Entyr Ltd formerly known as Pearl Global Ltd v Eastman - [2023] WASC 469

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ENTYR LTD formerly known as PEARL GLOBAL LTD -v- EASTMAN [2023] WASC 469
CORAM:   HOWARD J
HEARD:   20 NOVEMBER 2023
DELIVERED          :   7 DECEMBER 2023
FILE NO/S:   CIV 1228 of 2021
BETWEEN:   ENTYR LTD formerly known as PEARL GLOBAL LTD
Plaintiff
AND
ANTHONY NEVILLE CHISHOLM EASTMAN
First Defendant
BRETT ANTHONY MITCHELL
Second Defendant

Catchwords:

Application to set aside extensions of validity of a writ granted ex parte - Applicant applied to set aside for non-disclosure - Applicant applied for a de novo hearing - Whether there was material non-disclosure - Consequences of setting aside Orders - Discretion to set aside ex parte Orders once material non‑disclosures found - Orders not set aside on basis of non-disclosure or on a de novo hearing

Legislation:

Rules of the Supreme Court 1971

Result:

Orders extending the validity of the writ of summons not set aside based on non‑disclosure or on a de novo hearing

Category: B

Representation:

Counsel:

Plaintiff	:	Mr S Penglis SC & Ms B Tariq
First Defendant	:	Mr S C M Wong
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	Fletcher Law
First Defendant	:	Disputes Legal
Second Defendant	:	Fairweather Litigation

Case(s) referred to in decision(s):

Allesch v Maunz (2000) 203 CLR 172
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
BHP Billiton Ltd v Shultz (2004) 221 CLR 400
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Great Southern Ltd (in liq) v Young [2014] WASC 481
Naso v Danehill Nominees Pty Ltd [2006] WASC 265
Popovic v Panagoulias [2014] WASCA 86
Rayney v Reynolds [2016] WASC 219
Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639

HOWARD J:

These reasons relate to the first defendant's notice of motion filed 5 September 2023 which seeks to set aside three extensions of the validity of a writ.

Procedural history

It is necessary to recite the procedural history.
On 26 March 2021, the Acting Master gave leave in CIV 1216 of 2021 to the plaintiff pursuant to O 5 r 9 to issue a writ of summons against the intended first defendant in the form attached to a supporting affidavit of Vitorio Vincenzo Turco made 24 March 2021.
Annexed as 'VT-18' to Mr Turco's affidavit in CIV 1216 of 2021 was the 'intended writ of summons the subject of the within proceedings': Mr Turco affidavit [84].
That writ was issued in the present proceedings on 26 March 2021.
Mr Eastman, who has brought the present application, was the first defendant. Mr Mitchell was the second defendant who was then served within the jurisdiction (on 9 February 2022).
There is no explanation in the material as to why the plaintiff waited to serve either defendant until 9 February 2022; about 11 months after the writ issued.
On 15 February 2022, the Master in CIV 1216 of 2021 gave the plaintiff leave to serve a writ on the first defendant at: Eccleston Yards, 25 Eccleston Place, Belgravia, London, United Kingdom SW1W 9NF, or elsewhere in the United Kingdom.

The first extension application

By a notice of motion filed 11 February 2022, in these proceedings, the plaintiff sought an order pursuant to O 7 r 1 that the validity of the writ for service as against Mr Eastman be extended by six months until 25 September 2022.
That application was supported by written submissions and an affidavit of the plaintiff's solicitor, Mr Fletcher, both filed 11 February 2022.
Mr Fletcher's affidavit filed 11 February 2022 deposed that:
6.Service of the Writ is yet to be effected upon the first defendant, who resides in London, United Kingdom (UK).
That affidavit of Mr Fletcher also deposed to the plaintiff having made enquiries on 9 February 2022 with the relevant Central Authority for the UK (under the Hague Convention): [7]. No evidence was given of any prior contact. Mr Fletcher deposed to believing that there may be a delay of between two and four months in serving the writ once the request had been received by the Central Authority of the UK due to a COVID backlog: [7], [8].
The plaintiff's submissions filed 11 February 2022 stated:
7.The first defendant resides in London, United Kingdom.
8.Conscious of the Writ remaining valid for service until 25 March 2022, since 5 January 2022, the plaintiff has made attempts to serve the Writ on the first defendant, without success.
On 15 February 2022, the Master granted the plaintiff the orders sought on the papers.
In respect of the first extension application, Mr Eastman submits:
1.the plaintiff did not inform the Court that it knew, or should have known if it made proper enquiry, that Mr Eastman's residential address was an address in Newick, Lewes, England BN8 4HU (Newick address) (and not in London);
2.the plaintiff did not provide any evidence of efforts made to effect personal service on Mr Eastman;[1]
3.the plaintiff provided evidence of steps taken in January 2022 to obviate the need for personal service[2] without informing the Court that Mr Eastman's solicitors had previously told the plaintiff's solicitors they did not have instructions to accept service;[3] and
4.the plaintiff could not show that it had made reasonable efforts to serve Mr Eastman.
[1] ts 53.
[2] See affidavit of Mr Fletcher's filed 11 February 2022 [13]; ts 53.
[3] ts 80.
On 2 March 2022, the plaintiff filed a (first) Form 5A which requested Mr Eastman be served at: Eccleston Yards, 25 Eccleston Place, Belgravia, London SW1 W9NF, United Kingdom, pursuant to the Hague Convention.
Mr Eastman drew particular attention to the fact that service was sought in the first Form 5A:
1.at the address (of Mr Eastman) given by the plaintiff and was said to be 'in accordance with' article 5(a) of the Hague Convention;[4] or
2.by delivery to the addressee, if the addressee accepts it voluntarily by the second paragraph of article 5.[5]
[4] ts 46.
[5] ts 47.
Article 5 of the Hague Convention provides relevantly:
The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either -
a)by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or
b)by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed.
Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily.
Mr Eastman also drew attention to Article 1 of the Hague Convention, which provides:
The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.
This Convention shall not apply where the address of the person to be served with the document is not known.
In these proceedings, a statement of claim was filed on 7 April 2022.
On 11 April 2022, Mr Mitchell (the second defendant) entered a conditional appearance. That was supported by a chamber summons filed 24 March 2022, by which Mr Mitchell applied to set aside the writ pursuant to O 6 r 1(2) on the basis of non-compliance with O 6 r 1(1) or alternatively to strike out the indorsement on the writ pursuant to O 20 r 19(1).
On 2 June 2022, Strk J dismissed the chamber summons dated 24 March 2022 and ordered Mr Mitchell to file a defence.
It appears from the court record that steps continued to be taken in these proceedings between the plaintiff and Mr Mitchell but, with respect, at a pace which could be described as leisurely.
On 21 July 2022, this Court received a letter (dated 16 June 2022) from Her Majesty's Courts & Tribunals Service which returned the plaintiff's request for service on Mr Eastman on the basis that:
… the address details provided in the Hague request form, for the addressee you wish to serve upon seems [sic] to be quite unclear as the address details you have provided do not seem to be coming up when I went to search …
Furthermore, if the addressee you wish to serve upon is at a company's address meaning (their place of work) then please select box C as this will require you to serve the defendant personally at their place of work.
If you still wish to serve, I urge you to make the required amendments and please state both the correct and full address details of the addressee you wish to serve upon …
The plaintiff says that it did not obtain a copy of the letter received by this Court on 21 July 2022 at the time of its receipt by this Court.[6]
[6] Affidavit of Mr Fletcher filed 6 September 2022 [9].
Following correspondence with this Court's registry, on 22 August 2022, the plaintiff filed a (second) Form 5A which requested service on Mr Eastman at: Orana Corporate LLP, Central Working Victoria, Eccleston Yards, 25 Eccleston Place, London SW1W9NF, United Kingdom, pursuant to the Hague Convention.
Mr Eastman drew particular attention to the fact that the second Form 5A of August 2022 sought to have the document served at an altered (from the first Form 5A) address but only 'by delivery to the addressee, if the addressee accepts it voluntarily' under the second paragraph of Article 5 of the Convention, quoted above. This was submitted to be an 'abandoning' of attempted service under Article 5(a) of the Convention.[7]

The second extension application

[7] ts 47.

By a notice of motion filed 6 September 2022, the plaintiff applied pursuant to O 7 r 1 for 'the validity of the Writ of summons in this action for service as against the first defendant be further extended by 6 months, until 25 March 2023'.
That motion was supported by written submissions and a further affidavit of Mr Fletcher, both filed 6 September 2022.
Mr Fletcher's affidavit filed 6 September 2022 deposed that:
[13]I believe that the first defendant resides in London.
[28]I am informed by Mr Gary Philip Foster, executive chairman of the plaintiff, and verily believe as follows:
28.1the first defendant's place of residence is presently unknown to the plaintiff; and
28.2if the plaintiff's attempt to serve the first defendant pursuant to the Re-filed Request is unsuccessful, the plaintiff intends to make an application for substituted service of the Writ.
In the plaintiff's submissions filed 6 September 2022, it stated:
4.6The first defendant resides in London, United Kingdom.
4.7Conscious of the Writ remaining valid for service until 25 March 2022, since 5 January 2022, the plaintiff made attempts to serve the Writ on the first defendant, without success. (footnotes omitted)
On 7 September 2022, the Master granted the plaintiff the orders sought on the papers.
Mr Eastman submits in respect of the second extension application that:
1.there was continued non-disclosure of Mr Eastman's residential address; and
2.although the Court was told that the plaintiff intended to apply for an order for substituted service if it was unsuccessful in serving Mr Eastman at the Orana Corporate LLP address of Eccleston Yards, it did not do so.[8]
[8] ts 55, 56.
On 7 December 2022, Mr Mitchell filed a defence. The plaintiff filed a reply to the defence of Mr Mitchell on 24 January 2023.
On 6 February 2023, pursuant to consent orders filed by the plaintiff and Mr Mitchell, the name of the plaintiff was substituted.

The third extension application

By a notice of motion filed 21 February 2023, the plaintiff applied pursuant to O 7 r 1 for an order that the validity of the writ of summons in the action for service against Mr Eastman be extended by six months until 25 September 2023.
The motion was supported by submissions and a further affidavit of Mr Fletcher both filed 21 February 2023.
Mr Fletcher's affidavit filed 21 February 2023 [5] relied upon his affidavits previously filed 11 February and 6 September 2022 respectively.
The plaintiff's submissions stated [4.6]:
The first defendant resides in London, United Kingdom. (footnote omitted)
On 23 February 2023, the Master granted the plaintiff the orders sought on the papers.
On about 28 July 2023, this Court received an unsuccessful request for service from the Foreign Process Section of the Senior Courts of England and Wales (dated 2 May 2023) which gave the reason for non‑service: the 'Bailiff were [sic] unable to meet the defendant in person'.
On 21 August 2023, the plaintiff by notice of motion applied pursuant to O 11A r 11 for judgment to be entered against Mr Eastman.
That motion for judgment was supported by written submissions and a further affidavit of Mr Fletcher both filed 21 August 2023.
Rule 11 (of O 11A) provides relevantly:
(1)This rule applies if -
(a)a certificate of service of initiating process has not been filed in the proceedings; or
…
and the defendant has not appeared or filed a notice of address for service.
(2)If this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that -
(a)the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested; and
(b)a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which the initiating process was so forwarded; and
(c)every reasonable effort has been made -
(i)to obtain a certificate of service from the relevant certifying authority; or
(ii)to effect service of the initiating process,
as the case requires.
Mr Fletcher's affidavit filed 21 August 2023 [5] relied on his affidavits filed 11 February and 6 September 2022.

This application

To date, there has been no service in any form of the writ (or other process) on Mr Eastman.
For the purpose of the chronology, Mr Eastman entered a conditional appearance on 23 August 2023. As will be seen below, that may now have its own controversy.
On 5 September 2023, Mr Eastman filed a notice of motion which sought the following two orders:
1.The order(s) extending the validity of the writ of summons in this action for service as against the first defendant made (on the ex parte application of the plaintiff) by the Court on:
a.15 February 2022; and/or
b.7 September 2022; and/or
c.23 February 2023,
be set aside pursuant to the Rules of the Supreme Court (RSC) Order 58 rule 23 and the Court's inherent jurisdiction by reason of material non-disclosure, or additional material which throws a new and different light on the situation of the parties involved, in applying for the above order or orders as regards one or more matters as are particularised in the below Schedule.
2.Alternatively, the plaintiff show cause why the writ as against the first defendant should not be struck out pursuant to RSC Order 7 rule 4(2)(a) for not yet having been served on the first defendant for good reason.
Mr Eastman does not maintain his application for the second order.
The motion (to set aside the ex parte orders) was not expressed to be pursuant to O 12 r 6, nor pursuant to Mr Eastman's conditional appearance filed 23 August 2023. It was filed with a supporting affidavit of his solicitor, Mr Morgan.
In effect, for present purposes, the parties were content to put the question of the effect of Mr Eastman's conditional appearance to one side.[9]
[9] ts 64.
Mr Eastman's application proceeded on the basis that the application of 5 September 2023 was brought under O 58 r 23 which provides:
The Court may set aside any order which has been made ex parte.
The principal affidavits which were sought to be read in this application are:
(1)the affidavits of Mr Morgan (Mr Eastman's solicitor) filed 5 September and 23 October 2023; and
(2)an affidavit of Mr Fletcher filed 9 October 2023.
Without objection, the parties also referred to some parts of Mr Fletcher's affidavits filed in the first to third extension applications; and I have referred to some of those materials above.

Approach to be taken in this application

From the authorities which I will come to, I consider the preferable view is that Mr Eastman can make two different applications in respect of the three extensions allowed ex parte. They are:
1.an application to set aside the orders on the basis of the plaintiff's (asserted) material non-disclosure/s; or
2.an application for a re-hearing (de novo) of the plaintiff's applications.
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 was a case going to when the jurisdiction to reconsider an ex parte order is enlivened. It is to the effect that a party applying to set aside an ex parte order (on a re‑hearing) must either adduce additional material evidence or establish there was a material non‑disclosure by the party who obtained the order: pages 569B, 570B.
The parties are agreed that while the Court of Appeal in Popovic v Panagoulias [2014] WASCA 86 [55] questioned the approach from Aspinall, it did not overrule it. Popovic suggests that a re‑hearing (de novo) may occur without either of the two conditions in Aspinall being satisfied.[10]
[10] ts 71.
The Court of Appeal in Popovic referred to the Victorian Court of Appeal decision in Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639. In that case Gillard AJA (for the Court) set out the approach where - after reciting a court's inherent jurisdiction to set aside its orders - it was said:
[21]The Rules of Court also give the right to a party to apply to the court for an order to set aside an order made without notice. See r 46.08(b).[11] If an application is made to the court pursuant to the inherent power or the rule, the court re-hears the original application … It is a rehearing of the whole application … In my opinion, the jurisdiction is much wider [than expressed in Aspinall] and gives the right to the party affected by the order to appear before the court and put submissions as to why the order should not be made on the materials which were before the judge who made the first order. It is a rehearing and the court may reach a different decision after hearing submissions …
[22]… [T]his jurisdiction is different to the situation when an order made ex parte is set aside because there was a material non‑disclosure of a material matter by the party who obtained the order. The order is set aside because of some irregularity and not on the merits. When this jurisdiction is enlivened the court's function is to determine on the material that was placed before the judicial officer at first instance, whether a party has failed to discharge the obligation which rests upon any party seeking an order ex parte, namely, making a full and fair disclosure of all matters within its knowledge and which are material, to the court. The court is not concerned whether the order should have been made on the material before the court. Whether or not the court will set aside the order upon proof of the failure to discharge the obligation depends upon the particular circumstances.
[11] Rule 46.08(b) of the Supreme Court (General Civil Procedure) Rules 1996 (Vic) provided relevantly that: 'The Court may set aside or vary an order which affects a person where the application for the order … (b) was not made on notice that person.'
With great respect, it appears that the Full Court in Aspinall rather conflated the two, different available applications.
Whereas Aspinall required additional material evidence or a material non‑disclosure, neither is required on a re‑hearing as per the approach taken in Savcor.
If the approach in Aspinall is adopted, then it seems to me that Mr Eastman raising (what he says are) material non‑disclosures, would meet the requirement.

However, I consider that Popovic and Savcor are to the effect that the preferable approach is that Mr Eastman can apply for a re‑hearing (de novo) of the applications for the extensions of the writ without needing to put new material before the Court or to show a material non‑disclosure. Given the asserted non‑disclosures, on the present facts, I am obviously not pre‑empting the future determination of the question which was reserved by the Court of Appeal in Popovic.
On such a re‑hearing (whether as per Aspinall or Savcor), the Court takes into account the material which was before the Master on the extension applications and any further material and submissions which are placed before it (properly) at the re‑hearing.
In that scenario - an application for a re‑hearing - the Court could take into account the non‑disclosure, if any, made by the plaintiff (even on the Savcor approach). But, ultimately, it is considering the matter afresh with all of the material before it.
In my view, there also remains a second approach or application available to Mr Eastman. He may apply to set aside the extension orders made by the Master on the grounds of material non‑disclosure.
If he applies to do so, then he must show that there was such non‑disclosure by identifying what was not disclosed and the effect it would have on the decision reached.
Once material non‑disclosure has been established, then the general rule is that the order would be set aside, however, that is not an inflexible rule and the Court retains a discretion.[12]
[12] Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639 [41], [42].
The question then is whether in the exercise of its discretion the Court would decline to set aside the orders made. The focus, then, as I understand it, would be on the gravity of the non‑disclosure/s and the parties' prejudices if the order/s were to be set aside.
On such an application, there is not a general re‑hearing but the enquiry is focused on the non‑disclosures and the consequences of the setting aside of the orders.
In Savcor, the Court noted that Cathodic had made its application to set aside on the ground of non‑disclosure and had not sought a re‑hearing.
I consider that Mr Eastman has effectively made both applications by his motion and the parties, effectively, proceeded on that basis.
It seems to me that the factors which this Court would have to take into account on either application by Mr Eastman are, in the end, not dissimilar.

Non-disclosure

The parties agreed that when seeking orders ex parte:
(1)an applicant is under a duty to make full and frank disclosure;
(2)whether information is relevant is to be considered having regard to the nature of the application and the factors relevant to the exercise of discretion;
(3)a factor is material where it is a matter of substance in the decision making process;
(4)the duty of disclosure applies not only to material facts known to the applicant but also to any additional facts which would have become known on proper enquiries; and
(5)the applicant must make the proper enquiries.
There are many statements as to a party's obligations of disclosure. With typical directness, Martin CJ in Naso v Danehill Nominees Pty Ltd [2006] WASC 265 [7], said a party must ensure:
… that the Court has before it all the evidence and information that could possibly impact upon the exercise of this rare and exceptional jurisdiction [to make orders on an ex parte basis].
The principal matters of asserted non-disclosure are:
1.the plaintiff knew at all material times that Mr Eastman's residential address was the Newick address; and
2.the plaintiff did not disclose that it had not attempted to serve Mr Eastman at his usual or last known place of residence.[13]
[13] ts 70.
A further asserted non-disclosure is the plaintiff providing evidence to the Court of steps taken in January 2022 to obviate the need for personal service, where he did not tell the Court that from 3 September 2018 Mr Eastman's Western Australian solicitors had said they did not have instructions to accept service.

Mr Eastman's residential address

To assess the first asserted non‑disclosure, it is necessary to consider the evidence as to Mr Eastman's residential address.
The uncontested evidence led on behalf of Mr Eastman was that:

1.in his consent to act as a non‑executive director of the plaintiff, he had given the Newick address as his residential address;[14]
2.on the day before he resigned (on 16 May 2016) Mr Eastman emailed Mr Turco a draft deed of termination and release which gave his address as the Newick address;[15]
3.in June 2016, the plaintiff's solicitors sent a letter to Mr Eastman addressed to the Newick address (and then, later, received a response from Mr Eastman's solicitors);
4.in July 2017 the plaintiff's solicitors wrote to Mr Eastman at the Newick address;
5.in July 2017, a process server attempted to serve some documents (not a, or the writ) on Mr Eastman and reported to the plaintiff's solicitors that they had spoken with Mr Eastman's wife at the Newick address and had been told that Mr Eastman was out playing cricket;[16]
6.in January 2018, Mr Eastman became a member of Orana Corporate LLP and the extract from the Companies House records showed Mr Eastman's correspondence address as the Newick address;[17] and
7.in July 2018 the plaintiff's solicitors wrote to Mr Eastman at the Newick address.[18]
[14] Affidavit of Mr Morgan filed 5 September 2023 [4.4].
[15] Affidavit of Mr Fletcher filed 9 October 2023 [7].
[16] Affidavit of Mr Morgan filed 5 September 2023 [11]; Affidavit of Mr Fletcher of 9 October 2023 [11], [12]; ts 70.
[17] Affidavit of Mr Morgan filed 5 September 2023 [21.2].
[18] Affidavit of Mr Morgan filed 5 September 2023 [6].

I have only recited the matters which were relevantly known to the plaintiff.
The plaintiff conceded at the hearing that the evidence established that at least by the beginning of September 2022 it did in fact know Mr Eastman's residential address was the Newick address because:

… the plaintiff and Mr Fletcher knew the address because [Mr Eastman] hadn't moved. They didn't appreciate that he was still at the same address and the criticism is because they didn't make due enquiry.[19]
[19] ts 69.

There also appeared to be an acceptance by the plaintiff that at least when Mr Fletcher made his affidavit of 6 September 2022, the plaintiff ought to have disclosed to the Court that they had previously been aware of the plaintiff's residential address.[20]
[20] ts 70.
I consider the plaintiff's concession that at least by September 2022 it knew Mr Eastman's residential address was the Newick address to be properly made. Indeed, I consider that the uncontested evidence goes further and establishes that at all material times, and certainly before the first extension application, the plaintiff knew of Mr Eastman's residential address.
Further, as may be seen from the materials filed in the first, second and third extension applications, the plaintiff at no time informed the Court that:
1.it had a residential address for Mr Eastman (which was not the address given to the Court in CIV 1216 of 2021, nor to the UK authority via the first or second Form 5A); and
2.the plaintiff had not attempted to serve the writ on Mr Eastman at his residential Newick address.
The material put before the Court in the extension applications ex parte was to the effect, and would have been understood, that the service address given for Mr Eastman was his London residential address; which was not correct.
If the plaintiff had considered that the last residential address it had for Mr Eastman may not be current, then it could easily have told the Court that. It could also have made further enquiries as to the currency of that address and could have informed the Court of the results of those enquiries.
Here, the plaintiff effectively put to the Court that it was attempting to serve Mr Eastman at his residential address and that has been unsuccessful. That was relied on, at least in part, to justify the extension of the validity of the writ. I consider that the plaintiff's knowledge of Mr Eastman's actual residential address was material to the exercise of the Court's discretion.
I have set out below the factors which the parties agree are and were relevant to extending the validity of a writ.
It also seems significant to me that in its material on the extension applications, the plaintiff stated positively that Mr Eastman lived in London. There does not appear from the material to have been a basis for that positive assertion.
There was no explanation in the materials for the plaintiff's positive (mis)statements as to Mr Eastman living in London.
In the circumstances, I consider that there was a non‑disclosure of the matters in [75], [76] and [83] above which were material to the exercise of this Court's discretion to extend the validity of the writ.
I consider that those material non‑disclosures would, in the ordinary course, be sufficient to set aside the ex parte orders made by the Master on 15 February, 7 September 2022 and 23 February 2023.

Steps taken in January 2022

Mr Eastman also complained that the affidavit of Mr Fletcher filed 11 February 2022 [13] deposed to communications and attempted communications between the plaintiff's solicitors and Mr Eastman's solicitor as to whether Mr Eastman's solicitors had instructions to accept service. That paragraph [13.4] also deposed to an email sent by the plaintiff's solicitors to Mr Eastman directly, asking whether he would accept service of the writ (presumably by email).
Mr Eastman complains that the plaintiff, in putting that evidence before the Court, did not disclose to the Court that there had been a previous interaction where in September 2018, Mr Eastman's solicitors had told the plaintiff's solicitors they did not have instructions to accept service.
While it would not have been out of place in Mr Fletcher's affidavit filed 11 February 2022 to provide the information that Mr Eastman's solicitors had previously (some years before) refused to accept service, it does not, in my view, reach the height of a material non‑disclosure, not to mention it in the context of exchanges in January of 2022.

Discretion on material non-disclosure

I have set out below the factors which I consider weigh in the exercise of my discretion in a de novo hearing.
They are materially the same, in my view as on the exercise of discretion to set aside the ex parte orders once material non-disclosures have been found.
Accordingly for the reasons below, in the exercise of my discretion, I would not set aside the ex parte Orders made by the Master on 15 February, 7 September 2022 and 23 February 2023 on the basis of the non‑disclosures.

De novo hearing

In Allesch v Maunz (2000) 203 CLR 172 [123] Gaudron, McHugh, Gummow and Hayne JJ said that in a de novo hearing the powers of an appellate court were exercisable regardless of an error by the primary decision maker.
In Savcor, as quoted above, a 're‑hearing' was said to occur on the materials before the primary court but with the benefit of submissions and any material the opposing party wished to place before the court.[21]
[21] Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639 [21].
The parties agreed[22] that the applicable principles or factors governing an extension to the validity of a writ are:
1.the power is discretionary to be exercised by reference to the general justice of the case and by taking into account all the relevant circumstances;
2.the provisions of any applicable limitation statute are relevant;
3.the relative hardships which a grant or refusal of renewal would impose upon the parties;
4.relevant factors include the length of delay, whether the delay was caused by mistake and whether such mistake is excusable;
5.the nature of attempts made at service, including whether reasonable efforts have been made and if not, whether other good reasons exist for renewal; and
6.the policy objectives of O 7 r 1 need to be considered and must be exercised with care and caution because there is a clear policy of there being finite periods for the service of writs.
[22] The parties relied on the summary by Allanson J in Great Southern Ltd (in liq) v Young [2014] WASC 481 [51] and Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 [45].
I consider that the non‑disclosures I found above would also be a relevant circumstance to be considered in relation to the first, fourth, fifth and sixth principles or factors set out.

The parties' asserted prejudices

Although in the context of transfers in the cross-vesting regime, I think the statements of Gleeson CJ, McHugh and Heydon JJ in BHP Billiton Ltd v Shultz (2004) 221 CLR 400 [15] are applicable by analogy: Their Honours said:
[15]The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered. Even so, the interests of the respective parties, which might in some respects be common (as, for example, costs and efficiency), and in other respects conflicting, will arise for consideration.
…
[16]… there may be conflicting interests of such a kind that justice would not attribute greater weight to one rather than the other.
I consider that the interests of justice are within the 'general justice of the case'[23] and are to be considered.
[23] See also Rayney v Reynolds [2016] WASC 219 [13].
The plaintiff's position has always been, and remains, that if the writ is not extended then the plaintiff will lose most of its causes of action against Mr Eastman.[24]
[24] See, for example, [16.1] and [16.2] of the plaintiff's submissions filed 11 February 2022 on the first extension application.
It appeared to be common ground between the parties that if the validity of the writs were set aside then the plaintiff would not be able to bring the whole of its case, and the major part of its case, against Mr Eastman as it would be statute barred.
Mr Eastman says that he will suffer 'presumptive prejudice'[25] and 'actual prejudice'.[26]
[25] Mr Eastman's written submissions [63]; ts 59.
[26] Mr Eastman's written submissions [65]; ts 58.
The 'presumptive prejudice' is said to 'include all the problems of identification of witnesses and their recollection of events and the location of documents and their production'.[27]
[27] Mr Eastman's written outline of submissions [63]; ts 59.
The actual prejudice is said to be a loss of access to relevant documents in circumstances where:
1.the third party service provider which held emails and other records was deregistered by ASIC on 20 April 2020;[28] and
2.his right to access the plaintiff's records appears to have been compromised by the effluxion of time as it is beyond the seven years required for documents to be kept under the Corporations Act.[29]
[28] Mr Eastman's written outline of submissions [65].
[29] Affidavit of Mr Morgan filed 5 September 2023 [27], [28]; Affidavit of Mr Morgan filed 23 October 2023 [6.4].
In response to the submission of actual prejudice, the plaintiff points to Mr Eastman having been on notice as to the possibility, at the least, of these proceedings and the allegations made against him.[30]

Mr Eastman's knowledge of the proceedings and allegations

[30] ts 78.

The uncontested evidence was to the effect that:
1.in June 2016 the plaintiff's solicitors wrote to Mr Eastman by email (with his Newick address recorded) and gave some notice of the plaintiff's claim against him;[31]
2.in July 2017 the plaintiff's solicitors wrote to Mr Eastman (at his Newick address) and stated that the plaintiff intended to commence an action against him and attached a draft originating process and a draft affidavit which totalled 198 pages;[32]
3.in July 2018 the plaintiff's solicitors wrote to Mr Eastman (at his Newick address) and stated that the plaintiff's solicitors had been instructed to file draft court documents on Friday, 10 August 2018 and enclosed 351 pages;[33]
4.at the end of August 2018 the plaintiff's solicitors asked Mr Eastman's solicitors whether they had instructions to accept service;[34]
5.in 2018 the parties to this application by their representatives met for without prejudice discussions which did not resolve matters.[35]

The justice of the case

[31] ts 77; Affidavit of Mr Morgan filed 5 September 2023 [6].

[32] ts 61, 78; Affidavit of Mr Morgan filed 5 September 2023 [6], [7].

[33] ts 61, 63; Affidavit of Mr Morgan filed 5 September 2023 [7].

[34] Affidavit of Mr Morgan filed 5 September 2023 [9]; Affidavit of Mr Morgan filed 23 October 2023 [5].

[35] Affidavit of Mr Fletcher filed 9 October 2023 [23]; Affidavit of Mr Morgan filed 5 September 2023 [15].

Both the plaintiff and Mr Eastman may legitimately say that setting aside the extensions, or not doing so, would prejudice them respectively. It may be said that the prejudices are not 'equal' as 'all' that would occur would be that Mr Eastman would, now, face the plaintiff's claim in these proceedings if his application was dismissed. I think there is force in that for the plaintiff.
As seen above, Mr Eastman asserts both a presumptive and actual prejudice.
In my view, the presumptive prejudice is not to be dismissed, but must be considered, in light of the fact that the proceedings will continue, it appears, against the second defendant. That is, whatever presumptive prejudice Mr Eastman seeks to rely on, it would, equally, apply to Mr Mitchell. That suggests strongly to me that I ought not give too much weight to that asserted presumptive prejudice.
As to the actual prejudice claimed, with respect, it seems to me there is force in the plaintiff's submission that even without formal service, Mr Eastman has been sufficiently apprised of the plaintiff's claims against him for some time and, most relevantly, for some time prior to his third party service provider being deregistered.
That is, if it is the case that Mr Eastman has lost electronic records, that has occurred in circumstances where I consider that not all of the blame rests with the plaintiff alone.
In particular, I consider that (from the written documents supplied to him and the without prejudice discussions that were had), I can safely conclude that Mr Eastman, at the least, had available to him sufficient information to allow him to take any steps he wished to in the preservation of records, etc, which may be required for an ultimate defence.
In the re‑hearing of the plaintiff's applications, due weight is to be given to the plaintiff's non‑disclosures and mis-statements to this Court in the course of the three extension applications. Taking all of that into account, however, I consider that the plaintiff ought to be allowed to prosecute its case against Mr Eastman and that the interests of justice, or the justice of the case, favour a re‑exercise of discretion in favour of extending the writs.
The putative hardship on the plaintiff outweighs, in my judgment, both its non-disclosures (and mis-statements) and the prejudice likely to be visited on Mr Eastman. And, while it did attempt to serve Mr Eastman, it also informed him of its claim against him. Further, the policy reasons underlying O 7 r 1 do not, in my view, in the case significantly militate against the extension.

Mr Eastman's conditional appearance

From the submissions filed in this application and made at the hearing, it appears that there is an issue between the plaintiff and Mr Eastman as to the effect, if any, of Mr Eastman's conditional appearance.[36]
[36] ts 43, 64, 66, 82; Plaintiff’s written submissions [2] - [10].
The plaintiff initially said that Mr Eastman's application (of 5 September 2023) was 'redundant' as the conditional appearance filed on 23 August 2023 had become unconditional.[37]
[37] Plaintiff's written submissions [1.1].

The plaintiff's position was clarified to some degree at the hearing. The plaintiff did not maintain its opposition to Mr Eastman's application being heard and did not appear to maintain that its argument about the conditional appearance obviated the need for a determination of Mr Eastman's application.
I will deal with the effect of the conditional appearance later if it is required following these reasons and possibly further argument.

A further issue?

The third extension Orders made by the Master on 23 February 2023 extended the validity of the writ to 25 September 2023. That time has now expired. There has been no application to date by the plaintiff to further extend the validity of the writ.
The effect of my reasons above is that on a re‑hearing, or on the application to set aside the extension Orders on the basis of non‑disclosure, I would not set aside the last Orders made by the Master on 23 February 2023.
It would appear that the effect of that would be that the extension 'expired' on 25 September 2023 without service having been affected.
The consequence of that has not yet been addressed by the parties with the Court. It may be that the parties reach an agreed position following the publication of these reasons.
I will hear the parties as to the form of the orders to be made and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
7 DECEMBER 2023