Johnson v Alexander - [2002] NSWSC 824

CITATION: JOHNSON v ALEXANDER [2002] NSWSC 824

FILE NUMBER(S): SC 20340 OF 2002

HEARING DATE(S): 5 September 2002

JUDGMENT DATE: 11 September 2002

PARTIES :

NOEL PATRICK JOHNSON
(Plaintiff)
v
COLIN J ALEXANDER
(First Defendant)
LIDOFORM PTY LTD
(Second Defendant)
VIEBELL PTY LTD
(Third Defendant)

JUDGMENT OF: Levine J

COUNSEL :
C Robinson
(Plaintiff)
K Rees
(First Defendant)

SOLICITORS:
Powrie & Co
(Plaintiff)
Mallesons Stephen Jaques
(First Defendant)

CATCHWORDS: Service of Statement of Claim - interstate (ACT) - Supreme Court Rules Pt 11 r 8(1)(c) - Service and Execution of Process Act (Cth) 1992 - declaration

LEGISLATION CITED: Service and Execution of Process Act (Cth) 1992
Supreme Court Rules Pt 11 r 8(1)(c)

CASES CITED: Highfield Woods Pty Ltd v Bayview Crane Hire Pty Ltd (1996) 14 ACLC 599
Roladuct Spiral Tubing Pty Ltd v C & P Trading Pty Ltd [1994] 2 Qd R 247

DECISION: See paragraph 23

DLJ:1

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION list

JUSTICE DAVID LEVINE

11 SEPTEMBER 2002

20340 OF 2002

NOEL PATRICK JOHNSON
(Plaintiff)

v

COLIN J ALEXANDER
(First Defendant)

LIDOFORM PTY LTD
(Second Defendant)

VIEBELL PTY LTD
(Third Defendant)

JUDGMENT (Service of Statement of Claim - interstate (ACT) – Supreme Court Rules Pt 11 r 8(1)(c) -

Service and Execution of Process Act

(Cth) 1992 - declaration)

1 By Notice of Motion filed on 2 August 2002 the first named defendant Colin J Alexander moves the Court for a declaration pursuant to SCR Pt 11 r 8(1)(c) that the originating process has not been duly served on him. SCR Pt 11 r 8(1)(c) states:

11.8. (1) The Court may, on application made by a defendant to any originating process on notice of motion filed within the time fixed by subrule (2), by order:

(a) …

(b) …

(c) declare that the originating process has not been duly served on the defendant;

…

2 It is convenient at this point to set out what is stated in SCR Pt 10 r 2B:

10.2B. (1) Subject to this Part, an originating process may be served outside the State in Australia.

(2) An originating process for service outside the State in Australia shall bear a statement either that the plaintiff intends to proceed under the Service and Execution of Process Act 1901 or that the plaintiff intends to proceed under the Supreme Court Rules 1970.

(3) The plaintiff may not proceed otherwise than in accordance with the intention stated under subrule (2) except with the leave of the Court.

3 In support of the Notice of Motion an affidavit of Ian Robert Angus sworn 9 August 2002 was read. He is the solicitor for the first named defendant in these proceedings. From that affidavit the following can be established. The Canberra firm of Mallesons Stephen Jaques had referred to it a Statement of Claim purportedly issued on 30 April 2001 out of the Sydney Registry of this Court. That Statement of Claim was handed to the person named as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson v Alexander

Details

AGLC: Johnson v Alexander [2002] NSWSC 824
Case: [2002] NSWSC 824
Decision Date: 11 September 2002

CaseChat Overview and Summary

The case of Johnson v Alexander involved a dispute over the validity of the service of a Statement of Claim in the Supreme Court of New South Wales. The plaintiff, Johnson, sought to enforce a judgment from the Australian Capital Territory (ACT) in the state court. The defendant, Alexander, contested the service of the Statement of Claim, arguing it did not comply with the requirements of the Supreme Court Rules and the Service and Execution of Process Act 1992. The court had to determine whether the service of the Statement of Claim was valid and if it adhered to the legislative framework governing service of interstate processes.

The primary legal issue before the court was the validity of the service of the Statement of Claim under the relevant rules and federal legislation. The court needed to examine whether the service complied with Part 11 Rule 8(1)(c) of the Supreme Court Rules and if it met the requirements set out in the Service and Execution of Process Act 1992. The court also had to consider whether the service could be deemed valid despite the procedural non-compliance if the defendant had not been prejudiced by the irregularity.

The court held that the service of the Statement of Claim was not strictly compliant with Part 11 Rule 8(1)(c) of the Supreme Court Rules. However, the court found that the irregularity did not result in any prejudice to the defendant, and the defendant had not raised any objection to the service within the prescribed timeframe. The court emphasised the importance of procedural compliance but also recognised the principle of finality in legal proceedings. It concluded that the service could be considered valid due to the lack of prejudice to the defendant and the absence of a timely objection.

In conclusion, the court determined that the service of the Statement of Claim, despite being non-compliant, was valid due to the absence of prejudice to the defendant and the lack of a timely objection. The court allowed the action to proceed, setting aside the defendant's objection to the service. The court's decision highlighted the balance between strict procedural compliance and the overarching principle of finality in legal proceedings.

Orders