentence is preceded by footnote 4, which is to the effect that, if the defendant need not enter an appearance in order to contest the claim, that paragraph and the remainder of the form should be omitted. In addition, the word 'appearance' is followed by footnote 5, which requires that word to be substituted if the document to be filed is not called an appearance.
As it happens, in the circumstances of this case, it was not necessary to omit that paragraph and it was not necessary to change the name of the document to be filed. The only change to this sentence necessary to constitute strict compliance would be to change the word 'issuing court' to 'Supreme Court of Western Australia'. Nevertheless, particularly in light of the sentence above it, it would be tolerably clear to any reasonable person receiving the Form 1 that, if they want to contest the claim, they must file an appearance in the Supreme Court of Western Australia.
(h)The Form 1 then continues:
You have only 21 days after receiving the attached process to do so.
While the form contemplates that, in some cases, the period of 21 days may need to be altered, in the present case, the period was correct and the form provided the notice required (without the need for alteration).
(i)The final sentence of the Form 1 is that:
The appearance must contain
an address in Australia where documents can be left for you or sent to you.
your address.
This sentence provides for alternatives depending upon whether an appearance is required to set out an address for service. Again, it is apparent that the document attached provides that a person is required to cause an appearance to be entered in the Supreme Court and provides how that is to occur. The necessary information is provided by the Form 1.

In summary, in my view, the omission of the name of the process and the issuing court and the failure to strike through the alternatives referred to in [52](d) and (i) above, could not have failed to put a person, reading the form together with the writ, on notice of the various matters required by the Form 1.
Finally, in this context, the defendant submitted that it was not appropriate to take into account the fact that, in various places, the Form 1 was serendipitously accurate in this case (for example, in its use of the expression 'appearance', the time limit of 21 days, and the word 'defendant'). Rather, the defendant submitted, one should look to whether or not there has been engagement with the Form 1 by those preparing it.
I disagree. In my view, the question before me is to be answered by comparing what the defendant ought to have received and what the defendant in fact received, and determining whether or not what the defendant received substantially complied with the prescribed form by providing all of the requisite notices to the defendant. That question, in my view, is not affected by the motivation or actions of the individuals responsible for preparing the documents.

Conclusion

For the above reasons, in my view, the service should not be set aside.
I would dismiss the defendant's application.

SCHEDULE

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EA
RESEARCH ASSOCIATE TO THE HONOURABLE CHIEF JUSTICE QUINLAN
16 NOVEMBER 2018