Crowther v Australian Leisure and Hospitality Group Pty Limited Trading as Chelsea Heights Hotel (Ruling)
[2023] VCC 32
•25 January 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-21-03161
| LAURA CROWTHER | Plaintiff |
| v | |
| AUSTRALAIN LEISURE AND HOSPITALITY GROUP PTY LIMITED TRADING AS CHELSEA HEIGHTS HOTEL | Defendant |
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| JUDGE: | HER HONOUR JUDGE TSIKARIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 January 2023 |
| DATE OF RULING: | 25 January 2023 |
| CASE MAY BE CITED AS: | CROWTHER v AUSTRALIAN LEISURE AND HOSPITALITY GROUP PTY LIMITED TRADING AS CHELSEA HEIGHTS HOTEL (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 32 |
RULING
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Subject: CIVIL PROCEDURE
Catchwords: Validity of Service, Validity of Medial Panel referral Legislation Cited: Wrongs Act 1958 (Vic) s28 LT, s28 LW
Civil Procedure Act 2010 (Vic) s 7 and 9
Corporations Act 2001 (Cth) s109X
CasesCited: Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542, Polstar Pty Ltd v Agnew [2007] NSWSC 114
Hope v Hope (1854) 4 De G M and F 328 at [342] Peters v Oscar Mayer Pty Ltd [1963] VR 390
Ruling: Plaintiff’s Application granted.
Defendant’s Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr B Hutchinson | Carbone Lawyers |
For the Defendant | Mr R Roberts (Solicitor) | Thomson Geer |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
1The plaintiff issued an amended summons on 11 January 2023 seeking orders amending the timetabling orders made by Her Honour Judge Tsalamandris (as she then was) on 6 January 2022, an extension of time for the completion of the mediation and confirming the trial date of 2 February 2023. The affidavit of Arianna Lucinda Angelone sworn on 13 January 2023 (the Angelone affidavit) was filed in support of the summons. An earlier affidavit of Eustratia Stacey Patsias sworn 22 December 2022 (the Patsias affidavit) previously filed was relied on.
2Yeon Il Lee, solicitor for the defendant swore an affidavit in opposition of the summons on 16 January 2023.
3At the hearing of the plaintiff’s summons on 18 January 2023, it became apparent that the real issue in dispute between the parties was the validity of service of the Prescribed Information (Form 4) under section 28 LT of the Wrongs Act 1958 (Vic) (the Act).
4I adjourned the hearing of the summons to enable the defendant to file a summons by 4 PM 20 January 2023 in order for the Court to determine the issue in dispute.
5I also ordered that the parties file any written submissions by 4 PM 20 January 2023.
6The defendant issued a summons and the following affidavits were filed and served in support:
(a)Yeon Il Lee sworn 20 January 2023;
(b)Andrew Yong, the defendant’s Corporate Counsel sworn 20 January 2023;
(c)Aleksandra Bubulj Corporate Team Manager of Proclaim Management Solutions (Proclaim) sworn 20 January 2023.
Issue in dispute
7Whether the sending of the Certificate of Assessment and Prescribed Information (Form 4) to the defendant by prepaid post at Chelsea Heights Hotel (the Hotel), corner Springvale and Wells Roads, Chelsea Heights VIC 3196 and by email at [email protected] was sufficient service for the purposes of section 28 LT of the Wrongs Act.
8For the reasons set out below I accept that sending the letter and email on 9 April 2021 enclosing the documents to the hotel was sufficient service effected pursuant to section 28 LT of the Act and that as of 28 January 2022 the defendant was out of time to make a Medical Panel referral pursuant to section 28 LW of the Act.
Relevant facts
9The plaintiff alleges she suffered injury at the defendant’s premises on 7 February 2020.
10On 8 February 2020, the plaintiff’s husband received an email from the assistant manager at the Chelsea Heights hotel 1 enquiring as to the health of the plaintiff and attaching a photograph. The email set out the street address, email address and contact details of the Hotel.
11On 18 February 2020, Proclaim wrote2 to the plaintiff advising it acted on behalf of the Hotel and amongst other things, advised it was investigating the circumstances of the of the incident involving the plaintiff and requesting details of expenses.
Affidavit of Arianna Lucinda Angelone dated 13 January 2023 (“ALA”) page 5 exhibit ‘ALA-1’
Page 6 exhibit ‘ALA-1’
12On 4 March 20203, solicitors for the plaintiff wrote to the Hotel advising they acted on behalf of the plaintiff and requesting documentation and/or CCTV footage in the defendant’s possession.
13On 23 April 20204 solicitors for the plaintiff forwarded a follow-up email addressed to the Hotel as no response had been received to its correspondence dated 10 March 2020.
14On 5 August 20205 Proclaim wrote to plaintiff’s solicitors advising among other things that it was in the process of investigating the incident involving the plaintiff and requesting further information in respect of the plaintiff and the incident.
15On 9 April 20216, the solicitors for the plaintiff purported to serve the Form 4 on the defendant by email and Australia Post at the street address of the Hotel and email address, contained in the email forwarded to the plaintiff’s husband on 8 February 2020.
16On 30 July 2021 the Writ and Statement of Claim was filed by the plaintiff.
17The Writ and Statement of Claim were served by way of registered post on the defendant’s registered office on 19 August 20217.
18An affidavit of service was filed by the plaintiff on 7 September 2021.
19On 21 October 20218 solicitors for the plaintiff wrote to the defendant at its registered address extending the time for a notice of appearance to be filed as the time to file an appearance had expired.
Page 7 exhibit ‘ALA-1’
Page 10 exhibit ‘ALA-1’
Page 11 exhibit ‘ALA-1’
Page 14 to 76 exhibit ‘ALA-1’
Page 77 exhibit ‘ALA-1’
Page 96 exhibit ‘ALA-1’
20On 8 November 2021 the defendant’s solicitors wrote to the plaintiff’s solicitors advising that they had received the letter 21 October 2021 but had not filed an appearance as the defendant had no record of being served with the Writ. Copies of the Writ and Statement of Claim were requested.
21By email dated 9 November 20219 the plaintiff’s solicitors wrote to the defendant solicitors providing a copy of the Writ and Statement of Claim together with the affidavit of service sworn 6 September 2021.
22A Notice of Appearance was filed by the defendant on 10 November 2021.
23One 2 December 202110 the defendant’s solicitors emailed the plaintiff solicitors requesting a copy of the affidavit of service sworn on 6 September 2021. The plaintiff’s solicitors replied on that day attaching the affidavit sworn on 6 September 2021 together with a copy of the email and correspondence dated 9 April 2021 enclosing the Form 4 Prescribed Information and the annexures.
24Timetabling orders were made by Her Honour Judge Tsalamandris (as she then was) on 6 January 2022, setting the proceeding down for hearing on 2 February 2023 as a jury trial.
25On 28 January 202211 the defendant’s solicitors sought to refer the plaintiff to the Medical Panel.
26On 18 February 202212 the plaintiff’s solicitors sent a letter to the defendant’s solicitors stating that the defendant had not complied with section 28 LW of the Act and the referral it purported to make was out of time.
Page 98 exhibit ‘ALA-1’
Page 104 exhibit ‘ALA-1’
Page 120 exhibit ‘ALA-1’
Affidavit of Eustratia Stacy Patsias dated 22 December 2022 (“ESP-1”)
27On 7 March 202213 the plaintiff’s solicitors wrote to the Medical Panel confirming the referral was in dispute and the plaintiff would not be attending the appointments.
28On 8 March 202214 the Medical Panel wrote to the defendant’s solicitors stating that the appointment scheduled for 17 March 2022 was cancelled.
29The interlocutory steps were undertaken by the parties and on 4 November 2022, the plaintiff’s solicitors emailed the defendant’s solicitors seeking a date for the mediation to take place. On the same day the defendant’s solicitors replied stating that they would not be in a position to mediate until the issues regarding the Medical Panel were dealt with.
Submissions
30The plaintiff submitted reliance on the addresses provided by the Hotel in its correspondence dated 8 February 2020 which had previously been responded to, constituted sufficient service pursuant to section 28 LT the Act.
31The defendant had 60 days from 9 April 2021 to refer questions of the Medical Panel pursuant to section 28 LW of the Act and it failed to do so. Therefore, the referral dated 28 January 2022 was out of time.
32The plaintiff conceded that the documents were not left at or posted to the defendant’s registered office but did not accept that failure to serve the documents by post at the registered office meant that service of the documents did not occur.
33Section 109X (1) (a) of the Corporations Act 2001 (Cth) provides that “for the purposes of any law, the document may be served on a company by leaving it at, posting it to, the company’s registered office”. The language of the provision is
Pages 249-250 of exhibit ESP-1
Page15 of exhibit ESP-1
permissive and not mandatory. The purpose of service is to bring the documents to the notice of persons concerned.
34The plaintiff’s solicitors used the email and street addresses provided by the defendant in connection with the plaintiff’s injury, in reliance upon those addresses and in circumstances where earlier correspondence so addressed, had been responded to by an agent of the defendant. Moreover it was submitted that the defendant had not adduced actual evidence of non-receipt of the documents nor had it taken any steps to prosecute the validity of the Medical Panel referral it purported to make on 28 January 2022.
35The Defendant had not made any application to have the trial date vacated; had not sought to set aside or amend the timetabling orders made on 6 January 2022, including mediation; had not taken steps to adjudicate the validity of the purported Medical Panel referral and had not acted in a just and timely resolution of the principal issues in dispute between the parties as required by the Civil Procedure Act 2010 (Vic).
36The defendant submitted that the defendant’s Medical Panel referral on 28 January 2022 was valid and required that the plaintiff submit to Medical Panel examinations. It also sought that the trial listed for 2 February 2023 be vacated.
37It submitted that section 28 LT of the Act provides that a claimant must serve the respondent with copy of the Certificate of Assessment. The Act does not specify mode of service however the Corporations Act 2001 (Cth) does. It acknowledged that notwithstanding s109X of the Corporations Act 2001 (Cth), courts have held that in some cases a person is taken to have been served if it is established that the relevant documents came into their possession even if there were procedural deficiencies15. In essence it was recognised that the object of service is to give
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542; Polstar Pty Ltd v Agnew [2007] NSWSC 114
notice to the party to whom it is made so that they may be aware and may be able to resist that which is sought against them 16.
38Section 109X sets out a clear mode for service of documents and in the present case there was no evidence to suggest it was not practical for the plaintiff to serve the documents in accordance with the requirement and indeed the solicitors for the plaintiff went on to serve the Writ on the defendant’s registered office.
39It was submitted by the defendant that the provision of the documents to the Hotel did not constitute proper service on the defendant as they were required to be served on the registered office. The defendant also submitted that the plaintiff’s attempt to serve the documents on the defendant by sending them to the hotel directly should not be considered proper service in circumstances where the documents were sent to a generic email address; that a large number of defendants’ employees had access to the email address but none of whom had the authority to accept service on its behalf; the defendants’employees did not at any time encourage or invite the plaintiff to serve legal documents on the Hotel by post or email; the solicitors for the plaintiff had not received responses from the Hotel to letters dated 4 April 2020 and 23 April 2020 and that the plaintiff and her lawyers had received letters Proclaim 18 February 2020 and 25 August 2020. The letter of Proclaim 5 August 2020 expressly requested information of the type contained in the prescribed information; and the plaintiff was not precluded from serving the documents on the defendant’s registered office.
40The defendant submitted its ability to consider and respond to the documents in a timely manner were significantly prejudiced by the plaintiff sending the documents directly to the hotel rather than serving them in compliance with section 109X.
41The defendant submitted that the documents were never received by the defendant at its registered office, by Proclaim or anyone else with authority to
Hope v Hope (1854) 4 De G M and F 328 at [342]
action them at anytime before 2 December 2021 and that service of the documents was effected only their receipt by the solicitors on 2 December 2021. Therefore the referral on 28 January 2022 was valid as it was made within the 60 day period prescribed by section 28 LWE (1) (a) of the Act.
Conclusion
42The provisions of the Corporations Act 2001 (Cth) state that a document may be served on a company incorporated under the Corporations Act by leaving it at or by posting it to the registered office of the company. The section provides also for other modes of service, for example delivering a copy of the document personally to a director of the company and it also provides at subsection 6 that nothing in section 109X affects the power of the court to authorise a document to be served in a different way, for instance by substituted service.
43In Peters v Oscar Mayer Pty Ltd17 it was held that a notice was properly served on a company where it was sent, namely to the address as stated on its invoice and not to the registered office. It was sent to a place where the communication addressed to the company would be received. The court held that the provisions of section 252 of the Companies Act 1958 which stated a “document may be served on a company by leaving it at or sending it by post to the registered office” did not purport to provide an exclusive mode of effecting service on a company. Communications were held to have been served on the defendant company at the address contained in an invoice in connection with the sale and on its packaging.
44The solicitors for the defendant submitted that it was likely that the documents were received on or about 9 April 2021 but emphasised that they were unlikely to have been received by anyone with the authority to act upon them.
[1963] VR 390
45This submission is called into question in circumstances where correspondenc e sent by either the plaintiff or her solicitors to the Hotel’s email address had been acted upon previously by Proclaim.
46Affidavits sworn by Andrew Yong and Aleksandra Bubulj do not specifically address whether the email and correspondence were received but rather set out the processes of the defendant in managing claims and its standard operating procedures.
47I accept that the Prescribed Information was validly served in the correspondenc e dated 9 April 2021, in that it was brought to the attention of the defendant when it was sent to the Hotel’s email and street addresses. This is sufficient compliance of the requirements of section 28 LW of the Act.
48I note that the defendant, despite being aware that the validity of the Medical Panel referral was raised almost 12 months ago, took no steps to have the issue determined until I gave it the opportunity of issuing a summons when the matter first came before me on 18 January 2023. It is apparent that the defendant was aware that the prescribed information was not forwarded to the registered office when it received copies of the relevant correspondence on 2 December 2021. In not taking any steps to determine the validity of the Medical Panel referral that it sought to make in January 2022, it has not facilitated the just and timely resolution of a principle issue in dispute between the parties as required by section 7 of the Civil Procedure Act 2010 (Vic) (the CPA).
49In furtherance of the overarching purpose of the CPA as set out in section 9, to ensure that there is just determination of the proceeding, the efficient conduct of the business of the court and the efficient use of the courts resources, the court orders that by sending the letter and email on 9 April 2022 enclosing the documents, the defendant had been given notice of the documents such that sufficient service of the document had been effected pursuant to section 28 LT of
the Act and as at 28 January 2022, the defendant was out of time to make the Medical Panel referral.
50I will make the orders sought by the Plaintiff in her amended summons.
51I will hear the parties in relation to costs.
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