Koch v Monshipouri - [2020] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   KOCH -v- MONSHIPOURI [2020] WADC 107
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   4 MARCH & 2 APRIL 2020
DELIVERED          :   29 JULY 2020
FILE NO/S:   CIV 2617 of 2019
BETWEEN:   LAUREN KOCH
Plaintiff
AND
DR GHAZELAH MONSHIPOURI
First Defendant
DR ANKUR MITTAL
Second Defendant
CASHMERE MEDICAL PTY LTD
Third Defendant

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia O 10 r 1A(1) - Application to strike out writ for want of jurisdiction - Service & Execution of Process Act 1992 (Cth) s 15 - Application to stay - Service and Execution of Process Act 1992 (Cth) s 20

Legislation:

District Court Rules 2005 (WA)
Personal Injury Proceedings Act 2002 (Qld)
Rules of the Supreme Court (WA), O 10 r 1A(1)
Service and Execution of Process Act 1992 (Cth), s 15, s 20

Result:

Each application dismissed

Representation:

Counsel:

Plaintiff	:	Mr D R Campbell SC & Mr R D McCabe
First Defendant	:	Mr C M Slater
Second Defendant	:	Mr D F Langman
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Slater & Gordon
First Defendant	:	Avant Law
Second Defendant	:	Barry.Nilsson
Third Defendant	:	Not applicable

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

De Vries v Smallridge [1928] 1 KB 482
Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54
Valkama v Jamieson (1994) 11 SR (WA) 246

DEPUTY REGISTRAR HARMAN:

The plaintiff has commenced proceedings against three defendants. According to the statement of claim she seeks damages from each defendant for loss, in part for personal injury, as a consequence of their negligence. As against the third defendant she also seeks the same relief under Australian Consumer Law and for assault.
Each of the first and second defendants has lodged a conditional appearance and has applied to both set aside service and strike out the writ. In their respective applications the applicant carries the onus of persuasion.
It is common ground that the cause of action put against each applicant emerged in the state of Queensland and is characterised as being in personam; that the parties to the action are residents of different States of the Commonwealth; that when issued, the writ had been indorsed in accordance with the Service and Execution of Process Act 1992 (Cth) (the Act); and that it had been served on each of the applicants in the state of Queensland.
The significance of each cause of action being in personam is that according to common law, valid service would establish the jurisdiction of the court.
Order 10 r 1A(1) of the Rules of the Supreme Court 1971 (WA) (RSC) provides that:
A writ served on a person outside the State but in Australia has no effect unless the person was served under the Service and Execution of Process Act 1992 (Commonwealth).
Section 15(1) of the Act provides that:
An initiating process issued in a State may be served in another State.
The case that the applicants put against the plaintiff in relation to service is that the initiating process had not been valid because the causes of action upon which the writ is founded had emerged in the state of Queensland. The case that they put in relation to the initiating process is that by the District Court Rules 2005 (WA) Parliament had not conferred jurisdiction over residents of places external to Western Australia. They attribute to De Vries v Smallridge [1928] 1 KB 482, 487 the proposition that where the jurisdiction of a court is statutory, jurisdiction must be expressly conferred.
The answer to each of those cases is that by the District Court Rules the legislature expressly provided that other than to the extent that rules of the District Court would govern the practice and procedure of the court, the rules of court of the Supreme Court would apply.
Order 10 of the RSC provides for service of a writ out of the jurisdiction. Prior to the amendment of O 10 in 2012, r 1(1) provided that a plaintiff required a grant of leave to serve a writ on a resident of a place external to Western Australia. In 2012, by the addition of r 1A, the operation of r 1(1) was confined to proposed service upon a resident of a place outside Australia.
Despite putting the proposition that the writ had not validly been issued, I took it that the applicants would accept that regardless whether a cause of action had emerged in the state of Western Australia, service within the state of Western Australia would establish the jurisdiction of the court; and that the purpose of the RSC r 1(1) is to establish ground for effective service on a resident of a place external to Australia. I take it that they would reject the proposition that the purpose of r 1A(1) is to establish ground for effective service on a resident of a place external to Western Australia but within Australia.
Because the legislature did not disallow the amendment to O 10 of the RSC it thereby accepted that the Act would remain operational within the field that until that time had also accommodated r 1(1).
Whether viewed prior or subsequent to the 2012 amendments, the RSC reveal that the legislature provided the court with jurisdiction over residents of places external to Western Australia.
It follows that the fact that the causes of action put against the applicants emerged in the state of Queensland, it provides no reason to consider that the writ had not been validly served.
The applicants touched on propositions frequently aired in diverse contexts regarding the cost, scarcity and appropriate allocation of judicial resources. It was submitted that those resources ought to be reserved for utilisation in actions founded upon causes that have some connection with the state of Western Australia.
In my opinion no such submission could speak for a writ not having been validly served.
In her oral submissions the first defendant contended that a writ issued in excess of jurisdiction would be liable to be struck out.
I would have no difficulty with that proposition where a writ had issued in breach of an express prohibition. Absent that feature it is likely that the context presented for consideration would call for consideration of the proposition that the action be stayed. The significance of the difference is that the imposition of a stay would be the result of an exercise of discretion.
At the commencement of these reasons I recorded that valid service establishes jurisdiction. None of the rules or statutory provisions that I have canvassed reveal an intention to depart from the common law.
In my opinion the applicants have failed to establish any ground that would justify either striking out or setting aside service of the writ.
By each application the applicants alternatively seek a stay under s 20(3) of the Act. The relevant parts of s 20 are as follows:
(2)The person served may apply to the court of issue for an order staying the proceeding.
(3)The court may order that the proceeding be stayed if it is satisfied that a court of another State that has jurisdiction to determine all matters in issue between the parties is the appropriate court to determine those matters.
(4)The matters that the court is to take in to account in determining whether that court of another State is the appropriate court for the proceeding include:
(a)the places of residence of the parties and of the witnesses likely to be called in the proceeding;
(b)the place where the subject matter of the proceeding is situated;
(c)the financial circumstances of the parties, so far as the court is aware of them;
(d)any agreement between the parties about the court or place in which the proceeding should be instituted;
(e)the law that would be most appropriate to apply in the proceeding; and
(f)whether a related or similar proceeding has been commenced against the person served or another person;
but do not include the fact that the proceeding was commenced in the place of issue.
In my opinion, the fact that only two of the three defendants have applied presents a significant problem for the applicants. In the event that it was considered that the test at s 20(3) of the Act had been satisfied, coming to the conclusion that the action as against the first and second defendants be stayed would be precluded by the undesirable prospect of there being litigation in different courts in which the plaintiff sought the same relief with respect to causes with common elements. Consideration of the alternative raises the question whether either the applicants could or the court would enlist the silence of the third defendant to their cause.
Litigation establishes a process constituted by recognised steps. That process and those steps engage with terms by which the rules of court are expressed. That process, those steps and the rules present parties with opportunity and choice. That much is revealed by the history of the engagement of the third defendant in the proceeding. After being served it filed an appearance. It consented to the application of the first defendant now before the court and to the application of the second defendant for leave to withdraw its appearance. The third defendant filed its own application to withdraw its appearance. It was party to an agreement that the success of the second defendant in his application would determine its application. It is open to consider that when the third defendant was granted leave to withdraw its appearance that it had been expected that it would forthwith file a conditional appearance and an application. It has not done so. It has not sought to join in either application and has provided no evidence. It is open to consider that presently it is reconciled to judgment being entered.
According to the evidence of the plaintiff, the third defendant was served with the writ on 23 July 2019. Unless there is some impediment of which I am not aware, it is open to the plaintiff to enter judgment against the third defendant and seek to have damages assessed. In that event, in the ordinary course, such an assessment would take place in the context of a trial of the issues in the action against the applicants. I take it that, for the present at least, the plaintiff has chosen not to take that step.
The choice made by the plaintiff does not present an opportunity for any party other than the third defendant.
There is no reason to consider that satisfaction of the test expressed at s 20(3) of the Act by the applicants would permit encroachment upon the interests of either the plaintiff or the third defendant.
Had the applicants succeeded in their primary application the result would have been that as against the applicants the writ be struck. So it is that their success in satisfying the test of an application for a stay would not extend to the cases put by the plaintiff against the third defendant. The justification for each result would be the same. It is no more than that court does not have before it any application of the third defendant. Taking into account the broader context established by the action, in my opinion there is no reason for the court to intervene.
In my opinion the consequence of the fact that the third defendant has not applied will inevitably have a bearing upon the success of the applications, even if only at the point of considering an exercise of discretion.
Be that as it may, I will consider the balance of the cases put by each applicant.
The applicants contend that the appropriate court to determine all matters in issue between the parties is the District Court of Queensland. I take it to be common ground that the District Court of Queensland has jurisdiction to determine any matter in issue between the parties.
It is not clearly the case that s 20 of the Act would establish the locus of the onus on the applicants; however the plaintiff being represented, the applicants have at least accepted the costs risk of the exercise generated by their applications. Rick Cobby Pty Ltd v Podesta Transport Pty Ltd (1997) 139 FLR 54, 58 stands for the proposition that the case for a stay should be 'clear and compelling'.
In its submissions the first defendant refers to reasons for decision of Blaxell J in Valkama v Jamieson (1994) 11 SR (WA) 246, 250 where it was considered that the term 'appropriate court' means 'the one with which the action has the most real and substantial connection, and which can therefore be regarded as the natural forum'.
In my opinion, for the purposes of s 20 of the Act, a finding that another court is the 'appropriate court' would follow upon there being sufficient momentum towards that conclusion generated by engagement of features of the case with the matters required to be considered and any other matter that would have a bearing upon whether that conclusion would be established.
The applicants and the plaintiff have each provided evidence.
There is no evidence of any agreement between the parties about the court or place in which any proceeding commenced upon the causes of action should be instituted. No element of the causes of action put against the applicants has physical manifestation. Accordingly, neither of those specified matters would provide any momentum towards the conclusion that the District Court of Queensland is the appropriate court to determine all matters in issue between the parties.
That the matters in issue between the parties would be determined in accordance with law which applies in the state of Queensland would generate momentum towards that conclusion.
The existence of the proceeding against the third defendant is not a matter that would generate momentum towards the conclusion that the District Court of Queensland is the appropriate court to determine any matter in issue between the parties.
The plaintiff is resident in Western Australia, the second defendant, in Queensland. The first defendant's solicitor gives evidence that at the time of deposition the first defendant was also a resident of Queensland but that it was her intention to establish residence in Victoria and move to that state either in late 2019 or early 2020. The hearing concluded in April 2020 and by that time no further evidence had been provided. Accordingly, the residence of the first defendant is uncertain. In effect, the first defendant has chosen to not put forward her residence as a feature of her case in the application.
Accordingly, the residence of the second defendant provides momentum towards the conclusion that the District Court of Queensland is the appropriate court to determine all matters in issue between the parties; that of the plaintiff and the first defendant provides no momentum to that end.
In considering the witnesses likely to be called at trial, the only certainty is that a court would be required to assess the value of the plaintiff's loss and translate that loss into an award for damages.
The evidence that emerges from engagement of the parties in the conferral process established under the Personal Injury Proceedings Act 2002 (Qld) reveals that the first defendant conceded that she had prescribed a particular medication in circumstances where she had intended to prescribe another, and the second defendant accepted that he had breached the duty of care that he owed to the plaintiff but did not accept that the breach had been causative of the loss asserted by the plaintiff.
Neither of the applicants gives evidence on the subject of their proposed response to the plaintiff's pleading. Neither of them brings evidence that would suggest that consideration has been given to the witnesses that would be called to give evidence.
In my opinion, it is likely that the plaintiff would be required to establish her claims. The solicitor for the plaintiff gives evidence of her assessment of the evidence the plaintiff would present in the event that all matters pleaded by the plaintiff remain in issue at trial. She specifies that the plaintiff's parents and her sister would give evidence along with her general practitioner and five expert witnesses. All of those witnesses other than one expert resides in a state other than Queensland. The residence of all but that witness does not provide any momentum towards the conclusion that the District Court of Queensland is the appropriate court to determine any matter in issue between the parties. The residence of that witness provides momentum towards the conclusion that the District Court of Queensland is the appropriate court to determine any matter in issue between the parties.
To the extent that the financial circumstances of the parties are known to the court they are required to be taken into account in determining whether the District Court of Queensland is the appropriate court to determine any matter in issue between the parties.
In circumstances such as those presented by these applications it would only be the financial circumstances of the applicants that could provide any momentum towards the conclusion that the District Court of Queensland is the appropriate court to determine any matter in issue between the parties. Neither of the applicants have provided any evidence of their financial circumstances.
If nonetheless the plaintiff's financial circumstances must be considered, an assessment of the evidence provided by both the plaintiff and her solicitor was given by counsel for the first defendant. It was that the plaintiff's financial circumstances were poor. Nonetheless counsel left a question mark over that assessment by reference to the plaintiff's representation. I am satisfied that on surveying the evidence of the plaintiff's financial circumstances, the assessment of the first defendant's counsel is not wide of the mark. As for the plaintiff's representation, she has chosen not to provide evidence.
There is nothing revealed by particular evidence provided by the plaintiff of her financial circumstances that would generate momentum towards the conclusion that the District Court of Queensland is the appropriate court for the proceeding.
There being no evidence regarding the financial resources of the third defendant, accordingly its financial circumstances would not generate momentum towards the conclusion that the District Court of Queensland is the appropriate court for the proceeding.
In considering that there is no evidence of any related or similar proceeding that has been commenced against either of the applicants or any other person, I accept that prior to the commencement of the action, in accordance with the provisions of the Personal Injury Proceedings Act, the plaintiff and each applicant had been engaged in a statutory process of conferral that would precede any process of litigation commenced in the state of Queensland.
Under the same Act the first defendant has given notice to the entity that trades as Cashmere Pharmacy of her intention to issue third party proceedings in the action against that entity and the pharmacist that dispensed the medication to the plaintiff.
Neither engagement is a proceeding according to the definition of the word in the Act. Accordingly, neither engagement would fall within the scope of the specified matters at s 20(4). However, it is open to consider that the fact that particular matters are specified would not exclude other matters that may be taken to have a bearing upon the question whether the District Court of Queensland is the appropriate court to determine any matter in issue between the parties.
Although neither the proprietor of Cashmere Pharmacy nor the pharmacist are a party to the proceedings on the evidence of the first defendant it is open to consider that they would be parties at some future time. The first defendant gives evidence that the proprietor is a corporation. Accordingly, it is not is not a resident of any state. As for the pharmacist, he is identified as a resident of the state of Queensland.

The first defendant has produced evidence that she intends to rely upon in any third party proceeding that she issues. The expert from whom that evidence would be called is resident in the state of Queensland.
Accordingly, the residence of each of the pharmacist and of the witness that the first defendant would call against him is of the state of Queensland. That fact provides momentum towards the conclusion that the District Court of Queensland is the appropriate court to determine any matter in issue between the parties.
I have identified the matters that would establish the District Court of Queensland as the appropriate court to determine all matters in issue between the parties. They are the residence of the second defendant and the pharmacist; the residence of one witness of each of the plaintiff and the first defendant; and the law that would apply. Thereby the totality of the matters specified in s 20(4) of the Act would generate some momentum to the result that the District Court of Queensland as the appropriate court to determine all matters in issue between the parties. In my opinion, there is no reason to consider that the result of an application would follow upon measuring the matters that generate momentum against those that do not. Rather the result would depend upon the strength of momentum generated. To put it another way, the matters that would not identify the District Court of Queensland as the appropriate court to determine all matters in issue between the parties should not be taken to impede the momentum generated by those that do.
In my opinion, once the matters that would generate momentum towards satisfaction of the test of s 20(3) of the Act are identified, there is scope to evaluate the degree of momentum they provide.
In determining the substantive issues between the parties there is no doubt that the law of the state of Queensland ought to be applied. Whilst for the purposes of s 20(3) of the Act that result clearly identifies the District Court of Queensland as the appropriate court to determine those issues, the facility is available in a court located other than in the state of Queensland.
The residence of the second defendant and of the pharmacist being in the state of Queensland would clearly identify the District Court of Queensland as the appropriate court. However, in my opinion there is good reason to consider that the major factor that would inform the significance of that matter is historical. In any particular case the proximity of such parties to the court that would determine the issues in the action would not necessarily reflect convenience or reduce the scope for prejudice. In the event that there had been some evidence of the cases that those parties would put and of their financial circumstances, it may be that the court would be in a better position to evaluate the likelihood that such undesirable consequences may be generated in the event that the proceedings were not determined in the District Court of Queensland. As it is, there is no more than a prospect that undesirable consequences would be visited upon them. There is no evidence that would promote the significance of their residence. It would be difficult to justify drawing any inference in support of the proposition that the proximity of their residence to the District Court of Queensland would generate significant momentum to the conclusion that the District Court of Queensland is the appropriate court for the purposes of s 20(3) of the Act.
As for the witnesses of the first defendant, in my opinion the absence of useful evidence of the financial capacity of the first defendant renders that matter as generating almost no moment. In light of the evidence of the plaintiff, in the case of her proposed witness, I consider that the result would be more significant but for the fact that the preponderance of her witnesses are resident elsewhere; such that in a broader context the more significant result is rendered marginal.
Before I conclude, I would accept that such a course of evaluation may be regarded as the antithesis of what is required to be undertaken in the process of applying the test specified at s 20 of the Act. In my opinion, some evaluation of the strength of momentum is necessary simply because there is no reason to consider that the matters specified in s 20(4) ought to be considered as being equivalent. The momentum generated by each matter ought be evaluated within the context provided by an application.
In my opinion, such an evaluation of the case put forward in the applications renders clearer the result that the momentum generated by those matters would not be sufficient to satisfy the test of s 20(3). I would add that if upon some different evaluation of the strength of the applications the test had been met, in my opinion, a survey of the context presented by the applications would not result in an exercise of discretion in favour of the applicants.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DH
Court Officer
29 JULY 2020