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 hearing on 3 December 2012. The letter set out the defendants' submissions regarding why a default judgment should not be granted and advised Dr Li that the letter would be provided to the court in relation to an application for costs, unless he would withdraw his application prior to the hearing.
The application for default judgment was refused and the matter of costs was reserved.

Grounds of appeal

Dr Li filed a notice of appeal against the learned registrar's decision. The grounds of appeal were formulated as follows:
1.the plaintiff has been denied the principles of Natural Justice;
2.Deputy Registrar Hogan has a significant error in fact in her decision;
3.Deputy Registrar Hogan accepted an unserved letter as evidence in her decision.
Counsel for the defendants submitted during the hearing of the appeal that the second ground of appeal did not comply with r 51(3) of the District Court Rules 2005 (DCR) pursuant to which a ground of appeal must specify the particulars relied on to demonstrate that the decision is against the weight of the evidence and the specific reasons why it is wrong in law. Despite the non‑compliance with ground two, Dr Li was given the opportunity to amplify this ground of appeal at the hearing of the appeal because he was unrepresented. Counsel for the defendants summarised the amplification of the second ground in subsequent written submissions filed with leave of the court and Dr Li agreed in his submissions in response that this was a correct summary of his argument in support of the second ground of appeal.
Dr Li's amplification in support of the second ground of appeal may be stated as follows:
(a)the writ was properly served pursuant to r 21 of the DCR as the defendants consented to service by email on their legal representative;
(b)the defendants' memorandum of appearance was filed out of time, being entered after the 10 days allowed in the writ;
(c)the memorandum of appearance was invalid because it was not served on the day of it having been filed.
It should be noted that the parties were given leave to file written submissions after the hearing of the appeal as Dr Li complained that he had difficulty following what was said by counsel for the defendants during the hearing. Dr Li was asked at the beginning of the hearing whether he could understand English and address the court in English, and agreed that he was able to do so. Dr Li also asked for an adjourned hearing so that he could address the defendants' legal arguments which he said he had not been told of before. He requested that the defendants file written submissions first setting out their legal argument.
An adjournment of the hearing was refused, but the court made orders for the filing and serving of written submissions. Although the appellant usually files his submissions first, the court made orders that the defendants file written submissions first, to which Dr Li was allowed to respond. The defendants were given a right of reply as the sequence of the submissions had been reversed.

Ground 1

It is not necessary to make a finding as to whether there was a breach of natural justice. The learned deputy registrar should have given Dr Li the opportunity to address her prior to making any findings or an order, but the conduct of the proceedings before the deputy registrar has become largely irrelevant, because the hearing on appeal was a hearing de novo. This means that the application for a default judgment was heard again, as if it was heard for the first time, although it was decided on the same documents that were submitted in support of the application before the learned registrar.
At the hearing of the appeal Dr Li was given ample opportunity and assistance by the court to formulate his grounds of appeal and the factual findings and legal principles that he wished to rely upon.
Any failure by the deputy registrar to afford Dr Li natural justice, even if it had occurred, would therefore have become of no consequence after the hearing de novo on appeal.

Ground 2

Whether the writ was properly served pursuant to O 13 r 1

Pursuant to r 6 of the DCR the Rules of the Supreme Court 1971 (RSC) also apply to any matter conducted in the District Court, unless there is a conflict or inconsistency between these rules and the DCR, in which event the latter rules prevail.
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.
Counsel for the defendants explained at the hearing of the appeal that no objection was taken to the manner in which the writ was served for purposes of it having called for a memorandum of appearance and the defendants purposefully did not file a conditional appearance. However, counsel for the defendants submitted that a writ would nevertheless have to comply with the requirements of O 13 r 1 of the RSC before a default judgment could be issued.
It is not clear whether the reference to 'documents' in r 21 of the DCR was intended to include a writ. If it did, it would effectively do away with the requirements of O 9 r 1 of the RSC which demand personal service of a writ unless there is service on the defendants' solicitor and an endorsement by him or her. This would mean that there would be proper service as long as the defendant agreed to receive the writ in another manner, including by email and without endorsement on it by the defendant's solicitor.
There is no equivalent to r 21(6) in the RSC. However, Kendall and Curthoys, Civil Procedure in Western Australia [vol 1, 9.0.3], are of the view that there is no provision in the RSC which prohibits parties from agreeing to a different manner of service of a writ. The learned authors rely on Kenneth Allison Ltd v A E Limehouse & Co (a firm) [1992] 2 AC 105, 116, 119 ‑ 120, 128, in which case the House of Lords held that a writ served on a firm was properly served after the document was handed to the personal assistant of a partner, on the partner's instructions, even though the equivalent of O 9 r 1 in the English Rules of the Supreme Court required personal service.
The learned authors also refer to R A Lister & Co Ltd v E G Thomson (Shipping) Ltd and P T Djkarta Lloyd ('The Benarty') [1983] 1 Lloyd's Rep 361, 369, where the Court of Appeal held that service of a writ on the defendant's solicitors in England was proper service because the defendant, who was outside England, had agreed that the writ could be served on its solicitors within the jurisdiction.
It is not necessary to decide the exact import of r 21(6) of the DCR because even if the writ was properly served by Dr Li, O 13 r 1 still requires that for purposes of a default judgment, a judgment shall not be entered against the defendant unless it was served personally or the defendant's solicitor had endorsed it with a statement that he accepted service of the writ on the defendant's behalf. Order 13 r 1 does not provide that a default judgement shall not be entered unless there was proper service of the writ. It requires specifically personal service or an endorsement on the writ by the defendant's solicitor.
Counsel for the defendants relied on Elders Finance Ltd v Invaway Pty Ltd [1991] 2 Qd R 398, 400 in which Senior Master Horton QC required proof by affidavit that an endorsement on the writ was that of the defendant's solicitor before granting a default judgment. Counsel for the defendants submitted that this indicated that compliance with the rules for service of a writ had to be strictly adhered to and proven before a default judgment was applied for.
Accordingly, while the service of the writ by email without it having been endorsed by the defendants' solicitor may have been adequate because she impliedly agreed to such service, the method of service was not adequate to allow Dr Li a judgment in default. A judgment in default is a serious step which allows a plaintiff immediate judgment without the merits of the case having been considered and the particular requirements for service of a writ as set out in O 13 r 1 need to be complied with where a default judgment is sought.

Whether the memorandum of appearance was out of time

Dr Li also submitted that the memorandum of appearance was filed out of time.
The writ was served by email on 9 October 2012. The 10 days allowed in the writ for filing and serving a memorandum of appearance expired on 19 October 2012. The defendants filed a memorandum of appearance on 22 October 2012, as evidenced by the stamp of the Principal Registry of the District Court. The application for the default judgment was filed on 24 October 2012.
Dr Li submitted that because the appearance was out of time, it was not valid. He relied on O 5 r 11 of the RSC which provides that the time to be stated in a writ for the appearance of a defendant should be not less than 10 days if the place for service was less than 300 km from Perth.
However, there is nothing preventing a defendant to file a memorandum of appearance after the 10 day period has expired, unless the plaintiff files an application for a default judgment first. Order 12 r 5(1) provides that a defendant may not enter an appearance after judgment has been entered except with the leave of the court, but O 12 r 5(2) explains that, except as provided in r 5(1), nothing prevents a defendant from entering an appearance after the time limited for appearing.
Accordingly the appearance filed by the defendants was not invalid by reason of it having been filed after the 10 days provided for in the writ.
Dr Li also stated that he had already tried to file an application for default judgement on 19 October 2012, but was given a form to fill in by the registry of the District Court on that day and only filed the completed form on 24 October. The fact that Dr Li tried to file an application for a default judgment is of no consequence. The date of the application is taken from the day on which it has been filed.

Whether the memorandum of appearance was invalid because it was not served on Dr Li

Dr Li submitted that the memorandum of appearance that was filed was nevertheless invalid because it was not served on him on the same day as the date it was filed. Dr Li relied on O 12 r 4 which states that a defendant must serve the stamped copy of the memorandum of appearance on the plaintiff on the same day on which the defendant entered an appearance to the writ.
The defendant's solicitors omitted to serve the memorandum of appearance on the day that it was filed. As far as I understand it has never been served. However, Dr Li was informed of the fact that the defendants had filed an appearance on 22 October 2012 by a note from the registry of the District Court dated 26 October 2012. Dr Li stated in an affidavit filed in support of his application for a default judgment that he received the note on 30 October 2012.
Counsel for the defendants relied on O 2 r 1(1) of the RSC which provides as follows:
2.1.Non‑compliance with rules
(1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
This sub‑rule means in essence that where there has been a failure to comply with any requirement of the RSC, such failure shall be treated as an irregularity and shall not make any step taken or document affected by that failure invalid.
Order 2 r 1(2) provides that a court may, amongst other things, set aside any step taken in proceedings or make an amendment to any document where there has been a failure to comply with any requirement of the RSC. Counsel for the defendants relied on Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257 in which the Court of Appeal held that pursuant to O 2 r 1(2) a memorandum of appearance which had mistakenly been filed with a wrong action number could be amended by the court with retrospective effect. In that case a default judgment had been granted on the basis that because of the wrong action number a valid memorandum of appearance had not been filed prior to the application for default judgment having been brought. The Court of Appeal set aside the default judgment on the basis that the irregularity in the memorandum of appearance could be corrected retrospectively.
Pursuant to O 2 r 2, an application to set aside any irregular step taken or document filed in the proceedings may be made within a reasonable time and before the party making the application has taken any fresh step after becoming aware of the irregularity.
The failure by the defendants to serve the memorandum of appearance does therefore not mean that the appearance was invalid, unless an order was made by the court, upon application by the plaintiff, setting aside the memorandum of appearance which was filed.
There is another reason why an application for a default judgment could not have succeeded. Pursuant to O 13 r 1(2) a default judgment can only be entered into when the defendant has failed to file a memorandum of appearance.
Order 13 r 1(2) of the SCR provides as follows:
(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.
The words 'enter an appearance' mean 'file an appearance'. This appears from the wording of O 12 r 4 which provides that on the day on which a defendant 'enters an appearance', he must also serve the stamped copy of the memorandum of appearance. In that context the words 'enters an appearance' clearly refer to filing an appearance. It is trite law that where the same words or phrase are used in different parts of a statute, they should generally be given the same meaning, unless it is clear that this was not the intention of the legislature: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450, 452.

This means that Dr Li's application for a default judgment could not have succeeded where the defendants had already filed an appearance even if they had not served it.
The court hearing an application for a default judgment also has a discretion to refuse to give judgment if there is reason to think that an injustice will result: Charles v Shepherd [1892] 2 QB 622, 624, 625. Where a court is aware that a defendant wishes to defend proceedings by reason of a memorandum of appearance having been filed, it would be contrary to justice to nevertheless allow a plaintiff his application for default judgment: French v Triple M Melbourne Pty Ltd [2006] VSC 36 [22].
For all these reasons it is apparent that Dr Li's application for default judgment cannot succeed and that the learned deputy registrar did not make an error when she refused the application on the basis that the writ was not served in accordance with the RSC. As the matter is heard on appeal de novo, it does not matter whether the learned deputy registrar made an error or not, but the fact of the matter is that she was not mistaken.

Whether the registrar accepted an unserved letter as evidence

Dr Li submitted that the deputy registrar accepted the defendants' letter to him, dated 28 November 2012, as evidence in opposition to his application even though it had not previously been served on him (or sent to him). As indicated before, the letter merely set out the submissions by the defendants as to why the application for default judgment should be refused and gave Dr Li the opportunity to withdraw the application prior to its hearing. The letter was marked 'without prejudice, save as to costs' and stated that the defendants reserved the right to provide a copy of the letter to the deputy registrar in support of an application for costs.
There is nothing untoward in such a letter being provided to the presiding officer in support of an application for costs. Obviously, if there is no proof that the other side received the letter, it can have little effect in supporting an application for costs. The learned deputy registrar did not award the defendants costs but reserved the question of costs. This means that the question of costs is to be discussed and finalised on a later occasion.
This court will hear the parties on the issue of costs once the judgment in the appeal has been handed down.
The appeal is dismissed.