| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : EAST -v- COOPER [2011] WADC 147 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 1 AUGUST 2011 DELIVERED : 19 SEPTEMBER 2011 FILE NO/S : CIV 3366 of 2009 BETWEEN : CHERIE EAST Plaintiff
AND
TIMOTHY MICHAEL COOPER
First defendant
MEDICAL VISION AUSTRALIA PTY LTD
Second defendant
POLY IMPLANT PROTHESE
Third defendant
Catchwords: Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 O 12 r 6 - Conditional appearance - Defendant seeks to apply out of time - Turns on its facts Legislation: Nil
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Result: Application contesting service dismissed
Application to set aside order relisted Representation: Counsel:
Plaintiff : Mr D I Connor
First defendant : Not applicable
Second defendant : Mr S J Wright
Third defendant : Not applicable
Solicitors:
Plaintiff : Hoffmans
First defendant : Not applicable
Second defendant : Kelly & Co Lawyers
Third defendant : Not applicable
Case(s) referred to in judgment(s):
Nil
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1 DEPUTY REGISTRAR HARMAN: On 25 November 2010 the court extended the validity of the writ issued on 11 November 2009 from 11 November 2010 to 11 May 2011. On 3 June 2011 the second defendant entered a conditional appearance.
2 Order 12 r 6 provides as follows: (1) A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or notice thereof, or the service of the originating process, or notice thereof, on the grounds of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this Rule. (2) The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance. 3 By 30 June 2011, as the second defendant had not brought the required application, the appearance had become unconditional. It then applied as follows: 1. Pursuant to Rules of the Supreme Court (RSC) Order 3 rule 5, the time for service of this summons be abridged. 2. Pursuant to RSC Order 3 rule 5, the time in RSC Order 12 rule 6(2) be extended to the date of filing this summons. 3. Pursuant to RSC Order 12 rule 6(2), the appearance by the Second Defendant remains conditional. 4. … 5. Further, or in the alternative to paragraph 4 herein, the Writ of Summons be set aside pursuant to Order 2 rule 1(2) and rule 2 of the Rules of the Supreme Court 1971 insofar as it is directed to the Second Defendant on the grounds that the Writ of Summons has not been validly served on the Second Defendant and is no longer valid. … 4 Having heard the defendant's submissions, thereby it sought to have the court establish a basis from which it could contest the regularity of service of the writ. In advancing its case that service had been irregular (Page 4)
the defendant put the propositions that service had either been attempted or effected on 12 May 2011, the day following the date upon which the validity of the writ expired. 5 The defendant relied the affidavit of its solicitor Robert Lindsay Kennett, sworn 30 June 2011 which in part is to the effect that service of the writ was attempted on 12 May 2011. It also relied on the evidence of two employees of Rinaldi & Co, Karina Scott and Kimberley Rebecca Stevens, each of whom deposes to the processes in place for dealing with documents served at their employers' office. Scott refers to a copy of the writ that bears a date stamp 12 May 2011 and also to an entry in the postal records of her employer. 6 Central to the defendant's case in the application is the proposition that once doubt is raised in relation to the substantive issue the onus of persuasion that service was regular falls to the plaintiff. In promoting its case the defendant contended that the plaintiff would then confront the difficulty presented by the evidence of its process server, Linton Maxwell Smith. In his affidavit of 12 July 2011 Smith deposes that on 23 May 2011 he had sworn an affidavit of service. That affidavit has not been filed but he produces a copy in which he had deposed that he had served the defendant at 35 North Terrace, Hackney, South Australia. On 12 July 2011 he deposed that in so deposing he had made a mistake as the address at which he had served the writ was the offices of Rinaldi & Co at 100 Greenhill Road, Unley, South Australia. 7 There is good reason for the limitation expressed in r 6(2); so too the consequence of failure to apply. Once the failure to apply has transformed the appearance I consider that any debate about service would be moot. However if the court would create scope for productive debate I have no doubt that it would be the defendant, not the plaintiff who would carry the onus. In considering whether it had been discharged the court would reflect on the reason for the defendant's failure to apply within time and the evidence on the substantive issue. 8 As for its failure to apply Kennett deposes follows: 7. MVA did not apply to set aside to the Writ of Summons until today because: (a) I was aware that the plaintiff has made an application to extend the validity of the Writ of Summons, which application is to be heard on 4 July 2011. MVA intends to oppose that application. (Page 5)
(b) Late on 28 June 2011 I received a letter from the plaintiff's solicitor asserting that MVA's appearance had become unconditional and that there was therefore no deed for the plaintiff to apply to extend the validity of the Writ. 9 The application of the plaintiff to which Kennett refers is that dated 15 June 2011 whereby the plaintiff had sought to further extend the validity of the writ. The affidavit in support of that application sworn on 13 June 2011 by the plaintiff's solicitor suggests to me that he then had doubts that the writ had been served at the address that he had nominated to the process server. He had not then received a response to his enquiries in that regard of the process server. There is scope to consider that the plaintiff's solicitor may also have doubted whether the writ had been served on 6 May 2011. That scope is provided by the fact that the defendant had informed him by its solicitors' letter of 20 May 2011 that the writ had been served on 12 May 2011. 10 It appears to me the reason advanced by the defendant's solicitor at par 7 depends on the court inferring that prior to receipt of the plaintiff's solicitors' letter on 28 June 2011, at least notice of the plaintiff's application may have distracted him from the task set by r 6(2). In my opinion, the court should be circumspect in considering drawing an inference for the benefit of the party who carries the onus. If the defendant does not seek to have the court draw such an inference then there is nothing that explains why upon filing its appearance it did not forthwith apply. 11 Kennett's evidence on the substantive issue is as follows: 1. … I swear this affidavit on the basis of facts within my knowledge, and from information provided to me by Mr Zdenko Racic, the sole director/secretary of the second defendant Medical Vision Australia Pty Ltd (MVA), which information I believe to be true. 2. … 3. The registered office of MVA is c/-Rinaldi & Co, Chartered Accountants, 100 Greenhill Road, Unley South Australia 5061. 4. On 16 May 2011, I was informed by Mr Racic that service of the plaintiff's writ of summons was attempted on MVA's registered office between the hours of 1 pm and 2 pm on 12 May 2011. 12 There is nothing else in the evidence of Kennett, and nothing in the evidence of either Scott or Stevens that would locate Racic at the offices of Rinaldi & Co between 1 pm and 2 pm on 12 May 2011. (Page 6)
The significance of that observation is that there is reason to doubt that Racic had been present at that time and place. As I am not so satisfied, the material at par 4 is inadmissible. 13 In any event as there is no evidence to establish the meaning of the words '… service of the plaintiff's writ of summons was attempted' they would amount to an unfounded conclusion. 14 Scott and Stevens each depose that they were at work on both 6 and 12 May 2011. Stevens deposes that she does not recall accepting service of any court documents on those dates. She is a full time administrative assistant and had been employed as such by Rinaldi & Co for approximately 6 1/2 years. She deposes that she has attended the reception desk when Scott is temporarily absent. Some or all of the following she describes as the procedure and policy of her employer: that when served with a court document she never takes it back to her desk or moves it away from the reception desk but immediately places it on the reception desk on or next to Scott's keyboard; that it is for Scott to date-stamp the document; and on the same day to mail it out to the relevant client and record the date of mailing. 15 She deposes that she is not aware of any instance when the policy and procedure of her employer has not been followed by herself or Scott. I observe that the significance of the reference by Stevens to 12 May 2011 is that it has a connection with the evidence of Scott. 16 Scott's evidence of what she describes as strict policy by comparison to that of Stevens is limited to her dealing with documents served on the offices of Rinaldi. To that extent it accords with that of Stevens. She also describes the same detail as procedure. She describes the leaving of documents on her keyboard by others as both policy and procedure. She too deposes that she is unaware of any instance when the policy and procedure have not been followed by her or by Stevens. 17 She refers to and produces a copy of the writ received by Rinaldi. Her evidence suggests that the original is stamped with the date 12 May 2011. She deposes that she believes that she stamped the writ on that day because of the stamp and the policy and procedure of her employer. 18 As Scott does not depose that after stamping but prior to posting, such a document would be copied, I take it to be the case that the copy was made by someone other than Scott. Apart from the obvious reason for that conclusion, the document she produces and identifies as the writ (Page 7)
received by Rinaldi (I infer served on Rinaldi) is in fact two documents, the writ and the order of 25 November 2010. 19 Scott gives no evidence of the origin of the copy or that she has looked at the original. It is no more than implicit that either all date stamps are the same; alternatively that Scott is able to recognise the date stamp as being consistent with a date stamp or stamps that she uses. In considering whether the defendant had met even the standard to which it aspired, it would be at least a comfort that there was evidence that Scott had sighted the original and had struggled with the proposition that the date stamped on it was consistent with it having been left by a stamp that she would have utilised. Ultimately however, the defendant leaves it to the court to infer that the date stamp on the document produced justifies the conclusion that the writ was served on that day. 20 Scott also produces what she describes as a copy of Rinaldi's mail register for 12 May 2011. Unless at least when it came to posting mail it was a quiet day, I take it that the document is simply the discrete part of the record of posting on that date that refers to the writ sent by Scott to the defendant. I note that there is no reference to the order. There is no evidence to connect the copy of the writ attached to her affidavit with what is recorded as having been sent to the second defendant on 12 May 2011. 21 However I have no difficulty with the proposition that on the entry in the register alone there is sufficient to justify a finding that the writ was sent by Scott to the defendant on that day. I do not consider that that finding has any bearing on the deficiencies that I have identified in the other parts of the defendant's case. I have already recorded that there is nothing before me to suggest that Kennett's informant, Racic had been at the office of Rinaldi & Co between 1 pm and 2 pm on 12 May 2011. Even if I was satisfied that the policy of Rinaldi & Co in relation to receipt of court documents was as Scott and Stevens portray, I do not consider that there is sufficient evidence to satisfy me that it was followed in the case of the writ, at least in a timely manner. As much as it may be considered that to reach such a conclusion would be unfair to Stevens and/or Scott, their interests are not in play in the application. 22 I am not persuaded that the writ was served on 12 May 2011. 23 The defendant also seeks to have the order to extend the validity of the writ made on 25 November 2010 revoked. In effect the defendant seeks to be heard on the application that was then before the court. (Page 8)
I heard that part of the application but in the process of considering the case I have persuaded myself that the interests of justice would best be served if the application was considered by the court as it was constituted on 25 November 2010.
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