Cobden-Jones v Stepney Garment Company P/L No. Scgrg-98-1177 Judgment No. S6942

[1998] SASC 6942

COBDEN-JONES v STEPNEY GARMENT CO PTY LTD

[1998] SASC 6942

Magistrates Appeal

1 WICKS J                  On 9 December 1997, the respondent issued a Claim against the appellant out of the Magistrates Court (Civil Division) in which it claimed $30,000 for goods sold and delivered and interest.  The Claim showed the appellant’s address to be 8 Cross Street, Double Bay, New South Wales, 2028.
2 As the appellant resided out of the State, the Claim had attached to it a notice in the form of Schedule 1 Form 1 to the Regulations under the Service and Execution of Process Act 1992.  The notice contained an endorsement as follows:
"CONTESTING THIS CLAIM

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.

If you want to contest this claim, you must also file a DEFENCE in the Adelaide Magistrates Court Civil Registry.  You have only 21 days after receiving the attached process to do so.

The defence must contain -

an address in Australia where documents can be left for you or sent to you

your address."

3 The Claim was posted by the registrar in an envelope addressed:
Ms Alison Cobden-Jones
t/as Materna Moda
8 Cross Street
Double Bay NSW 2028

4 The envelope and claim were returned unclaimed.  The precise date of the return is not known but a notice was sent by the Registrar to the respondent’s solicitors on 17 February 1998 notifying them that service of the claim in the action had been found to be ineffectual.
5 On 19 February 1998, the respondent’s solicitors wrote to the Registrar of the Court requesting that the address of the appellant be amended to:
"4 Cross Street
Double Bay
NSW
2028"

and requested that the Claim be returned to that office.
6 The Claim was then posted to the appellant at the new address by the respondent’s solicitors.  Again, on 6 March 1998 the Registrar notified the respondent’s solicitors  that service had been found to have been ineffectual.
7 On 11 December 1997, the respondent made application to the Court for summary judgment pursuant to Rule 8 of the Magistrates Court (Civil) Rules 1992.  That application was supported by an affidavit sworn by Mr A T Gun, solicitor for the respondent.  The application was returnable on 19 December 1997 at 10 am.  The affidavit concluded with the following statement from the deponent:
"2.1   I believe that the defendant is justly and truly indebted to the plaintiff in the said sum of $30,383.79.

2.2    The defendant does not have a defence on the merits on any possible view of the facts or law."

8 An affidavit of service of the application sworn by the respondent’s solicitor in the following terms was filed on 18 December 1997:

1. On Thursday 11th December I served a sealed copy of the application issued herein on the said 11th December 1997 by posting the same at the Australia Post Business Centre at Rundle Street Kent Town in the State of South Australia together with a copy of the affidavit of Anthony Townsend Gun sworn herein on the said 11th December by prepaid Express Post in an envelope addressed to the defendant at 4 Cross Street Double Bay NSW 2028.

1. I enclosed in the said envelope the original of my letter dated 11th December 1997 addressed to the defendant of copy of which is annexed hereto and marked "A"

1. At the time of posting aforesaid I was given a receipt and an identity slip which was numbered alpha-numerically BSO419819.  The said envelope carried the same identification.  The said receipt and identity slip are annexed hereto and marked "B"

1. On the 18th December I was informed by an officer of Australia Post and verily believe that the said envelope was delivered to 4 Cross Street Double Bay in the State of New South Wales on the 12th December 1997."

9 The application for summary judgment was heard by a magistrate on 19 December 1997 when summary judgment was entered for the amount claimed plus costs.
10 The service of this application is governed by the Service and Execution of Process Act 1992 because the appellant at that stage had not filed a document giving an address for service within South Australia.  Service at an address interstate was therefore necessary.  Sub-section 11(11) of that Act provides:
11 "(11)     A process, order or document served by post under this Act is presumed to have been served on the fourth day after the day it was posted unless evidence is adduced that raises real doubt that the process, order or document was delivered by post to the person to whom it was addressed within 14 days after the day it was posted."
12 Also, under subs8(4), the Service and Execution of Process Act 1992 applies to the exclusion of the law of a State with respect to the service of process in another State.  I read that subsection as requiring that all process for service in another State of the Commonwealth should be served in accordance with the requirements of the Service and Execution of Process Act to the exclusion of Rules of Court or legislation governing court procedures.
13 Under the Acts Interpretation Act 1915 (Cwth), in calculating time, one must not count the day of posting and where the last day falls on a Saturday or Sunday, the time is treated as having expired on the following Monday.  In the present case the application posted on 11 December 1997 is deemed to have been served on Monday 15 December 1997.

1. Sub-rule 64(3) of the Magistrates Court (Civil) Rule, provides:
   15 "(3)      An application that is required to be served must be served not less than four clear days before the date fixed for the hearing of it."
   16 Having regard to this sub-rule, the application could not be heard before 20 December 1997.
   17 In the circumstances, the summary judgment was not regularly made. It would therefore be appropriate for this court to set it aside irrespective of the merits or otherwise of any defence which the appellant might have: Battiste v Mulvaney (S6419 Doyle CJ, 7 November 1997, unreported). If, of course, the defence is not one of substance, the respondent can make a further application for summary judgment on proper notice to the appellant.
   18 Also, there is an affidavit of the respondent’s solicitor on the court file deposing to the fact that the envelope containing the Claim was in fact addressed to 8 Cross Street, Double Bay, New South Wales, an address which it has been established was not the last known address of the appellant.  This is admitted by the respondent’s solicitor in an affidavit filed in relation to this appeal.  In the affidavit he says: "Due to an error in my office the appellant’s address on the summons was incorrectly typed as 8 Cross Street, Double Bay whereas it should have been 4 Cross Street, Double Bay".  Under subs11(3) of the Service and Executive of Process Act 1992, service of a document under the Act by post on an individual is taken to have been proved only if it was sent by pre-paid post, addressed to the person, to his or her last known address and the date upon which it is posted is also proved.
   19 In the present case, the envelope containing the Claim was not addressed to the appellant’s last known address.  Service of the Claim did not occur and cannot be proved.  It follows on that ground as well that the summary judgment was not regularly made.
   20 I have decided this matter on the ground that the summary judgment was not regularly made.  If it had been regularly made, it could only be set aside on appeal, not because of an irregularity but on broader considerations of justice: Battiste v Mulvaney (supra).  In those circumstances it would be necessary to look closely at the defence proposed to be relied upon and it would be essential for an affidavit of merits to be filed.  However, in the circumstances, that matter does not arise.
   21 The procedure in the Civil jurisdiction of the Magistrates Court is somewhat misleading.  It is held out in the Claim and in the Notice under the Service and Execution of Prosecution Act attached to it that the defendant has 21 days within which to respond and yet summary judgment can be entered well within that time without the defendant knowing about it.  As a general rule it seems to me that judgment should not be entered within 21 days of the service of the Claim other than where the matter is urgent and there is good reason to permit the plaintiff to act within the 21 day period.  In that case, there is good reason for personal service of the application for summary judgment to be insisted upon before the application is heard.
   22 In my opinion, the appeal should be allowed.  I further order:

2. that the summary judgment dated the 19th day of December 1997 in Action No 97/30782 in the Magistrates Court be set aside

1. that the appellant have fourteen days within which to file a defence in the Action.