Cheney v Moore
[2020] WASC 227
•29 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CHENEY -v- MOORE [2020] WASC 227
CORAM: LE MIERE J
HEARD: 29 MAY 2020
DELIVERED : 29 MAY 2020
FILE NO/S: CIV 3197 of 2016
BETWEEN: MICHAEL JOHN CHENEY
Plaintiff
AND
BRIAN RICHARD MARK MOORE
Defendant
Catchwords:
Practice and procedure - Default judgment - Order 9 r 1(4) - Sealed copy of the writ not indorsed with the particulars of service within three days of service - Irregularity within the meaning of O 2 r 1 - Discretionary power to rectify irregularities conferred by O 2 r 1(2) - Whether the irregularity can be rectified without injustice - No prejudice to the defendant
Practice and procedure - Notice of intention to proceed - Order 3 r 7 - Failure to give notice of intention to proceed where a year or more has elapsed since the last proceeding in an action - Irregularity within the meaning of O 2 r 1 - Dispensing of the giving of notice cannot be done without injustice - Plaintiff failed to serve statement of claim on defendant
Appeals - Appeal from the decision of a registrar - Not demonstrated that the purported error affected the result - Order 60A r 6 - De novo appeal - Powers of the court on appeal are exercisable not only where there has been some legal, factual or discretionary error
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
The appeal is allowed in part
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M Ryan |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Bostock & Ryan |
| Defendant | : | No appearance |
Case(s) referred to in decision(s):
Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874
Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257
LE MIERE J:
Summary
These are my edited reasons for judgment delivered orally on 29 May 2020. I ordered that the indorsement of service particulars indorsed on the writ of summons on 9 January 2019 stand as an indorsement of the particulars of service from and including 31 October 2017, and that the plaintiff's appeal be otherwise dismissed.
The appeal
The plaintiff appeals from a decision of a registrar on 20 February 2020 by which the registrar declined to make the orders set out in the plaintiff's motion of 13 December 2019 and dismissed the motion.
Extension of time to appeal
The appeal notice was filed a few days out of time. The plaintiff has explained the delay. There is no prejudice to the defendant. The time to bring the appeal will be extended to the date on which the notice of appeal was filed, 6 March 2020.
The motion
By his motion of 13 December 2019 the plaintiff sought orders:
1.The date for indorsement of service of the writ be extended to 9 January 2019.
2.The plaintiff be at liberty to proceed with his application for entry of judgment by reason of the defendant's default of appearance to the writ.
3.Leave is granted to the plaintiff for judgment to be entered in terms of the judgment as settled by a registrar of the court.
Registrar's decision
In his reasons for dismissing the motion the registrar referred to Rules of the Supreme Court 1971 (WA) (RSC) O 9 r 1(4), which provides that the plaintiff is not entitled to enter judgment against the defendant in default of appearance unless, within three days after service, the person serving it indorses on the sealed copy of the writ the specified service particulars. The registrar stated that the plaintiff seeks to have the court accept a memorandum made on 31 October 2017 by the person who served the writ, and which contains the specified service particulars, as sufficient indorsement. The registrar found that the court cannot and does not accept the memorandum as the indorsement of the writ.
The registrar then referred to O 13 r 1(3)(a) which provides that judgment must not be entered against the defendant in default of appearance unless an affidavit has been filed by, or on behalf of, the plaintiff proving service of the writ on the defendant and indorsement of service in accordance with O 9 r 1(4). The registrar found that the plaintiff is unable to comply with that requirement.
Those findings are sufficient for the decision of the registrar to dismiss the motion. However, after stating that he declined to make the orders set out in the motion and dismissed the motion, the registrar stated:
If the plaintiff seeks to pursue judgement against the defendant, it would be appropriate to apply to the Master for summary judgement and file and serve documents necessary for that purpose.
Ground of appeal
The sole ground of appeal is that the registrar was wrong in law in his advice that the plaintiff could apply to the master for summary judgment by reason that the defendant had not filed an appearance. On the face of it, the registrar may have been in error in making his statement which is characterised by the plaintiff as advice. However, an appeal court will only reverse the decision appealed from if it is more probable than not that the error affected the result. It has not been demonstrated that the error, if it be an error, affected the result.
Appeal is a new hearing
However, that does not dispose of this appeal. Order 60A r 6 provides that the appeal is to be by way of a new hearing of the matter. It is a hearing de novo in the sense that the powers of the court on appeal are exercisable not only where there has been some legal, factual or discretionary error. The court may exercise its powers regardless of any error. Accordingly, I will consider whether or not the court should make the orders sought by the appellant in his motion of 13 December 2019 and in his notice of appeal.
Extension of time to indorse service particulars on writ
Order 9 r 1(4) provides that the plaintiff is not entitled to enter judgment against the defendant in default of appearance unless, within three days after service, the person serving it indorses on the sealed copy of the writ the specified particulars of service. The plaintiff seeks to be relieved of the consequence of not having indorsed on the sealed copy of the writ the particulars of service within three days of service.
The power to extend time to do an act pursuant to the rules is conferred by O 3 r 5. Order 3 r 5 provides that the court may, on such terms as it thinks just, by order extend the period within which a person is required or authorised by the rules to do any act in any proceedings. The rule is remedial and confers a power to relieve against injustice. It should be construed broadly. In my opinion, O 9 r 1(4) requires or authorises the person serving a writ to indorse the particulars of service within three days after service; and O 3 r 5 empowers the court to extend that time.
On the material before the court, it is appropriate to exercise the power to extend the time for the person who served the writ to indorse on the sealed copy of the writ the particulars of service to 9 January 2019. However, it is not clear whether this would satisfy the requirement of O 9 r 1(4), that the person who served the writ indorse the particulars of service within three days after service.
Power to dispense with irregularity
The plaintiff seeks that the court exercise its power under O 2 r 1 to relieve him from the consequences of not complying with the requirement to indorse service particulars on the sealed copy of the writ within three days.
Order 2 r 1(1) provides that where there has, by reason of anything done or left undone, been a failure to comply with the requirements of the rules, the failure shall be treated as an irregularity and shall not nullify any step taken in the proceedings. Order 2 r 1(2) provides that subject to sub‑rule (3), which is not relevant, the court may, on the ground that there has been a failure as is mentioned in sub‑rule (1), exercise its powers under the rules to make such order dealing with the proceedings generally as it thinks fit.
The failure to indorse the service particulars on the sealed copy of the writ within three days of service is an irregularity within the meaning of O 2 r 1. Order 2 r 1(2) gives the court power to rectify the failure by dispensing with the irregularity. The power to 'make such order dealing with the proceedings generally as the court thinks fit' is wide enough to empower the court to make a dispensing order treating the indorsement of the service particulars on the sealed copy of the writ by the person who served the writ on 9 January 2019, as compliant with the requirement to indorse the service particulars within three days.[1]
[1] See The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513, and Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874.
The failure to indorse the service particulars on the sealed copy of the writ within three days was an irregularity. The court should exercise the discretionary powers conferred by O 2 r 1(2) to rectify the irregularity so long as it can be done without injustice. The justice of the case requires the irregularity to be rectified. The person serving the writ served the writ in accordance with the order of a registrar for substituted service and made a memorandum recording the service particulars within three days of serving the writ and subsequently, though not within three days, indorsed the service particulars on the writ. The purpose of indorsing the service particulars on the writ is to ensure there is a proper record of the particulars of service to provide proof that the writ was properly served. That purpose is served by the person who served the writ recording the service particulars in his memorandum of 31 October 2017, and indorsing those particulars on the writ on 9 January 2019. No prejudice is caused to the defendant by the failure to indorse the service particulars on the sealed copy of the writ within three days.
The court will order that the indorsement of service particulars indorsed on 9 January 2019 stand as an indorsement of the particulars of service from and including 31 October 2017, which is the date of Mr Ryan's memorandum recording the particulars of service.
Failure to serve statement of claim
However, there are other reasons for not making the orders sought by the plaintiff for entry of judgment in default of appearance to the writ.
Order 13 r 9(1) provides relevantly that if a defendant fails to enter an appearance within the time limit for appearing the plaintiff may, on complying with sub‑rule (2), apply to the court on motion for judgment against the defendant for the relief sought and costs.
Sub‑rule (2) provides that in order to obtain judgment, if the statement of claim was not indorsed on or served with the writ, the plaintiff must serve the statement of claim on the defendant. The plaintiff purported to serve the statement of claim on the defendant by email to the email address '[email protected]'. On 11 October 2017 a registrar ordered that service of the writ on the defendant's father, Kenneth Moore, and service by way of email to the defendant at [email protected], be good and sufficient service of the writ upon the defendant. But the registrar did not authorise service of the statement of claim by email to [email protected].
The statement of claim has not been served.
Notice of intention to proceed after year's delay not given
There are further difficulties. Order 3 r 7 provides that where a year or more has elapsed since the last proceeding in an action, the party who desires to proceed must give to every other party not less than one month's notice of his or her intention to proceed.
The last thing done by the plaintiff, before applying by motion for judgment, was to purport to serve a statement of claim on the defendant. That was not a proceeding because the statement of claim was not served on the defendant. Furthermore, the purported service of the statement of claim upon the defendant took place more than a year after service of the writ, and no notice of intention to proceed had been given.
Further, more than a year elapsed between the purported service of the statement of claim on the defendant and the plaintiff's motion for judgment, and no notice of intention to proceed was given prior to the application for judgment.
The failure to give notice of intention to proceed after a year delay is an irregularity which might be cured under O 2 r 1. However, I would not exercise the power to dispense with the giving of that notice because the plaintiff has failed to serve a statement of claim on the defendant. Further, the statement of claim was emailed by the plaintiff to the email address I have referred to under cover of a letter which stated that 'in due course we will be applying to enter summary judgment in absence of you entering an appearance'. If that letter came to the attention of the defendant, the defendant might be expecting to be served with a copy of an application for summary judgment before any judgment might be entered against him.
Failure to specify relief
There is a further matter that must be addressed. Insofar as the plaintiff applies for judgment against the defendant for the relief sought, the plaintiff has failed to specify the relief he seeks. It is for the plaintiff to draft the terms of the relief he seeks and move for judgment in those terms.
Order 13 r 9(1) provides that the plaintiff may apply to the court for the relief sought. The plaintiff must specify the relief which he seeks. The court will not order that judgment be entered in terms to be settled by a registrar. There is no entitlement to default judgment. Even if the statement of claim is clear on its face, the court has the discretion to refuse to give judgment if there is reason to think that the facts stated in the statement of claim do not justify the relief sought or injustice will otherwise result. The court cannot be satisfied that the judgment will not result in injustice if the court does not know the terms of the judgment which are to be entered.
Conclusion
I will order that the indorsement of service particulars indorsed on 9 January 2019 stand as an indorsement of the particulars of service from and including 31 October 2017. The appeal will be otherwise dismissed without prejudice to the plaintiff to again apply for judgment in default of appearance, if and when he has given a notice of intention to proceed and served the statement of claim on the defendant.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GG
Associate to the Honourable Justice Le Miere30 JUNE 2020
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