Ex Parte Scouts Association of Australia, Victorian Branch Council
[2006] WADC 203
•19 DECEMBER 2006
RE; EX PARTE SCOUTS ASSOCIATION OF AUSTRALIA, VICTORIAN BRANCH COUNCIL [2006] WADC 203
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WADC 203 | |
| Case No: | CIVO:170/2001 | 10 NOVEMBER 2006 | |
| Coram: | COMMISSIONER ELLIS | 18/12/06 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | SCOUTS ASSOCIATION OF AUSTRALIA, VICTORIAN BRANCH COUNCIL STUART JAMES BROMLEY |
Catchwords: | Service of enforcement process outside the jurisdiction Submission to jurisdiction |
Legislation: | Courts Legislation Amendment and Repeal Act 2004 |
Case References: | Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729 Gosper v Sawyer (1985) 160 CLR 548 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
SCOUTS ASSOCIATION OF AUSTRALIA, VICTORIAN BRANCH COUNCIL
Judgment Creditor
AND
STUART JAMES BROMLEY
Judgment Debtor
Catchwords:
Service of enforcement process outside the jurisdiction - Submission to jurisdiction
Legislation:
Courts Legislation Amendment and Repeal Act 2004
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
Judgment Creditor : Mr M C Hotchin
Judgment Debtor : No appearance
Solicitors:
Judgment Creditor : Hotchin Hanly
Judgment Debtor : Not applicable
Case(s) referred to in judgment(s):
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158
Harkness v Bell’s Asbestos and Engineering Ltd [1967] 2 QB 729
Case(s) also cited:
Gosper v Sawyer (1985) 160 CLR 548
(Page 3)
1 COMMISSIONER ELLIS: This is an application for the issue of an arrest warrant against the judgment debtor pursuant to s 29(4) of the Civil Judgments Enforcement Act 2004 ("Act"). The application for an arrest warrant is based on the failure of the judgment debtor to attend for examination as required by a Means Inquiry Summons ("MIS") issued by this Court on 3 July 2006. The MIS required the judgment debtor to attend for examination on 16 August 2006 at 2.30 pm.
2 There was affidavit evidence before the Court that the MIS was delivered to the judgment debtor personally on 5 July 2006 in Vancouver, Canada. The difficulty is that process of this Court is not generally effective outside Western Australia. There are some statutory exceptions and a party may submit to the jurisdiction of this Court, but that is the general rule.
3 The issue which arises for determination is the need for and validity of service of the MIS outside Australia. If service of the MIS was necessary and delivery of the MIS in Canada was necessary and was not valid service, then there has been no failure to comply with the MIS and a warrant cannot issue for non-compliance.
4 The judgment creditor ("Association") raised two arguments against this conclusion:
(a) The MIS was really a continuation or a re-listing of an examination in aid of execution ordered by this Court on 13 November 2001. The order for examination was validly served within the jurisdiction. The Association says there was no need to serve the MIS because the judgment debtor was already amenable to the jurisdiction of this Court by virtue of service of the order for examination in aid; and
(b) Alternatively, the Association asserts the judgment debtor has submitted to the jurisdiction of this Court in relation to the application for an enforcement order.
5 I will consider each of these arguments in turn.
Continuation of prior proceedings
6 It is necessary to set out the circumstances in which the MIS was issued in order to deal with the argument that the MIS was a re-listing or
(Page 4)
- continuation of the examination in aid of execution. The circumstances are as follows:
(a) On 23 July 2001, Magistrate Musk convicted the judgment debtor of two contraventions of the Travel Agents Act 1995. She subsequently ordered the judgment debtor to pay $89,000 to the Association under s 32 of the Travel Agents Act 1995.
(b) On 13 November 2001, the Court made an order requiring the judgment debtor to attend before a Registrar in Chambers for examination. The order was made pursuant to s 62 of the District Court Act 1969 which conferred on this Court the same enforcement powers as the Supreme Court. Section 62 was repealed by the Courts Legislation Amendment and Repeal Act 2004 ("Amendment Act").
(c) Various interlocutory steps were taken in relation to that examination. The judgment debtor appeared in person at the hearing of at least one interlocutory application. The examination eventually took place on 9 April 2002 and 1 May 2002. The judgment debtor was, of course, present in person during those examinations. On 1 May 2002, the examination was adjourned sine die with liberty to apply.
(d) There was then a substantial interruption to the execution process associated with an appeal by the judgment debtor against his conviction and the order for compensation in favour of the Association. The appeal was eventually dismissed.
(e) The Act came into force on 1 May 2005. The Court’s powers to enforce judgments are now derived from the Act.
(f) The Association's present lawyers were appointed on 28 June 2006 and were instructed to proceed with enforcement against the judgment debtor. On 28 June 2006, the Association's solicitors contacted the Registry. An affidavit dated 10 November 2006 sworn by Andrew Walker Buchan, the solicitor having the conduct of the matter, was filed on behalf of the Association. He stated:
- "As at 28 June 2006 I was not aware that an examination in aid of execution had already been conducted by the [Association's] previous solicitors and stood adjourned."
- (g) On 28 and 29 June 2006, there were discussions between the Association’s solicitors and Registry staff concerning location of the file. On 29 June 2006, the Association's solicitors were informed that there had been enforcement proceedings. Mr Buchan also stated in his affidavit that, as at 30 June 2006, he was not aware that an examination in aid of execution had already been conducted by the Association’s previous solicitors and stood adjourned.
(h) On 30 June 2006, the Association filed an application for an enforcement order in the form 6 to the Act at the Court. At the time the application was lodged the Association’s lawyers had not received a copy of the file from the Association’s former lawyers.
(i) The Means Inquiry Summons was issued by the Court on 3 July 2006. It bore the same Court number as the earlier examination in aid of execution.
7 The intention of the Association is relevant to determining whether the MIS was a re-listing of the prior examination. The Association's intention may be ascertained by reference to the intention and conduct of its solicitors. The Association's solicitors were not aware of the examination when they applied for the MIS on 30 June 2006. Consequently, they could not have had the intention of re-listing or continuing that examination. Their intention must have been that fresh proceedings would be issued. This intention is reflected in the papers filed on behalf of the Association, which sought the issue of a new summons under the Act. The documentation filed was in accordance with the Act, rather than the old law.
8 It might be argued that, irrespective of the intention of the Association, the pre-existing examination was continued because the MIS was given the same proceedings number by the Court as the examination in aid. However, the Court issued the MIS, rather than sent a notice or letter informing the parties of the date on which the examination would recommence.
9 The Association argued that s 145(3) of the Amendment Act has the effect that proceedings under the Act are a continuation of prior
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- enforcement proceedings and that s145(3) applied to the MIS. Section 145 of the Amendment Act provides:
"(1) If immediately before commencement proceedings for or in connection with enforcing a judgment are pending in a court, then on commencement either —
(a) the proceedings may be continued under the law in force immediately before commencement, despite the enactment of the Civil Judgments Enforcement Act 2004; or
(b) the person entitled to the benefit of the judgment may discontinue the proceedings and commence proceedings under the Civil Judgments Enforcement Act 2004 to enforce the judgment.
(2) If proceedings are continued under subsection (1)(a) —
(a) no enforcement process may be issued under the law in force immediately before commencement for or in connection with enforcing the judgment; but
(b) subject to the Civil Judgments Enforcement Act 2004, the court may make any order under that Act that substantially corresponds with any order that the court could have made in the proceedings under the law in force immediately before commencement.
(3) If proceedings under the Supreme Court Act 1935 s 126(2) or the Local Courts Act 1904 s 130 are continued under subsection (1)(a), they are to be taken to be a means inquiry held under the Civil Judgments Enforcement Act 2004 for the purposes of subsection (2)(b).
(4) Subsection (2)(a) does not prevent the issue of any warrant or writ in connection with conducting any proceedings that are continued under subsection (1)(a).
(5) No court fee shall be payable for commencing proceedings as permitted by subsection (1)(b) by a person
- who has discontinued proceedings as permitted by that subsection.”
10 It may be assumed for present purposes that s 145(3) of the Amendment Act applies to proceedings under s 62 of the District Court Act 1969, which are similar to those conducted under s 126(2) of the Supreme Court Act 1935. However, s 145(3) only operates after the judgment debtor has made an election under s 145(1) of the Amendment Act. The effect of s 145(1) is to give a judgment debtor the option of continuing pending enforcement proceedings under the legislation that was in force at the time the Act started to operate or to switch to the new legislation. If the judgment debtor does not choose to continue the prior proceedings, s 145(3) has no application. Section 145(3) of the Amending Act does not assist in ascertaining whether the judgment debtor has chosen to continue proceedings under the old law or to commence fresh enforcement proceedings.
11 It is noted that the judgment debtor is required to discontinue the old proceedings if the judgment debtor chooses to commence proceedings under the Act. No discontinuance was filed. It might be argued that this shows that the Association did not intend to commence new proceedings. In my view, it is more consistent with the fact that the Association’s solicitors were not aware of the status of the prior enforcement proceedings, than with an intention to re-list or continue the earlier proceedings.
12 The Association argued that relief should be granted pursuant to O 2, r 1 of the Rules of the Supreme Court. It was said that the making of a fresh application under the Act was a mere irregularity which could be cured under that provision. Order 2, r 1 provides:
1. Non-compliance with Rules
(1) Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
- (2) Subject to par (3) the Court may, on the ground that there has been such a failure as is mentioned in par (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.
13 I accept that O 2 should be construed "widely and generously to give effect to its manifest intentions" (per Ld Denning MR in Harkness v Bell’s Asbestos and Engineering Ltd[1967] 2 QB 729 at 735). However, the issue of the fresh MIS was not a failure to comply with the Rules. What occurred in this case was not an attempt to have the examination re-listed which failed to comply with the Rules governing the way in which matters are to be re-listed. What occurred was an application for the issue of a MIS. Order 2 does not enable the Court to convert an application for the issue of a MIS into something different.
14 I conclude that the MIS was not a re-listing or a continuation of the prior examination.
Submission to the jurisdiction of the Court.
15 Defects in service of process or a lack of jurisdiction may be "cured" if the respondent enters an unconditional appearance to the process or otherwise voluntarily submits to the jurisdiction of the Court. The Association argued that the judgment debtor submitted to the jurisdiction of this Court.
16 The Association relied on a number of matters as amounting to submission to the Court's jurisdiction:
(a) The judgment debtor applied to stay the order for his examination;
(Page 9)
- (b) The judgment debtor filed an affidavit in connection with the order for his examination;
(c) The judgment debtor attended at the examination and was examined;
(d) A conversation took place on 20 September 2006 between Ms Elizabeth Farr, a solicitor with Hotchkin Hanly and Mr Alex Zilkens of Zilkens and Co in which Mr Zilkens indicated that he was calling concerning the Bromley matter;
(e) There was a conversation between Mr Buchan and Mr Zilkens in which Mr Buchan requested written confirmation that he acted on behalf of the judgment debtor. The evidence of Mr Buchan was that Mr Zilkens said words to the effect that "he would get back to [Mr Buchan] when he was able as he did not want to act outside the scope of his instructions";
(f) Two facsimiles sent by Zilkens and Co to the Association’s solicitors. The first was dated 27 September 2006. It reads:
"I refer to my telephone conversation with your Andrew Buchan on 25 September 2006 and confirm that I have limited instructions to act for Mr Bromley in relation to his inquiry about the amount of money required by your client to satisfy the compensation order made in favour of the Scouts Association of Australia against Mr Bromley in or about July 2001.
I look forward to your answer to my enquiry."
- The second was dated 1 November 2006. It said:
"We refer to our fax dated 27 September 2006 to Andrew Buchan of your office, to which we do not appear to have received a reply.
We confirm that we do not as yet represent Mr Bromley in the above matter. However, Mr Bromley has instructed us to make the following offer to you to try to settle this matter."
- The balance of the facsimile was not reproduced and was shown as "Privileged" on the copy of the facsimile that was annexed to the affidavit of Mr Buchan dated 10 November 2006; and
- (g) Mr Hotchkin, who appeared on behalf of the Association, informed me during the hearing that a representative from the offices of Zilkens and Co was present in the public gallery of the Court during the course of the hearing of this application on 10 November 2006. The representative did not dispute Mr Hotchkin's assertions or participate in the hearing in any other way.
17 The conduct referred to at par 16(a), (b) and (c) above does not assist the Association in the relation to the MIS. They are acts of submission in respect of the order for examination. These acts do not constitute submission to the jurisdiction of this Court in relation to the MIS.
18 In relation to the matters referred to at paragraphs 16(d), (e), (f) and (g) above, the Association relied on the decision in Brealeyv Board of Management Royal Perth Hospital[1999] WASCA 158. Ipp J said at par 38:
"In determining whether steps taken by a party in the course of proceedings amount to a submission to jurisdiction, the question to be considered is whether the steps were necessary or useful to any action taken by the party other than in objecting to the jurisdiction. A step that is not consistent with or relevant to the challenge to the jurisdiction, will usually be a submission to that jurisdiction. The court must consider the matter objectively and, where the steps relied on are the actions of a solicitor, they must be considered in the context of all the relevant circumstances…"
19 However, in the present case, the conduct engaged in by the judgment debtor set out at par 16(d), (e) and (f) was not conduct in the proceedings. The approach in relation to settlement, if that is what occurred, was as an attempt to resolve the outstanding issues outside the court process and did not advance the proceedings. "Without prejudice" discussions are consistent with the position that the Court has no jurisdiction and are not a submission to the jurisdiction of the Court.
20 The decision in Bearley(supra) is relevant to the attendance of a representative of Zilkens and Co, adverted to in paragraph 16(g) above. In Bearley(supra), there were two defendants. A representative of the
(Page 11)
- solicitor for one of the defendants attended at the hearing of a chamber summons seeking relief against the other defendant. The representative appears to have taken a place at the bar table and spoken to the judge hearing the matter, although it was asserted that the representative said she was there only as an observer. The Full Court held that this attendance did not amount to a submission to the jurisdiction of the Court. Brealey (supra) is authority that mere attendance by a solicitor at a chambers hearing does not amount to submission to jurisdiction, or waive any defects in service. In the present cases, the representative of Zilkens and Co did not seek to appear at the bar table and must be regarded as no more than a spectator.
21 I conclude that there has been no submission by the judgment debtor to the jurisdiction of this Court in relation to the MIS.
Summary
22 I consider:
(a) It is not possible to regard the application for the issue of the MIS as an application to re-list or continue the examination in aid of execution. The MIS is a separate proceeding under the Act. As a result, it is not possible to rely upon the service of the prior order for examination on the judgment debtor to found jurisdiction in relation to the MIS.
(b) The judgment debtor has not submitted to the jurisdiction of this Court by his conduct in relation to the prior examination, by instructing solicitors to act out of court in connection with the proceedings or by the attendance of a representative of those solicitors in the public gallery at the hearing of this application.
23 In the absence of valid service of the MIS on the judgment debtor, there has been no failure to comply with the MIS sufficient to found the making of an enforcement order under s 29(4) of the Act.
24 The application for the issue of an arrest warrant must be dismissed.
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