Frigger v Professional Services of Australia Pty Ltd

[2023] WASC 330

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [2023] WASC 330

CORAM:   HILL J

HEARD:   23 AUGUST 2023

DELIVERED          :   23 AUGUST 2023

FILE NO/S:   CIV 1613 of 2023

BETWEEN:   ANGELA CECILIA THERESA FRIGGER

Plaintiff

AND

PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD

Defendant

Catchwords:

Practice and procedure - Notice of motion for default judgment - Whether memorandum of appearance invalid because of failure to serve it on plaintiff or an irregularity - Meaning of 'enter an appearance' - Failure to produce certificate required by O 13 r 9(2)(b) of the Rules of the Supreme Court 1971 (WA) - Notice of motion dismissed

Practice and procedure - Application for extension of time to serve memorandum of appearance - Whether extension of time to serve should be granted - Whether extension would cause prejudice to plaintiff - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 2 r 1, O 2 r 2, O 9 r 1, O 12 r 4, O 12 r 5, O 13 r 9, O 67A r 4

Result:

Notice of motion for default judgment dismissed
Application for extension of time to serve memorandum of appearance granted

Category:    B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	C V Eastwood

Solicitors:

Plaintiff	:	In Person
Defendant	:	Eastwood Law

Cases referred to in decision:

Cheney v Moore [2020] WASC 227

Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450

French v Triple M Melbourne Pty Ltd [2006] VSC 36

Hamp-Adams v Hall [1911] 2 KB 942

Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729

Li v Hackling [2013] WADC 63

R v S [2009] WASCA 11

The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

1. On 10 June 2023, the plaintiff filed a writ of summons in these proceedings which was indorsed with an indorsement of claim. 

2. Subsequently, on 16 June of 2023, the plaintiff filed a statement of claim.  The statement of claim pleads that the signatures that appear on a document entitled 'Memorandum and Articles of Association' of Professional Services of Australia Pty Ltd (PSA) were not signed by the persons whose signatures they purport to be.  In addition, the plaintiff says that share certificates in PSA have not been transferred from their original owners to the persons who say they are the shareholders of PSA. 

3. A number of consequences are said to flow from this, including that orders appointing a provisional liquidator and subsequently a liquidator to Computer Accounting and Tax Proprietary Limited (CAT) should be set aside.  The plaintiff seeks orders setting aside previous orders of this Court on the grounds of fraud, as well as orders rectifying the records of the Australian Securities and Investments Commission in relation to CAT to remove all documents lodged between 11 January 2010 and 10 January 2023.

Factual background

1. From the court record, I make the following observations. 

2. On 29 June 2023, the plaintiff filed a motion for default judgment together with an affidavit of service of the writ of summons. 

3. In the affidavit of service, Mrs Frigger deposes that the writ of summons was served on the defendant on 12 June 2023, and the statement of claim on 16 June 2023, both by way of prepaid post to the defendant's registered office sent on their respective dates.  I specifically note that the writ of summons that is annexed to Mrs Frigger's affidavit was indorsed on 12 June 2023 in compliance with the obligations under the Rules of the Supreme Court 1971 (WA) (Rules).

4. The plaintiff's application for default judgment is made pursuant to O 13 r 9 of the Rules. This enables a plaintiff to file a motion for default judgment where a defendant has failed to enter an appearance.

5. The court record shows that on 30 June 2023, a memorandum of appearance was filed by the defendant. 

6. On 10 July 2023, the plaintiff filed an amended notice of motion for default judgment.  The amendment added as a ground for the application the failure by the defendant to file and serve a defence on or before 8 July 2023. 

7. The notice of motion was listed before me for a case management conference on 10 August 2023.  During the course of that hearing, Mrs Frigger objected to the appearance of counsel who appeared on behalf of the defendant on that date on the basis that she had not been served with any memorandum of appearance. 

8. At the time, I adjourned the hearing for a short period to enable enquiries to be made by counsel as to whether the appearance that appeared to have been filed from the court records had been served on the plaintiff.  At the resumption of the hearing, counsel who appeared for the defendant informed the court that the appearance had not been served on the plaintiff and made an oral application for an extension of time to serve the memorandum of appearance. 

9. The plaintiff objected to orders being made in terms of the oral application and asked for the plaintiff's motion to be adjourned so that she had an opportunity to consider whether the failure to serve the document had an impact on her application.  I acceded to this request and ordered the defendant to file affidavit evidence explaining why the memorandum had not been served on the plaintiff, and for the plaintiff to file any further submissions in support of her application.

10. Since that date, affidavits of Jessie Ann Victor and Cameron Victor Eastwood have been filed explaining that the memorandum of appearance was not served as a result of a lack of knowledge on the part of Ms Victor that this was required.  I have also received supplementary submissions from Mrs Frigger.

Requirements for service of memorandum of appearance under the Rules

1. Order 12 r 4 of the Rules requires a memorandum of appearance to be served on the same date that it is filed. It is not in dispute that the defendant did not comply with this rule. The question is what the impact of this non-compliance is.

2. Order 2 r 1(1) of the Rules provides that where there has been a failure to comply with any requirement of the Rules, the failure is to be treated as an irregularity and does not make any step taken or document affected by that failure invalid.

3. As was noted by the Court of Appeal in The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd, this order was in the Rules when they came into existence in 1971 and is in the same terms as the English O 2 r 1 which was introduced into the English rules in 1964.[1]  The Court of Appeal cited Lord Denning in Harkness v Bell's Asbestos and Engineering Ltd who noted that the rule:[2]

   [d]oes away with the old distinction between nullities and irregularities.  Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. 

   [1] The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 [48].

   [2] Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729, 735 – 736, quoted in The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [52]; Cheney v Moore [2020] WASC 227 [16] (Le Miere J).

4. The court has power to rectify any irregularity on its own motion,[3] or on an application pursuant to O 2 r 2. Any application to rectify an irregular step taken or document filed in the proceedings must be made within a reasonable time, and before the party making the application has taken any fresh step after becoming aware of the irregularity.[4] 

   [3] The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [52].

   [4] Rules of the Supreme Court 1971 (WA) O 2 r 2(1).

5. In the circumstances of this case, I am satisfied that the failure to serve the memorandum of appearance on the plaintiff in accordance with O 12 r 4 is a failure to comply with the Rules and is, under O 2 r 1(1), to be treated as an irregularity. I am also satisfied that the court has power to regularise this irregularity by appropriately formulated orders,[5] if the court is satisfied that it will not cause injustice to the plaintiff.

   [5] R v S [2009] WASCA 11 [28].

6. The question then arises as to whether an order extending the time to serve the plaintiff with the memorandum of appearance would cause the plaintiff injustice.  This in large part depends on whether the plaintiff can pursue her application for default judgment in circumstances where an appearance has been filed, but not served. 

Application for default judgment

1. Order 13 of the Rules sets out the circumstances in which judgment may be entered in favour of a plaintiff where a defendant has failed to enter an appearance. Order 13 r 9 relatively provides as follows:

   (1)If the writ is indorsed with a claim to which none of rules 2 to 6 apply, then, if a defendant fails to enter an appearance within the time limited for appearing, the plaintiff may, on complying with subrule (2) –

   (a)apply to the Court on motion for judgment against the defendant for the relief sought and costs.

   (2)In order to enter judgment under this rule –

   (a)if a statement of claim was not indorsed on or served with the writ, the plaintiff must serve the statement of claim on the defendant; and

   (b)the plaintiff must produce a certificate issued by the proper officer on the date of the hearing stating that no appearance has been entered by the defendant against whom it is sought to enter judgment.

2. In her submissions in support of the application, the plaintiff referred me to the decision of Schoombee DCJ in Li v Hackling, a case which bears some similarities to the facts of this matter.  In that case, her Honour held that a self-represented plaintiff's application for default judgment could not succeed where the defendant had filed an appearance, even if the appearance had not been served.[6]

   [6] Li v Hackling [2013] WADC 63.

3. As was explained by Schoombee DCJ, it is necessary to consider the wording of the relevant Rules to determine whether service of the memorandum of appearance is required in order for the defendant to be deemed to have entered an appearance. 

4. Relevantly, O 12 r 4 of the Rules provides that:

   On the day on which a defendant enters an appearance to a writ, the defendant must comply with Order 72 rule 5 for the purposes of serving the stamped copy memorandum returned under rule 3 on the plaintiff in accordance with that Order.

5. Order 12 r 5 which addresses late appearances provides that:

   A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the court.

6. In my view, the words used in O 12 r 4 mean that service of the lodged appearance is a different, secondary or subsidiary process to the entry of an appearance. In this regard, I accept the view expressed by her Honour Schoombee DCJ that the phrase 'enters an appearance' refers to the filing or lodgement of an appearance.

7. It is trite that where the same words or phrases are used in different parts of a statute, they should generally be given the same meaning unless it is clear this was not the intention of the legislature.[7]  Absence of any indication that the legislature intended the phrase 'enters an appearance' to be given different meanings in these two orders, I am satisfied the defendant has not failed to enter an appearance by filing, but not serving, the memorandum of appearance on 30 June 2023.

   [7] Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450, 452.

8. In her submissions, Mrs Frigger contended that the defendant could not enter an appearance on 30 June 2023 as she had already filed a notice of motion for default.  In this regard she relies on the comments made by Schoombee DCJ in Li v Hackling.[8]  With the greatest respect to her Honour, I do not accept that the views expressed in this judgment is a correct construction of the relevant rule.

   [8] Li v Hackling [29], [36].

9. While I accept the notice of motion for default judgment was filed before the memorandum of appearance was filed, in my view this does not prevent a memorandum from being filed. On the express terms of O 12 r 5(1) a party is only prevented from filing a memorandum of appearance when default judgment has been entered. As at 30 June 2023, default judgment had not been entered. For this reason, I reject the argument of the plaintiff and find that once an appearance has been entered, the plaintiff does not have the ability to obtain default judgment under O 13 r 9. This conclusion is supported by the express requirement in O 13 r 9(2)(b) for a certificate to be produced on the day of the hearing of the motion which states that no appearance had been entered.

10. In both her oral submissions and her written submissions, Mrs Frigger referred me to a number of factors which she says invalidate the memorandum of appearance.  These matters are as follows. 

11. First, the defendant is required to be represented by a legal practitioner.  In this case, the appearance has been entered by Eastwood Law, and not Mr Eastwood personally. 

12. Second, the appearance is required to be signed by the legal practitioner personally, and pursuant to O 67A r 4(5) cannot be filed unless it is signed personally. Under O 67A r 4(14), a document that is presented for filing using ECMS or email, but not in accordance with the requirements of ECMS or this rule, is taken to not have been filed.

13. Third, the appearance is required to state the defendant's geographic address which is its registered office. 

14. For the following reason, it is not necessary for me at this stage to express any concluded view on the matters that have been raised by the plaintiff. This is because under O 13 r 9(2)(b) it is a requirement that before default judgment can be entered, a certificate be produced to the court signed by a proper officer. It is not in dispute that no certificate has been produced today. In my view, this is a mandatory requirement that cannot be overlooked. In order for this certificate to be obtained, it would be necessary for the memorandum that has been filed to be struck out to enable a certificate to be issued. Without the certificate being issued and produced to the court, this Court is unable to enter default judgment for the plaintiff.

15. In any event, I also consider that, in circumstances where the court is aware that the defendant wishes to defend proceedings by reason of a memorandum of appearance being filed but not served due to an administrative oversight, it would be contrary to justice to enter default judgment for the plaintiff.[9]  It is well recognised that the award of default judgment is an extraordinary procedure which enables a person to obtain judgment from the court in the absence of the person affected by the judgment.[10]  To entertain an application for this procedure in the circumstances of this case would, in my view, be contrary to the interests of justice. 

    [9] French v Triple M Melbourne Pty Ltd [2006] VSC 36 [22] (Bongiorno J), cited in Li v Hackling.

    [10] Hamp-Adams v Hall [1911] 2 KB 942, cited in French v Triple M Melbourne Pty Ltd [12].

Application for extension of time to serve memorandum of appearance

1. In respect of the defendant's application for an extension of time to serve the appearance, I am satisfied that the application was made within a reasonable time and before the defendant took any fresh step after becoming aware of the irregularity.  Counsel for the defendant only became aware of the failure to serve the appearance during the hearing on 10 August 2023.  After taking instructions from the defendant's solicitors to confirm the plaintiff had not been served with the appearance, counsel immediately made an oral application to extend time for service in order to rectify the error that had been identified. 

2. I accept the evidence of both Ms Victor and Mr Eastwood that the office manager at the defendant's solicitor's office was unaware that the memorandum of appearance was required to be served and neglected to serve the document out of a lack of experience in filing this type of document in Supreme Court actions.[11]

   [11] Affidavit of Jessie Ann Victor filed 14 August 2023 [3] - [5]; Affidavit of Cameron Victor Eastwood filed 14 August 2023 [4] - [8].

3. In The Pilbara Infrastructure Proprietary Limited v BGC Contracting Proprietary Limited, the Court of Appeal held that a memorandum of appearance which had mistakenly been filed with the wrong action number could be amended by the court retrospectively without injustice pursuant to O 2 r 1(2).

4. In this case, I accept and find that it was inadvertence rather than any deliberate regard of the defendant's obligations that the defendant failed to comply with the requirement to serve the memorandum of appearance.

5. Finally, it is important that I stress that I have not made any findings on the validity of the memorandum of appearance that has been filed, or whether, if an application is made, retrospective approval should be given to any amended appearance.  I will consider these matters at the relevant time, if required.

Conclusion

1. In circumstances where the precondition to exercise the court's jurisdiction to enter default judgment has not been complied with, it is my view that the plaintiff's notice of motion for default judgment must be dismissed. 

2. In relation to the defendant's application for an extension of time to serve Mrs Frigger with the memorandum of appearance filed on 30 June 2023, I consider that this application should be allowed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

FD

Associate to the Honourable Justice Hill

28 AUGUST 2023