Li v HACKLING - [2013] WADC 63

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LI -v- HACKLING [2013] WADC 63

CORAM: SCHOOMBEE DCJ

HEARD: 20 & 21 FEBRUARY 2013

DELIVERED : 9 MAY 2013

FILE NO/S: CIV 2994 of 2012

BETWEEN: DONG GUANG LI
Appellant
AND
MARK HACKLING
First Respondent
MURRAY LAMPARD
Second Respondent
TONY FETHERSTON
Third Respondent
EDITH COWAN UNIVERSITY
Fourth Respondent

Catchwords:

Appeal from decision of registrar of District Court - Refusal of application for default judgment - Whether writ properly served - Whether memorandum of appearance invalid because of failure to serve it - Writ not endorsed by defendants' solicitor as required by O 13 r 1 of the Rules of the Supreme Court - Whether defendants could consent to writ being served in a manner contrary to O 13 r 1 pursuant to r 21(6) of District Court Rules - Whether under O 2 r 1 failure to serve is irregularity which does not nullify the memorandum of appearance

Legislation:

District Court Rules 2005 r 21(6)
Rules of the Supreme Court 1971 O 2 r 1, O 9 r 1, O 12 r 4, O 13 r 1

Result:

Appeal dismissed

Representation:

Counsel:

Appellant:     In person
First Respondent          :     Mr J P Wilson
Second Respondent      :     Mr J P Wilson
Third Respondent        :     Mr J P Wilson
Fourth Respondent      :     Mr J P Wilson

Solicitors:

Appellant:     Not applicable
First Respondent          :     WHL Legal Pty Ltd
Second Respondent      :     WHL Legal Pty Ltd
Third Respondent        :     WHL Legal Pty Ltd
Fourth Respondent      :     WHL Legal Pty Ltd

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

Charles v Shepherd [1892] 2 QB 622
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Elders Finance Ltd v Invaway Pty Ltd [1991] 2 Qd R 398
French v Triple M Melbourne Pty Ltd [2006] VSC 36
Kenneth Allison Ltd v A E Limehouse & Co (a firm) [1992] 2 AC 105
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257
R A Lister & Co Ltd v E G Thomson (Shipping) Ltd and P T Djkarta Lloyd ('The Benarty') [1983] 1 Lloyd's Rep 361

SCHOOMBEE DCJ: This is an appeal against the decision by a registrar of the District Court to refuse an application for default judgment. Dr Li, the appellant, filed an application for a default judgment and represented himself at the hearing of the application. The learned deputy registrar commenced the proceedings by telling Dr Li that she was not prepared to grant a default judgment because the writ was not filed in accordance with the rules. Dr Li asked to address the learned registrar with regard to his application, but was told that she had already made an order in relation to the application.
In support of the application for costs, counsel representing the defendants presented a letter to the court which was dated 28 November 2012, but which Dr Li said he had not received. A copy of the letter was provided to Dr Li at the…

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.

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Details

Case: [2013] WADC 63
Decision Date: 9 MAY 2013

CaseChat Overview and Summary

Dr Li appealed against the refusal of an application for a default judgment by the Registrar of the District Court. The issue before the Court was whether the writ had been properly served on the defendants. The writ had not been served personally on the defendants and the defendants' solicitor had not endorsed on the writ a statement that she accepted service of the writ on behalf of the defendants. Instead, Professor Lampard had consented to the solicitor accepting service of any legal documents on his behalf. Dr Li argued that the defendants had consented to being served by email and that this was sufficient to render the service valid. The Court held that the service of the writ by email was not valid. The Court found that r 21(6) of the DCR did not allow a writ to be served in any manner as long as the person on whom it was served had agreed to that manner of service. Rather, r 21(6) allowed a person to consent to being served in a manner other than in accordance with the rules of court, but only if that manner of service was otherwise permissible under the rules of court. The Court found that service of a writ by email was not permissible under the rules of court. As the writ had not been properly served, the memorandum of appearance was invalid and the application for a default judgment was refused. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Order 13 r 1 of the RSC provide as follows:1.Prerequisites for judgment in default of appearance etc(1)Judgment shall not be entered against a defendant under this Order unless — (a)an affidavit is filed by or on behalf of the plaintiff proving due service of the writ on the defendant and due indorsement of service in accordance with Order 9 rule 1(4); or (b)the plaintiff produces the writ indorsed by the defendant’s solicitor with a statement that he accepts service of the writ on the defendant’s behalf. (2)Where, in an action begun by writ, an application is made to the Court for an order affecting a party who has failed to enter an appearance, the Court hearing the application may require to be satisfied in such manner as it thinks fit that the party is in default of appearance. Order 9 r 1 requires that a writ must be served personally on each defendant. Order 9 r 1(4) sets out the requirements for proof of personal service. Order 9 r 2 states that a writ may also be served on a defendant's solicitor provided the solicitor endorses on the writ a statement that he or she accepts service of the writ on behalf of the defendant. In such a case the writ shall be deemed to have been duly served on that defendant. The writ issued by Dr Li was not served personally on the defendants, nor did the defendants' solicitor endorse on the writ a statement that she accepted service of the writ on behalf of the defendants. What occurred is that the second defendant, Professor Lampard, wrote to Dr Li by email saying that he consented to Ms Williamson, a solicitor employed by the office of legal services of Edith Cowan University, the fourth defendant, accepting service of any legal documents on his behalf. Dr Li replied by email thanking Professor Lampard for his consent to be 'served electronically by email' and attached the writ of summons. Professor Lampard must have communicated the content of this email and provided the writ of summons to Ms Williamson, as she sent an email on the same date to Dr Li confirming that Professor Lampard had authorised her to receive service of any documents. She stated that she had received service of the document attached to Dr Li's email to Professor Lampard and added that she confirmed receipt of the document on behalf of all the defendants to the action. Dr Li submitted to the court that by the latter email the solicitor acting for all the defendants had agreed to accept service of the writ by email and had impliedly dispensed with any requirement for the writ to be endorsed by her. Dr Li argued that the writ was therefore properly served. Dr Li relied on r 21(6) of the DCR. Rule 21 provides as follows:21.Service of documents [(1) deleted] (2)…(3)…[(4), (5) deleted] (6)This rule does not prevent a person from consenting to being served in a manner other than in accordance with the rules of court. Dr Li submitted that r 21(6) allowed a writ to be served in any manner as long as the person on whom it was served had agreed to that manner of service.

Ratio Decidendi

Legal Principle Established

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