C and P Trading Pty Ltd v Roladuct Spiral Tubing Pty Ltd

[1993] QCA 342

IN THE COURT OF APPEAL	[1993] QCA 342
SUPREME COURT OF QUEENSLAND

Appeal No. 84 of 1993

District Court Plaint No. 1003 of 1993

Brisbane

[Re Roladuct Spiral Tubing v C. & P. Trading]

BETWEEN:

ROLADUCT SPIRAL TUBING PTY. LTD. (ACN 003 583 391)

(Defendant) Appellant

AND:

C. & P. TRADING PTY. LTD. (ACN 009 767 935)
C. & P. ENTERPRISES PTY. LTD.(ACN 009 722 105) AND
C. & P. INVESTMENTS PTY. LTD. (ACN 009 900 136)

(Plaintiff) Respondent

Mr. Justice Pincus
Mr. Justice Ambrose

Justice White

Judgment delivered 15/09/93

Judgment of the Court

APPEAL IS DISMISSED WITH COSTS.

CATCHWORDS:	PRACTICE - SUMMARY JUDGMENT - Appeal from order giving liberty to sign final judgment for part of sum claimed - Whether judgment final or interlocutory - Whether S.17
Service and Execution of Process Act 1992 displaces R.154 so as to allow 21 days before hearing of a judgment summons.
Counsel:	Mr. C. Brabazon Q.C. for the appellant. Mr. S. Couper for the respondent.
Solicitors:	William R. Wilson & Associates for the appellant. Stokes & Panettiere for the respondent
Hearing Date:	26/08/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 84 of 1993

District Court Plaint No. 1003 of 1993

Brisbane

[Re Roladuct Spiral Tubing v C. & P. Trading]

BETWEEN:

ROLADUCT SPIRAL TUBING PTY. LTD. (ACN 003 583 391)

(Defendant) Appellant

AND:

C. & P. TRADING PTY. LTD. (ACN 009 767 935)
C. & P. ENTERPRISES PTY. LTD.(ACN 009 722 105) AND
C. & P. INVESTMENTS PTY. LTD. (ACN 009 900 136)

(Plaintiff) Respondent

Mr. Justice Pincus
Mr. Justice Ambrose

Justice White

Judgment delivered 15/09/93

Judgment of the Court

APPEAL IS DISMISSED WITH COSTS.

CATCHWORDS:	Whether judgment for part of a claim is to be characterised as final or interlocutory -s.17 Service and Execution of Process Act 1992 - Rule 154 District Court Rules - Exercise of judicial discretion.
Counsel:	Mr. C. Brabazon Q.C. for the appellant. Mr. S. Couper for the respondent.
Solicitors:	William R. Wilson & Associates for the appellant. Stokes & Panettiere for the respondent
Hearing Date:	26/08/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 84 of 1993

District Court Plaint No. 1003 of 1993

Brisbane
Before

Re Roladuct Spiral Tubing v. C. & P. Trading]

BETWEEN:

ROLADUCT SPIRAL TUBING PTY. LTD. (ACN 003 583 391)

(Defendant) Appellant

AND:

C. & P. TRADING PTY. LTD. (ACN 009 767 935)
C. & P. ENTERPRISES PTY. LTD.(ACN 009 722 105) AND
C. & P. INVESTMENTS PTY. LTD. (ACN 009 900 136)

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 15/09/93

This is an appeal from an order of a District Court Judge sitting in chambers made on 23 April 1993 giving the plaintiff liberty to sign final judgment for the sum of $65,716.75 being part of the sum claimed in the plaint together with interest and costs. The defendant was granted leave to defend in respect of the balance of $42,567.00. Judgment was entered on 28 April 1993. Leave was given on the hearing of this appeal to amend the notice of appeal to insert "to appeal from the judgment as entered" in lieu of "to appeal from the order giving leave to sign judgment", Hill Corcoran Constructions Pty. Ltd. Resort Management Ltd. C.A. No. 44 of 1991 decision of 6 March 1992.

The issues for appeal are:

1.   whether the appeal is from a final judgment of a District Court or from an interlocutory judgment so as to require leave to appeal;

2.    whether s.17 of the Service and Execution of Process Act 1992 displaces the provisions of Rule 154 of the District Court Rules so as to allow 21 days before the hearing of a judgment summons rather than 8 days as provided for in that Rule; and

3.   whether the District Court Judge erred in the exercise of his discretion in refusing the appellant a short adjournment to put material in to show a triable issue.

Whether leave is required to appeal in view of the amendment to the notice of appeal is now confined to the question whether a judgment for part of a claim is to be characterised as final or interlocutory. This question was reserved and the parties argued the substantive appeal. This question is considered at the end of these reasons.

The respondents to this appeal filed their plaint on 6 April 1993 and at the same time filed a judgment summons and supporting affidavit. The claim was for $108,283.75 being the balance due for work done and materials supplied by the respondents to the appellant pursuant to an agreement in writing made in early 1992. The contract was to manufacture dust extractor ducting for a mine project in North Queensland and additional work was requested and provided from time to time up until July 1992. The appellant paid part of the amount owing under the agreement and nothing for the additional work.

The affidavit in support of the judgment summons shows
that a notice of demand pursuant to s.460(2) of the
Corporations Law was made on the appellant on 4 September 1992.
The appellant sought to argue in correspondence with the
respondents that a third party to whom it was contracted in
relation to the supplied materials, Dart Engineering Services
Pty. Ltd., alleged that that contract was not properly
performed because of defects in the respondents' work. The
appellant commenced an action by plaint against Dart
Engineering in December 1992 seeking to recover money owing
under its contract. The respondents have not been joined in
that action by the appellant despite an earlier indication to
the respondents to the contrary and no details of the
appellant's complaints about the respondents' work and

materials were provided despite requests in October 1992 and

February 1993.

Requests for payment of the balance of the moneys due were renewed by the respondents' solicitors in February 1993 without satisfactory response. The plaint, judgment summons and affidavit in support were sent under cover of letter dated 7 April 1993 to the registered office of the appellant in Sydney. They were received on 13 April 1993. The judgment summons was heard in chambers in Brisbane on 23 April 1993.

The proceedings (as is customary) were not recorded and neither were his Honour's reasons and decision which he gave that day.

What occurred is set out in somewhat exhaustive detail in an affidavit of Mr. Peter Rankine, the appellant's solicitor who appeared on the hearing. He indicated that he told the court that he objected to the court exercising jurisdiction on the judgment summons since service had not been effected as required by the Service and Execution of Process Act 1902. On appeal it was conceded that this was misconceived and that the new Service and Execution of Process Act 1992 ("the 1992 Act") together with the Service and Execution of Process (Transitional Provisions and Consequential Amendments) Act 1992 came into force on 11 April 1992 and thus governed the service of the documents on the appellant.

It is convenient to deal with the argument based upon the interpretation of the Service and Execution of Process Act 1992 first. The plaint was endorsed with a notice that the defendant had 28 days within which to file an entry of appearance and defence and the judgment summons appointed 23 April 1993 for the hearing of that application, that is, less than 21 days from service. The significance of that period will become apparent. Section 16 of the 1992 Act provides that:

"Service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served."

No such notice was attached to the plaint. The form of notice is found in Schedule 1 to the Service and Execution of Process Regulations and, in brief, advises a defendant of its rights as to jurisdiction and as to contesting the claim. The point was not taken by the solicitor for the appellant before the Chamber Judge and it appears that counsel for the respondents, who appeared in the court below, was unable to locate a copy of the Form and concluded erroneously that there was no Form and mentioned this to the Chamber Judge. Mr Brabazon Q.C. for the appellant submitted that this flawed the whole proceedings below but this cannot be so. The inescapable conclusion is that this was an irregularity which was waived by the appellant appearing through his solicitor and arguing, as he did, the substance of the application.

Part 2 of the 1992 Act relates to service of proceedings in civil and criminal proceedings and Division 1 of Part 2 in which sections 13 to 21 appear applies to initiating process in civil proceedings in a court. "Initiating process" is relevantly defined in s.3 as the process by which a proceeding is commenced and "proceeding" is relevantly defined as including an interlocutory or similar proceeding and a proceeding heard in chambers. Section 15(3) provides that service on a company must be effected in accordance with s.9 which provides that it may be left or sent by post to the registered office of the company. Section 14 concerns appearance. It provides:

"A reference in this Division to an appearance includes a

reference to a notice in writing:

(a)	that a person served with an initiating process gives to the court of issue; and
(b)	that contains a statement that the person: (i) acknowledges service of the process; or

(ii) intends to make a submission regarding an issue arising in the proceeding in relation to which the process has been issued; or

(iii) intends to contest the court's jurisdiction to

hear the proceeding; and

(c)	that:
(i) complies with any requirements with which the notice must comply under a law of the place of issue (including rules governing the procedure of the court); or

(ii) the court determines to be acceptable despite

any non-compliance with such requirements.

Section 17(1) provides:

"If the person served is required or permitted to enter an appearance under a law of the place of issue, the period after service within which the person may enter an appearance is:

(a) 21 days; or

(b) such shorter period as the court of issue, on application, allows."

Rule 154 of the District Court Rules provides that a judgment summons shall be returnable 8 days after service, or at such other time after service as may be prescribed.

It seems clear that the 21 days stipulated in s.17(1) as the time within which a person may enter an appearance is a reference to appearance to the initiating process and, in this case, it is the plaint and not the judgment summons. There is no basis for inferring a reference to any other process other than the initiating process in s.17(1). Accordingly, the provisions of Rule 154 apply and since a period of 10 days elapsed between the service of the judgment summons and its return date it was within the time stipulated in the Rules.

The decision of Karsborough Pty. Ltd. v. Terranora Leisuretime Resort Management Ltd. (1991) 12 Qld. Lawyer 139, which was initially relied upon by the appellant, relating as it does to the 1902 Act, is not relevant to the provisions of the present Act as was conceded by Mr. Brabazon in argument.

The final ground of appeal is that the Chamber Judge's discretion miscarried in not allowing the appellant a short adjournment to produce material alleging the provision of defective goods and other breaches of contract which, if successful, might have extinguished the claim. It was only after the ruling by the Chamber Judge that service was governed by the 1992 Act and was effected in accordance with its requirements that the solicitor for the appellant sought an adjournment and contended that there had been insufficient time in which to put material together to oppose the judgment summons. In the course of submissions he admitted the original contract price and variations but not the variations which were claimed in the plaint. He informed the court that he had recently received material from the appellant which he believed showed a triable issue and asked to have the matter stood down until later in the day to prepare an affidavit. As Mr. Couper for the respondents submitted on the appeal, it was unrealistic to expect that the matter could have been further dealt with on that day because he would have required time to take instructions about the content of the proposed affidavit which involved considerations of invoices and the like.

In declining to grant the adjournment it cannot be said that his Honour's discretion miscarried. He had before him the correspondence from the respondent asking for particulars of bad workmanship and he had the Dart Engineering pleadings. Ten days had elapsed since service of the judgment summons and nothing was before the court showing a triable issue, no compelling explanation was offered for this failure, and the amount outstanding under the original agreement was admitted.

It was within the proper exercise of his discretion to refuse the adjournment, Australian Coal and Shale Employees' Federation v. The Commonwealth (1953) 94C.L.R.621 at p. 627.

There remains for consideration the question whether the appeal is from a final or interlocutory order. In view of the conclusions reached on the substantive grounds of appeal it is unnecessary to decide this matter on this appeal.

The order is that the appeal be dismissed with costs.