Deveigne v Askar - [2007] NSWCA 45

No judgment structure available for this case.

Reported Decision: 69 NSWLR 327

New South Wales

Court of Appeal

CITATION: Deveigne & Anor v Askar [2007] NSWCA 45

HEARING DATE(S): 23 May 2006

JUDGMENT DATE:
13 March 2007

JUDGMENT OF: Hodgson JA at 1; Giles JA at 4; McColl JA at 27

DECISION: 1.Application for leave to appeal purportedly on behalf of Terry Deveigne dismissed as incompetent. 2. Join NRMA as the appellant. 3. Extend the time to seek leave to appeal. 4. Leave to appeal granted. 5. Appellant to file Notice of Appeal within seven (7) days of this order. 6. Appeal dismissed. 7. Appellant to pay the respondent’s costs of the appeal.

CATCHWORDS: PROCEDURE — Commencement of proceedings against deceased defendant — costs orders obtained on applications made in name of deceased defendant —whether proceedings and orders a nullity or irregularities — joinder of statutory insurer - INFERIOR COURTS — District Court — status of orders made without power or jurisdiction - STATUTES — Motor Accidents Act 1988 — ss 17, 25, 47, 53, 54, 66A — District Court Act 1973 s 159 — District Court Rules Pt 7 r 8, Pt 24C rr 3, and 8, Pt 31 r 12A

LEGISLATION CITED: Bankruptcy Act 1924 (Cth)
Civil Procedure Act 2005
Conveyancing Act 1919
District Court Act 1973
Interpretation Act 1987
Law Reform (Miscellaneous Provisions) Act 1944
Legal Profession Act 1987
Limitation Act 1969
Limitation of Actions Act 1974 (Qld)
Motor Accidents Act 1988
Motor Accidents Compensation Act 1999
Motor Vehicles Insurance Act 1936 (Qld)
Motor Vehicles (Third Party Insurance) Act 1942
Supreme Court Act 1970
Wills, Probate and Administration Act 1988
Workers Compensation Act 1987
Defamation Act 1992 (NZ)
Limitation Act 1980 (UK)
Supreme Court of Judicature (Consolidation) Act 1925 (UK)
District Court Rules 1973
High Court Rules 1958 (Cth)
Uniform Civil Procedure Rules 2005
Motor Vehicles Insurance Regulations 1968 (Qld)

CASES CITED: Adams v Lambert [2006] HCA 10; (2006) 80 ALJR 679
Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557
Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214
Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380
Bourke v Kecskes [1967] VR 894
Budimir v McMahon [2000] FCA 1312
Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Coles v Burke (1987) 10 NSWLR 429
Craig v Kanssen [1943] 1 KB 256
CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534
Darrington v Caldbeck (1990) 20 NSWLR 212
Dawson (Bradford) Ltd v Dove [1971] 1 QB 330
Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Foster v Turnbull Times L Rep 389, 22 May 1990
Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186
Genders v Government Insurance Office of New South Wales [1959] HCA 30; (1959) 102 CLR 363
Griffiths v ANZ Banking Group Ltd [2002] SASC 250; (2002) 83 SASR 491
Gurtner v Circuit [1968] 2 QB 587
Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729
Hip Hing Timber Co Ltd v Tang Man Kit (2004) HKCFAR 212; [2005] 1 HKLRD 572
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Hubbard Association of Scientologists International v Anderson & Just (No2) [1972] VR 577
In re the Affairs of Hart (1943) 169 LT 60
International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 2 Ll R 474
Italiano v Carbone & Ors [2005] NSWCA 177
John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516
Kendell v Carnegie & Ors [2006] NSWCA 302
Ketteman v Hansel Properties Ltd [1987] AC 189
Kilkenny Engineering Pty Ltd (in liq), Re; Monti v Kilkenny Engineering Pty Ltd (in liq) (1976) 13 SASR 258
King v Wilkinson (1957) 57 SR (NSW) 444
Knight v F P Special Assets Ltd (1992) 174 CLR 178
Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310
Lawford v Hosth (1974) 5 ALR 57
Lazard Bros & Co v Midland Bank Ltd [1933] AC 289
Liff v Peasley [1980] 1 WLR 781
MacFoy v United Africa Co Ltd [1962] AC 152
Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463
McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Nominal Defendant v Mabury [1962] HCA 12; (1962) 108 CLR 598
Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435
Piggott v Aulton [2003] EWCA Civ 24; [2003] RTR 540
Plowman v Palmer [1914] HCA 41; (1914) 18 CLR 339
Prior v Hannaford [1970] VR 772
Rawlinson v Oliver [1995] 3 NZLR 62
Re Pan Pharmeceuticals Ltd; Selim v McGrath [2004] NSWSC 129; (2004) 48 ASCR 681
Re Pritchard (decd) [1963] Ch 502
Rust v Barnes [1980] 2 NSWLR 726
Savaglia v MacLennan (1980) 24 SASR 314
Shirriff v The Nominal Defendant [1999] NSWCA 152
Simmons v Liberal Opinion Ltd, re Dunn [1911] 1 KB 966
Smart v Stuart (1992) 107 FLR 119
Smith v Bundandan Enterprises Pty Ltd [2002] NSWCA 322; (2002) 55 NSWLR 367
Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173
Strachan v Gleaner Co Ltd & Anor [2005] UKPC 33; [2005] 1 WLR 3204
Tetlow v Orela Ltd [1920] 2 Ch 24
Treiguts v Tweedley [1959] VR 544
United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487

PARTIES: Terry Deveigne - First Claimant
Insurance Australia Ltd trading as NRMA Insurance - Second Claimant
Michael Askar - Respondent

FILE NUMBER(S): CA 40910 of 2005

COUNSEL: D L Davies SC with J M Morris - Claimant
B L Jones - Respondent

SOLICITORS: Abbott Tout, Lawyers - Claimant
Paul Marsh, Solicitor - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 5387 of 2002

LOWER COURT JUDICIAL OFFICER: Bishop DCJ

LOWER COURT DATE OF DECISION: 1 August 2005

CA 40910/05
DC 5387/2002

GILES JA
HODGSON JA
McCOLL JA
Tuesday 13 March 2007

Terry DEVEIGNE & ANOR v ASKAR

On 9 February 2000, by Statement of Claim filed in the District Court of New South Wales, Michael Askar, the respondent commenced proceedings to recover damages in respect of a motor vehicle accident alleged to have occurred on 16 February 1998. The Statement of Claim named “Terry Deveigne” as defendant. Terry Deveigne had died on 1 December 1998, a fact known to all involved in the matter at all material times. At the time of the alleged accident Terry Deveigne had been driving his father’s car. His father held a Comprehensive Third Party Policy of Insurance issued by the NRMA. Solicitors retained by NRMA purported to act on behalf of Terry Deveigne in the proceedings. On 30 April 2001 the solicitors filed a Notice of Motion seeking to have the proceedings dismissed. Terry Deveigne was named as the moving party. The Motion came before Garling DCJ on 30 May 2001. It does not appear his Honour was advised the “defendant” (and moving party on the motion) had pre-deceased the commencement of the proceedings. His Honour dismissed the proceedings and ordered the respondent to pay “the defendant’s costs of the proceedings.”

The costs order was entered and the solicitors applied to the Supreme Court for an assessment of costs. The application was made in Terry Deveigne’s name. On 22 May 2002 a Supreme Court Costs Assessor issued a Certificate as to Determination of Costs in which he assessed the costs to be paid by the respondent as $105,736.12. Thereafter the solicitors procured the issue of a Certificate of Judgment in the District Court identifying “Terry Deveigne” as the “judgment creditor”. In 2002 the solicitors sought to enforce the Certificate of Judgment against the respondent. They learned that a bankruptcy notice filed on behalf of a deceased person is a nullity: Budimir v McMahon [2000] FCA 1312.

Thereafter NRMA took a number of steps in an attempt to get the benefit of the costs order. In 2004 in response to a motion filed by NRMA’s solicitors in Terry Deveigne’s name, a District Court Judge amended the original order so as to require the respondent “to pay the costs of the defendant’s insurer of the defence of these proceedings being Insurance Australia Ltd (trading as NRMA Insurance).”

The solicitors then wrote to the Costs Assessment Section of the Supreme Court enclosing a copy of the amended costs order, stating that Terry Deveigne was dead and asking that the Costs Determination issued in 2002 be amended to add “Insurance Australia Ltd t/as NRMA Insurance Ltd” as one of the applicants. The Costs Assessment Section advised that there was no basis to amend the original Costs Determination, that a new assessment should be sought, but that before that could happen there would have to be evidence that the initial judgment had been set aside.

In December 2004, the solicitors filed a motion in the District Court naming Terry Deveigne as the applicant and seeking an order that the Certificate of Judgment be set aside. Before it was heard NRMA was added as the second applicant to the motion. Bishop DCJ rejected the application to set aside the Certificate of Judgment.

The NRMA sought leave to appeal to the Court of Appeal. Terry Deveigne was named as the first claimant in the Summons seeking leave to appeal. During the hearing of the application NRMA moved the Court to be joined as a party to the proceedings and that the joinder be effective from the time the Statement of Claim was served, 11 February 2000.

NRMA argued that there was power to set aside the Certificate of Judgment as it had been entered irregularly as it was in the name of a deceased person. It contended the proceedings were irregular because any defect attaching by virtue of their commencement against a deceased person could, and should, have been cured by it being joined as a party and that it could, and did, waive any defect. The respondent argued that the proceedings, and any consequential steps purportedly taken in them, were a nullity because they were brought against a deceased person. He also argued that any steps purportedly taken in Terry Deveigne’s name were a nullity.

Held, dismissing the application for leave to appeal on behalf of Terry Deveigne as incompetent, joining NRMA as appellant to the appeal, granting an extension of time to seek leave to appeal, granting leave to appeal and dismissing the appeal per McColl JA (Hodgson JA substantially agreeing):

Re Pritchard (decd)

Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214; Adams v Lambert [2006] HCA 10; (2006) 80 ALJR 679 at [25]; see also Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380 at [10]; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 referred to.

United Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487; Kilkenny Engineering Pty Ltd (in liq), Re; Monti v Kilkenny Engineering Pty Ltd (in liq) (1976) 13 SASR 258; Marshall v D G Sundin & Co Pty Ltd (1989 ) 16 NSWLR 463 ; Budimir v McMahon [2000] FCA 1312 ; Dawson (Bradford) Ltd v Dove [1971] 1 QB 330; Re Pritchard (decd) [1963] Ch 502; Piggott v Aulton [2003] EWCA Civ 24; [2003] RTR 540; Lazard Bros & Co v Midland Bank Ltd and CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd considered.

Darrington v Caldbeck

Lazard Bros & Co v Midland Bank Ltd

MacFoy v United Africa Co Ltd

Strachan v Gleaner Co Ltd & Anor

Hubbard Association of Scientologists International v Anderson & Just (No 2)

Re Pritchard (decd)

Cameron v Cole

KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott

Pelechowski v The Registrar Court of Appeal (NSW)

McCann v Parsons

King v Wilkinson

Genders v Government Insurance Officeof New South Wales [1959] HCA 30; (1959) 102 CLR 363; Treiguts v Tweedley [1959] VR 544; Bourke v Kecskes [1967] VR 894 referred to

Motor Accidents Act

Foxe v Brown

Gurtner v Circuit [1968] 2 QB 587 referred to

DCR

District Court Act

Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd

Italiano v Carbone & Ors

Rust v Barnes [1980] 2 NSWLR 726; Griffiths v ANZ Banking Group Ltd [2002] SASC 250; (2002) 83 SASR 491; Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173; Smart v Stewart (1992) 107 FLR 119 (at 124); Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 referred to

Per McColl JA and Giles JA (Hodgson JA substantially agreeing)

MacFoy v United Africa Co Ltd

Pelechowski v The Registrar Court of Appeal (NSW)

DCR

KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott

**************

CA 40910/05
DC 5387/2002

GILES JA
HODGSON JA
McCOLL JA

Tuesday 13 March 2007

Terry DEVEIGNE & ANOR v ASKAR

Judgment

1 HODGSON JA: I agree with Giles JA and McColl JA that NRMA should be joined, its application for leave to appeal granted, and its appeal dismissed with costs.

2 I agree with McColl JA that the District Court had (and this Court has) power to regularise the proceedings by joining NRMA as a defendant, and I agree substantially with her reasons. However, for my part, I would question the correctness of Dawson v Dove [1971] 1 QB 330 and Foster v Turnbull TLR 22/5/90, having regard to the terms of the English rule RSC 02 r1 (substantially reproduced in s 81 of the Supreme Court Act 1970, s 159 of the District Court Act 1973 and s 63 of the Civil Procedure Act 2005). It may be that proceedings (or applications) purportedly commenced by a non-existent person are a nullity; but I am doubtful if proceedings commenced against a non-existent person are truly a nullity. Certainly in my opinion, proceedings cannot become a nullity because they are not served. The question whether or not proceedings are a nullity is different from the question whether or not a purported order is a nullity, or is liable to be set aside as of right.

3 I agree with Giles JA and with McColl JA that this Court’s discretion should not now be exercised in NRMA’s favour, and I agree substantially with their reasons. It is not certain that, if NRMA had sought to regularise the situation at an early opportunity, it would have incurred costs of over $100,000 in proceedings that were in the result dismissed for want of prosecution. In my opinion, the respondent’s opposition to NRMA’s belated application to rectify the situation was amply justified.

4 GILES JA: The facts are set out in the reasons of McColl JA, which I have had the advantage of reading in draft. Drawing upon her Honour’s reasons, can explain why I agree in the orders her Honour proposes.

5 The NRMA wishes to recover costs incurred in the District Court proceedings. As matters presently stand, an order has been made that the respondent pay the NRMA’s costs of the defence of the proceedings (Gibson DCJ, 15 April 2004, repeated in the amalgamated orders of Bishop DCJ, 25 June 2005: “the NRMA costs order”). There has been no appeal against the NRMA costs order. According to the Manager of the Costs Assessment Section, (“the Manager”), however, the NRMA cannot have an assessment of the costs while the judgment of 21 June 2002 naming Terry Deveigne as the judgment creditor (“the costs judgment”) remains on foot. Bishop DCJ refused the NRMA’s application set aside the costs judgment. The NRMA applies, by an application in the names of Terry Deveigne as first applicant and itself as second applicant, for leave to appeal from his Honour’s refusal.

6 Neither the NRMA nor the respondent questioned the Manager’s view that the costs judgment had to be set aside. That may not be correct. An order that the respondent pay Terry Deveigne’s costs of the defence of the proceedings is not necessarily inconsistent with an order that the respondent pay the NRMA’s costs of the defence of the proceedings. Had the NRMA been joined as a defendant in the District Court proceedings, it could have incurred costs separately from Terry Deveigne. As it happens, there were no costs incurred by Terry Deveigne. The NRMA was not joined and the NRMA costs order may not have been properly made, but that does not mean inconsistency.

7 Since this was not argued, I say no more of the Manager’s view. Is the costs judgment liable to be set aside? If so, can it be set aside on application by the NRMA?

Liability to be set aside

8 It is not particularly helpful in the present case to talk of nullity of the District Court proceedings. Court proceedings are constituted by procedural steps, typically beginning with the filing of a statement of claim. As explained in Berowra Holdings Pty Ltd v Gordon (2006) 80 ALJR 1214, a plaintiff invokes the court’s jurisdiction to determine a dispute. The plaintiff claims an order or orders, and in the course of the proceedings the defendant or a third party may apply for an order determining part of the dispute. The court may decide that it has no jurisdiction, or may decide to exercise its jurisdiction in a particular way, and it gives effect to its decision by orders. Some defect in the procedural steps may cause the court to refuse to make an order claimed in the proceedings, or may mean that the court ought not have made the order. It may be said that the defect rendered the proceedings or the application claiming the order a nullity; but it is the order, not the procedural steps, which determines the whole or part of the dispute. The defect has its effect as the reason for no order or the reason why the order ought not have been made.

9 It is preferable in my view, to ask whether the costs judgment is liable to be set aside because a nullity, or because improperly made. (Strictly an order need not be set aside if truly a nullity, for example if made without power, see Pelechowski v The Registrar Court of Appeal (1999) 198 CLR 435 at [27], Berowra Holdings v Gordon at [11]).

10 The costs judgment rested on the order made by Garling DCJ on 30 May 2001 (“the Deveigne costs order”), which authorised the costs assessment and the issue of the Certificate of Determination. The Certificate of Determination was then filed and, by force of statute (the Legal Profession Act 1987, s 208F(3)), taken to be a judgment of the District Court. It was not suggested that the costs judgment gained validity from its statutory mandate independently of the validity of the Deveigne costs order. It does not matter, because both are afflicted by the same defect.

11 The Deveigne costs order and the order constituted by the costs judgment were made on applications purporting to be made by Terry Deveigne. The Deveigne costs order was made on the Notice of Motion filed on 30 April 2001, by the NRMA’s solicitors but as an application by the defendant. The Certificate of Determination and the Certificate of Judgment were both relevantly in favour of Terry Deveigne, and the application for the latter was plainly enough also in his name.

12 Terry Deveigne did not exist. Orders were made, in the one case pronounced by the Court and in the other case by statutory ascription to the Court, on the application of a non-existent person. In truth, there was no invocation of the Court’s jurisdiction in relation to making the Deveigne costs order or obtaining the costs judgment. A non-existent person cannot sue (Tetlow v Orela Ltd [1920] 2 Ch 24; United Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487; Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463; Budimir v McMahon [2000] FCA 1312), for which the fundamental reason must be that there is no invocation of the jurisdiction of the court. For the same reason, a non-existent person cannot claim an order in proceedings purportedly brought against that person.

13 The costs judgment is therefore liable to be set aside. It may be a case of true nullity, the Certificate of Judgment being in the dog licence category to which McColl JA, citing Danckwerts LJ, refers and setting aside recognizing that position, or it may be a case of an order and a consequential judgment improperly made and given and needing to be set aside. This need not be decided. If true nullity, no more need be said. At the least, although neither Garling DCJ nor (so far as appears) the Registry was made aware that Terry Deveigne had died prior to the commencement of the proceedings, it is now known that the Deveigne costs order and the costs judgment should not have been made and given.

Setting aside on application by the NRMA

14 Save as the asserted impediment to the NRMA having an assessment of costs, the costs judgment has no practical significance. Terry Deveigne cannot enforce it, and in any event incurred no costs. The practical significance to the NRMA depends upon the NRMA costs order.

15 If the NRMA costs order is itself flawed, and is not saved by some step now taken, the standing of the NRMA to apply to have the costs judgment set aside is doubtful, and even if there were standing leave to appeal may not be warranted. Although there has been no appeal against the NRMA costs order, its status must be considered; and hence the application in this Court that the NRMA be joined in the District Court proceedings with effect from 11 February 2000.

16 The NRMA costs order was made on an application purporting to be made by Terry Deveigne. The affidavit in support of the application referred to the NRMA’s wish to be substituted as the defendant, but no such application was made and in any event there could not have been substitution as distinct from joinder. The NRMA costs order is in no better position than the Deveigne costs order. It is either a nullity or an order improperly made.

17 Assuming the latter, if the flaw is an irregularity capable of cure pursuant to s 159 of the District Court Act 1973, now s 63 of the Civil Procedure Act 2006, can the NRMA costs order be saved by joinder of the NRMA as a party to the District Court proceedings with retrospective effect?

18 It may be that joinder as a party is not always necessary for an order for costs in favour of a person; for example, a non-party applicant to set aside a subpoena may obtain costs, and see other possible occasions discussed in Re Pan Pharmaceuticals Ltd; Selim v McGrath (2004) 48 ACSR 681. In the example, however, the applicant is a party to the application, and where the costs are costs of the defence of proceedings in my opinion the person who incurs them must be a defendant before a costs order may be made in favour of that person.

19 As explained by McColl JA, an insurer in the position of the NRMA was a “real defendant”, having statutory authority to conduct the defence in the name of the insured and obliged by statute to meet any judgment against the insured (Motor Accidents Act 1988, ss 47, 17, 25). It could be joined as a defendant in particular circumstances (s 66A). The cases to which her Honour refers permitting joinder in other circumstances may have been overtaken by the statutory authority to conduct the defence in the name of the insured, but I do not doubt the NRMA could have been joined as a defendant if, for example, Terry Deveigne was alive but in the respondent’s camp.

20 It could also have been joined, in my opinion, in order to apply for dismissal of the proceedings brought against Terry Deveigne, making known that Terry Deveigne had died prior to the commencement of the proceedings. That is what should have been done, promptly after the NRMA was served. If it had been done, the NRMA would be likely to have obtained an order for its costs of the application for joinder and dismissal. It may have brought proper constitution of proceedings against a legal personal representative, or proceedings directly against NRMA pursuant to s 54 of the Motor Accidents Act, but that is rather speculative – it seems that the respondent was from a fairly early time not concerned to pursue his claim in the proceedings, but when he lost interest is difficult to determine. If the NRMA had promptly applied for joinder and dismissal, the costs would not have included the expense of a large number of medical reports and investigation reports. Those costs may well never have been incurred, and the costs could not have been anything like $105,736.12.

21 Joinder now of the NRMA in the District Court proceedings with retrospective effect would be on the basis of curing irregularity within s 159 of the District Court Act, and specifically in the exercise of the powers under the Rules to make orders dealing with the proceedings (s 159(1)(b)). Adding to the assumption that the NRMA costs order was improperly made (as distinct from a nullity) the further assumption of irregularity within s 159, curing irregularity is a discretionary exercise. McColl JA considers that there cannot be a cure because joinder would not have sufficient retrospective effect to carry the relevant costs. In my opinion, on wider grounds the discretion should not be exercised in favour of the NRMA.

22 The NRMA knew at all times that Terry Deveigne had died prior to the commencement of proceedings. It was told of his death on 24 March 1999. It did not take the course earlier mentioned, applying to be joined and for dismissal of the proceedings. It purported to conduct the proceedings in the name of Terry Deveigne, incurring significant costs which in large part may well never have been incurred had it raised the defective constitution of the proceedings. It could have raised this with the respondent’s solicitors quite apart from application to the Court.

23 The NRMA did not explain by evidence how it came to purport to conduct the proceedings in the name of Terry Deveigne, and why it did not realise (if it did not realise) that the proceedings were not properly brought. In the absence of evidence, it was either ignorance or inattentiveness. The respondent’s solicitors were equally afflicted. Costs were incurred which would not then and may well never have been incurred – again, the NRMA did not by evidence enable any better understanding of the costs.

24 I do not think that this Court should take a course which shifts the burden of costs so incurred from the NRMA to the respondent. While I would be of that view in any event, it also weighs against such a course that the NRMA was far from active in seeking to promote its claim to costs; in particular, nearly two years elapsed between the Certificate of Judgment and the application heard by Gibson DCJ. That the respondent’s solicitors were equally ignorant or inattentive to the death of Terry Deveigne is not a reason for relieving the NRMA from the consequences of its solicitors’ ignorance or inattentiveness, and the burden should remain with the NRMA.

25 If its flaw is not cured, the NRMA does not have the benefit of a sound NRMA costs order; it is either a nullity or itself liable to be set aside. If it can not have an assessment of costs pursuant to the NRMA costs order, there is no point in it having the costs judgment set aside. The flaw in the NRMA costs order can not be ignored in this Court. While the questions are of sufficient significance for a grant of leave to appeal, the appeal should be dismissed because the NRMA does not have a valid order to replace the Deveigne costs order and will not be advanced by setting it aside; there is no occasion to set the Deveigne costs order aside on application by the NRMA.

26 I agree with the orders proposed by McColl JA.

27 McCOLL JA: This case concerns the enigma of the status of proceedings, one of the parties to which pre-deceased their commencement.

28 On 9 February 2000, by Statement of Claim filed in the District Court of New South Wales, Michael Askar commenced proceedings to recover damages in respect of a motor vehicle accident alleged to have occurred on 16 February 1998. The Statement of Claim named “Terry Deveigne” as defendant. Terry Deveigne had died on 1 December 1998 – a fact known to all involved in the matter at all material times. Notwithstanding that he is identified on the Summons seeking Leave to Appeal as the “first claimant”. Since February 2000 he has been variously identified not only as the “defendant” in the Statement of Claim, but also as the “applicant” on notices of motion in the District Court, on an application in this Court for an assessment of costs pursuant to s 202 of the Legal Profession Act 1987 and finally as the “judgment creditor” on a Certificate of Judgment obtained to enforce the costs assessment. The fact of his death does not appear to have been disclosed to any Court purporting to exercise jurisdiction in the matter until early 2004.

29 The evidence does not disclose whether probate or administration of Terry Deveigne’s estate was ever taken out. The case proceeded on the assumption that it was not, so that his estate must be presumed to remain vested in the Public Trustee in accordance with s 61 of the Wills, Probate And Administration Act 1898 (the “WPA Act”).

30 As the accident occurred prior to the commencement of the Motor Accidents Compensation Act 1999 the claim in respect of it was governed by the 1988 motor accidents legislation: s 2AA, Motor Accidents Act 1988 (the “MA Act”).

31 There was no evidence that the Statement of Claim was ever served on any person purporting to represent Mr Deveigne’s estate. It appears to be common ground that it was served upon the second claimant, Insurance Australia Ltd t/as NRMA Insurance (“NRMA”). Messrs Abbott Tout have purported to act for Mr Deveigne throughout, albeit on the instructions of NRMA in accordance with ss 47, 53(1) and (3) of the MA Act. The oddity that a deceased person was a party to litigation, let alone was named by Abbott Tout as the moving party for relief on several occasions, does not appear to have occurred to that firm until 2002. At that time it sought to enforce against the respondent the Certificate of Judgment identifying Mr Deveigne as the “judgment creditor”. It then discovered that a bankruptcy notice filed on behalf of a deceased person is a nullity: Budimir v McMahon [2000] FCA 1312.

32 Four tortuous years of procedural attempts to rectify the situation to enable NRMA to have the benefit of the Certificate of Judgment have brought NRMA to this Court as second claimant. It seeks leave to appeal from a decision of Bishop DCJ in which he rejected its application, in substance, to have the Certificate of Judgment issued in favour of the “judgment creditor”, Terry Deveigne, set aside on the basis it was tainted by irregularity. NRMA sought to have the Certificate of Judgment set aside so that one could be issued in its favour, thereby giving it the benefit of the costs order upon which the Certificate of Judgment was based.

33 The application before the Court is for leave to appeal from Bishop DCJ’s interlocutory order. The leave application was filed out of time, so an extension of time is also sought.

34 For the reasons I give below, NRMA should be joined as the appellant to the appeal, time to seek leave to appeal should be extended and leave to appeal should be granted as the case raises questions of general principle. The application for leave to appeal on behalf of the first claimant should be dismissed as incompetent.

35 The proceedings before Bishop DCJ took place on 1 August 2005, two weeks before the commencement of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 (“UCPR”). However I am satisfied that there was a provision under either the District Court Act or the District Court Rules for which there is a corresponding provision in the Civil Procedure Act or the UCPR, so that this appeal may be continued and completed under the District Court Act or the District Court Rules as if the Civil Procedure Act had not been enacted: cl 10, Sch 6, Savings, Transitional and Other Provisions, Civil Procedure Act.

Background

36 The proceedings have a long and sorry history. On 16 June 1998 a Personal Injury Claim form was sent to NRMA on behalf of the respondent by his solicitors. The respondent asserted, in that form, that on 16 February 1998 he suffered injury when a truck reversed onto him while he had his back to it. Although the claim form identified the driver of the vehicle as “Laurence Deveigne”, and the owner of the vehicle as “Martin Deveigne”, it is common ground that the driver was, in fact, Terrence John Deveigne, apparently usually known as “Terry Deveigne”.

37 Laurence Deveigne was Terry Deveigne’s father and also the owner of the truck said to have struck the respondent. He held a Comprehensive Third Party Policy of Insurance (the “CTP Policy”) issued by NRMA Insurance Ltd, as the NRMA then was. On 24 March 1999 the respondent’s solicitors advised the NRMA that Terrence Deveigne had died on 1 December 1998.

38 On 9 February 2000 the respondent commenced the proceedings against Terry Deveigne in the District Court of New South Wales at Parramatta. The proceedings were first numbered “134 of 2000” in the Parramatta Registry, but at some stage were apparently transferred to the Sydney Registry of the District Court and re-numbered “6817 of 2000”. The papers do not disclose why the respondent named the deceased as the defendant.

39 It appears liability was in issue, as well as the extent of the respondent’s injuries. According to the Costs Assessor to whom I shall shortly refer, “a large number of medical reports and investigation reports [were] obtained” by the “defendant”. Senior Counsel was also briefed on behalf of the “defendant” early in the piece. However on 30 April 2001 the “defendant” filed a Notice of Motion seeking to have the proceedings dismissed. The Motion came before Garling DCJ on 30 May 2001. There is no indication that his Honour was advised the “defendant” had pre-deceased the commencement of the proceedings. He gave the respondent’s solicitors leave to withdraw from the proceedings because of their inability to obtain instructions, ordered them to file a Notice of Ceasing to Act within seven days and, on the “defendant’s” application dismissed the proceedings pursuant to then District Court Rules 1973, Pt 18 r 3 which conferred power on the Court to dismiss proceedings for want of prosecution. Significantly, for present purposes, his Honour ordered:

“5. The plaintiff pay the defendant’s costs of the proceedings.”

40 The costs order was entered on 20 June 2001. Consequent upon that order the NRMA prepared a Bill of Costs and served it on the respondent by letter dated 2 November 2001. He instructed his present solicitor, Paul Marsh, who wrote to Abbott Tout on 15 November 2001 advising that their letter was the first time the respondent had become aware of Garling DCJ’s order. The letter suggested various steps the respondent might take, depending upon instructions, including seeking to vacate Garling DCJ’s order. That step was not taken.

41 Abbott Tout’s response to the letter, if any, is not in evidence. The next step appears to be that on 28 November 2001 the firm filed an application for assessment of party/party costs pursuant to s 202 of the Legal Profession Act 1987 in the Common Law Division of the Supreme Court of New South Wales. The application was said to be “Re: District Court No 6817 of 2000”. The applicant was identified as “Terry Deveigne”. Mr Marsh’s letter was annexed to the application. On 22 May 2002 a Supreme Court Costs Assessor, Mr O’Brien, issued a Certificate as to Determination of Costs in which he assessed the costs to be paid by the respondent to the applicant, Terry Deveigne, as $105,736.12.

42 Thereafter, it appears, the NRMA procured the issue of the Certificate of Judgment in the District Court presumably by filing the Certificate of Determination in the District Court Registry: s 208J (3), Legal Profession Act 1987; DCR Pt 31 r 16. On filing the Certificate of Determination it was taken to be a judgment of the District Court for the amount of unpaid costs: s 208FJ (3). The Certificate identified “Terry Deveigne” as the “judgment creditor” and the respondent as the “judgment debtor”. It was entered in the District Court on 21 June 2002 in file number 5387 of 2002. The papers do not record why it was given a number that differed from that of the substantive proceedings. No party suggested it made any difference to the outcome, and I have proceeded on that basis.

43 At some time after the Certificate of Judgment was issued, as I have said, Abbott Tout became aware of Merkel J’s decision in Budimir v McMahon that a bankruptcy notice filed on behalf of a deceased person is a nullity. The firm formed the opinion that in order to take any further proceedings to recover the costs of the defence paid by the NRMA exercising its right of subrogation pursuant to the CTP Policy, it would be necessary for the NRMA to be named as the defendant in the proceedings.

44 On 24 March 2004 Abbott Tout filed a notice of motion naming “Terry Deveigne” as the applicant in the District Court in proceedings numbered 5387 of 2002. It sought orders first, that “proceedings No 5387 of 2002 be relisted”. Next it sought, in the alternative, either that Garling DCJ’s costs order be amended by substituting “defendant’s insurer’s costs” for “defendant’s costs” or that Garling DCJ’s costs order be set aside and replaced with one ordering the plaintiff to pay NRMA’s costs. Although the affidavit in support of the motion sworn by Ms Hornsby on 14 April 2004, referred to the fact that NRMA sought to be substituted as the defendant in order to recover the costs of the defence, the Notice of Motion did not seek that relief.

45 Gibson DCJ heard the Motion on 15 April 2004. Her Honour apparently said that the number of the proceedings was incorrect and amended it to “6817 of 2000”, the plaint number of the Statement of Claim. The evidence before Gibson DCJ explained the history, including the fact that Terry Deveigne had died before the Statement of Claim was filed. It was common ground before her Honour that the decision in Budimir v McMahon meant the bankruptcy notice the NRMA was contemplating filing would be “hopelessly flawed” because of Mr Deveigne’s death. After referring to s 47 of the MA Act and s 159 of the District Court Act 1973, her Honour said:

“In practical terms, Mr Morris [Counsel for NRMA] wears two hats: he is the defendant and he is the insurer. The insurer conducted this case for the defendant and, if the plaintiff had won, the fact that the defendant was deceased would not have prevented or been any excuse for the plaintiff, [sic, it seems this should be ‘the insurers’] not to ‘shell out’, so to speak.

Motor Accidents Act

… I am of the view that it is not necessary to join the insurance company as a party but that, if it were necessary, s 159 and Part 1, rule 5 would permit me either to do so or to waive requirement [sic, this should be ‘compliance’] with that rule by reason of the fact that, although Mr Morris wears two hats, in a sense, bearing in mind that the insurance company has conducted this entire litigation, he is wearing two hats that he can basically turn into one. In circumstances where the insurance company has paid the costs and has conducted the whole of this litigation on behalf of the defendant, it seems to me appropriate that what I should do is make the orders sought.”

46 Her Honour ordered that the costs order made by Garling DCJ of 30 May 2001 be set aside and replaced with an order that:

“In place of the order of 30 May 2001 the plaintiff is to pay the costs of the defendant’s insurer of the defence of these proceedings being Insurance Australia Ltd (trading as NRMA Insurance).”

The respondent was also ordered to pay the costs of the defendant’s insurer of the Notice of Motion. The orders as entered bore the proceedings number “6817 of 2000”.

47 The respondent did not seek leave to appeal, or appeal, from Gibson DCJ’s orders.

48 On 4 August 2004 Abbott Tout wrote to the Costs Assessment Section of the Supreme Court enclosing a copy of the costs order amended in accordance with Gibson DCJ’s orders. The letter drew attention to the fact that Mr Deveigne was deceased (but not when he had died) and to Gibson DCJ’s orders and asked that the Costs Determination issued on 25 May 2002 be amended to add “Insurance Australia Ltd t/as NRMA Insurance Ltd” as one of the applicants.

49 On 2 September 2004 the Manager of the Costs Assessment Section wrote to Abbott Tout advising that the amendment sought did not fall within s 208JB of the Legal Profession Act 1987 “as there was no inadvertent error” and that, therefore, “the Scheme cannot assist you in relation to this particular request.” The Manager suggested that the most appropriate way to resolve the problem was to apply for a new assessment. She also pointed out that as there was an extant judgment based on the Certificate of Determination which had been issued and, as Abbott Tout was asking that a new Certificate of Determination be issued in relation to the same matter, it would have to provide evidence to the Manager that “the initial judgment has been set aside before the new assessment is commenced.”

50 On 25 November 2004 Abbott Tout filed a Notice of Motion in the District Court, again in proceedings numbered 5387 of 2002, on this occasion said to be between “Terry Deveigne” as “the plaintiff” and Michael Askar as “the defendant”, seeking an order pursuant to DCR Pt 31 r 12A that the “judgment in these proceedings be set aside” and that there be no order as to costs. The motion was supported by an affidavit which attached the correspondence with the Manager of the Costs Assessment Section. It came before Judicial Registrar McDonald on 6 December 2004. She concluded there was no evidence before her that the Certificate of Judgment was entered irregularly. She dismissed the Notice of Motion and ordered Mr Deveigne to pay the respondent’s costs.

51 On 30 December 2004 Abbott Tout filed a “Long Notice of Motion” again in proceedings numbered 5387 of 2002, on this occasion naming “Terry Deveigne” as the “judgment creditor” and Michael Askar as the “judgment debtor”, seeking orders that the whole of the judgment and orders of Judicial Registrar McDonald made on 6 December 2004 be set aside and that the judgment entered in proceedings No 5387 of 2002 in favour of the judgment creditor in the sum of $105,736.12 be set aside upon the grounds that the Judicial Registrar failed to exercise her power under DCR Pt 1 rr 5 and 5A.

52 The Long Notice of Motion first came before Bishop DCJ on 8 April 2005. On that day IAG Pty Ltd t/as NRMA Insurance was added as the second applicant to the Notice of Motion and the following orders were made:

“1. Leave be granted to the applicant to amend the name of the applicant to the motion to IAG Limited t/as NRMA Insurance in the alternative.

2. Costs of today be reserved.

3. Leave be granted to either party so advised to file further order consolidating the two orders referred to above.

4. The Notice of Motion be adjourned part heard before Bishop DCJ on 24 June 2002 [sic, this should be 2005].

And the Court this day notes that:

5. The order in No 6817 of 2000 on 30 May 2001 has been amended in part by an order on 15 April 2004 in the same matter.”

53 On a date which appears from the faint impression of the Court stamp to have been 23 June 2005, Abbott Tout filed an “Amended Long Notice of Motion” pursuant to the leave granted in Order 1 of Bishop DCJ’s April orders. Terry Deveigne was now identified as the “First Applicant” as well as the “Judgment Creditor”. NRMA was added as the second applicant for the relief sought.

54 On 25 June 2005 an order was made in the District Court proceedings number 6817 of 2000 in the following terms:

“25 June 2005

The Court this day directs that for the purpose of formalisation that the orders of Garling DCJ made 31 May 2001 and orders 1 and 2 of Gibson DCJ made 15 April 2004 be amalgamated as follows:

1. On the basis of an inability to obtain instructions the plaintiff’s solicitor be granted leave to withdraw.

2. A Notice of Ceasing to Act be filed within seven days.

3. The defendant be granted leave to amend the Notice of Motion to ‘dismiss’ the Statement of Claim.

4. The proceedings be dismissed pursuant to Part 18 Rule 3.

5. The plaintiff is to pay the costs of the defendant’s insurer being Insurance Australia Limited t/as NRMA Insurance of the defence of these proceedings.

The Court further directs that for the purpose of formalisation of the orders of Gibson DCJ of 15 April 2004 as follows:

6. The plaintiff is to pay the costs of the defendant’s insurer being Insurance Australia Limited t/as NRMA Insurance of this Notice of Motion.”

55 Having made those orders, Bishop DCJ proceeded to hear the motions. The NRMA argued the Judicial Registrar misdirected herself in finding there was no irregularity. As recorded by the primary judge the NRMA appears to have argued the costs judgment was affected by irregularity because it had been subsequently amended by orders, presumably those made by Gibson DCJ. Accordingly it was contended the costs judgment could be “amended by being set aside” pursuant to DCR Pt 31 r 12A. Alternatively, NRMA submitted DCR Pt 1 r 5 conferred an inherent jurisdiction on the Court to make appropriate orders to resolve the dispute between the parties. The respondent argued that Budimir v McMahon and Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463 led to the conclusion that any action taken in the name of a deceased person without the grant of probate or letters of administration were a nullity. Although not recorded by the primary judge, this argument was presumably advanced to support the contention (also advanced in this Court) that the Certificate of Judgment was a nullity.

56 Bishop DCJ recited the history of the matter (which he fairly described as a “saga”). He observed that the powers DCR Pt 31 r 12A conferred to set aside a final judgment were restricted, “no doubt in accordance with the well-known policy of [the] desirability of finality in litigation”. In his Honour’s view the rule directed attention to the circumstances existing at the time the judgment was given or entered up or the order made. He concluded:

“As the background material in this case indicates the Certificate of Judgment for the costs in question was applied for and entered up at the request of the applicant. Assuming that the material before the Judicial Registrar was similar to that before the Court on this Motion, the conclusion that there was no evidence of any irregularity at the time of the entry of the subject judgment, in my opinion, was the only one open.”

57 The primary judge then referred to DCR Pt 1 rr 5 and 5A. It appears his Honour doubted whether those rules had been agitated before the Judicial Registrar. He noted they conferred a broad discretionary power to dispense with compliance with any of the requirements of the rules either before or after the occasion for compliance arose. Nevertheless, in his Honour’s view, that dispensation power “should not be used lightly to rewrite [the rules]” and “the overriding principle of the finality of litigation is also of importance.” He concluded (at [18]) that he would not exercise his discretion to dispense with compliance with the Rules saying:

“My reasons would be the effect of the principle of finality of judgment and, in addition, the fact that the issue of whether the judgment sought to be removed was in fact a nullity, or indeed the proceedings as a whole were a nullity, have not been fully explored in argument.”

His Honour did not record which District Court Rules the NRMA was asking be dispensed with.

58 The primary judge declined to grant the relief sought in the amended Long Notice of Motion. He ordered “the applicant” (without discriminating between the first or second) to pay the respondent’s costs with the exception of costs which had been reserved on 24 June 2005 as to which he made no order.

Submissions

59 Mr D Davies of Senior Counsel, who appeared with Mr J Morris for both Terry Deveigne and NRMA, acknowledged that his right to appear for the first claimant was bound up in the argument as to why the appeal should be allowed. Prima facie, however, he submitted that s 47 and s 53 of the MA Act gave the NRMA the right to act on behalf of any person sued, including a person who was deceased at the time the proceedings were commenced. He submitted the NRMA had been correctly added as an applicant before Bishop DCJ because its joinder was necessary to enable all issues to be decided. On the assumption that Bishop DCJ’s order granting NRMA leave to amend the name of the parties to the Long Notice of Motion and thereby be added as an applicant was insufficient to make it a party to the proceedings, Mr Davies sought an order that NRMA be joined as a party pursuant to DCR Pt 7 r 8 (or its equivalent, UCPR 6.24) and that the joinder be effective from the time the Statement of Claim was served, 11 February 2000. The respondent opposed that application. The Court indicated it would rule on it when it gave judgment.

60 Mr Davies’ written submissions identified three questions to be determined on appeal: whether the Certificate of Judgment was given up or entered irregularly within the meaning of DCR Pt 31 r 12A, whether DCR Pt 1 r 5 and r 5A enabled the Certificates of Judgment to be set aside and whether the original proceedings were a nullity. As the argument on the application developed, the last question assumed primary importance.

61 Mr Davies’ essential argument was that the commencement of the proceedings against a dead person did not render them a nullity, but an irregularity, as too, were any subsequent steps, including entering the Certificate of Judgment.

62 Mr Davies argued that there was a fundamental difference between proceedings commenced in the name of a deceased person without legal authority and proceedings properly commenced by a living person against a deceased defendant. He suggested that a test for distinguishing between those irregularities which rendered proceedings void, or voidable only, was whether the irregularity was of such a character as might be waived by the other party.

63 Mr Davies submitted that once the proceedings were commenced NRMA had “no choice but to continue to act” in them by virtue of s 47 of the MA Act. The proceedings were not a nullity because it was open to NRMA, by virtue of s 47 and s 54 (which he argued gave NRMA a right to take over the proceedings if it chose), “to waive the irregularity though there was no service on the defendant and even that the defendant was no longer in existence.”

64 Mr Davies sought to distinguish Tetlow v Orela Ltd [1920] 2 Ch 24 and Marshall v D G Sundin & Co Pty Ltd in which proceedings commenced in the name of a plaintiff who had predeceased their commencement were held to be a nullity. He submitted that where proceedings were commenced against a dead person, they could be stayed until appropriate arrangements could be made for a legal representative of the deceased to be appointed or, in the present case, for the insurer to seek to be joined either in substitution for, or in addition to, the dead defendant. He argued that, in any event, ss 47 and 54 overrode the common law so that, at worst, such proceedings would be an irregularity. He also relied upon s 53(3).

65 Mr Davies argued, in the alternative, that the effect of Gibson DCJ’s order of 24 March 2000 was that the Certificate of Judgment ceased to be operative and ought to have been set aside in exercise of the Court’s powers under DCR Pt 1 rr 5 and 5A. He contended those Rules enabled the Court to set aside the Certificate of Judgment as an order consequential upon that made by Gibson DCJ and that Bishop DCJ had erred in not applying the Rules for that purpose.

66 Mr Davies next submitted that the primary judge had misdirected himself by referring to the overriding principle of the finality of litigation. He argued that the application before his Honour had sought only to correct a procedural difficulty that resulted in the Certificate of Judgment issuing in favour of a deceased person when it ought, had the proceedings been regularly and properly brought, to have been a Certificate of Judgment in favour of NRMA.

67 Mr Davies also sought to distinguish Budimir v McMahon on the basis that it concerned the question whether a Bankruptcy Notice issued in the name of a deceased person was a nullity. He pointed to the fact that Merkel J who held that it was (at [6] and [7]) appeared to accept the argument that any step in the proceedings taken in a deceased’s name or by any person without legal authority to act for that person was a nullity. In this case, however, the person who commenced the present proceedings (the respondent) was alive. He also argued that ss 47 and 54 of the MA Act overrode the principle upon which Merkel J relied.

68 Mr Davies argued that the situation was similar to one in which a statement of claim was issued against a defendant who had predeceased its issue, albeit unknown to the plaintiff, who then ascertained the defendant was dead and, once probate was obtained, served the statement of claim on the executor. In effect, he submitted, once probate was obtained, the executor could waive the fact that he was not named as the defendant and continue to conduct the proceedings and that the title of the proceedings could be amended to name the executor as the defendant.

69 Mr Davies submitted, relying upon Smith v Budandan Enterprises [2002] NSWCA 322; (2002) 55 NSWLR 367, that the irregular entry of the Certificate of Judgment could be cured as it was not necessary for “misconduct or dishonourable conduct” to have occurred to set aside a judgment on that basis. He submitted that Gibson DCJ had acted upon the irregularity that the NRMA ought to have been named as the party to the proceedings to enable it to get the benefit of the costs order.

70 Mr B L Jones, who appeared for the respondent, submitted that the appeal should be dismissed for three reasons: first because the motion appealed against, and consequently the appeal, was a nullity, secondly, because Gibson DCJ’s orders were made when the Court was functus officio and thirdly, because the Certificate of Judgment was not entered irregularly.

71 Mr Jones submitted that at common law, a person ceases to exist as a legal entity upon death. Hence, causes of action in tort did not survive the tortfeasor: see Nominal Defendant v Mabury [1962] HCA 12; (1962) 108 CLR 598 at 603. The common law rule was overcome by s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), which, relevantly provides that on the death of any person all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate.

72 Consequently, he argued, it was Mr Deveigne’s executor alone who had representative capacity for his estate or, if probate or administration had not been granted, the Public Trustee had that capacity: s 61, WPA. Therefore, proceedings brought directly against the deceased, rather than his estate, were a nullity.

73 Mr Jones contended there was a fundamental distinction between an irregularity and a nullity and that if a proceeding was a nullity, it was incurable and it could not be validated by any subsequent act of the parties, such as waiver. He submitted that irregularities were limited to defects in procedure, not defects so fundamental as to render the proceedings themselves a nullity.

74 Mr Jones argued that the principles underlying both Tetlow v Orela and Marshall v D G Sundin applied with equal force to the present case. If proceedings could not be commenced in the name of a dead person by parity of reasoning, a motion or appeal in the name of a dead person was equally void. Therefore, the NRMA did not have, and had never had, any power or authority to take a step in the proceedings in the name of the deceased.

75 Mr Jones argued the provisions of the MA Act did not overcome the NRMA’s difficulty. Section 47(1)(b) presupposed the proceedings were valid because the “person” referred to therein was a legal entity; it did not permit substitution of the insurer as the party if the proceedings themselves were a nullity.

76 As to s 54 of the MA Act, Mr Jones argued that it enured to the benefit of the injured party, enabling that person to take proceedings against the insurer if the putative defendant was dead, or could not be served. He submitted that s 54 did not displace the common law rule that an action naming a deceased is a nullity as no cause of action lies against such a “person”.

77 Mr Jones submitted that the NRMA had had a choice as to whether to act in the proceedings. It knew before the proceedings were commenced that Mr Deveigne had died. It should have been obvious to it that the proceedings were a nullity. It could not, therefore, purport to waive the defect as an irregularity. It should have moved to have the proceedings struck out at the earliest moment, thereby avoiding the substantial costs it had incurred.

78 Mr Jones next submitted that the consequence of the costs orders made by Garling DCJ on 30 May 2001 having been entered on 20 June 2001 was that the Court became functus officio. He contended that once the cost judgment of the Court had been passed and entered, the Court lacked power to make an order which altered or set aside that judgment: Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 234. Accordingly the orders of Gibson DCJ of 15 April 2004, upon which the NRMA sought to rely in its claim for costs, were void. It does not appear that this argument was advanced before her Honour.

79 Finally Mr Jones contended there was no irregularity for the purposes of DCR Pt 31 r 12A. He disputed NRMA’s argument that the judgment was irregular because it was entered in the name of the deceased. Rather, relying on his basic premise, he argued that, the entire proceedings having been a nullity, there was no room for the operation of the District Court Act or Rules.

80 Mr Jones submitted that if the appeal was allowed, there should be no order as to costs as the NRMA’s problem arose by reason of its failure to recognise at the outset that the proceedings were a nullity.

81 In essence, the competing contentions were, for NRMA, that the proceedings were irregularly commenced and everything which thereafter occurred was an irregularity which could be cured under the Rules. For the respondent, that the proceedings were a nullity from the outset and everything which took place thereafter was similarly a nullity. The irony of the respondent’s position is readily apparent.

Consideration

82 To describe a document or a court proceeding as a “nullity” states a conclusion, rather than the reason for reaching that conclusion: Adams v Lambert [2006] HCA 10; (2006) 80 ALJR 679 at [25]; see also Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380 at [10]; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [154] per Hayne J. Such statements of conclusion, it has been said, “are not necessarily helpful in resolving the rights of parties”, both in the context of administrative decisions and “in the context of proceedings in, and acts and orders of, courts”: Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214 at [10] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); see also Minister for Immigration and Multicultural Affairs v Bhardwaj (at [46]).

83 The joint judgment in Berowra contained the following observations (at [13]):

[14] Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court.

[15] In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court’s power of decision or order is exercised upon the application of a party. Generally there is, in law, no restriction upon a person’s right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.

[16] None of the above denies the possibility of a defendant denying the plaintiff’s right to invoke the jurisdiction of the court, for example where the plaintiff’s right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it. Accordingly, the defendant may challenge at an interlocutory level the strength of the plaintiff’s alleged case by seeking to have a plaintiff’s action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. Alternatively, the defendant may have recourse to judicial review by a superior court, challenging the right of an inferior court to adjudicate the plaintiff’s claim and seeking orders to prevent the inferior court continuing to hear the claim. However, the invocation of jurisdiction ordinarily enlivens the authority of the court in question at least in the first instance to decide whether it has jurisdiction [Re Macks; Ex p Saint (2000) 204 CLR 158].” (emphasis added)

84 In Berowra, the majority concluded (at [36]) that proceedings commenced by a worker in contravention of s 151C of the Workers Compensation Act 1987 (which required a six months delay before the commencement of court proceedings against an employer for damages) engaged the jurisdiction and procedural rules of the court in question. While the proceedings were vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, they were not a nullity.

Nullity and irregularity

85 Before turning to consider the particular consequences of commencing proceedings against a deceased defendant, it is useful to examine decisions in which the courts have considered whether proceedings, or a step in them, constituted a nullity.

86 In Plowman v Palmer [1914] HCA 41; (1914) 18 CLR 339 (at 347 – 349), Isaacs J (with whom Rich J agreed) said “a proceeding taken, where such proceeding is entirely forbidden or excluded by the rules … or is not permitted at all at the time it is taken is a nullity or an irregularity … [but] it is sometimes difficult to say on which side of the line a given matter lies, and the line is very thin”. After observing that “[t]he power to waive the objection is rather an accompaniment of mere irregularity than a standard of discrimination”, his Honour said:

Is there jurisdiction at the time to do the act impeached, even though prior precautions for the protection of a party, or other formalities, are directed; or is the act complained of, in the circumstances entirely unprovided for or prohibited at the time it is done?

87 In MacFoy v United Africa Co Ltd [1962] AC 152 (at 160), Lord Denning (who delivered the judgment of the Privy Council) observed that no Court had ever attempted to lay down a decisive test for distinguishing between nullities and irregularities, but that a useful one was whether, if “the other side waived the flaw in the proceedings or took some fresh step after knowledge of it… [c]ould he afterwards in justice complain of the flaw?” If the other side could complain despite the subsequent step, the “flaw” was a nullity.

88 In Re Pritchard (decd) [1963] Ch 502 (at 520) Upjohn LJ (with whom Danckwerts LJ agreed) accepted that no precise definition of irregularities or “true nullities” was possible. He concluded (at 523), after a review of the authorities, that a defect which was fundamental to the proceedings would make them a nullity. He described the waiver test formulated in MacFoy as “useful … as a good commonsense test”, but agreed with counsel “that it cannot be a completely legal test, for until you have decided whether a proceeding is a nullity, you cannot decide whether it is capable of waiver.” He added that the Court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of RSC O 70, r 1, (an irregularity provision) when “justice can be done as a matter of discretion …”

89 His Lordship added (at 523-524):

“The authorities do establish one or two classes of nullity such as the following. There may be others, though for my part I would be reluctant to see much extension of the classes. (i) Proceedings which ought to have been served but have never come to the notice of the defendant at all … (ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings. (iii) Proceedings which appear to be duly issued but fail to comply with the statutory requirement.”

90 Upjohn LJ held (at 526) that an originating summons which was accepted and sealed in a Local District Registry in Pontypridd, but which, under the terms of RSC O 54 r 4B was required to be sealed in the Central Office in London was a nullity. This was because the writ was not issued in accordance with the only relevant Supreme Court Rule, and, accordingly, the proceedings had not been commenced for the purposes of s 225 of the Supreme Court of Judicature (Consolidation) Act 1925 (UK). Lord Danckwerts, while agreeing with Upjohn LJ, described the originating summons (at 527) as “a nullity [which] has no operation [and]… no more application to the matter to be decided than a dog licence”.

91 Lord Denning MR strongly dissented, describing the majority decision (at 518) as a “blot” on the “copybook”. He said (at 517):

Tetlow v Orela Ltd

Lazar Bros. v Midland Bank

92 In Lord Denning’s view, RSC O 70 r 1 could be deployed to remove the originating summons from the Pontypridd registry to London, thus enabling the matter to be heard.

93 It is important to understand Upjohn LJ’s first class of nullity on the context of his critique of Lord Greene’s statement in Craig v Kanssen [1943] 1 KB 256 (at 262) that a person “who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside.” As Upjohn LJ’s discussion (at 519 – 523) reveals, Lord Greene’s description of such proceedings as a “nullity” was not apt to describe proceedings where, because they had not been served, the defendant was entitled to have either the originating process or any consequential order set aside as of right, unless the failure to serve had been waived or the defendant was otherwise estopped. Fundamental to this proposition is the rule of natural justice that a person against whom a claim is to be made must be given a reasonable opportunity to appear and present a case in response: see Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571; Hoskins v Van Den-Braak (1998) 43 NSWLR 290 (at 293 –294) per Mason P (Priestley and Beazley JJA agreeing).

94 Notwithstanding Upjohn LJ’s reservations in Re Pritchard concerning the utility of the waiver test, it was endorsed by the Privy Council in Strachan v Gleaner Co Ltd & Anor [2005] UKPC 33; [2005] 1 WLR 3204, a decision referred to with apparent approval in Berowra (at [11]). Gleaner concerned two questions. First, whether there was jurisdiction to set aside a default judgment after damages had been assessed and, secondly whether an order setting aside a default judgment made without jurisdiction was a nullity which could, in turn, be set aside. The Privy Council answered the first question in the affirmative, holding (at [21]) that “[t]he Courts have jealously guarded their power to set aside judgments where there has been no determination on the merits, even to the extent of refusing to lay down any rigid rules to govern the exercise of their discretion”. Although, therefore, the second question did not arise, the Privy Council considered it, saying:

“25 The distinction between orders which are often (though in their Lordships' view somewhat inaccurately) described as nullities and those which are merely irregular is usually made to distinguish between those defects in procedure which the parties can waive and which the Court has a discretion to correct and those defects which the parties cannot waive and which give rise to proceedings which the defendant is entitled to have set aside ex debito justitiae . The leading example is Craig v Kanssen [1943] 1 KB 256, where the proceedings were not served on the defendant at all. The Court of Appeal held that the proceedings were a nullity which the defendant was entitled as of right to have set aside. Unfortunately Lord Greene MR expressed the view that the court of first instance had an inherent jurisdiction to set aside an order made in such proceedings and that it was not necessary to appeal from it. But this was expressed in cautious terms, was obiter, and has since been doubted. Moreover, Lord Greene left open the question, on which there was clear authority and which would seem to be highly relevant, whether the order had sufficient existence to found an appeal. Their Lordships respectfully think that he was mistaken.

In Re Pritchard

ex debito justiciae

Craig v Kanssen

Their Lordships then cited, with apparent approval, Upjohn LJ’s categories of fundamental defects which rendered proceedings a nullity and continued:

These are all examples of orders of the court made in proceedings which are nullities because they have not been properly begun or served.

In re Pritchard

95 Their Lordships then considered (at [27] – [33]) the effect of an order made without jurisdiction by a superior court in otherwise valid proceedings, concluding that such an order had to be “obeyed unless and until it is set aside” and provided a sufficient basis for a Court of Appeal to set it aside. However, they observed (at [28]), “… since the defect goes to jurisdiction, it cannot be waived; the parties cannot by consent confer a jurisdiction on the court which it does not possess.” They approved Hip Hing Timber Co Ltd v Tang Man Kit (2004) 7 HKCFAR 212; [2005] 1 HKLRD 572 in which the Hong Kong Court of Final Appeal held that once an appellate court concluded that an order by the court from which an appeal was brought was a nullity, it could not determine the appeal on the merits, but was bound “to confirm the position by setting aside the order below as a nullity.”

96 The “waiver” test was also approved in Hubbard Association of Scientologists International v Anderson & Just (No 2) [1972] VR 577 (at 579-580) by the Full Court of the Supreme Court of Victoria (Adam, Little and Gowans JJ). Their Honours described Lord Denning’s test in MacFoy as a “practical test … for distinguishing between those irregularities in proceedings which render the same void or voidable only [as being] whether the irregularity was of such a character as might be waived by the other party”.

The requirement of service

97 The first class of nullity Upjohn LJ regarded as established by the authorities was proceedings which ought to have been served “but which have never come to the notice of the defendant at all.”

98 An action in tort is an action in personam. In order that the Court have jurisdiction in such an action, it is essential that the originating process be served on the defendant. Where a writ cannot legally be served upon a defendant the court can exercise no jurisdiction over that person: see Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 at 323 per Dixon CJ, Williams and Webb JJ.

99 Lord Greene’s absolute use of the word “nullity” in the non-service category of case was also examined in Cameron v Cole, a decision which is also important for the distinction drawn between the concept of nullity as it applies in superior as opposed to inferior courts. In that case the Federal Court of Bankruptcy made a sequestration order at the adjourned hearing of a creditor's petition in the absence of the debtor. Through inadvertence, the debtor had not had notice of the date of the adjourned hearing. On this ground, the Court subsequently annulled the sequestration order. The order of annulment directed that the petition be reheard and on the rehearing a second sequestration order was made. The High Court held (Latham CJ, Rich, Starke and McTiernan JJ, Williams J dissenting), that the Court had jurisdiction to make the second sequestration order. Rich J (at 589), applying Craig v Kanssen, held that it was a fundamental principle of natural justice that “a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case [and] [i]f this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside”. His Honour drew a distinction, however, as to the validity of an order made without notice, a distinction which depended upon the nature of the Court which made it. He said (at 590-591):

Craig v. Kanssen

ex debito justitiae

In re the Affairs of Hart

ex debito justitiae

100 McTiernan J held (at 598) that where a court was a superior court of record having general jurisdiction, it was impossible to treat any of its orders as a nullity and it might determine conclusively its own jurisdiction. He was also of the view (at 598-599) that the Federal Court of Bankruptcy although not a superior court of record having general jurisdiction, but “created by statute and vested by statute with jurisdiction in bankruptcy” had “substantially all the powers of a superior court of record as to the subject matter of its jurisdiction and its incidents [so that] [t]hough a court of limited jurisdiction, it [was] a superior court”. Accordingly (at 599-600), the first sequestration order could not be treated as a nullity, but having been made without the debtor having an opportunity to be heard, was liable to be annulled without the bankruptcy petition being spent.

…
(4) If the court directs that the judgment be entered against the licensed insurer, the judgment may be enforced as a judgment against the licensed insurer to the extent to which it was not satisfied at the time it was so entered.”

152 Those provisions were repealed by the Motor Accidents Compensation Act 1999 (s 229; Schedule 3[6]), Chapter 2 of which deals with Third-Party Insurance. Sections 17 and 25 continue to operate in respect of the respondent’s claim in accordance with s 30 of the Interpretation Act 1987.

153 Section 66A of the MA Act enables the insurer to apply to the court to be joined as a party to proceedings where the defendant’s insurer has given the plaintiff particulars alleging the claim has not been made in good faith. If joined, the insurer may call witnesses and examine and cross-examine them.

154 At the time the Statement of Claim was filed, DCR Pt 5 r 2 required a statement of claim to contain, where there was a defendant, the full name of the defendant. “Defendant” was defined in DCR Pt 1 r 4 to include “any person against whom a claim for relief is made”.

155 DCR Pt 24C, “Motor Accidents List”, made provision for actions commenced under the MA Act. Part 24C r 3 provided:

Service of statement of claim (by post or otherwise)

…

(3) The requirement in subrule (1) for service on the defendant’s insurer is satisfied by service:

…

(b) where the defendant is an insured person for the purpose of the Act – on the defendant’s third party insurer.”

156 DCR Pt 24C r 8 provided that a defendant could not move the Court to strike out or dismiss an action under the MA Act on the ground of non-compliance with s 42 (the requirement to report an accident to the police within 28 days) or s 52 (which prevented court proceedings being commenced until six months after notice of the claim was given to the other person and his or her insurer) unless that motion was filed within two months after service of the statement of claim on the defendant’s insurer.

157 These provisions lend support to the proposition that the legislature has recognised the importance of the insurer’s role in motor vehicle accident proceedings. There is, moreover, considerable authority for the proposition that a motor vehicle insurer in the NRMA’s position as a result of legislation in substantially the same terms as the MA Act is the “real defendant” in the proceedings, and the insured, the named defendant, is but a nominal party.

158 In McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418 the High Court considered an application for a new trial on the basis of the discovery of fresh evidence. The application was made in the name of the insured by the Government Insurance Office, which had issued a third-party policy in respect of McCann's motor car pursuant to the Motor Vehicle (Third Party Insurance) Act 1942 (NSW) (the “1942 Act”), the legislative precursor of the MA Act. The application was based on the premise that the insured had lied when he said that he was driving the vehicle which crashed, leading to the plaintiff’s injuries. At a jury trial the plaintiff recovered a verdict of £20,000. After the trial a boy came forward to say it had been the plaintiff, not the insured, who had been driving the vehicle at the time of the accident. The defendant on the factual premise underlying the application, which was established to the Court’s satisfaction, at all times knew the true position. In considering the application Dixon CJ, Fullagar, Kitto and Taylor JJ (at 428) said the “most difficult question” was that it was “the Government Insurance Office, not the defendant, that was misled, if the plaintiff was the driver of the car; and it was Office, not the defendant who discovered the fresh evidence”. Their Honours referred to s 10 (7) of the 1942 Act (in like terms to s 17 of the MA Act) which they described as “an overriding provision that an authorized insurer issuing such a third party policy shall, in respect of any liability which it thus purports to cover for the death or bodily injury of third parties, be liable to indemnify the owner or such other person as may drive the car”. They also referred to s 15 (1), which, like s 25 of the MA Act, enabled judgment to be entered against the licensed insurer of a vehicle if the judgment was not satisfied within 30 days. They concluded (at 430) that the effect of these provisions was that the insured “[was] not and has never been under any risk of any personal liability falling upon him as a result of the plaintiff recovering a judgment in these proceedings for damages … unless the authorised insurer were able to obtain relief in equity against the judgment on the ground of fraud. Their Honours continued:

dominus litis.

*Subsections 18(1)(b) and (c) were in substantially the same terms as s 47 of the MA Act.

159 Their Honours then said (at 430-431):

In principle it is not easy to see why the Court, in getting at the justice of the case on the question whether the verdict should stand, may not look to the true legal effect of the verdict and of the judgment which would ensue therefrom and to the reality of the proceedings, more especially when they are the intended consequences of statute. Once the Court takes into account the legal truth that the verdict results in an enforceable liability upon the authorised insured and that, as of statutory right, he defends in the name of the party on the record who is reduced to the situation of the nominal defendant, then for the purpose of considering whether the trial has miscarried or the verdict should be set aside and the action retried, logic and justice alike seem to require that the question should be whether the insurer, not the nominal defendant, discovered fresh evidence

160 Other cases reflect the proposition that in cases involving compulsory third party motor vehicle insurance, the insurer is the “real defendant”. In King v Wilkinson (1957) SR (NSW) 444 (at 448), the Full Court (Street CJ, Owen J and Roper CJ in Eq) held that it was the right of a motor vehicle insurer having conduct of the defence of proceedings arising out of a motor vehicle accident, to draw to the court's attention the fact that the defendant (the insured) had “no real interest in the proceedings” and to call evidence to contradict his admissions. The Court observed (at 445), applying McCann v Parsons, that:

dominus litis

161 In Treiguts v Tweedley [1959] VR 544, the plaintiff brought an action for damages for injuries he sustained in a collision between himself and a motor car driven by the defendant. The plaintiff had no recollection of the circumstances of the accident, nor did he know of anyone, other than the defendant, who had any knowledge thereof. By the time of the application with which the judgment was concerned the whereabouts of the defendant were unknown, although it appears that the originating process had been served upon him. The insurance company that had issued the third party policy in respect of the vehicle the defendant had been driving undertook the defence of the action. It had unsigned statements relating to the accident obtained from the defendant by a loss assessor. The plaintiff delivered interrogatories which the defendant failed to answer. The plaintiff sought an order that the defence be struck out and interlocutory judgment be entered for damages to be assessed. After noting that the discretion to dismiss an action or strike out a defence for non-compliance with an order for discovery was to be exercised in such manner as seemed to the court best calculated to do justice in the particular case, Smith J said (at 546):

McCann v Parsons

Willis and Co v Baddeley

Windsor v Chalcraft,

162 In Bourke v Kecskes [1967] VR 894 (at 900) Lush J treated the motor vehicle insurer as “the persons really interested” in whether an action should be dismissed for want of prosecution.

163 The respondent argues that the MA Act does not support any implied right of joinder on NRMA’s part. The only explicit power to sue the insurer when the person against whom the claim can be made is dead is conferred on a potential claimant (s 54) and, I would add, the only explicit power enabling the insurer to apply to be joined in proceedings is s 66A.

164 However, there is authority for the proposition that the obligation to satisfy the judgment (s 25) gives a motor vehicle insurer a sufficient interest in certain circumstances to be joined as a party in motor vehicle accident proceedings.

165 In Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186 the plaintiff, who was a resident of New South Wales, was injured when he was travelling in a prime mover registered in Queensland, being driven by the defendant when it collided with a tree. The accident occurred in Queensland. Relying on the court's jurisdiction in matters “between residents of different States” under s 75(iv) of the Constitution, the plaintiff commenced proceedings against the defendant in 1983 by writ and statement of claim issued out of the Sydney registry of the High Court. The documents were not served within 12 months, but subsequently Mason J (as he then was) made orders for their renewal and service on the manager of the State Government Insurance Office of Queensland (the “SGIO”). The SGIO then sought orders pursuant to either O 16 r 7 or O 16 r 4(2) of the High Court Rules 1958 (Cth) that it be joined as a defendant, and that the action be struck out or the order for substituted service be vacated.

166 The proceedings against the defendant were properly brought. It was common ground that as the third party insurer of the defendant under the Motor Vehicles Insurance Act 1936 (Qld) (the “Qld Act”) the SGIO was the entity to which the plaintiff would ultimately look to satisfy any judgment he might obtain against the defendant pursuant to reg 12 of the Motor Vehicles Insurance Regulations 1968 (Qld) (the “QLD Regulations”), which was in substantially the same terms as s 25 of the MA Act.

167 The SGIO’s right to elect to be joined in a proceeding and to conduct the proceeding on behalf of a defendant under regs 10 and 11 of the Motor Vehicle Insurance Regulations was limited to a proceeding in a court in Queensland. The contract of insurance did not confer on the insurer a right to conduct the proceedings brought against the insured. Mason J rejected the SGIO’s first argument, that it ought be joined pursuant to O 16 r 7 which provided that “where a right to relief is alleged to exist against one or more persons whether jointly, severally or in the alternative they may be joined as defendants and judgment may be given against such one or more of them as are found liable, according to their respective liabilities, without amendment”. He said (at 187):

Dollfus Mieg et Compagnie SA v Bank of England

168 The SGIO’s second argument was based on O 16 r 4(2), which was in substantially the same terms as DCR Pt 7 r 8 (which corresponds with UCPR 6.24) which provided:

8 Addition of parties

(1) Where a person who is not a party to an action:

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the action may be effectually and completely determined and adjudicated upon,

169 Mason J said (at 187) that SGIO is “clearly not a person ‘who ought to have been joined’ as a party… [the] action [having been] properly brought against the defendant alone”, but concluded that, having regard to the limitation on the SGIO’s statutory and contractual right to conduct the proceedings in the High Court, it was “a person “whose presence before the Court … may be necessary in order to enable the Court … effectually and completely to adjudicate upon and settle all the questions arising”. His Honour was not necessarily convinced that the SGIO had a sufficient interest to raise the questions of jurisdiction and substituted service and renewal of the writ it sought to agitate. He assumed, however, that the SGIO, by virtue of its position as insurer against whom the plaintiff may ultimately have a right to proceed, had a sufficient interest “to be joined as a defendant … to enable it to contest …matters which the original defendant could contest if he were represented”. Having joined the SGIO, his Honour then considered (at 188) its argument that his order for substituted service should be set aside. He noted that one of the tests for an order for substituted service was that the method of substituted service requested was one which was likely to cause the writ to come to the knowledge of the defendant. He said:

Kevin v Schmeisze

Lawford v Hosth

McCann v Parsons

170 Gurtner v Circuit [1968] 2 QB 587 (to which Mason J referred in Foxe v Brown) is also authority for the proposition that a motor vehicle insurer exposed to a liability to satisfy any damages awarded to the plaintiff is a person whose presence before the court may be necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated. In Gurtner, the originating process had not been, and was never likely to be, served upon the defendant, who had emigrated to Canada after a motor vehicle accident and whose whereabouts could not be discovered. Although he had given his insurance details to the police after the accident, they had merely noted the certificate number and the fact that the policy was issued by Lloyds Motor Policies. The police did not record the name of the syndicate which had issued the certificate and it could not be identified. Under an agreement with the Minister of Transport, the Motor Insurers’ Bureau had promised to pay any judgment against a motorist if it was not satisfied by his insurers within seven days. An order for substituted service on the defendant had been obtained, but it was common ground that it would never have been effective to bring the proceedings to his notice. Both Lord Denning MR (at 596-597) and Diplock LJ (at 605) were of the view the order for substituted service was not properly made. The Bureau sought to be joined to investigate the claim and defend the proceedings as appropriate. The Court of Appeal held the Bureau should be joined. Lord Denning MR said (at 595 – 596):

“If the Motor Insurers’ Bureau are not allowed to come in as a defendant, what will happen? The order for substituted service will go unchallenged. The service on the defendant will be good, even though he knows nothing of the proceedings. He will not enter an appearance. The plaintiff will sign judgment in default of appearance. The judgment will be for damages to be assessed. The master will assess the damages with no-one to oppose. The judgment will be completed for the ascertained sum. The defendant will not pay it. Then the plaintiff will be able to come down on the Motor Insurers’ Bureau and call on them to pay because they have made a solemn agreement that they will pay. … the Motor Insurers' Bureau are vitally concerned in the outcome of the action. They are directly affected, not only in their legal rights, but also in their pocket. They ought to be allowed to come in as defendants. It would be most unjust if they were bound to stand idly by watching the plaintiff get judgment against the defendant without saying a word when they are the people who have to foot the bill.”

171 Lord Diplock said (at 602-603):

“Clearly the rules of natural justice require that a person who is to be bound by a judgment in an action brought against another party and directly liable to the plaintiff on the judgment should be entitled to be heard in the proceedings in which the judgment is sought to be obtained. A matter in dispute is not, in my view, effectually and completely ‘adjudicated upon’ … unless the rules of natural justice are observed, and all those who will be liable to satisfy the judgment are given an opportunity to be heard.”

Conclusion

172 NRMA did not contest the proposition that proceedings commenced in the name of a non-existent person were a true nullity, suffering from the fundamental defect referred to in Re Pritchard; and see too Attorney General of New South Wales v World Best Holdings Ltd. In my view despite NRMA’s submission that the proceedings should only be characterised as irregularly commenced, a submission which as the following discussion reveals I conclude has some force, the orders made in the proceedings on Mr Deveigne’s application, were true nullities in this sense.

173 This conclusion is an unsatisfactory one. It means that many “steps” have been taken in the District Court which are nullities because taken in the name of a deceased person. The application for the proceedings to be dismissed for want of prosecution, and the costs order made by Garling DCJ were nullities because made in the name of a deceased person. A Certificate of Judgment has been entered which is as much use as the “dog licence” to which Danckwerts LJ referred in Re Pritchard. The order Gibson DCJ purported to make displacing the costs order in favour of Mr Deveigne and replacing it with one in favour of NRMA was also a nullity because the application was made in the deceased’s name. It is not to point, therefore, that the respondent did not appeal from Gibson DCJ’s order. It had no effect: Pelechowski v The Registrar Court of Appeal (NSW); MacFoy.

174 Further contrary to her Honour’s view, it was necessary for NRMA to be a party to obtain the benefit of the costs order; but even if her Honour had been disposed to join NRMA pursuant to DCR Pt 7 r 8, that joinder would only have taken effect on 15 April 2004, the date of the hearing before her Honour.

175 The dismissal order was, in my view, effective however, as it was an order the court could make of its own motion: DCR Pt 18 r 3.

176 This does not have the consequence, however, that the proceedings themselves were a nullity. It is appropriate to consider the position had NRMA realised at the outset the significance of the Statement of Claim naming the deceased as the defendant.

177 The authorities concerning proceedings against deceased persons being a nullity all related to proceedings where the deceased was the sole defendant. In this case, the deceased was the nominal defendant, the real defendant was NRMA: McCann, Lawford v Hosth (1974) 5 ALR 57. That fact was implicitly recognised by the requirement that the statement of claim be served both on the defendant and the defendant’s insurer: DCR Pt 24C r 3(1).

178 The statement of claim did not, as it was obliged to do (DCR Pt 5 r 2) contain the name of the defendant; Mr Deveigne was deceased; he had no legal personality: Piggott. Failure to serve the proceedings on him constituted partial non-compliance with DCR Pt 24C r 3(1); the proceedings were properly served on NRMA in accordance with that rule. There was, in the circumstances, a failure to comply with the rules which, by virtue of s 159, was to be treated as an irregularity, not a nullity. This conclusion is consistent with the contemporary approach against treating irregularities as anything more than that, and against treating proceedings as void or as a nullity because of a defect or irregularity: Griffiths v ANZ Banking Group Ltd [2002] SASC 250; (2002) 83 SASR 491 per Doyle CJ (at [51]); see also Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173 (at [7]) per McPherson JA, (at [21]) per McMurdo J (with whom McPherson JA and Holmes J agreed); Smart v Stewart (1992) 107 FLR 119 (at 124) per Angel J.

179 Thus, unlike Dawson, Foster and Piggott, there was a “real” defendant in existence, the NRMA, which was served, although not named as a party.

180 The commencement of the proceedings, therefore, at least engaged the jurisdiction of the District Court to determine whether it had jurisdiction to make any order having regard to their constitution: KBRV. In my view, the District Court could have entertained a motion brought by NRMA to be joined as a party. It was the real defendant, and its entitlement to be joined could be inferred from the combination of provisions of the MA Act to which I have referred. That construction is consistent with the legislative scheme and the conclusion in the Foxe v Brown line of authority. It is not, in my view, precluded by there being only one express joinder provision, s 66A.

181 It was open to the District Court join NRMA as a party pursuant to the DCR Pt 7 r 8 as a party whose joinder was necessary to ensure that all matters in dispute in the action to be effectually and completely determined and adjudicated upon, at least to determine whether the proceedings should be re-constituted, for example to join the Public Trustee or to continue against the NRMA.

182 If the Court had joined NRMA pursuant to DCR Pt 7 r 8, its joinder would have dated from the filing of the originating process amended so as to add it as a party: DCR Pt 7 r 11 r (3) (UCPR 6.28).

183 In the present case Mr Davies appeared to accept that in order for the NRMA to gain the benefit of the original costs order, its joinder had to date from the service of the Statement of Claim. The Rules preclude the addition of the NRMA as a party having that effect as the motion to add NRMA as a party was only filed in this Court. I should add, that the Court cannot look to s 159 to override the operation of DCR Pt 7 r 11(3): Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 723 per Gleeson CJ (with whom Clarke JA agreed).

184 The position would be different if it was possible to substitute NRMA as a party pursuant to DCR Pt 11(1)(d). However that rule depends on a party being substituted for “another party or former party”, which cannot apply here.

185 However it may be questionable whether it was necessary for NRMA’s joinder to date from the service of the Statement of Claim. There are authorities which permit costs orders to be made in favour of non-parties: see Re Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129; (2004) 48 ACSR 681; Knight v F P Special Assets Ltd (1992) 174 CLR 178; further the indemnity costs rule does not preclude an assessment of cost where the party seeking the assessment is only a nominal party: Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203.

186 These cases support the proposition that despite the fact a “real” party is joined as in this case on appeal, it would still be open to give it the benefit of a costs order, albeit not the one which was a nullity.

187 The question is whether this Court should exercise its discretion to make such an order. In my view it should not.

188 The proceedings were commenced in February 2000. NRMA allowed them to continue without drawing the court’s attention to their defective constitution. In May 2001 it had them dismissed and obtained a costs order – an order I would note without further comment, was obtained in the absence of the respondent, his solicitors having been given leave to withdraw.

189 It obtained the Certificate of Judgment in June 2002. It was not until March 2004 that it took any steps to try to rectify the position its earlier omission had created and first informed the court of Mr Deveigne’s death. It has, in my view, been the author of its own misfortune. As Giles JA has observed, had it moved at the outset of the proceedings, it is possible it would not have incurred costs in the order of those assessed by this Court.

190 In my view it would not be in the interests of justice to restore NRMA to the position it might have been in had it moved promptly in 2000. The position it is in can only be laid at the respondent’s feet in the most nominal sense. His solicitors commenced defective proceedings. It was within NRMA’s power to rectify the situation early in the peace and not incur substantial costs.

191 The consequence is that the appeal should be dismissed. However NRMA should be joined as a party, the appellant, to the appeal in order that the appeal be properly constituted

192 I propose the following orders:

(1) Application for leave to appeal purportedly on behalf of Terry Deveigne dismissed as incompetent.

(2) Join NRMA as the appellant.

(3) Extend the time to seek leave to appeal.

(4) Leave to appeal granted.

(5) Appellant to file Notice of Appeal within seven (7) days of this order.

(6) Appeal dismissed.

(7) Appellant to pay the respondent’s costs of the appeal.

**********

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Citations

Deveigne v Askar [2007] NSWCA 45

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Cited Sections

CITATION:	Deveigne & Anor v Askar [2007] NSWCA 45
HEARING DATE(S):	23 May 2006
JUDGMENT DATE:	13 March 2007
JUDGMENT OF:	Hodgson JA at 1; Giles JA at 4; McColl JA at 27
DECISION:	1.Application for leave to appeal purportedly on behalf of Terry Deveigne dismissed as incompetent. 2. Join NRMA as the appellant. 3. Extend the time to seek leave to appeal. 4. Leave to appeal granted. 5. Appellant to file Notice of Appeal within seven (7) days of this order. 6. Appeal dismissed. 7. Appellant to pay the respondent’s costs of the appeal.
CATCHWORDS:	PROCEDURE — Commencement of proceedings against deceased defendant — costs orders obtained on applications made in name of deceased defendant —whether proceedings and orders a nullity or irregularities — joinder of statutory insurer - INFERIOR COURTS — District Court — status of orders made without power or jurisdiction - STATUTES — Motor Accidents Act 1988 — ss 17, 25, 47, 53, 54, 66A — District Court Act 1973 s 159 — District Court Rules Pt 7 r 8, Pt 24C rr 3, and 8, Pt 31 r 12A
LEGISLATION CITED:	Bankruptcy Act 1924 (Cth) Civil Procedure Act 2005 Conveyancing Act 1919 District Court Act 1973 Interpretation Act 1987 Law Reform (Miscellaneous Provisions) Act 1944 Legal Profession Act 1987 Limitation Act 1969 Limitation of Actions Act 1974 (Qld) Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Motor Vehicles Insurance Act 1936 (Qld) Motor Vehicles (Third Party Insurance) Act 1942 Supreme Court Act 1970 Wills, Probate and Administration Act 1988 Workers Compensation Act 1987 Defamation Act 1992 (NZ) Limitation Act 1980 (UK) Supreme Court of Judicature (Consolidation) Act 1925 (UK) District Court Rules 1973 High Court Rules 1958 (Cth) Uniform Civil Procedure Rules 2005 Motor Vehicles Insurance Regulations 1968 (Qld)
CASES CITED:	Adams v Lambert [2006] HCA 10; (2006) 80 ALJR 679 Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214 Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380 Bourke v Kecskes [1967] VR 894 Budimir v McMahon [2000] FCA 1312 Caboolture Park Shopping Centre Pty Ltd (in liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Coles v Burke (1987) 10 NSWLR 429 Craig v Kanssen [1943] 1 KB 256 CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534 Darrington v Caldbeck (1990) 20 NSWLR 212 Dawson (Bradford) Ltd v Dove [1971] 1 QB 330 Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203 Fernance v Nominal Defendant (1989) 17 NSWLR 710 Foster v Turnbull Times L Rep 389, 22 May 1990 Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186 Genders v Government Insurance Office of New South Wales [1959] HCA 30; (1959) 102 CLR 363 Griffiths v ANZ Banking Group Ltd [2002] SASC 250; (2002) 83 SASR 491 Gurtner v Circuit [1968] 2 QB 587 Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729 Hip Hing Timber Co Ltd v Tang Man Kit (2004) HKCFAR 212; [2005] 1 HKLRD 572 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Hubbard Association of Scientologists International v Anderson & Just (No2) [1972] VR 577 In re the Affairs of Hart (1943) 169 LT 60 International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 2 Ll R 474 Italiano v Carbone & Ors [2005] NSWCA 177 John Fairfax & Sons Pty Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516 Kendell v Carnegie & Ors [2006] NSWCA 302 Ketteman v Hansel Properties Ltd [1987] AC 189 Kilkenny Engineering Pty Ltd (in liq), Re; Monti v Kilkenny Engineering Pty Ltd (in liq) (1976) 13 SASR 258 King v Wilkinson (1957) 57 SR (NSW) 444 Knight v F P Special Assets Ltd (1992) 174 CLR 178 Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 Lawford v Hosth (1974) 5 ALR 57 Lazard Bros & Co v Midland Bank Ltd [1933] AC 289 Liff v Peasley [1980] 1 WLR 781 MacFoy v United Africa Co Ltd [1962] AC 152 Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463 McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Nominal Defendant v Mabury [1962] HCA 12; (1962) 108 CLR 598 Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 Piggott v Aulton [2003] EWCA Civ 24; [2003] RTR 540 Plowman v Palmer [1914] HCA 41; (1914) 18 CLR 339 Prior v Hannaford [1970] VR 772 Rawlinson v Oliver [1995] 3 NZLR 62 Re Pan Pharmeceuticals Ltd; Selim v McGrath [2004] NSWSC 129; (2004) 48 ASCR 681 Re Pritchard (decd) [1963] Ch 502 Rust v Barnes [1980] 2 NSWLR 726 Savaglia v MacLennan (1980) 24 SASR 314 Shirriff v The Nominal Defendant [1999] NSWCA 152 Simmons v Liberal Opinion Ltd, re Dunn [1911] 1 KB 966 Smart v Stuart (1992) 107 FLR 119 Smith v Bundandan Enterprises Pty Ltd [2002] NSWCA 322; (2002) 55 NSWLR 367 Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173 Strachan v Gleaner Co Ltd & Anor [2005] UKPC 33; [2005] 1 WLR 3204 Tetlow v Orela Ltd [1920] 2 Ch 24 Treiguts v Tweedley [1959] VR 544 United Service Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487
PARTIES:	Terry Deveigne - First Claimant Insurance Australia Ltd trading as NRMA Insurance - Second Claimant Michael Askar - Respondent
FILE NUMBER(S):	CA 40910 of 2005
COUNSEL:	D L Davies SC with J M Morris - Claimant B L Jones - Respondent
SOLICITORS:	Abbott Tout, Lawyers - Claimant Paul Marsh, Solicitor - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 5387 of 2002
LOWER COURT JUDICIAL OFFICER:	Bishop DCJ
LOWER COURT DATE OF DECISION:	1 August 2005