Cooper v Miles
[2023] WADC 35
•24 MARCH 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: COOPER -v- MILES [2023] WADC 35
CORAM: REGISTRAR JEYAMOHAN
HEARD: 1 MARCH 2023
DELIVERED : 24 MARCH 2023
FILE NO/S: CIV 4686 of 2021
BETWEEN: PAUL JAMES COOPER
Plaintiff
AND
ANDREW NICHOLAS MILES
Defendant
Catchwords:
Application to strike out or set aside writ - Application to set aside service of writ - Preliminary issue - When personal service effected - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 7 r 1, O 9 r 1, O 12 r 6, O 72 r 2
Result:
Writ duly served
Representation:
Counsel:
| Plaintiff | : | Mr D J Mezger |
| Defendant | : | Mr S M Denman |
Solicitors:
| Plaintiff | : | Chapmans |
| Defendant | : | Scott Denman |
Case(s) referred to in decision(s):
Ainsworth v Redd (1990) 19 NSWLR 78
Bagshaw v RTS Super Pty Ltd [2019] WASCA 85
Capewell v Seltino Pty Ltd [1986] 2 Qd R 2; (1985) 82 FLR 452
City of Canning v Christou Nominees Pty Ltd [2020] WASC 97
Clack v Murray [2017] WASCA 88
Hope v Hope (1854) 4 De GM & G 328; (1854) 43 ER 534
Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542; (1996) 133 FLR 307; (1996) 21 ACSR 440
Jin Xin Investment & Trade (Australia) Pty Ltd v ISC Property Pty Ltd [2006] NSWSC 7; (2006) 196 FLR 350; (2006) 56 ACSR 376
Laurie v Carroll (1958) 98 CLR 310; (1958) 32 ALJR 7
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Prout v La Rosa [2007] WASC 63
Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869; [1951] 2 All ER 334
West Clothing Co Pty Ltd v Sail America Foundation [1988] WAR 119
REGISTRAR JEYAMOHAN:
Introduction
This is an application that the writ be struck out or set aside; alternatively, that the service of the writ on the defendant be set aside (Application), brought by the defendant pursuant to O 12 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC). On hearing from the parties, the preliminary matter for determination in the context of the Application is whether personal service of a writ of summons had been effected by the plaintiff on the defendant.
Background
By writ of summons filed 1 December 2021, the plaintiff claims damages as a result of the alleged negligence of the defendant, a consultant neurosurgeon, in relation to medical treatment purportedly provided by the defendant to the plaintiff on or about 9 December 2015; between 9 December 2015 and 5 April 2016; and between 5 April 2016 and on or about 31 March 2017. Steps to effect personal service of the writ on the defendant was attempted on 30 November 2022, being the last date on which the writ remained valid prior to its expiration.
It is not a matter of controversy that in order to effect service, a representative from the plaintiff's solicitors law firm, Chapmans, had attended each of the defendant's consulting rooms at Murdoch and Wembley respectively on 30 November 2022, on which day the defendant was operating all day at the St John of God Subiaco Hospital (Hospital). That is, the defendant was not physically present at either of his Murdoch or Wembley rooms at the relevant times and on each occasion, a physical copy of the writ was left with the defendant's secretaries at each of his Murdoch and Wembley rooms.
The defendant's position is that he was neither asked for, nor gave, authority for either of his medical secretaries to accept service of the writ on his behalf.
The defendant entered a memorandum of conditional appearance on 9 December 2022 and by chamber summons dated 21 December 2022 the defendant brought the Application pursuant to O 12 r 6 of the RSC that the writ be struck out or set aside; alternatively, that the service of the writ on the defendant be set aside.
At the hearing of the Application on 1 March 2023, counsel for the defendant submitted that, having conferred with counsel for the plaintiff that day, the preliminary matter for determination in the context of the Application is whether personal service of a writ of summons had been effected by the plaintiff on the defendant within the meaning of O 72 r 2 of the RSC.
By way of procedural background, the plaintiff had previously commenced proceedings against the defendant in District Court action CIV 4480 of 2018 (the 2018 Action) in respect of damages as a result of the alleged negligence of the defendant, in relation to medical treatment provided to the plaintiff from on or about 9 December 2015 and/or 29 March 2016 and/or 5 April 2016. By notice from the court issued 29 November 2019 the 2018 Action was placed on the inactive cases list pursuant to r 44D(1)(a) of the District Court Rules 2005 (WA) (DCR) and was thereafter dismissed on 29 May 2020 pursuant to r 44G of the DCR. These matters do not concern the present matter for determination but are noted in the context of the matters deposed to by the defendant in his affidavit sworn 21 December 2022.
Legal principles
A conditional appearance may be entered as of right where a defendant relies on any circumstances that show that the court has no jurisdiction to entertain the action, including that the alleged service was insufficient.[1] It has been said that when the defendant seeks to set aside service or to stay the proceedings, the burden remains on the plaintiff to satisfy the court that on all the admissible materials there remains a strong argument that the qualifying conditions are met. Nonetheless, the jurisdiction is to be exercised with great care and doubt resolved in favour of the intended defendant.[2]
[1] Capewell v Seltino Pty Ltd [1986] 2 Qd R 2; (1985) 82 FLR 452, 15; Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [24].
[2] Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869; [1951] 2 All ER 334, 883 - 889, 340 - 344; West Clothing Co Pty Ltd v Sail America Foundation [1988] WAR 119, 121.
Order 9 r 1 of the RSC requires a writ to be served personally on each defendant by the plaintiff or his agent. Personal service of the court's process upon the defendant is the foundation of the court's jurisdiction over him or her[3] and is required by O 9 for all forms of originating process.
[3] Laurie v Carroll (1958) 98 CLR 310; (1958) 32 ALJR 7, 323, 324.
Where personal service is required, O 72 r 2 of the RSC provides that:
Personal service of a document is effected by leaving a copy of the document with the person to be served, and if so requested by him at the time when it is left, showing him -
(a)in the case where the document is a writ or other originating process, the original; and
(b)in any other case the original or a true copy.
The object of personal service is to give notice to the party to be served, so that he may be made aware of, and may be able to resist, that which is sought against him.[4]
[4] Prout v La Rosa [2007] WASC 63 [13] citing Hope v Hope (1854) 4 De GM & G 328; (1854) 43 ER 534, 342.
Personal service does not require the document to be physically handed to the person being served.[5] The means by which the person to be served obtains notice of the document are usually immaterial.[6]
[5] Prout v La Rosa [11]; Ainsworth v Redd (1990) 19 NSWLR 78, 89.
[6] Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542; (1996) 133 FLR 307; (1996) 21 ACSR 440, 544; Prout v La Rosa [15].
For a document to be regarded as having been delivered to a person, the end result of the interaction would be the transfer of possession of the document in such a way that the person delivering the document relinquishes physical custody and control and the intended transferee obtains the ready and unimpeded means of exercising physical custody and control to the exclusion of the person giving. Accordingly, the person delivering the document should not take back and retain the document just because the person to whom it is being delivered does not want it or tries to return it, even if that person has had an opportunity to read the document.[7] As Justice Mitchell observed in Clack v Murray:[8]
The purpose of requiring personal service of originating court process is to give notice of the proceedings to the relevant party. That is so that he or she may have an opportunity to resist the relief claimed in the proceedings. The ordinary meaning of the phrase 'personal service' is that the document in question must come to the notice of the person for whom it is intended. The means by which the person served obtains the document are usually immaterial. Where a notice of appeal is in fact received by a respondent, the document will have been 'left with' that respondent even if it is not handed to the respondent by a representative of the appellant seeking to effect personal service. Once the respondent receives the notice of appeal, the object of the requirement for personal service has been achieved. A person who the evidence establishes has actually received the document cannot validly complain that he or she has not been personally served.
(footnotes omitted)
[7] Jin Xin Investment & Trade (Australia) Pty Ltd v ISC Property Pty Ltd [2006] NSWSC 7; (2006) 196 FLR 350; (2006) 56 ACSR 376, [30] - [41].
[8] Clack v Murray [2017] WASCA 88 [10].
The evidence relied upon
The defendant's evidence
Dr Andrew Nicholas Miles, in his affidavit sworn 21 December 2022 (Miles Affidavit), deposed that in his capacity as consultant neurosurgeon, he was involved in the plaintiff's treatment between 6 August 2015 and 6 February 2017, including surgical procedures that he performed on 9 December 2015, 29 March 2016 and 5 April 2016.[9]
[9] Miles Affidavit, par 2.
By correspondence dated 29 November 2019, the defendant received notice from the District Court in the 2018 Action that that action had been placed on the inactive cases list. The notice provided that pursuant to r 44G(1) of the DCR, a case that is on the inactive cases list for six continuous months is taken to have been dismissed for want of prosecution. Prior to receipt of that notice, the defendant was not aware that a writ had been issued by the plaintiff against him.[10]
[10] Miles Affidavit, par 3, Annexure AM1.
By correspondence dated 29 May 2020 the defendant received notice from the District Court in the 2018 Action that the case was dismissed on 29 May 2020 pursuant to r 44G of the DCR as it had been on the inactive cases list for six continuous months.[11]
[11] Miles Affidavit, par 4, Annexure AM2.
Dr Miles deposed that he did not at any stage receive any communication (including service of a writ) for or on behalf of the plaintiff in relation to the 2018 Action, and therefore thought that as the 2018 Action had been dismissed, he did not need to notify his then insurer (MDA National) of the claim prior to changing insurer (to Avant Insurance) on 1 July 2020.[12]
[12] Miles Affidavit, par 5.
Dr Miles deposed to matters he discussed with each of his secretaries at his respective rooms in respect of the attendance by the Chapmans representative to effect service. Dr Miles deposed that he did not receive any further communication about a possible claim for or on behalf of the plaintiff until he was contacted by his medical secretaries in the afternoon of 30 November 2022, on which day he was operating all day at the Hospital advising him that a representative from Chapmans had attended each of his Murdoch and Wembley rooms seeking to serve a writ on him.[13] Dr Miles deposed that in both cases, he was contacted by his secretaries at each of his Murdoch and Wembley rooms after the Chapmans representative had already left the rooms, and he was neither asked for, nor gave, authority for them to accept service of the writ in his behalf.[14]
[13] Miles Affidavit, par 6.
[14] Miles Affidavit, par 7.
Dr Miles deposed that he did not return to his Wembley rooms after completion of his surgical list on 30 November 2022 and was not served, or made aware of any attempts to serve him, at the Hospital.[15]
[15] Miles Affidavit, par 10.
The defendant submits that as the writ has not been personally served on the defendant, it is now stale and is prone to being struck out.
The plaintiff's evidence
The plaintiff's position and evidence relied upon in opposition to the Application is set out in the affidavit of Daniel James Mezger affirmed 27 February 2023 (Mezger Affidavit).
Mr Mezger deposed that at 12.30 pm on 30 November 2022 he served a copy of the writ on Carrie Havercroft, medical receptionist at the defendant's practice located at Suite 77, Level 4, Wexford Medical Centre in Murdoch.[16]
[16] Miles Affidavit, par 1; Annexure DJM1.
Mr Mezger deposed that at 1.25 pm on 30 November 2022 he served a copy of the writ on Hena Smith, medical receptionist at the defendant's practice located at Suite 10, Level 1, 178 Cambridge Street, Wembley.[17]
[17] Miles Affidavit, par 3; Annexure DJM2.
The plaintiff's position is that pursuant to O 7 r 1, the writ is valid for service for 12 months beginning with the date of issue from 1 December 2021 to 1 December 2022. It is the plaintiff's submission that the defendant was served by personal service in accordance with O 9 r 1 and O 72 r 2 of the RSC as the writ was hand‑delivered to the defendant's practices in both Murdoch and Wembley by handing the writ to the defendant's medical secretaries both of whom communicated with the defendant, bringing the writ to the defendant's attention.
Analysis
The central issue for determination for the purposes of the present Application is whether the writ was personally served on the defendant on 30 November 2022. The writ was filed on 1 December 2021. Pursuant to O 7 r 1 of the RSC, the writ is valid in the first instance for 12 months beginning with the date of its issue. The defendant does not take issue with 30 November 2022, being the date on which the plaintiff took steps to effect service of the writ on the plaintiff, falling within this 12‑month period.
The plaintiff's position is that a representative from Chapmans attended the defendant's rooms on 30 November 2022 to effect service of the writ.
The defendant has deposed that he was operating all day at the Hospital.[18] The defendant has deposed that was neither asked to give, nor gave, authority to any representatives at his rooms for them to accept service of the writ on his behalf.[19] The defendant has deposed that he did not return to his Wembley rooms after completion of his surgical list on 30 November 2022 and was not served, nor made aware of, any attempts to serve him at the Hospital.[20]
[18] Miles Affidavit, par 6 to 10.
[19] Miles Affidavit, par 7 to 9.
[20] Miles Affidavit, par 10.
Issues as to admissible evidence have not been raised by either party, and for the purposes of this determination, do not weigh on the reasons.
The parties each rely on the Clack v Murray. Relevantly, in Clack v Murray, Justice Mitchell observed at [12] that:
In the present case, Mr and Mrs Clack's appeal notice was given to Mr Murray at the Murrays' residence. Mr Murray immediately gave the appeal notice to Mrs Murray. That involved the appeal notice being 'left with' Mrs Murray within the meaning of the Rules. Although the process server did not hand the documents directly to Mrs Murray, personal service was effected on her on 10 March 2017 when she received the documents delivered to her residence.
The plaintiff relies on Clack v Murray[21] where the court in Clack v Murray stated 'The purpose of requiring personal service of originating court process it give notice of the proceedings to the relevant party'. The plaintiff further relies on Clackv Murray at [10]. Relevantly:
Where a notice of appeal is in fact received by a respondent, the document will have been 'left with' that respondent even if it is not handed to the respondent by a representative of the appellant seeking to effect personal service. Once the respondent receives the notice of appeal, the object of the requirement for personal service has been achieved. A person who the evidence establishes has actually received the document cannot validly complain that he or she has not been personally served.
[21] Which was followed in Bagshaw v RTS Super Pty Ltd [2019] WASCA 85 [19].
The notice referred to in Clack v Murray being the notice of appeal.
Master Sanderson in City of Canning v Christou Nominees Pty Ltd[22] observed that:
the purpose of service is to bring to the attention of the parties served the fact proceedings had been issued. Service is not some sort of forensic game in which one party, by taking advantage of an oversight by another party, gains an advantage.
[22] City of Canning v Christou Nominees Pty Ltd [2020] WASC 97 [22].
Whilst the Master's comments were made in the context of whether service has been effected in the context of the other party's solicitors having been sent the document, the Master's observations relevantly speak to the purpose of service in bringing to the attention of the parties served the fact that proceedings had been issued.
In the present matter, Dr Miles had in fact received notice from each of his medical receptionists on 30 November 2022 'advising that a representative from Chapmans had attended each of my [Dr Miles'] Murdoch and Wembley rooms seeking to serve a writ on me [him]'.[23] That is, on Dr Miles' own evidence, the fact that a Chapmans' representative had attended each of his medical practices to effect service of the writ, had been brought to Dr Miles' attention in the afternoon of 30 November 2022. The writ was still current at the time.
[23] Miles Affidavit, par 7.
Conclusion
On the facts I am satisfied that the fact that proceedings had been issued had been brought to Dr Miles' attention on 30 November 2022 while the writ was still current and that Dr Miles had notice of the proceedings within the meaning contemplated by Justice Mitchell in Clackv Murray. Accordingly, I am satisfied personal service has been effected and the question of whether or not the writ ought to be struck out is moot.
In this case I will make a declaration the writ has been properly served. That will mean the conditional appearance entered by the defendant will become unconditional.
I will hear from the parties as to the final orders.
The parties are to confer as to a precise form of orders and as to costs. In the circumstances an agreement cannot be reached, parties are to file competing minutes of proposed orders by 5 April 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
24 MARCH 2023
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