Frigger v Professional Services of Australia Pty Ltd [No 2]

[2024] WASC 46

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   FRIGGER -v- PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD [No 2] [2024] WASC 46

CORAM:   HILL J

HEARD:   31 JANUARY 2024

DELIVERED          :   31 JANUARY 2024

PUBLISHED           :   27 FEBRUARY 2024

FILE NO/S:   CIV 1986 of 2023

BETWEEN:   ANGELA CECILIA THERESA FRIGGER

First Plaintiff

HARTMUT HUBERT JOSEF FRIGGER

Second Plaintiff

AND

PROFESSIONAL SERVICES OF AUSTRALIA PTY LTD

First Defendant

SANDRA MAY BANNING

Second Defendant

SANDRA MAY BANNING in his capacity as administrator of the estate of MARTIN PAUL BANNING

Third Defendant

DAVID ABRAHAM LENHOFF

Fourth Defendant

TIMOTHY RICHARD STEPHENSON

Fifth Defendant

CAMERON VICTOR EASTWOOD

Sixth Defendant

Catchwords:

Practice and procedure - Requirements for electronic filing of memorandum of appearance - Whether memorandum of appearance is required to be signed personally by legal practitioner - Proper construction of O 12 r 2(1)(a) and O 67A r 4 - Consequences of non‑compliance with Rules

Legislation:

Rules of Supreme Court 1971 (WA), O 12 r 2(1)(a), O 67A r 4(4), r 4(5), r 4(14)

Result:

Declarations that memorandums of appearance taken not to have been filed

Category:    B

Representation:

Counsel:

First Plaintiff	:	In Person
Second Plaintiff	:	In Person
First Defendant	:	AJ Aristei
Second Defendant	:	AJ Aristei
Third Defendant	:	AJ Aristei
Fourth Defendant	:	TJ Porter
Fifth Defendant	:	TJ Porter
Sixth Defendant	:	TJ Porter

Solicitors:

First Plaintiff	:	In Person
Second Plaintiff	:	In Person
First Defendant	:	Kean Legal Barristers & Solicitors
Second Defendant	:	Kean Legal Barristers & Solicitors
Third Defendant	:	Kean Legal Barristers & Solicitors
Fourth Defendant	:	Jackson McDonald
Fifth Defendant	:	Barry Nilsson Lawyers
Sixth Defendant	:	Popperwell & Co

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

Nil

HILL J:

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

1. On 6 November 2023, the plaintiffs filed a chamber summons to strike out the appearances filed by the fourth to sixth defendants in this matter, for default judgment, or alternatively, summary judgment.[1]  On 22 November 2023, the plaintiffs amended their summons by seeking similar orders in respect of all of the defendants.

   [1] The chamber summons is dated 30 October 2023, but was filed on 6 November 2023.

2. On 13 December 2023, orders were made to program the plaintiffs' application to strike out the appearances through to hearing today.[2]  At the same time, the remaining aspects of the plaintiffs' application, together with the applications filed by the defendants for security for costs and a stay of proceedings, were ordered to be listed today for directions only.

   [2] Orders of Hill J dated 14 December 2023.

3. The court records show that appearances were filed by the fourth to sixth defendants on 28 and 29 September 2023, by the second and third defendants on 15 November 2023, and by the first defendant on 21 November 2023.  Amended appearances were subsequently filed by the fifth defendant on 11 October 2023 and 18 December 2023, by the fourth defendant on 13 October 2023 and 18 December 2023, and by the sixth defendant on 18 December 2023.

4. The plaintiffs say that the memorandum of appearances filed by each of the defendants are not valid and should be struck out or removed from the court record.  This is for two reasons.

5. First, pursuant to O 12 r 1(1) of the Rules of the Supreme Court 1971 (WA) (Rules), a defendant to an action may enter an appearance in the action and defend it by a legal practitioner or in person. The original appearances lodged were entered by the law firms representing the defendants and not by the legal practitioner.

6. Second, pursuant to O 12 r 2(1)(a) of the Rules, the appearances are required to be personally signed by the legal practitioner. The plaintiffs say that, pursuant to O 67A r 4(5), a memorandum of appearance cannot be filed unless it is signed and presented in a PDF electronic format. The plaintiffs say that each of the appearances filed by the defendants do not comply with the requirement that they be signed by a legal practitioner personally. They rely on O 67A r 4(14) which provides that where a document is presented for filing using the electronic court management system (ECMS) that does not comply with the requirements of the ECMS, it is taken not to have been filed. On this basis, the plaintiffs say that each of the appearances filed by the defendants are taken under O 67A r 4(14) of the Rules not to have been filed with the court and should be struck out.

7. The plaintiffs also relied on the provisions of O 21 r 2 of the Rules, which provides that a defendant may not amend a memorandum of appearance without leave of the court, and that leave had not been sought to amend the filed documents.

8. The application is opposed by each of the second to sixth defendants who appeared by counsel before me today.

9. In the event that the appearances are held to be invalid, the second and third defendants seek orders to cure any irregularity with the appearances.  Alternatively, they seek leave to file and serve an amended memorandum of appearance.

10. In answer to the application by the plaintiffs, the second and third defendants relied on two affidavits of Travis Kean (filed 18 and 19 December 2023).  The sixth defendant relied on an affidavit of Phylicia Fenwick filed 18 December 2023.

Proper construction of the Rules

1. The disposition of this matter turns on the proper construction of the Rules.

2. Starting with O 12 r 2, this rule sets out the requirements for a valid memorandum of appearance. Relevantly, it requires a defendant to file two copies of the Form No 6, signed by the legal practitioner who acts for the defendant or, if the defendant is self‑represented, by the defendant.

3. Order 67A r 4 of the Rules addresses the requirements for the filing of documents using the ECMS or email. This rule was introduced on 27 February 2018 and became operational on 1 March 2018.

4. Pursuant to O 67A r 4(5), a document to which that subrule applies must not be presented for filing using the ECMS or email unless it is signed and presented in a PDF format. This subrule applies, pursuant to O 67A r 4(4), to the following documents: first, an affidavit; second, a consent to the court doing anything; and third (and relevantly for the purposes of this application), a document signed by a person who is not a party to the proceedings.

5. Order 67A r 4(6) provides that O 67A r 4(7) applies to any document that is not listed in O 67A r 4(4) and that, under these rules, must be signed before it is filed. Order 67A r 4(7) requires a document to which this subrule applies to be presented for filing as follows:

   (a)it must be signed before it is presented; and

   (b)a copy of it, in .docx electronic format, that states the name of the person who is required to sign it instead of showing the person's signature, at any place in it where the signature is required, must be presented instead of the signed copy; and

   (c)the electronic copy must be presented using the ECMS or, subject to subrule (2), email; and

   (d)the person filing it must retain the signed copy and produce it if required to do so by the Court.

6. The other relevant provision of the Rules is O 67A r 4(14), which provides that a document that is presented for filing using ECMS or email, but not in accordance with the requirements of ECMS and this rule, is taken not to be filed.

7. In my view, the terms of O 12 r 2(1)(a) require a memorandum of appearance to be personally signed. Where a defendant seeks to appear by a legal practitioner, the document is required to be signed by the legal practitioner who acts for the defendant, rather than the firm.

8. The term 'legal practitioner' is not defined in the Rules.  In my view, this term should be construed consistent with the Victorian Legal Profession Uniform Law Application Act 2014 (VIC) (Legal Profession Uniform Law), which applies in this State by virtue of the Legal Profession Uniform Law Application Act 2022 (WA). Relevantly, pt 1.2 s 6 of the Legal Professional Uniform Law defines 'Australian legal practitioner' to mean an Australian lawyer who holds a current Australian practising certificate.

9. The question then is whether the appearances filed by the defendants are documents which are signed 'by a person who is not a party to the proceedings'.[3]

   [3] Rules of the Supreme Court 1971 (WA), O 67A r 4(4)(c).

10. In my view, the text of O 67A r 4(4)(c) is quite clear. That is, it applies to a document signed by a person who is not a party to the proceedings. A memorandum of appearance is signed by a legal practitioner. I accept that a solicitor who signs the memorandum of appearance is not a party to the proceedings but has instructions to act on behalf of the defendant or the defendants, who are the parties to the proceedings.

11. I appreciate that there is some tension between the provisions of O 67A r 4, r 6 and r 7 of the Rules and the practical means by which appearances are lodged as set out in the affidavit of Phylicia Fenwick.[4] However, in my view, the text of O 67A r 4 is plain. Appearances signed by a person who is not a party to the proceedings are documents captured by O 67A r 4(5) and, accordingly, are required to be filed in a PDF electronic format.

    [4] Affidavit of Phylicia Fenwick filed 18 December 2023 filed 18 December 2023, 2 ‑ 3.

12. I accept that this conclusion, on its face, may appear to be inconsistent with the context or purpose of the Rules and the manner in which a legal practitioner currently files a memorandum of appearance.  However, this is primarily a result of the manner in which the ECMS creates the form of the memorandum of appearance.  This, however, is of little assistance in the proper construction of the Rules, which requires consideration to be given to the text of the relevant Rule.

Have the memorandums of appearance been filed in accordance with the Rules?

1. I turn then to a consideration of the memorandum of appearances that have been filed by the defendants.

2. I am satisfied from my review of the documents which appear on the court record that only the amended memorandum of appearance filed by the fifth defendant on 11 October 2023 complied with the Rules.  However, this memorandum was overtaken by a further amended memorandum of appearance filed on 18 December 2023 which did not, in my view, comply with the Rules.

3. I am satisfied that none of the appearances that have been filed by the other defendants complied with the Rules.

4. Subject to the following issue, the proposed amended memorandum of appearance of the first to third defendants, annexed to Travis Kean's affidavit, does comply with the Rules.  This proposed amended memorandum of appearance is signed on behalf of the first to third defendants.  Since that affidavit was filed, a further affidavit of Travis Kean has been filed, which states that:[5]

   Kean Legal has been instructed by Mrs Sandra Banning, representative of the first defendant, not to proceed with any application on its behalf.

   [5] Affidavit of Travis Kean filed 19 December 2023 [4].

5. As a result, I accept that the position in respect of the first defendant is unclear.  Accordingly, the proposed memorandum of appearance which purports to be filed on behalf of the first to third defendants is, in my view, similarly unclear.

6. Given my conclusion as to the proper construction of the Rules, it is my view that the provision of O 67A r 4(14) applies to the appearances that have been filed on behalf of each of the defendants. That is, each of the appearances lodged by the defendants is taken by the express provision of the Rules not to have been filed.

Conclusion

1. My preliminary view is that the order that should flow from these reasons is that there should be a declaration that documents 4, 5, 7, 14, 19, 27, 30, 52, 53 and 54 should be taken not to have been filed pursuant to O 67A r 4(14) of the Rules and that these documents should be struck from the court record. I will hear from parties in relation to that proposed order.

2. A further consequence from this proposed order is that there are no appearances before me today on behalf of any of the defendants.  As a result, I propose to adjourn the remainder of the plaintiffs' chamber summons for directions until 9.30 am on 20 February 2024.  I will also reserve costs at this stage.  I will hear from the parties at the directions hearing at 9.30 am on 20 February 2024 and consider the appropriate costs order then.

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

KC

Associate to the Honourable Justice Hill

28 FEBRUARY 2024