Galvin v Maslen
[2025] WADC 2
•31 JANUARY 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: GALVIN -v- MASLEN [2025] WADC 2
CORAM: REGISTRAR NUNN
HEARD: 8 NOVEMBER 2024
DELIVERED : 31 JANUARY 2025
FILE NO/S: CIV 2051 of 2021
BETWEEN: GREG GALVIN
Plaintiff
AND
DUDLEY MASLEN
Second Defendant
Catchwords:
Application for springing order - Removal of solicitor from the record - Compliance with Rules of the Supreme Court 1971 (WA) O 8 r 7 - Discretion to cure irregularity - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 2 r 1, O 8 r 7
Result:
The application is dismissed
Representation:
Counsel:
| Plaintiff | : | Mr I W Priddis |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Graham & Associates Lawyers |
| Second Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Cheney v Moore [2020] WASC 227
Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179
Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106
REGISTRAR NUNN:
Introduction
Greg Galvin is an accountant. He and his firm had some dealings with Gascoyne Water Co-operative Limited and its then Chairman Dudley Maslen. Those dealings did not end amicably.
Mr Galvin alleges that Mr Maslen (and by extension the Co‑operative) defamed him. He brings this action in defamation against both of them (as first and second defendants).
The Co-operative and Mr Galvin managed to resolve their differences and the action against the Co-operative was dismissed. The action against Mr Maslen remains on foot.
Mr Galvin now seeks a springing order against Mr Maslen contending that:
(a)Mr Maslen has repeatedly failed to comply with orders for discovery;
(b)since Mr Maslen's solicitor's application to get off the record, Mr Maslen has been served orders further requiring discovery (and the present application for a springing order for judgment against him if he does not provide the discovery ordered) at his last known address and email address;
(c)Mr Maslen has not complied with the orders or responded to the application despite being granted opportunities to do so; and
(d)as a consequence of this it is appropriate that the springing order sought be made in his favour.
This raises for determination the following issues:
(a)has Mr Maslen been served with Mr Galvin's application;
(b)has Mr Maslen failed to comply with orders made; and
(c)is a springing order appropriate in this instance?
Background
Mr Maslen has changed representatives several times. His most recent representatives were granted leave to get off the record. Since then, it appears that Mr Maslen has been unrepresented. Both Mr Galvin and the court have proceeded on this basis.
Although Mr Maslen has written to the court on one occasion and been granted leave to appear at hearings before the court via telephone (given he resides in Carnarvon), Mr Maslen has not participated in any proceedings before the court since his representatives were granted leave to get off the record nor has he facilitated this by providing the court with any telephone number on which he can be contacted.
Despite being afforded opportunities to be heard in respect of Mr Galvin's application for a springing order against him Mr Maslen has not responded nor filed any submissions in opposition to the application.
However, despite assumptions to the contrary it appears that Mr Maslen in fact remains represented by reason of his most recent firm of solicitors' failure to fully comply with Rules of the Supreme Court 1971 (WA) (RSC) O 8 r 7.
This creates an irregularity in the proceedings and, in my view, does not provide a safe basis to grant the application for a springing order.
Whether this can be perfected and the application for a springing order re‑enlivened is a matter for Mr Galvin to pursue.
Has Mr Maslen been served Mr Galvin's application?
Given Mr Maslen's lack of attendance before the court it would only be safe to issue the springing order if satisfied that Mr Maslen is aware of the application against him and had been served the application.
The answer to whether Mr Maslen has been served turns on whether Mr Maslen is presently represented.
The following has been discerned from the court record.
Mr Maslen entered a joint memorandum of appearance with the Co‑operative (being represented by Kingfisher Law in June 2021).
In July 2021 Williams and Hughes filed a notice of change of representation acting as town agents for Kingfisher Law.
In March 2023 a notice of change of representation for both defendants was filed advising they were now represented by Addisons.
In January 2024 the proceedings against the Co‑operative as first defendant were dismissed and in April 2024 Addisons lodged a chamber summons seeking leave to be removed as the solicitor of record for Mr Maslen. This was supported by two affidavits from solicitors at Addisons.
Leave to be removed from the record was granted and Addisons filed a certificate of service attesting to service of the orders granting leave to cease to act on Mr Maslen pursuant to RSC O 8 r 7(1).
However, that rule requires service of the orders on 'every party to the cause or matter' (subrule 7(1)(a)) and the filing of a certificate that 'the order has been duly served as aforesaid' (subrule 7(1)(b)), that is, on every party to the cause or matter.
The use of the word 'and' indicates that both of these things must be done.
It is not apparent to me whether Addisons served Mr Galvin the order. Certainly, Mr Galvin appears to have proceeded as if Addisons were off the record and Mr Maslen was unrepresented.
This is apparent from the affidavit of Mr Bracegirdle of October 2024 attesting to service of Mr Galvin's application for springing orders against Mr Maslen. Mr Bracegirdle states that:
The basis for my belief that the Second Defendant's last known address is [address withheld] is because this is stated in the Service Certificate by Lawyer Ceasing to Act, filed by the Second Defendant's former lawyers in this proceeding, on 27 May 2024 (and which I have read).
This suggests that Mr Galvin was not in fact served a copy of the order by Addisons.
However, irrespective of whether Mr Galvin was served, there is no record of a certificate of such service being filed with the court. The only certificate filed is that relating to service of the order releasing Addisons as the solicitor on record of Mr Maslen.
As an order declaring that a solicitor has ceased to act does not have effect 'unless and until' subrule 7(1)(a) and 7(1)(b) are complied with I conclude that Addisons are still the solicitors on record for Mr Maslen and Mr Galvin has proceeded under the assumption that Mr Maslen was unrepresented when in fact he is not.
What is the effect of this?
This throws into doubt the validity of the service of Mr Galvin's applications for a springing order and introduces an irregularity that serves to make any order providing for judgment of the action via springing order inappropriate.
The address for service on which Mr Galvin (via Mr Bracegirdle) has served Mr Maslen is that provided in Addisons' certificate. This is the purportedly last known geographical address for Mr Maslen provided for by RSC O 8 r 9.
Mr Bracegirdle has filed multiple affidavits in support of this application attesting to serving Mr Maslen at this address.
Indeed, this is the same address the court has used for all correspondence with Mr Maslen.
However, that address will only be the 'last known address' if an order is made under r 7 and the solicitor had complied with r 7(1).
As set out above, that is not the case: the order has been made but all parts of subrule 7(1)(b) have not been complied with. Accordingly, the address Mr Galvin (and indeed the court) has taken to be the 'last known address' is not a relevant address for service (or at least not yet).
Rather, as Addisons remain the solicitors of record, the address for service remains that contained on the notice of representation filed in March 2023.
This also then impacts on any correspondence to or from the email address apparently being used by Mr Maslen. This does not form any part of an acknowledgement on any of the memoranda of appearance or notices of representation filed that this is an address to be used for service.
In the circumstances the affidavits of service filed do not provide adequate evidence that Mr Maslen has in fact been appropriately served the orders or applications presently before the court.
Has Mr Maslen failed to comply with orders for discovery made?
It is not necessary to determine this point as it seems uncertain whether Mr Maslen (at least since Addisons obtained leave to get off the record) was aware of the proceedings before the court, the orders made or the application against him.
Certainly, Mr Maslen did not appear before the court nor did Addisons on his behalf (presumably as a result of a combination of believing itself removed as the solicitors of record or neither Mr Galvin nor the court sending Addisons notice of the applications, similarly believing them to be removed as the solicitors of record).
Given the concerns as to service and given my conclusion that Addisons remain the solicitors of record (and being cognisant that if this irregularity is perfected Mr Galvin may renew his application) it is premature to express any view as to whether Mr Maslen has complied with the discovery orders made.
In any event, given the issues that have been identified under RSC O 8 r 7(1) it is not necessary to do so to dispose of the present application.
Is a springing order appropriate in this instance?
It may be that it is open to remedy this irregularity by operation of RSC O 2 r 1. Although arising in the context of a judgment sought in default of appearance rather than in default of compliance with orders of the court, I note that these powers have been employed to remedy an irregularity as to service in the case of Cheney v Moore [2020] WASC 227.
In that instance a writ served in aid of default judgment under RSC O 13 had not been indorsed within the three days prescribed giving rise to an irregularity. There was evidence however that the writ had in fact been served in accordance with orders of the court providing for substituted service and that fact had been recorded in an affidavit that had been made within three days of that service, although the indorsement on the writ itself had not been completed.
The court considered whether the discretionary powers resident in RSC O 2 r 1 to cure that irregularity should be applied and whether that could be done without any injustice to the defendant.
In that case the court considered that the purpose of ensuring that there was adequate proof of proper and timely service such that the court could award judgment in default of an appearance had been achieved. Accordingly, it concluded that no prejudice arose in regard to the defendant, and it exercised its discretion and regularised the proceeding curing the irregularity.
It is open to consider whether a similar approach ought be adopted in this situation.
An application under RSC O 8 r 7 would usually proceed without service of that application on any other party to the action, being a matter primarily between the particular solicitors and their client (and the court). The obligation to advise any other parties only arises if the application is granted.
Notwithstanding that Mr Galvin has not been served by Addisons (or that confirmation of such service has been filed with the court) Mr Galvin is aware of the order granting Addisons leave to get off the record. He himself has had regard to the court record and is aware of that order.
To this end the apparent purpose of RSC O 8 r 7 has been achieved: to ensure that the parties to the action are properly aware of who is before the court.
However, that is only part of the effect of RSC O 8 r 7 which makes it clear that unless and until its prescriptions as to service and filing of notice of that service are complied with a solicitor remains on the record.
Furthermore, in Cheney the default judgment was frustrated by other issues such that, notwithstanding the exercise of the court's discretion to accept the late indorsement of the writ as being regular, there was ultimately no immediate disadvantage to the defendant in that case as it was not open for the plaintiff to proceed forward with the default judgment sought.
In this situation, rectifying the irregularity potentially places Mr Maslen at a disadvantage and subject to the effect of any springing order to be made (not that I have had regard to the question of Mr Maslen's compliance with the orders as to discovery).
I am also conscious that the obligation to properly remove themselves from the record lies with Mr Maslen's solicitors. Until such time as that occurs the solicitor has been and remains bound to accept service and engage with the court. As noted, this is made clear by the plain words of RSC O 8 r 7. See also Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106, 179.
As the obligation to perfect its application to no longer stand as Mr Maslen's solicitor resides with Addisons (and not Mr Maslen) ultimately, I am inclined to the view that this is not a situation in which the court should act to cure the irregularity and exercise its discretion under RSC O 2 r 1.
This then leads to consideration of the question of whether the springing order sought ought be issued? The answer to this must be 'no'.
Mr Galvin relies on Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179 (Firmware) as authority for the proposition that the springing order it seeks is capable of clear comprehension and compliance and so avoids much of the uncertainty that plagued the orders made in that case.
I accept a springing order in the terms sought is clearly expressed. However, Firmware also stands for the proposition springing orders need to be exercised with 'considerable caution and circumspection' (see Firmware [5]).
Although the circumstances of this case are not an example of the kind canvassed by the court in Firmware as to when springing orders may not be appropriate the uncertainty surrounding Mr Maslen's awareness of the present application is sufficient in my mind to resonate with the court's admonition for the exercise of 'considerable caution and circumspection'.
This same admonition serves to cement my conclusion as to why any discretion under RSC O 2 r 1 ought not be exercised in this situation.
In the present circumstances of uncertainty as to whether Mr Maslen was appropriately served notice of the application a springing order would, in my view, be inappropriate and in any event, is based on an irregularity that has not been cured.
For these reasons I decline to make the order sought.
Conclusion
The problem that frustrates Mr Galvin's application is neither of his nor Mr Maslen's making. If Mr Galvin is at fault it is only in failing to check that Addisons' application had been perfected and that Mr Maslen was in fact unrepresented.
However, Mr Galvin is no orphan in that regard. The court too has proceeded on the assumption that Addisons' application had been perfected. This highlights the danger of assumptions and the truth of the old adage of what 'assume' can do to you and me.
In declining to exercise my discretion to grant the application for a springing order it follows that Mr Galvin's application by chamber summons for such an order is dismissed.
Whether Mr Galvin can now press Addisons to perfect its application under RSC O 8 r 7 is a matter for Mr Galvin. As Addisons remain the solicitors of record it is proper that a copy of this decision be provided to them and it may be that they attend to this themselves.
Whether Mr Galvin renews his application remains a matter for him.
In regard to the question of costs, I will recall the matter to hear from Mr Galvin as various costs orders have been reserved, the reservation of which largely turned on Mr Maslen's absence since Addisons were granted leave to be removed as the solicitors of record.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ER
Associate to Principal Registrar
31 JANUARY 2025
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