| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HALEN PTY LTD as trustee for the GEL GROUP TRUST -v- ANNAPURNA INVESTMENTS PTY LTD [2011] WADC 152 CORAM : DEPUTY REGISTRAR HARMAN HEARD : HEARING ON PAPERS DELIVERED : 26 SEPTEMBER 2011 FILE NO/S : CIV 2463 of 2011 BETWEEN : HALEN PTY LTD as trustee for the GEL GROUP TRUST Plaintiff
AND
ANNAPURNA INVESTMENTS PTY LTD
First Defendant
KENNETH PAYNE
Second Defendant
Catchwords: Practice - Practice under the Rules of the Supreme Court of Western Australia 1971 - Order 9 r 1, O 13 r 1, O 9 r 1 and O 72 r 2 - Turns on its own facts Legislation: Nil
(Page 2)
Result: Plaintiff not entitled to judgment in default of appearance Representation: Counsel:
Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : Downings Legal
First Defendant : Not applicable
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
Ainsworth v Redd (1990) 19 NSWLR 78
Ditfort v Temby (1990) 97 ALR 409
Kenneth Allison Ltd (in liq) v AE Limehouse & Co (a firm) [1991] 4 All ER 500
Pino v Prosser and Hassan [1967] VR 835
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1 DEPUTY REGISTRAR HARMAN: The plaintiff has sought judgment against the second defendant in default of appearance. The file has been referred to me in order to determine whether judgment be so entered.
2 It is apparent that when the judgment sought was first lodged it was rejected on the basis that the writ had not been served. In their subsequent letter of 12 August 2011 plaintiff's solicitors relied on Ainsworth v Redd (1990) 19 NSWLR 78 and Pino v Prosserand Hassan [1967] VR 835. At that point I invited submissions as to the relevance or applicability of those cases. 3 The plaintiff has now responded and upon reviewing all of the material on the file I am not satisfied that the defendant has been served. It follows that the plaintiff is not entitled to judgment. I will now provide the reasons for that decision. 4 In seeking judgment the plaintiff bears the onus of demonstrating an entitlement to judgment under the rules. 5 Order 9 r 1(1) is as follows: Subject to the provisions of any Act and these Rules a writ must be served personally on each defendant by the plaintiff or his agent. 6 Order 72 r 2 is as follows: 7 The relevant parts of the affidavit of service of Beverley Janine Ward sworn 2 September 2011 are as follows: (Page 4)
4. I then requested Mr Inwood to telephone Mr Payne. While I was standing in Mr Payne's office, I personally spoke to Mr Kenneth Payne and informed him I was a Process Server and I was officially serving a Writ of summons for No CIV 2463 of 2011 on him. I then read the details of the Writ to Mr Payne. He asked how long he had to respond to this Writ of Summons. I informed him within ten (10) days after the service of the Writ. 5. Mr Kenneth Payne then instructed me to leave the Writ of Summons issued to him as Second Defendant, on the middle of his work desk, in his personal office; Mr Seth Inwood was present throughout the conversation and placing of the Writ of Summons on his desk. 8 The plaintiff also relies upon the affidavit of Charunee Horwood, a solicitor. She deposes as follows: On 27 July 2011, I received a telephone call from the Second Defendant, Mr Kenneth Payne: (a) confirming that he had received a copy of the Writ of Summons; (b) advising that he did not dispute the amount owing, or his liability to pay it; and (c) stating that he lacked the means with which to pay and would simply declare himself bankrupt and return to the UK. From this discussion, I verily believe that the Second Defendant had come into possession of the Writ of Summons served on him on 26 July 2011. 9 At par 9 of its submissions the plaintiff portrays that Pino v Prosserand Hassan would support the proposition that serving another person associated with the defendant may amount to personal service on the defendant as long as it can be shown that defendant came into possession of the document. 10 Although in that case, each of the parties had applied; the defendant to set aside the writ and the plaintiff for an extension of its validity, it is apparent that the court did not deal with that of the plaintiff. The defendant's application was founded on the proposition that there had not been personal service. In his affidavit in support of that application he gave evidence that had been handed the copy of the writ by his wife. She deposed in similar terms and that it had been handed to her by a process server. (Page 5)
11 At p 839 McInerney J stated: Applying the general principle enunciated in Hope v Hope and Rudd v John Griffiths Cycle Co. Ltd., I am satisfied that in this case the writ, although left with the defendant's wife, came into the possession of the defendant Hassan on the same day and this, I am satisfied, constituted good personal service although the original writ was never made available for the defendant's inspection. 12 The terms of any relevant rule are not set out in the reasons for the decision. Be that as it may, it appears that the standard, in part was constituted by the writ being available for inspection. If indeed that was the case, evidently the court was not troubled by the proposition that for the defendant to have had the opportunity to inspect the writ would depend upon his presence at the place and time of service. 13 In the case before me it is not clear when the plaintiff would contend that the defendant had been served. Regardless whether it was at the time of leaving the writ on the desk; some indeterminate time; or upon him speaking to Horwood, it is implicit that the plaintiff considers that I would either overlook the provision in the rules to allow the defendant to inspect the writ or treat the inability of the plaintiff to have accorded that opportunity to the defendant as an irregularity. 14 In my opinion, at best for the plaintiff, the reasons of McInerney J in Pino reveal that he had been prepared to exercise discretion to deal with irregularity. In the matter before me it is for the plaintiff to persuade me that I ought to follow a similar course in circumstances where there is no evidence or any concession of the defendant. 15 The plaintiff cited Ainsworth v Redd in support of the proposition that the first defendant's employee Inwood acting under the supervision and direction of the second defendant had been served with the writ. I struggled with the proposition implicit in those contentions that they are founded upon evidence. 16 In that case the challenge to the validity of service also arose on an application by the defendant however the evidence upon which the reasons revolve was provided by the plaintiff. The court considered that service had been effective under a rule in the same terms as O 72 r 2 where a person then accompanying the defendant had taken the document. It found that the recipient had intended to accept it on the defendant's behalf and the defendant had acquiesced. (Page 6)
17 I note that the majority countenances the prospect that service would be effective where the defendant informed the server that he was too busy to look at the document and asked him to leave it on his desk and the server complied with that request. As it was dealing with a hypothetical situation it is perhaps understandable that the court did not round off by providing some insight as to whether such a result would depend upon the defendant being present in order to accord to him the opportunity to view the original had he so requested. 18 The significant difference between that illustration and the case before me is that at no time, that on the evidence I can contemplate, would the plaintiff have been able to comply with any request to view the writ. 19 In my opinion the plaintiff's responses to the requestion take the significance of its references to those cases no further. The plaintiff went on to make submissions based on other reported decisions. 20 The first is Ditfort v Temby (1990) 97 ALR 409. It is relied upon in support of the proposition that a party by his conduct in arranging for others to accept service on his behalf may be taken as waiving the requirement for personal service. I have no trouble with the proposition or the reasoning in the report. I simply observe that a central feature of that case is some distance from the mark set by that before me. If it is the plaintiff's case that service upon Inwood for the purposes of serving the first defendant amounts to personal service on the second defendant it is at best implicit. 21 The next is Kenneth Allison Ltd (in liq) v AE Limehouse & Co (a firm) [1991] 4 All ER 500. It is cited to support the proposition that by requesting that the writ be left on his desk at his business address the second defendant accepted an alternative form of service. 22 In Kenneth Allison, the process server had been told by the personal assistant of the senior partner of the defendant that she had been authorised to accept service of the writ. In my opinion whilst in that case and the case before me the process server acted in accordance with what he or she had been told, the circumstances in that case did not foreclose on the prospect that at the time of service the personal assistant could have been shown the writ. 23 In my opinion the fact that at the relevant time the writ was not available for inspection by the defendant is significant. There would no doubt be a myriad of cases where a plaintiff has obtained judgment where the defendant had either made no request or had not apprehended that it (Page 7)
was open to do so. So too the prospect that to sight the original may be considered to be of no real moment. In my opinion that feature of the rule is significant. It is only by sighting the original at the point of service that the defendant could satisfy himself that the writ had indeed issued under the seal of the court. 24 In my opinion the result sought by the plaintiff properly depends upon an application upon notice to the defendant upon which the plaintiff carries the onus and upon which court would evaluate the interests of justice. 25 To all of the above I would add that even if I was otherwise persuaded the evidence provided by Ward reveals that the case does not come within O 13 r 1(1)(a). I take it from the indorsement of service on the writ that the plaintiff would contend that service had been effected on 26 July 2011. As the indorsement was recorded on 2 September 2011 it is well outside the period specified for compliance in O 9 r 1(4).
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