Erpen v IG Markets Ltd - [2016] WASC 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ERPEN -v- IG MARKETS LTD [2016] WASC 35

CORAM: MASTER SANDERSON

HEARD: 28 JANUARY 2016

DELIVERED : 11 FEBRUARY 2016

FILE NO/S: CIV 1929 of 2014

BETWEEN: MATTHEW ERPEN
Plaintiff
AND
IG MARKETS LTD
Defendant

Catchwords:

Appeal from registrar's decision extending validity of writ - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA)
Service and Execution of Process Act 1992 (Cth)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr C S Williams
Defendant: Mr A J Papamatheos

Solicitors:

Plaintiff: Solomon Brothers
Defendant: Allen & Overy

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

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Popovic v Panagoulias [2014] WASCA 86
Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639

MASTER SANDERSON: By chamber summons filed 27 November 2015 the defendant in this matter sought, relevantly, the following orders:
1.The ex parte orders of Registrar Dixon made on 6 October 2015 to extend the validity of the plaintiff's purported writ of summons to 27 October 2015 be set aside.
2.The attempted service of the purported writ of summons on the defendant (by conditional appearance) on 26 October 2015 be set aside.
3.The purported writ of summons dated 2 July 2014 be set aside.
4.Such further orders as the Honourable Court thinks fit.
5.The plaintiff pay the defendant's (by conditional appearance) costs of the application
Some background is necessary to understand the nature of the application. On 30 July 2015 the defendant applied inter alia for an order setting aside the attempted service of the writ on the defendant on the grounds that the writ was not posted with the proscribed notice in compliance with s 16 of the Service and Execution of Process Act 1992 (Cth). On 12 August 2015 the plaintiff applied inter alia for an order extending the validity of the writ for service. The application was supported by two affidavits one affirmed by the plaintiff on 12 August 2015 and the other affirmed by Lachlan Carlisle Bruce Richards on 12 August 2015. The plaintiff sought to have his application heard at the same time as the defendant's application. That request was refused. The defendant's application was listed for hearing before me on 10 September 2015. On the morning of the hearing the defendant's solicitors emailed to my associate a document entitled 'Defendant's Aide'. The Defendant's Aide was referred to at the hearing by counsel. After hearing argument I set aside the purported service of the writ on the grounds advanced by the defendant.
On 6 October 2015 the plaintiff's application for an extension of the validity of the writ was heard ex parte by Registrar Dixon. The hearing was not transcribed. However a legal practitioner in the employ of the defendant's solicitors, Ms Ariane Natalie Owen, was in attendance. She made handwritten notes of what transpired at the hearing. These notes appear as an attachment to Ms Owen's affidavit sworn 26 November 2015 and filed in support of this application. There was no dispute between the parties as to the accuracy of Ms Owen's record.
Early in the hearing Registrar Dixon advised counsel for the plaintiff he had read the papers and was inclined to make the order sought. The learned registrar mentioned at least three factors influencing his decision. First, he said 'there was evidence on the papers that the plaintiff had not been "sitting on his hands" and had been investigating the claim over the years'. Second, he said 'there were attempts to serve the writ within the subscribed [sic] period of time'. Third, he said 'the limitation periods of the claims would expire if the writ was not extended'.
During counsel for the defendant's submissions on this application there was some discussion as to what course should be adopted when a registrar, master or judge says to the parties they have 'read the papers'. Every case must of course depend upon its particular circumstances. But generally speaking it is my view counsel is entitled to assume the officer concerned has indeed read all the relevant papers. Counsel is also entitled to assume the issues raised on the application have been given consideration by the officer concerned and if there are any matters which require elucidation counsel's attention will be drawn to them. The effective running of a busy list mandates this approach. There is nothing more frustrating than counsel having been advised as a consequence of reading the papers the officer is prepared to make the order and then counsel laboriously trawling through the papers. Such a course is likely to lead to a sharp rebuke.
There are at least two caveats to this general position. First, when there is a large bulk of material it may be necessary for counsel to ensure all papers he or she regards as relevant have come to the officer's attention. There are occasions when an affidavit or order may be overlooked because although they are relevant they are not mentioned in submissions or in documents directly relevant to the application. Perhaps this caveat could be summed up by saying the larger the volume of material which is relevant the greater the care needs to be taken by counsel to ensure the officer has considered all necessary matters. Second, if there is material which has been omitted or come to light after the documents were filed or there is material in the documents which is perhaps ambiguous then these matters require special attention. There may be other circumstances in which counsel will need to refer an officer to particular matters but these two caveats are obvious instances where particular care is needed.
In this case there were very few documents on file. Registrar Dixon would have dealt with applications such as this on many occasions. He would have known what to look for. There is no reason to suggest he had not thoroughly read the file, digested its contents and reached a preliminary conclusion having taken into account all relevant matters.
An order extending the validity of a writ made on an ex parte basis is provisional in the sense that it may be set aside pursuant to O 58 r 23 of the Rules of the Supreme Court 1971 (WA). The traditional view has been to set aside an ex parte order a party must either adduce additional material evidence or establish there was material non‑disclosure by the party who obtained the order. This is the effect of the Full Court's decision in Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561. Recently that approach has been questioned. In Popovic v Panagoulias [2014] WASCA 86 it was suggested a broader review of the issues de novo was required to reflect the fact that ex parte orders are made in denial of basic procedural fairness. At present it seems to be an open question which of these two approaches is proper. In the event I have considered not only whether there was material non‑disclosure by the plaintiff and whether the defendant has adduced additional material but also considering the matter afresh whether the validity of the writ should in fact have been extended.
Both parties accepted that when seeking orders ex parte an applicant is under a duty to make full and frank disclosure of all relevant information whether or not it assists the application. 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. A factor is material where it is a matter of substance in the decision‑making process: see Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639, 647 ‑ 650.
The defendant submitted in this case there were five matters which amounted to material non‑disclosure. First, the plaintiff did not disclose to the court that there is an argument that the purported writ is defective on the basis that it does not include a sufficient indorsement containing a concise statement of the nature of the claims made as required by O 6 r 1(1). It was conceded by the plaintiff that the indorsement was defective and amendment would be necessary. It was also clear from the affidavit of Ms Owen that matter, and indeed none of the other matters to which counsel for the defendant referred, were drawn to the attention of the registrar.
Second, the plaintiff submitted that without an extension to the validity of the writ the plaintiff would be prejudiced as all of his claims would be time barred. The defendant says the plaintiff did not disclose that because of the defects in the indorsement in the writ it is not possible to ascertain whether any limitation periods have expired. Again, it was conceded by the defendant that calculation of the limitation period was somewhat difficult although a date was specified and that would provide some guide to the registrar.
Third, it was submitted by the plaintiff before the registrar there was no discernible prejudice to the defendant in extending the writ and this was a factor in favour of granting the plaintiff's application. Counsel for the defendant maintained the plaintiff should have referred to the fact that mere lapse in time in the service of a writ is regarded as prejudicial to the defendant. Further, the inability of a defendant to point to any particular prejudice will not result in the plaintiff succeeding in its application to extend the validity of a purported writ particularly where a claim is drafted broadly.
Fourth, counsel for the defendant maintained the reasons explaining the delay in commencing proceedings and serving the purported writ were not sufficient. Counsel maintained this insufficiency should have been drawn to the attention of the registrar by the plaintiff's counsel. That was a bold submission - the plaintiff's counsel being expected to undermine his own case. It might well be argued the affidavit of the plaintiff upon which reliance was placed speaks for itself.
The final point really follows on from what was submitted above. Counsel maintained the plaintiff did not disclose to the court the defendant's adverse argument - that is, the plaintiff had made a strategic decision to investigate the claim, obtain advice and then issue the writ. It was difficult then to see why the taking of further advice regarding the merits of the claim before deciding to serve the writ was necessary. This it was said should have been pointed out to the registrar.
In my view this is not a case where there has been material non‑disclosure. All of the matters referred to by the defendant must have been in the mind of the registrar. They are no more or less than the factors to be taken into account in determining whether or not to extend the validity of a writ. There is nothing unusual about this case and there is nothing exceptional in the material which required counsel to devote particular attention to it. In my view the learned registrar reached the right conclusion for the right reasons and I would not set aside his decision. Moreover, given the material as it now stands and having heard detailed submissions by counsel for the defendant, I would reach the same conclusion. None of the matters to which counsel refers are, in my view, sufficient to warrant refusing to extend the validity of the writ.
I accept the writ in its current form is irregular and will need to be amended. But that is a step that can be undertaken subsequent to the writ's renewal. I also accept delay in and of itself will prejudice the defendant. But this is not a case where the defendant is able to point to particular as distinct from general prejudice by failure to serve the writ. The explanation for the delay in serving the writ, while it has logical inconsistencies, is nonetheless sufficient in my view to justify the order being made. All in all I am satisfied it would be proper in this case to extend the validity of the writ.
There is one further matter I should mention just for the sake of completeness. When the writ was served - or perhaps to put it correctly defectively served - the defendant entered a conditional appearance. As the service of the writ was set aside there is at present no appearance by the defendant on record. I have doubts in those circumstances whether or not it is open to the defendant to make an application such as this. I raised this with counsel during the course of argument. Both indicated they had given the issue some consideration but had agreed it was not the point which should be taken. That was an eminently sensible approach. Accordingly, while I have dealt with the merits of the claim I do think there are some procedural irregularities in the application.
The defendant's application will be dismissed. Subject to hearing from the parties the defendant ought pay the plaintiff's costs of the application including reserved costs.