Cheng v Lam
[2020] WASCA 162
•25 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CHENG -v- LAM [2020] WASCA 162
CORAM: MURPHY JA
VAUGHAN JA
HEARD: 24 SEPTEMBER 2020
DELIVERED : 24 SEPTEMBER 2020
PUBLISHED : 25 SEPTEMBER 2020
FILE NO/S: CACV 63 of 2020
BETWEEN: MARY YUEN SHAN CHENG
Appellant
AND
FRANCIS HUNG LAM
First Respondent
ANDREA MAN YEE CHENG
Second Respondent
CHAN THANH LAM
Third Respondent
DAVID CUONG CHAN LAM
Fourth Respondent
TINH AU
Fifth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: TOTTLE J
Citation: CHENG -v- LAM [No 4] [2020] WASC 175
File Number : CIV 1706 of 2015
Catchwords:
Practice and procedure - Application for substituted service - Absence of evidence in support of application
Practice and procedure - Application to strike out grounds of appeal - Where primary judge's decision adopted registrar's report - Where grounds of appeal alleged error by registrar rather than by primary judge - Application to amend grounds - Where proposed amended grounds not proper grounds of appeal
Legislation:
Rules of the Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(c), r 32(4)(d)
Rules of the Supreme Court 1971 (WA), O 60A r 4(3)(a)
Supreme Court Act 1935 (WA), s 50(2)
Result:
Application for substituted service dismissed
Appellant's case struck out
Application to amend appellant's case dismissed
Leave given to appellant to file and serve a minute of substituted appellant's case
Category: B
Representation:
Counsel:
| Appellant | : | G A Lacerenza |
| First Respondent | : | P G McGowan |
| Second Respondent | : | P G McGowan |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
| Fifth Respondent | : | No appearance |
Solicitors:
| Appellant | : | GA Lacerenza & Associates |
| First Respondent | : | Johnstone Crouse Lawyers |
| Second Respondent | : | Johnstone Crouse Lawyers |
| Third Respondent | : | No appearance |
| Fourth Respondent | : | No appearance |
| Fifth Respondent | : | No appearance |
Case(s) referred to in decision(s):
Cheng v Lam [No 2] [2018] WASC 199
Cheng v Lam [No 3] [2020] WASC 45
Cheng v Lam [No 4] [2020] WASC 175
Wilden Pty Ltd v Green [No 6] [2018] WASCA 198
REASONS OF THE COURT:
This matter came before the court pursuant to an amended registrar's notice dated 17 September 2020 to consider:
1.The first and second respondents' application filed 18 August 2020 seeking, in effect, that grounds of appeal 1, 2, 3, 4, 5, 6 and 7 be struck out and that the appellant be required to file an amended appellant's case within seven days of the date of the disposition of the application, and that the appellant be ordered to pay the first and second respondents' costs of the application in any event.
2.The appellant's application filed 24 August 2020 for substituted service on the third and fifth respondents.
3.The appellant's application filed 16 September 2020 for leave to file an amended appellant's case.
At the conclusion of the hearing, we made the orders referred to in [15] ‑ [16] below, and said that we would provide written reasons. These are our reasons.
The appellant's application for substituted service filed 24 August 2020
The application
The appellant sought the following orders for substituted service of the notice of appeal:
1.The third respondent (Chan Thanh Lam) be served by serving a copy by certified post to a specified address, and by service on Johnstone Crouse Lawyers, who are said to be the third respondent's solicitors in other proceedings.
2.The fifth respondent (Tinh Au) be served by serving a copy on the first, second, third and fourth respondents.
The third respondent
As to service on the third respondent (Chan Thanh Lam), he appeared to be a bankrupt. The appeal notice was sent to the Trustee in Bankruptcy. There was no admissible evidence that the third respondent resides at the proposed address for substituted service. There was no evidence of any attempt by a process server to serve him. There was no evidence of his email address. Johnstone Crouse Lawyers evidently have no power to accept service on his behalf.
There was insufficient evidence on which to make the orders sought.
The fifth respondent
There was no evidence of the fifth respondent's (Tinh Au's) residential or email address. There was no evidence of any attempt by a process server to serve him. There was insufficient evidence to make the orders sought.
The first and second respondents' strike out application filed 18 August 2020
The substantive appeal is against the decision of Tottle J in Cheng v Lam [No 4][1] (primary decision). The primary decision concerned the taking of an account by Registrar Whitbread following a decision of Chaney J in Cheng v Lam [No 2].[2] Registrar Whitbread's report was published in Cheng v Lam [No 3].[3] In the primary decision, Tottle J found that the registrar's report (except for one item) should be adopted.
[1] Cheng v Lam [No 4] [2020] WASC 175.
[2] Cheng v Lam [No 2] [2018] WASC 199.
[3] Cheng v Lam [No 3] [2020] WASC 45.
The appellant's case was filed 24 July 2020. Grounds 1 ‑ 5 and 6 ‑ 7 expressly asserted errors by the registrar, and not by the judge. Ground 5A asserted error by Tottle J, but only by reference to alleged errors by the registrar. All these grounds in substance asserted alleged errors by the registrar. The grounds did not have as their focus, as they should have, the exercise of judicial discretion under s 50(2) of the Supreme Court Act 1935 (WA) in relation to whether a registrar's report should be adopted. See, in this regard, Wilden Pty Ltd v Green [No 6].[4] Moreover, this is in a context where there is no appeal from the registrar's decision: see O 60A r 4(3)(a) of the Rules of the Supreme Court 1971 (WA).
[4] Wilden Pty Ltd v Green [No 6] [2018] WASCA 198 [53] ‑ [54].
Grounds 1, 2, 3, 4, 5, 5A, 6 and 7 of the appellant's case as filed were incompetent and counsel for the appellant did not dispute this. The proper course was to strike out those grounds. That would have left ground 5B, which did allege error by the judge. However, as the overwhelming part of the appellant's case was defective, the appropriate order was to strike out the whole of the appellant's case, with leave to file a minute of substituted appellant's case, subject, however, to a consideration of the appellant's application to amend.
The appellant's application to amend filed 16 September 2020
The appellant sought to file an amended appellant's case in the form attached to the affidavit of Mr G Lacerenza sworn 16 September 2020.
The proposed amended grounds involved minimalist amendments to the grounds in their current form. Whilst referring in terms to errors by the judge, in substance the grounds repeated the same allegations of error by the registrar. Again, the proposed grounds failed to focus on the exercise of judicial discretion and the principles on which the court acts in deciding whether or not to adopt a registrar's report under s 50(2) of the Supreme Court Act.
Further, insofar as the proposed grounds purported to allege error by the judge, they failed to comply with pt 5 r 32(4)(c) and (d) of the Supreme Court (Court of Appeal) Rules 2005 (WA) in that they did not identify whether the error was of fact, law or mixed fact and law, and they did not identify each paragraph of the primary decision where the alleged error was said to have occurred.
Further, ground 1 was not a proper ground of appeal. It rolled up a number of disparate allegations, and the particulars to the ground had no evident relationship with the ground.
For these reasons, we concluded that leave to amend in terms of the amended appellant's case annexed to Mr Lacerenza's affidavit filed 16 September 2020 should be refused.
Conclusion
Accordingly, the court made the following orders:
1.The appellant's case filed 24 July 2020 is struck out.
2.The appellant file and serve a minute of proposed substituted appellant's case on or before 4.00 pm 22 October 2020.
3.The appellant's application filed 24 August 2020 is dismissed.
4.The appellant's application filed 16 September 2020 is dismissed.
The first and second respondents sought costs fixed in the sum of $1,200. That order was not contested and an order to that effect was accordingly made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy25 SEPTEMBER 2020
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