Lang v Carron Investments Pty Ltd
[2016] VSC 165
•28 April 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 5240
| GEORGE LANG | Plaintiff |
| v | |
| CARRON INVESTMENTS PTY LTD (ACN 005 369 791) | First Defendant |
| - and - | |
| THE MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 February 2016 |
DATE OF JUDGMENT: | 28 April 2016 |
CASE MAY BE CITED AS: | Lang v Carron Investments Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 165 |
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JUDICIAL REVIEW — Judicial review pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015 — Magistrates’ Court Civil Procedure Rules 1989 (Vic) rr 10.01, 10.02 — Order in default of defence — Whether plaintiff validly served interstate — Service and Execution of Process Act 1992 (Cth) — Whether magistrate’s decision based on no evidence or so unreasonable that no reasonable decision maker could make such finding — Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 — Wednesbury unreasonableness — Scope of test — Minister for Immigration and Citizenship v Li and another [2013] 249 CLR 332 considered — Magistrate’s finding that valid service effected a finding of fact open to be made on the evidence.
ADMINISTRATIVE LAW — Whether affidavit of service sufficient evidence of valid service in order to enliven Magistrates’ Court’s jurisdiction to enter default judgment —Whether jurisdictional fact — Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Plaintiff M70 v Minister for Immigration and Citizenship (2011) 244 CLR 144 and Saville v Hallmarc Construction Pty Ltd [2015] VSCA 318 considered — Relevance of statutory framework — Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 considered — Applicable test as to whether error as to jurisdictional fact — R v Connell, Ex Parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 and Minister for Immigration v Eshetu [1999] 197 CLR 611 considered — Availability of “illogicality and irrationality” as a ground for review — Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 applied — Stringency of test — Minister for Immigration and Citizenship v Li and another [2013] 249 CLR 332 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 applied — Importance of proof of valid service — Evidence of valid service insufficient to enliven jurisdiction of Magistrates’ Court to enter default judgment — Jurisdictional error — Default judgment set aside.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Davis QC | Coulter Roache Lawyers Pty Ltd |
| For the Defendant | Mr B le Plastrier | Lewis Holdway Lawyers (Town agents for Neumann & Tumour Lawyers) |
HER HONOUR:
The plaintiff, Mr George Lang, seeks judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 of a decision of a Magistrate made on 11 August 2015 to refuse to set aside a default judgment entered against Mr Lang on 9 April 1999 (‘default judgment’). Mr Lang seeks:
(a) relief in the nature of certiorari to quash the learned magistrate’s decision refusing to set aside the default judgment;
(b) an order setting aside the default judgment;
(c) alternatively to (b), relief in the nature of mandamus requiring the Magistrates’ Court to hear and determine Mr Lang’s application to set aside the default judgment according to law.
The circumstances behind this application, as one might expect given the date of the default judgment, are somewhat unusual. The following is adapted from a largely non-contentious summary of events in paragraph 10 of Mr Lang’s outline of submissions:
(a) between 1978 and 1993, Mr Lang leased from Carron Investments part of the premises located at 79-81 Moorabool Street, Geelong. Mr Lang leased the premises for the purpose of running a business college on them;
(b) by a proceeding issued in the Magistrates’ Court at Geelong on about 23 December 1997 (‘complaint’), Carron Investments made claims against Mr Lang and two other defendants with respect to alleged rental arrears under a lease of the premises, as follows:
(i) for the period 6 December 1991 to 25 March 1993 in the amount of $15,750 (less ‘payments in 1993’ of $6,300); and
(ii) ‘acknowledged arrears’ or ‘actual arrears up to 6/12/1991’ in the amount of $29,850;
(c) according to an affidavit of service of the complaint sworn on 7 December 1998 by Donald Cecil Watkins, a licensed process server, the complaint was served by him upon Mr Lang (via his wife) in Queensland on 3 December 1998 (‘first affidavit of service’). No mention is made in this affidavit of a Form 1 notice under the Service and Execution of Process Act 1992 (Cth) (‘SEPA notice’) and the documents served were not exhibited to the affidavit. Service is denied by Mr Lang;
(d) according to a subsequent affidavit of service sworn by Mr Watkins on 7 December 1999 (‘second affidavit of service’), the complaint, together with a Form 1 notice (being a reference to a SEPA notice) was served by him on Mr Lang (again via his wife) in Queensland on 7 January 1999. Again, the complaint was not exhibited to the affidavit, which was sworn a number of months after the default judgment was entered. Service is again denied by Mr Lang;
(e) on 9 April 1999, in default of defence, the default judgment was entered. By the default judgment the Court ordered Mr Lang to pay the following amounts: claim of $40,000; interest of $6,382; and costs $764;
(f) Mr Lang has made two applications to set aside the default judgment. The first was commenced by summons filed on 9 April 2015 and was returnable before Registrar Bolte on 27 April 2015. That application was unsuccessful;
(g) on 11 May 2015, Mr Lang sought a review of the judicial registrar’s decision. The request was successful, insofar as the judicial registrar’s decision concerned the question of whether the default judgment was regularly obtained, and the summons was listed for a de novo hearing before Magistrate Saines on 5 August 2015;
(h) the matter came before his Honour on 5 August 2015. On 11 August 2015, the learned magistrate delivered his decision. The decision and the reasons for it were in writing (‘reasons’). His Honour dismissed Mr Lang’s application to have the default judgment set aside.
In the reasons, his Honour noted that the proceeding was commenced on or about 23 December 1997 against three defendants, and that judgment was entered against Mr Lang on 9 April 1999. He noted that Mr Lang bore the legal burden of proof in the application, and that it is established case law that an irregular judgment must be set aside on later application. He stated:
By reason of the passing of 16 years numerous documents are no longer available. This includes the court file itself, also records held by solicitors acting in 1998/99. There is a general paucity of evidence now available as to the exact circumstances of the service of the complaint and associated documents upon [Mr Lang] and circumstances about the conduct of proceedings and entry of judgment.
The learned magistrate observed that ‘there have recently been a number of statements and allegations made on behalf of [Mr Lang] which support a conclusion Mr Lang is either mistaken or is being untruthful about events in 1998 & 1999’. He referred in particular to Mr Lang’s conduct in divesting himself of property in Queensland while pursuing the application to set aside the default judgment, but noted that given the question before him, it was unnecessary to ‘resolve the facts about his conduct and reliability’.
The learned magistrate summarised and rejected the submissions made on behalf of Mr Lang (described in the reasons as ‘FND’) in the following extract of the reasons:[1]
[1]Some minor typographical errors in the reasons have been corrected for ease of reading.
6.The principal argument in support of the application is that because the Complaint was served upon FND in Queensland, there had not been compliance with the provisions of the Service and Execution of Process Act 1992 (Commonwealth), (hereafter ‘The Act’) pertaining to service upon FND, such that the judgment was irregular. Non compliance with the Act is said to have been the absence of a Form 1 notice as required under S. 16. The Form 1 notice is part of the Exhibit FC1 to the Affidavit of Frank Carron sworn 24.4.2015. The exhibit FC1 is stated by the deponent as ‘a true copy of the complaint’. The FC1 document is indeed a Form 1 notice under S.16 of the Act, the Complaint, the Particulars of Claim and 2 standard Notices of Defence (in incompleted form).
7.The Applicant asserts that the Affidavit/Declaration of Service used to obtain the judgment did not evidence the service of the Form 1 notice. That Affidavit/Declaration of Service was sworn 7.12.1998 and is exhibit GAHL-3 to the Affidavit of FND Mr Lang, sworn 4.4.2015. It deposes that the process server ‘served a copy of the complaint together with two Notices of Defence’ on 3.12.1998. Despite that an ordinary person, Mr Carron, on 24.4.2015, and/or an ordinary process server might describe all documents, including a Form 1 notice, Particulars of claim and the complaint as ‘the complaint’, the Applicant asserts that the interpretation of the Affidavit of Service (GAHL-3) should be that it evidences a failure to serve the Form 1 notice.
8.The Applicant’s assertion is said to be supported by a comparison of the GAHL-3 affidavit with a subsequent affidavit of the same process server sworn 7.12.1999, deposing as to the service of the same documents on 7.1.1999. That affidavit of service is exhibit GAHL-4 to the Affidavit of FND sworn 4.4.2015. It remains unknown and unexplained on the evidence before me, why the process server swore a second affidavit, sworn some nine months after the judgment was entered. I am unable to find any reason or need for this. The comparison of these two affidavits of service shows the deponent to have expressly sworn on the second swearing that he .. ‘served a copy to the complaint together with two Notices of Defence and Form 1 notice’ upon FND. This contrasts with the earlier affidavit and is said to support an inference that the omission of reference to the Form 1 earlier is because it was indeed not served, on 3.12.1998. Additionally, it was asserted that the second service attempt on 7.1.1999 supports an inference that correct service was requested to overcome an earlier failure to serve the Form 1 notice on 3.12.1998.
9.I am not satisfied that the inferences identified in paragraph 8 above can properly be drawn here. Dealing with the second, I am unable to properly draw any inference at all. It defies explanation to know why a second affidavit should be sworn after judgment, or why it could be required 9 months after judgment was entered. It is possible the existence of the second affidavit related to some defect in the manner of service, but that is only a possibility. But in circumstances where there is no evidence of any dealings at all, between either the Plaintiff company, Mr Carron and Mr Lang the FND, or their legal representatives, regarding enforcement, compliance or the existence or manner of judgement being entered, at any time between 3.12.1998 and 1.3.2000 when Mr Lang wrote a letter to Mr Carron about the judgment, it would be erroneous to draw any particular inference at all.
10.As to the wording of the first Affidavit of Service, GAHL-3 that the word ‘complaint’ being served should be understood to mean only the Complaint and Particulars of Claim, but not a Form 1 notice as well, I am unable to apply that interpretation to the document. The deponent is a process server. Although that is a role in managing aspects of court process, it is essentially an unskilled or semi skilled role, frequently undertaken by persons with little or no legal qualification. I accept it is entirely plausible that a collection of documents sent to a process server might all be described by him as a single complaint. It may be inaccurate, possibly misleading, but the wording of that part of the affidavit of service forms such a small part of the service he provides, such that there may well be little or insufficient emphasis placed upon this precise detail. Even if a solicitor had a hand in supply of a pro forma document, or even if the process server used a pro forma document from his own shelf, I find it to be entirely plausible that an affidavit might describe a number of documents as ‘a complaint’ and entirely plausible the deponent’s attention was more focussed upon the detail as to a place, manner, date of service. I do not draw the inference that the words of the first affidavit of service (GAHL-3) support the conclusion a Form 1 notice was not served. Nor to infer that the Particulars of Claim were unserved as well.
11.The Applicant also sought to persuade the court that the existence or absence of staple marks on the copies of Exhibit FC1 referred to in paragraph 6 above constitute evidence that the Form 1 notice was not part of the complaint served 3.12.1998. I am unable to accept that such marks or absence of them, on a copy located and produced in 2015, is probative as to what was or was not stapled to a different copy in 1998 or 1999.
12.In conclusion, the FND has not persuaded me, as a matter of probability, that there was a failure to comply with S.11 or S.16 of the Act, I am not satisfied the burden of proof as to irregularity of the judgment, has been discharged.
In his originating motion filed on 7 October 2015, the plaintiff identifies a number of grounds of review in support of its application to quash the decision below. As noted in the plaintiff’s outlines of submissions, the grounds of review identify two separate questions:
(a) whether in effect it was open for the learned magistrate not to find that Mr Lang had not established that service had not been validly effected on Mr Lang such that 21 days had not elapsed prior to the entry of the default judgment; and
(b) if so, whether in effect it was open for the learned magistrate not to find that an affidavit as required by r 10.02(a) was not on the Court file prior to the entry of judgment against Mr Lang in default of defence on 9 April 1999.
The following propositions were not in dispute between the parties:
(a) that judgments which are irregularly obtained ought to be set aside, irrespective of the merits of the plaintiff’s claims; and
(b) that in order to effect valid service outside Victoria, the relevant requirements of the Service and Execution of Process Act 1992 (Cth) (‘SEPA Act’) must be complied with,[2] including the terms of s 16 of the SEPA Act, which provides that:
[s]ervice is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served.
[2]See Marlan Financial Services Pty Ltd v New England Agricultural Traders Pty Ltd (1999) 158 FLR 256 [11] and Energy Conservation Systems Pty Ltd v Downer EDI Engineering Electrical Pty Ltd (2008) 221 FLR 393 [23].
The form of the SEPA notice is prescribed by regulation 4 of the Service and Execution of Process Regulations 1993. Section 11 of the SEPA Act provides that service of process is proved only if all of the following are proved: the identity of the server; the time at which and the day on which it was served; the place at which it was served; the way in which it was served; and if service was effected in a way that required the person to be identified the way in which the person was identified.
The applicable rules when the default judgment was entered were rules 10.1 and 10.2 of the Magistrates’ Court Civil Procedure Rules 1989 (‘Rules’), which provide as follows:
Part 1 – ORDER IN DEFAULT OF DEFENCE
10.01 Plaintiff may apply for order
(1)If a defendant does not give notice of defence within 21 days after the service of a complaint or any other time fixed by the Court for giving notice of defence, the plaintiff may apply for an order.
(2)An application under paragraph (1) must be –
(a)in Form 10A; or
(b)subject to Rule 10.02.1, made by electronic message by an authorised user
10.02 Affidavit required
An application under Rule 10.01 to which Rule 10.01(2)(a) applies must be filed with the registrar and must be accompanied by—
(a) where the claim—
(i) is for a debt or liquidated demand; or
(ii)is a claim arising from a motor vehicle collision and the claim is—
(A)for the cost of repairs only; or
(B)for total loss of the vehicle only—
an affidavit or declaration of service of the complaint; and
…
Mr Lang submitted that the learned magistrate should have found that Mr Lang was not served, or that there was no affidavit of service on the file which confirmed that Mr Lang had been validly served, and that his failure to make those findings amounted to jurisdictional error, such that the decision refusing to set aside the default judgment ought to be quashed.
The reason why the learned magistrate’s decision was said to have been infected by jurisdictional error was that first, the finding that Mr Lang had not established that he had not been served on or about 3 December 1998 was illogical, irrational or not based upon findings of fact that were open for him to make, in the absence of a valid affidavit of service.
The second basis for contending that the learned magistrate committed jurisdictional error was that he did not find (and indeed failed to consider) whether a valid affidavit of service was on the Court file prior to entry of the default judgment. The learned magistrate took the first affidavit of service into account when determining whether Mr Lang had established that he had not been validly served, but did not expressly consider or determine whether the jurisdiction of the Court to issue the default judgment had been enlivened at the time the default judgment was issued by the prior filing of a valid affidavit of service. Mr Lang contends that the learned magistrate’s failure to find the first affidavit of service was invalid, because it did not prove the service of a SEPA notice, amounted to an erroneous finding on a jurisdictional fact, which, if properly made, would have compelled his Honour to set aside the default judgment.
I agree that the two questions identified by senior counsel for Mr Lang, while apparently related, are actually quite separate. The first requires a determination of whether or not Mr Lang had proven that valid service had not been effected, which is essentially a question of fact. The second is a question of mixed fact and law concerning a matter of jurisdiction, that is, whether, regardless of whether in fact Mr Lang had been served with the complaint and the SEPA Notice, the first affidavit of service provided sufficient evidence of service to enliven the jurisdiction of the Court to enter judgment in default of defence. Further, I agree that the reasons do not establish that the learned magistrate considered or determined whether, despite his factual finding that valid service had been effected (which, contrary to the submissions of senior counsel for Mr Lang, I consider was a finding open to be made on the evidence) the first affidavit of service provided the evidentiary foundation which enlivened the jurisdiction of the Magistrates’ Court to issue the default judgment in the first place as a separate question. This question is, in the light of the evidence before the learned magistrate and this Court, a question of some complexity, and requires traversing an area of jurisprudence which is not entirely settled.
The proceeding does not lack factual complexity either. At this point it is convenient to summarise the affidavits upon which the parties relied both before the learned magistrate and this Court.
At the hearing on 5 August 2015, Mr Lang relied upon the following evidence:
(a) affidavits sworn by him on 4 April 2015 and 3 August 2015; and
(b) an affidavit sworn by his wife, Lorraine Lang, on 4 April 2015.
Mr Lang also relied upon written submissions filed at the hearing before the learned magistrate, which, in summary:
(a) provided a summary of the procedural history of the proceeding, including the applications to set aside the default judgment;
(b) noted the settled law that judgments entered irregularly ought to be set aside ex debito justitiae, or as a matter of right;[3]
[3]Chitty v Mason [1926] VLR 419, 423 (Dixon AJ).
(c) the default judgment had not been entered in accordance with rr 10.01 and 10.02 of the Rules because:
(i)service had not been effected such that 21 days from service had not elapsed; and
(ii)if service had been effected, an affidavit of service had not been filed;
(d) the consideration by the authorities as to what is required to validly effect service outside Victoria;
(e) commentary upon the evidence before the learned magistrate regarding whether valid service was effected upon Mr Lang on or about 3 December 1998, and the inferences which could be drawn from that evidence. In particular, the submissions noted Mrs Lang’s denial of service, the lack of any reference in the first affidavit of service (having been drawn up by the solicitors for Carron Investments) to a SEPA notice, the subsequent conduct of the process server in preparing the second affidavit of service on 7 December 1999, and the doubts about the provenance of the document exhibited to Mr Carron’s affidavit, which was said to have been the document served by the process server, including the discrepancy between it and the copy of the complaint exhibited to Ms Loh’s affidavit in 2014;
(f) the contention that even if Mr Lang could not prove that the process server did not hand a SEPA notice to Mrs Lang on 3 December 1998, the default judgment ought to be set aside as his declaration of service was defective and could not satisfy r 10.02(1)(a) of the Rules; and
(g) the application to set aside the default judgment was made promptly after Mr Lang became aware of the irregularity of the default judgment.
As can be seen from the above, all of the relevant legal and factual issues in the application (save for those relevant to the question of whether the learned magistrate’s decision was tainted by jurisdictional error) were before the learned magistrate on the application.
The defendant, Carron Investments Pty Ltd (‘Carron Investments’), relied upon an affidavit sworn by its sole director, Mr Frank Carron, on 24 April 2015, and affidavits sworn by its solicitor, Mr Chris Mills, on 5 June 2015 and 4 August 2015. An affidavit sworn by Ms Su‑Ann Loh, the solicitor instructed by Carron Investments, on 6 March 2014 in support of an application to seek an extension of time to enforce the judgment was also before the learned magistrate.
In his affidavit of 4 April 2015, Mr Lang deposed as to the following matters:
(a) he has reviewed the Magistrates’ Court file in the proceeding, from which he could determine that the complaint was filed on 24 December 1997, the second and third defendants (George A H Lang’s Business College Limited ACN 004 597 259 and John Macleod) filed defences on 15 January 1999, and judgment against him in default of defence was entered on 9 April 1999 for $40,000 for the claim, $6,382.03 in interest, and $764.00 in costs;
(b) on 25 February 2015, his solicitors were advised by an officer of the Southport Magistrates’ Court in Queensland that the default judgment had been filed in that court on 10 March 2014;
(c) the first time he became aware of the proceeding and the judgment was on 24 December 2014, when he received a letter of demand from the solicitors for Carron Investments;
(d) he has seen a copy of the first affidavit of service. He has been informed by his wife that she was not served with the documents which were the subject of that affidavit;
(e) he denied the allegation made by Mr Carron in his affidavit of 6 March 2014 that shortly after the default judgment was entered, Mr Lang called Mr Carron and agreed to make payment of the claim;
(f) he noted that the Court file log recorded an entry on 16 April 1999 to the effect that a valid affidavit of documents bearing his name had been filed, but this document was no longer on the court file;
(g) he has seen the second affidavit of service which referred to a ‘Form 1 Notice’. He deposed he had never seen a SEPA notice until shortly prior to making his affidavit;
(h) he deposed as to his health and personal circumstances; and
(i) he went into some detail in relation to the merits of his defence, which are not relevant for the purpose of the current proceeding.
As noted above, there were two affidavits of service exhibited to Mr Lang’s affidavit. The first affidavit of service was sworn on 7 December 1998. The details within the ‘tram tracks’ of the affidavit shows that the document was prepared by Carron Investments’ former solicitors in December 1998. The document is clearly a standard form document, with identifying details either handwritten, stamped, or typed into the document. The ‘standard’ part of the text includes the following:
make oath and say I declare that I served a copy of the Complaint together with two Notices of Defence on …
The second affidavit of service is substantially similar to the first, in that the details in the tram tracks, including the date and handwritten reference number, are identical. However, the ‘standard’ part of the text now includes the following:
make oath and say/declare that I served a copy of the Complaint together with two Notices of Defence and Form 1 Notice to Defendant on … (emphasis added)
Also, the details of service are completed in handwriting, not typed, as are the date and place of swearing the affidavit in the jurat. It seems from an examination of the two documents that the words ‘and Form 1 Notice to Defendant’ were added to the template document which formed the basis of the first affidavit of service, which in turn was used as the template for the second affidavit of service.
In her affidavit, Mrs Lang deposed, in summary, as follows:
(a) she has seen the first affidavit of service, and denies having been served with the complaint and two Notices of Defence as stated in the affidavit, which refers to her being served on 3 December 1998 at 4.30pm;
(b) she deposed that for many years, including in 1998, she was responsible for transporting her three grandchildren to and from their extracurricular activities, invariableybetween 3.30pm and 5.30 or 6.00pm;
(c) she has never seen a copy of the complaint until recently, when provided a copy by her husband;
(d) she noted that she had been shown the second affidavit of service, but did not deny or otherwise comment upon the accuracy of its contents; and
(e) shortly before swearing her affidavit, she was shown a SEPA Notice, and deposed that she has never seen this document or a document like it before.
Mr Carron’s affidavit deposed, in summary, to the following matters:
(a) the proceeding was commenced by Carron Investments against the defendants on or about 23 December 1997;
(b) he exhibited a ‘true copy’ of the complaint which he said was filed and served by his previous lawyers on his instructions. The exhibited document included, as the front page of the exhibit, a SEPA Notice;
(c) in January 2014 he contacted his previous lawyers and requested they provide him with any documents they held on the file regarding this proceeding, and he exhibited various documents, including correspondence between him and his former solicitors in 1999 about the default judgment, and a letter sent by Mr Lang to him on or about 1 March 2000 asking Mr Carron to write to the Credit Reference Centre ‘requesting that the court case be dropped’. In this letter Mr Lang enclosed letters to Credit Reference Ltd, which Mr Lang asked Mr Carron to sign and send to Credit Reference Ltd. These letters referred to the judgment debt being $25,536 and the judgment being entered on 9 April 1999, and Mr Lang also enclosed what was described by him as a ‘letter of sincerity’ with respect to the debt. Mr Carron also exhibited an affidavit sworn by him on 6 March 2014, where he deposed to Mr Lang having telephoned him shortly after the entry of the default judgment when Mr Lang told him he would pay the rental arrears, and as he had retired he would ‘see to some financial arrangement involving his house’;
(d) he deposed as to why he did not enforce the default judgment prior to 2014;
(e) he exhibited a copy of the second affidavit of service, and a receipt for payment of the process server’s fee dated 8 December 2008; and
(f) he recalls that in about 1998 he discussed service of the complaint with his previous lawyers, and he was advised that they had to go back and forth a few times with the process server to give him instructions on how to sign the affidavit of service.
Carron Investments also relied upon an affidavit sworn by Mr Chris Mills, the current solicitor for Carron Investments, who deposed as to the following matters:
(a) matters which were said not to have been disclosed at a hearing on 12 May 2015 when Mr Lang sought to review the decision of a judicial registrar to refuse to set aside the default judgment; and
(b) he exhibited a title search in relation to Mr Lang’s home in Queensland which showed that sometime between 7 May 2015 and 3 June 2015 Mr Lang had transferred his interest in that property to his wife (the transfer, for ‘natural love and affection’ was confirmed in a subsequent affidavit sworn by Mr Mills).
Mr Lang swore an affidavit in reply on 3 August 2015, and deposed, in summary, as follows:
(a) he originally sought to set aside the default judgment because of his belief that he did not owe money to Carron Investments; and
(b) it was only on or about 24 March 2015 that he learnt that the judgment had been entered irregularly; and
(c) he deposed that he had determined to transfer his interest in his property because of his declining health, not because of the default judgment or the proceeding.
As noted above, an affidavit of Su-Ann Loh sworn on 6 March 2014 was also before the learned magistrate. She deposed, in summary, as follows:
(a) Mr Carron’s instructions to her to take steps to enforce the default judgment against Mr Lang;
(b) the steps she took to enforce the default judgment;
(c) she exhibited a copy of the complaint, which she says was provided to her by Mr Carron. The document exhibited includes two copies of a Notice of Defence, but no SEPA Notice; and
(d) Mr Carron has informed her that he has had no contact with Mr Lang since about the date of the judgment.
Notwithstanding the contentious factual issues before the learned magistrate, none of the deponents of the affidavits were called for cross‑examination, leaving the learned magistrate with the somewhat unenviable task of reconciling the contradictory evidence.
Returning to the two questions identified by Mr Lang, the first question the learned magistrate had to decide was whether Mr Lang had been validly served. This question does not go to the assumption of jurisdiction, or whether there had been jurisdictional error, unless the learned magistrate’s findings had been based on no evidence, or was so unreasonable that no reasonable decision maker could make those findings, in the sense described by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (‘Wednesbury’).[4] Of course, Wednesbury unreasonableness was originally concerned with limiting judicial supervision of the exercise of discretionary powers by decision makers to clear cases of abuse of power, rather than the process of fact finding, but it is a well-established framework within which the factual findings of an inferior court or tribunal have been quarantined from ‘merits review’ in the absence of unfettered rights of appeal. As noted by the learned authors of ‘Judicial Review of Administrative Action’, finding facts for which there are no evidence, or whether there is any evidence, have always been questions of law.[5] As shall be discussed later, the position, or at least the stringency of the test, may well be different when it comes to what are described as jurisdictional facts, but the question of whether Mr Lang was in fact validly served is not of itself a jurisdictional fact. Indeed, even if the affidavit of service on the court file constituted, on its face, evidence of valid service, thus enlivening the Court’s jurisdiction to grant default judgment, it would still be open for the Court to subsequently find that in fact the complaint had not been served, and that the default judgment had been irregularly obtained. That finding (or the converse finding) is a finding made within jurisdiction, and thus not susceptible to review on the grounds of jurisdictional error or the basis of mere error.
[4][1948] 1 KB 223.
[5]M Aronson and M Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) 4.190. See also Kostas v HIH Insurance Services Pty Ltd (2010) 241 CLR 390.
The question of the scope of, or the test for Wednesbury unreasonableness was considered by the High Court in Minister for Immigration and Citizenship v Li and another (‘Li’).[6] In Li, the High Court reconsidered and ‘explained’ the application of Wednesbury unreasonableness to the exercise of statutory power by a decision maker. The plurality in Li (Hayne, Kiefel and Bell JJ) observed as follows (citations omitted):[7]
Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for ‘circularity and vagueness’, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point. The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v The King, before Wednesbury was decided.
[6][2013] 249 CLR 332.
[7]Ibid [68].
The decision of the High Court in Li is viewed as giving explanatory content to the concept of legal unreasonableness in the context of the exercise of discretion in accordance with a statutory power. [8] It may well lead to legal unreasonableness being a more readily available ground of challenge to the factual findings of an inferior court or tribunal in circumstances where such findings are only susceptible to review on a question of law. However, in the absence of any direct appellate authority on that point, I would be loath to depart from established principle when it comes to whether the findings of fact of the learned magistrate that valid service was effected upon Mr Lang, which do not go to jurisdiction ought be disturbed.
[8]See Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 [6], [11]–[12] (Allsop CJ) (“Stretton”).
As noted above, when it comes to the question of whether service was validly effected upon Mr Lang within time, the learned magistrate faced a difficult task. One could criticise his reasoning that the process server may not have understood what he was serving included a SEPA Notice, his unquestioning acceptance of Mr Carron’s evidence that the document exhibited to his affidavit was what was served upon Mr Lang, his dismissal of the significance of the preparation of the second affidavit of service, and other inconsistencies in the evidence relied upon by Carron Investments. However, in my view there was sufficient evidence before him, including the letter from Mr Lang to Mr Carron in 2000, for him to form the view that Mr Lang had not discharged the onus upon him with respect to whether or not service was effected, even though a finding that valid service was not effected was also reasonably open to be made.
However, the approach to be taken to the second question, that is, whether the first affidavit of service was sufficient evidence of valid service of the complaint in order to enliven the jurisdiction of the Court to enter judgment in default is quite different. Both parties proceeded on the basis that the learned magistrate was concerned with the determination of a jurisdictional fact, they merely differed as to the basis upon which this Court could interfere with that determination. The basis upon which the Court can and ought interfere with this determination is, as will be shown, not quite settled.
The written submissions filed on behalf of Mr Lang contended that ‘the learned Magistrate erred in law by not considering whether a valid affidavit of service was on the Court file prior to the entry by the Court of the default judgment’. The submissions went on to add (citations omitted):
In these circumstances, by not finding that the judgment was irregular, that is not finding (as his Honour should have) the jurisdictional fact which would have required him to set aside the Default Judgment, his Honour wrongly declined jurisdiction. Put another way, by failing to determine that the Default Judgment was irregular because there was no affidavit on the Court file at the time of its entry which proved service of the Form 1, his Honour misapprehend the limits of his power to set aside the Default Judgment.
In any event, by failing to determine that the Default Judgment was irregular because there was no affidavit on the Court file at the time of its entry on which was capable of proving service of the Form 1, his Honour committed an error of law on the face of the record.
Three issues arise for consideration here:
(a) whether the matter the learned magistrate was required to determine in this aspect of Mr Lang’s application was a jurisdictional fact;
(b) the applicable test, and the stringency of the test, upon review of the learned magistrate’s findings of any jurisdictional fact; and
(c) whether the learned magistrate’s findings (or absence of findings, as the case may be) amounted to jurisdictional error giving rise to relief in the nature of certiorari.
In Corporation of the City of Enfield v Development Assessment Commission (‘Enfield’),[9] the High Court defined the term ‘jurisdictional fact’ as follows:
The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. Section 35(3) forbids the relevant authority granting a provisional development plan consent to a ‘non-complying’ development unless, in a case such as the present, the Minister and the Council concur in the granting of the consent. The determination of the question whether Collex proposed a ‘non-complying’ development, which turned upon the application of the criterion of ‘special industry’, was a condition upon the existence of which there operated the obligation that the Commission not grant consent.
[9](2000) 199 CLR 135.
In Plaintiff M70 v Minister for Immigration and Citizenship,[10] French CJ defined a jurisdictional fact in the following terms:
The term ‘jurisdictional fact’ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be a ‘complex of elements’. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.
[10](2011) 244 CLR 144 [57].
Notwithstanding the reservations and limitations referred to by French CJ above, the authorities make it clear that a finding of jurisdictional fact may be reviewable even if ‘the question … was clearly a matter of evaluation and assessment.’[11]
[11]Saville v Hallmarc Construction Pty Ltd [2015] VSCA 318 [88].
In determining whether a matter is a jurisdictional fact, the statutory framework is critical. In Woolworths Ltd v Pallas Newco Pty Ltd,[12] Spigelman CJ stated that the ‘issue is one of statutory construction’ and, elaborating further:[13]
The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact and that the legislature intends that the absence or presence of the fact will invalidate action under the section.
[12](2004) 61 NSWLR 707 [6].
[13]Ibid [37]-[38].
Having regard to the text and purpose of the Rules, can it be found that the makers of the rules intended that the Court’s power to grant default judgment was predicated upon the existence of a valid affidavit of service? On balance, having regard to the importance of service as a part of the litigation process, and the consequences of having a judgment of any kind levied against a person or corporation, in my view, the question of the existence of an affidavit proving (in the absence of evidence to the contrary) that valid service has been effected, is a jurisdictional fact amenable to judicial review. As noted by senior counsel for Mr Lang in his oral submissions, it is a ‘significant and jealously guarded step to grant a final judgment’. Indeed, the severity of the potential consequences are illustrated by the fact that in the current case there is a pending proceeding in the Federal Circuit Court where Mr Lang is facing a creditor’s petition with respect to a debt to Carron Investments in the sum of $134,997.63. Further, service of process is a necessary precondition to the Court exercising any of its powers with respect to a proceeding. Finally, the mandatory language of the relevant rules also supports the contention that the existence of an affidavit proving valid service is a jurisdictional fact.
In effect, in the current case, the learned magistrate was reviewing the determination by the registrar who originally caused the default judgment to be issued on the basis of the first affidavit of service. The learned magistrate was charged with the task of determining whether the evidence of service was satisfactory for the purpose of the Court exercising its jurisdiction: that is, to review the determination of a jurisdictional fact by the registrar who caused the default judgment to be entered in April 1999. Accordingly, the learned magistrate’s determination not to set aside the default judgment involved, albeit at first remove, the determination of a jurisdictional fact. The fact that the determination involves some assessment and evaluation does not exclude that determination from being amenable to judicial review.
The next question is, what is the applicable test which must be applied to determine whether the learned magistrate was in error? It seems to be accepted, particularly since the decision of the High Court in Li, that a decision concerning a jurisdictional fact is liable to be set aside if it has been tainted by ‘illogicality or irrationality’. This ground of review has its origins in part to the test in R v Connell, Ex Parte The Hetton Bellbird Collieries Ltd,[14] where Latham CJ held that a decision maker must not act in a way that was ‘arbitrary, capricious, [or] irrational’. In Minister for Immigration v Eshetu (‘Eshetu’),[15] Gummow J stated that the Court, when concerned with the issue of whether the requisite satisfaction of the decision maker as to a jurisdictional fact was arrived at reasonably, ‘would permit review in cases where the satisfaction of the decision maker was based upon findings or inferences of fact which were not supported by some probative material or logical grounds.’
[14](1944) 69 CLR 407, 432.
[15][1999] 197 CLR 611 [45]; see also Re Minister for Immigration and Multicultural Affairs; Ex Parte ApplicantS20/2002 (2003) 198 ALR 59 and Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12.
The availability of ‘illogicality or irrationality’ as a separate ground of judicial review (that is, a separate ground of review to Wednesbury unreasonableness) was confirmed by the High Court in Minister for Immigration and Citizenship v SZMDS (‘SZMDS’).[16] The availability of this ground of review is acknowledged in a number of appellate decisions which post date Eshetu.[17] Further, while doubts have been expressed in the past about whether curial, as opposed to administrative, determinations of jurisdictional facts are open to judicial review,[18] the Court of Appeal in New South Wales in Buttrose v Attorney-General of New South Wales,[19] expressed no such doubts in the course of setting aside a trial judge’s determination of a jurisdictional fact. What remains an issue for further consideration is the content of this ground of review, and in particular, whether a finding of illogicality and irrationality in the finding of a jurisdictional fact equates to a finding of unreasonableness in the Wednesbury sense. That question was posed, but not resolved in SZMDS, with two joint judgments differing on that point. The question of the applicable test also has to be viewed in the light of the decision of the plurality in Li, which arguably not only explained, but reduced the stringency of the test of Wednesbury unreasonableness, at least in respect of the review of the exercise of administrative discretion, and in the light of a parallel line of authority concerning the review of decisions concerning jurisdictional facts arising from the decision of the High Court in Enfield,[20] and subsequent decusions , including the Court of Appeal in this State in Saville v Hallmarc Constructions Pty Ltd (‘Saville’),[21] which did not apply a test of any particular stringency, but found, rather:
Where the question is whether the decision maker has erred as to the jurisdictional facts … that question has to be answered by the court in which it is litigated upon the evidence in that court.[22]
[16](2010) 240 CLR 611.
[17]See, for example, Re Minister for Immigration and Multicultural Affairs: Ex Parte Applicant s 20/2002 (2003) 198 ALR 59; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242; SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175.
[18]R v Federal Court of Australia: Ex Parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113, 125.
[19](2015) 324 ALR 562.
[20](2000) 199 CLR 135.
[21][2015] VSCA 318.
[22]Enfield (2000) 199 CLR 135 [22], referred to in Saville [2015] VSCA 318 [59].
In Saville, following recitation of the passage above, the Court of Appeal went on to say:
Where the jurisdictional fact is the existence of a fact, the reviewing court can determine on the balance of probabilities whether the fact exists.
This statement is consistent with the approach of the High Court in Enfield, where the High Court held:[23]
[23]Enfield (2000) 199 CLR 135 [48].
Where the question is whether the tribunal acted within jurisdiction, it must be for the Court to determine independently for itself whether that is the case.
and
the weight to be accorded to the opinion of the tribunal in a particular case will depend upon the circumstances.
The approach to jurisdictional fact finding in Enfield, as adopted in Saville, is difficult to reconcile with either of the joint judgments in SZDMS. Indeed, senior counsel for Mr Lang argued his case on the basis that Mr Lang had to establish irrationality and/or illogicality on the part of the learned magistrate, and I have proceeded on that basis.
A question remains regarding the content of that test. If I were to follow the joint judgment of Crennan and Bell JJ in SZDMS, which was relied upon by counsel for Carron Investments in his support of his submissions that the decision of the learned magistrate could not be held to be illogical or irrational or unreasonable simply because one conclusion could be preferred to another conclusion, I would have to find that the decision of the learned magistrate was so unreasonable that no reasonable person could have arrived at the conclusion he did. However, the observations made in the other joint judgment in SZDMS (Gummow A-CJ and Kiefel J) do not go that far.[24] Their Honours stated as follows:[25]
The apprehensions [expressed in the authorities] regarding ‘merits review’ assumes that there was jurisdiction to embark upon the merits. But the same degree of caution does not apply where the issue is whether the jurisdictional threshold has been crossed.
[24]Heydon J agreed with Crennan and Bell JJ on the result, but found no need to consider the content of the test.
[25]At [38].
Further, their Honours stated:[26]
The satisfaction of the criterion … may include consideration of factual matters but the critical question is whether the determination was irrational, illogical, and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith.
[26]At [40].
Given the decision of the plurality of the High Court in Li, one might expect that the statements of principle in the joint judgment of Gummow A-CJ and Kiefel J will prevail over the more stringent test preferred by Crennan and Bell JJ, noting that French CJ cited with approval the observations of Gummow A-CJ and Kiefel J in SZMDS regarding the distinction between a decision‑maker finding a jurisdictional fact and a decision-maker exercising a discretion, as follows:
The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided in the distinction between jurisdictional fact and other facts then taken into account in discretionary decision –making is kept in view.
The approach to the review of the determination of jurisdictional facts taken by Gummow A-CJ and Kiefel J in SZMDS has also found favour with Basten JA of the New South Wales Court of Appeal in Fraser v Health Care Complaints Commission,[27] and the Full Federal Court in Minister for Immigration and Border Protection v Singh.[28] In a recent decision of the Full Federal Court, Minister for Immigration and Border Protection v Stretton,[29] Allsop CJ explored further the implications of the determination of the High Court in Li that legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision‑making, including the determination of the existence of a jurisdictional fact. His Honour observed:
the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, on an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of the power.
Critical to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific jurisdictional error, to the conclusion or outcome reached, on the reasoning process utilised.
[27][2015] NSWCA 421 [41]–[42].
[28][2014] FCAFC 1 [44].
[29][2016] FCAFC 11 [11]–[12].
The caution expressed by Allsop CJ in the second of the passages reproduced above reflects previous statements to the effect that the fact that a court may ‘emphatically disagree’ with a decision may not of itself have legal consequence. His Honour also pointed to the need to give content to the issue of legal reasonableness by:
attending to the terms, scope and policy of the statute and the values drawn from the statute and the common law that fall to be considered in assessing the decision.[30]
[30]Ibid [9].
The contention that the decision in Li has the result that it is not necessary to show that a decision is outrageous or bizarre to establish a basis for relief by way of judicial review is supported by some academic commentators. In an essay titled ‘Illogicality, Irrationality and Unreasonableness in Judicial Review’, the author concluded a chapter in ‘Key Issues in Judicial Review’ as follows:[31]
Since in SZMDS Crennan and Bell JJ employed Wednesbury unreasonableness in giving content to the illogicality and irrationality ground, the members of the plurality in Li, which included Bell J, suggests that aspect of the Crennan and Bell JJ opinion which emphasised the self-evident nature of illogicality or irrationality is less important in determining whether a decision is illogical or irrational than may have been perceived following the initial handing down of SDMDS. In other words, it is not sufficient to simply consider the possibility that another rational person would have come to the same decision, rather the decision maker’s process of deliberation and justification in arriving at his or her decision becomes paramount. Therefore, the focus on the process of reasoning is similar to the Gummow ACJ and Kiefel J test of illogicality and irrationality in SZMDS. As a consequence, both the unreasonableness ground and the illogicality or irrationality ground have become more practical grounds of judicial review.
[31]Neil Williams (ed), Key Issues in Judicial Review (The Federation Press, 2014) 77.
Applying the approach helpfully propounded by Allsop CJ in Stretton to the current case, I would not find that the decision of the learned magistrate to refuse to set aside the default judgment was arbitrary, capricious, or even plainly unjust. However, the reasons make no reference to the second question before him at the hearing of the application, that is, whether the default judgment was irregularly obtained because the first affidavit of service did not provide evidence, or sufficient evidence that service of the complaint had been validly effected. Accordingly, it is possible to impugn the decision on the basis that, as suggested by the plurality in Li it is not ‘possible for a court to comprehend how the decision was arrived at’, and that the decision ‘lacks an evident and intelligible justification’. While the introductory sentence of paragraph 10 of the reasons refers to how the wording of the first affidavit of service ought to be interpreted, the balance of that paragraph indicates that what the learned magistrate was concerned with was the inferences that might or might not be drawn from that wording in the course of determining whether Mr Lang was in fact served with the complaint and the SEPA notice, not whether the first affidavit of service constituted of itself adequate evidence of valid service.
Of course, in order to set aside the decision on that basis, I would also need to find that the learned magistrate’s implied determination that the first affidavit of service constituted adequate evidence of valid service was wrong. Rule 10.02 provides that any application for an order in default of defence must be accompanied by an affidavit or declaration of service of the complaint. Senior counsel for Mr Lang submitted that rule 10.02 must be construed so that the affidavit or declaration of service must evidence valid service of the complaint, which, in the case of service interstate, must include evidence of service of a SEPA notice. The first affidavit of service makes no reference to a SEPA notice. I agree that any alternative construction of r 10.02 is unreasonable, and that, absent proof of service of a SEPA notice, the evidence of service in the first affidavit of service is insufficient to enliven the jurisdiction of the Court to grant default judgment.
In my view, having regard to the terms and policy of the Rules, including the provisions of Part 1 of Order 10 of the Rules, not simply 10.1 and 10.2 of the Rules, that in order for the Court to grant judgment in default of defence, the evidence before the Court must prove valid service of the complaint in question, including, in the case of defendants resident interstate, service of a SEPA notice. The provisions of Part 1 of Order 10 provide for an expeditious means of entering judgment against debtors who fail to dispute the existence of debt. The only evidentiary support required for a debt or liquidated demand is an affidavit of service. As noted by Derham AsJ in Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union,[32] commenting upon the equivalent rules in this jurisdiction:
These Rules enable a Plaintiff to enter judgment without proof of their claim upon a failure of a defendant to observe the applicable time limit. They provide a special privilege to the plaintiff, and so the rules providing such a right ‘ought to be construed strictly as against a plaintiff’.
[32][2014] VSC 429 [23].
In French v Triple M Pty Ltd,[33] Bongiorno J, as he then was, stated:
That judgment be default, to be valid, must strictly comply with the procedural requirements of due process cannot be denied. After all it is an extraordinary procedure which enables a person to obtain a judgment from the Court in the absence of the person affected by the judgment.
[33][2006] VSC 36 [12].
In essence, the factors which support the construction of rule 10.02 as importing a requirement for proof of valid service mirror the matters which support the conclusion that the question of whether the affidavit of service on the court file enlivens the jurisdiction to grant summary judgment is a jurisdictional fact, in particular, the significance of service as a precondition to jurisdiction. Indeed, it would arguably be an absurd construction of the Rules if default judgment could be entered in the absence of evidence of valid service, including proof of compliance with the requirements imposed by other legislation, such as the Corporations Act 2001 (Cth) and its predecessors and the SEPA Act.
That proof of valid service is required by rule 10.02 is supported by the remaining provisions of Part 1 of Order 10 of the Rules, including rule 10.02.1, which provides for electronic applications to be made where the claim is for a debt or liquidated damages. This rule specifies that the applicant must possess at the time of making an application, an affidavit or declaration of service, and the electronic message must include the usual particulars of service, and if requested, must file the affidavit or declaration of service. Rule 10.03 provides that if a registrar is satisfied that an order should be made, the registrar must make an order. If the registrar is not so satisfied, the registrar may refer the application to the Court for decision, and the Court may, among other things, direct that a further affidavit or affidavits be filed. One might anticipate that a basis for referring a claim for debt or liquidated damages to the Court may well be an absence of satisfaction on the part of the registrar that valid service of the relevant complaint had been effected.
Accordingly, the implied finding of the learned magistrate that the first affidavit of service constituted evidence of valid service sufficient to satisfy the registrar that an order for default judgment ought to have been made was not, particularly in the absence of an evident or intelligible justification, legally reasonable. While I have found that it was open for the learned magistrate to find on all of the evidence that valid service had been effected upon Mr Lang, the first affidavit of service was not capable, of itself, of providing adequate evidence of valid service. As noted by senior counsel for Mr Lang in his oral submissions:
The decision of the learned magistrate, and with respect, the submissions of the first defendant misconceive[d] what the magistrate’s role was. His role did not entail finding that the Court file established that the [SEPA notice] was not served. He didn’t have to go so far as to say ‘I’ve looked at the Court file and that doesn’t prove that the [SEPA notice] wasn’t served. The learned magistrate needed to look at the Court file and consider on the basis of that information that it was open to find that the [SEPA notice] was served.
This characterisation of the task before the learned magistrate is correct, as is the submission that it is not apparent from the reasons that the task was undertaken.
Given my findings, the question remains as to whether certiorari ought to be granted, and whether the matter ought to be remitted to the Magistrates’ Court for further hearing. Counsel for Carron Investments conceded that if I found in favour of Mr Lang on the second question, being the adequacy of the first affidavit of service to enliven the authority of the Court to grant a default judgment, no utility would be served by remitter. However, he submitted that I should not exercise my discretion and grant relief by way of certiorari, on the basis that such a decision would set an unfortunate precedent by allowing recalcitrant debtors to avoid their obligations by relying upon technical defects in service. Further, given that the claim was now long stale, then setting aside the default judgment would deprive Carron Investments of an opportunity to recover the sums claimed by it against Mr Lang.
In relation to the first matter, that proposition is best answered by the remarks of Bongiorno J in French v Triple M Pty Ltd[34] referred to in paragraph 56 above. As for the second, I am not convinced that no remedy remains open to Carron Investments. I will set aside the default judgment, but I have not reversed the learned magistrate’s findings that valid service was in fact effected. It is arguably open to Carron Investments to apply for dispensation for compliance with the Rules under rule 2.04 of the Rules, as the proceeding remains on foot. What has been lost is the opportunity to immediately enforce the debt which is the subject of the claim, not, as I see it, the right to prosecute the claim, at least not at this stage. For completeness, I do not consider there has been any relevant delay on the part of Mr Lang in bringing the application to set aside the default judgment or prosecuting this proceeding.
[34][2006] VSC 36.
As discussed during the course of the hearing, in the interests of saving costs, I shall:
(a) quash the decision of the fourth defendant made on 11 August 2015 to refuse the application by Mr Lang to set aside the default judgment entered against him in Magistrates’ Court of Victoria proceeding K03132001 on 9 April 1999;
(b) order that the default judgment be set aside; and
(c) reserve liberty to apply, including with respect to the question of costs.
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