Melglow Pty Ltd v Ballygrowman Pty Ltd

[2016] WASC 383

MELGLOW PTY LTD -v- BALLYGROWMAN PTY LTD [2016] WASC 383

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 383
Case No:	CIV:2707/2016	Heard:	14 NOVEMBER 2016
Coram:	BANKS-SMITH J	Delivered:	22/11/16
No of pages:	20	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	MELGLOW PTY LTD BALLYGROWMAN PTY LTD REGISTRAR OF TITLES
Catchwords:	Practice and procedure Originating summons for order extending caveat Where parties and court assume proceedings issued Where interim orders made by consent Where error in filing later disclosed Application to set aside interim orders Whether proceedings a nullity or irregular Whether sealed Whether issued Whether O 2 r 1 of the Rules of the Supreme Court 1971 (WA) available to regularise
Legislation:	Rules of the Supreme Court 1971 (WA), O 2 r 1, O 58 r 14
Case References:	Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1 Bell v Cribb [2013] WASC 32 Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 Davies v Lewis [2001] NTSC 105; (2001) 11 NTLR 81 Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372 Esanda Finance Corporation Ltd v McInerney (1997) 18 SR (WA) 84 Ianello v Bottoli (1998) 19 SR (WA) 27 Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874 LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134 Metroinvest Ansalt v Commercial Union Assurance Co plc [1985] 1 WLR 513 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 National Australia Bank Ltd v Meehan (Unreported, VSCA, 8407 of 1993, 24 February 1994) Re Commercial Union Assurance Co (Ltd) (1899) 18 NZLR 585 Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549 The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : MELGLOW PTY LTD -v- BALLYGROWMAN PTY LTD [2016] WASC 383 CORAM : BANKS-SMITH J HEARD : 14 NOVEMBER 2016 DELIVERED : 22 NOVEMBER 2016 FILE NO/S : CIV 2707 of 2016 BETWEEN : MELGLOW PTY LTD

Plaintiff

AND

BALLYGROWMAN PTY LTD
First Defendant

REGISTRAR OF TITLES
Second Defendant

Catchwords:

Practice and procedure - Originating summons for order extending caveat - Where parties and court assume proceedings issued - Where interim orders made by consent - Where error in filing later disclosed - Application to set aside interim orders - Whether proceedings a nullity or irregular - Whether sealed - Whether issued - Whether O 2 r 1 of the Rules of the Supreme Court 1971 (WA) available to regularise

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1, O 58 r 14

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr J C Yeldon
First Defendant : Ms R R Joseph
Second Defendant : No appearance

Solicitors:

Plaintiff : Robertson Hayles Lawyers
First Defendant : Avon Legal
Second Defendant : No appearance

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

Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1
Bell v Cribb [2013] WASC 32
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Davies v Lewis [2001] NTSC 105; (2001) 11 NTLR 81
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372
Esanda Finance Corporation Ltd v McInerney (1997) 18 SR (WA) 84
Ianello v Bottoli (1998) 19 SR (WA) 27
Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874
LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134
Metroinvest Ansalt v Commercial Union Assurance Co plc [1985] 1 WLR 513
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
National Australia Bank Ltd v Meehan (Unreported, VSCA, 8407 of 1993, 24 February 1994)
Re Commercial Union Assurance Co (Ltd) (1899) 18 NZLR 585
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412

BANKS-SMITH J:

Introduction

1 The first defendant (Ballygrowman) seeks to have orders made by Master Sanderson and by consent on 5 October 2016 (Orders) set aside on the basis the originating summons was not properly issued and so the Master lacked jurisdiction.

2 Relevantly, the Orders extended a caveat over property owned by Ballygrowman and lodged by the plaintiff (Melglow) pending further order of the court. Absent the Orders, the caveat lapsed automatically at midnight on 5 October 2016. Accordingly, if Ballygrowman's arguments are to be accepted, the caveat has already lapsed.

3 For the reasons set out below, I have concluded that it is appropriate to exercise my discretion to validate any irregularity with respect to the issue of the originating summons in accordance with O 2 of the Rules of the Supreme Court 1971 (WA) (RSC), and, it follows, Ballygrowman's application is dismissed.

Relevant facts

The caveat

4 On 30 September 2016, the plaintiff applied by originating summons pursuant to s 138C of the Transfer of Land Act 1893 (WA) (TLA) for an order extending a caveat lodged over Ballygrowman's property in Northam on which the Commercial Hotel (hotel) is built (first originating summons). The proceedings were allocated action number CIV 2707 of 2016 by the court. The application was supported by an affidavit of Roger Cramer, the sole director of Melglow, filed 30 September 2016.1

5 Melglow claims to be the lessee of the land and says that it operates the hotel.2

6 On 19 March 2016, Ballygrowman entered into a contract to sell the property. The contract refers to an existing commercial lease.3

7 The caveat is dated 22 July 2016 and discloses that Melglow as caveator claims an interest by way of an equitable option to purchase the land and a ten year equitable leasehold estate starting 30 January 2016. In short, it appears that the term of a written lease between the parties expired some time ago but Melglow has remained in possession, sometimes paying rent or undertaking works in lieu. Melglow relies on oral representations and part performance in support of its claims.4

The first hearing

8 The first originating summons came before the Master on 4 October 2016. An issue was immediately apparent in that Mr Cramer purported to file the first originating summons on behalf of Melglow. Although it transpired that solicitors (Cullen Macleod) had assisted with the drafting of the relevant documents, the firm was not on the record for the plaintiff. It is not open to a company to take such steps other than by solicitors. That is the effect of O 4 r 3(2) of the RSC and the court has no power to dispense with the rule.5 Ballygrowman filed a conditional appearance only, referring to the position under O 4 r 3(2) and appeared before the Master.

9 The Master informed Mr Cramer that in light of O 4 r 3(2) he could not make any orders on the first originating summons. However, the court and counsel for Ballygrowman (Mr Ashdown) were aware of the urgency of any application in light of the pending expiry of the caveat at midnight on 5 October 2016. Ballygrowman places significance on what was said by the Master at the hearing, and accordingly I note the following exchange:6

THE MASTER: Look, I appreciate your difficulties, and I appreciate, having read the papers, how important this is to you. If there was anything I could do for you, I would. In other words, not saying that I would necessarily grant you the relief, but I would at least give you a hearing. But the fact is, I can't.

CRAMER, MR: Your Honour, would you - I will contact Cullen Macleod now and inform them of the situation.

...

THE MASTER: Well, I will be in my office all day. If something can be arranged for, say, 2.15 after a fresh writ has been issued, then I will deal with it. But I just want to make it plain to you that as the proceedings stand at the moment - well, the proceedings won't stand because - I will hear from Mr Ashdown in a minute, but I assume that what he wants done is this writ dismissed, and he's entitled to that for reasons I think I've explained.

...

[So] Cullen Macleod have got some time, what I will do is adjourn it to 9.15 tomorrow morning.

CRAMER, MR: Thank you, sir.

THE MASTER: So then - and you heard what Mr Ashdown said. If a writ is issued, it should be served on his solicitors - on Mr Ashdown's instructing solicitors, the defendant's solicitors, and I will hear the matter at 9.15 tomorrow morning.

CRAMER, MR: Thank you, sir.

THE MASTER: All right.

ASHDOWN, MR: Master, otherwise we would seek that the originating summons be struck out and costs, but I'm content to leave that till tomorrow morning as well.

THE MASTER: I think that should - it may be that solicitors are instructed. They will have some argument to put, although it's difficult to know what it might be. But I will leave this present writ on foot until 9.15 tomorrow morning.

10 Accordingly, the matter was adjourned to 9.15 am on 5 October 2016.

The second originating summons

11 At around 2.20 pm on 4 October 2015, Mr Frichot, a process server, attended at the Supreme Court Registry with a letter and a set of documents in effect the same as those already filed, but with a notice of change of representation (identifying Cullen Macleod as Melglow's solicitors) and with the court documents amended reflecting there were solicitors on the record.

12 Relevantly, the covering letter provided as follows:7

Dear Sir/Madam,

Please see attached documents being:

(a) Originating Summons;

(b) Affidavit of Robert Cramer dated 4 October 2016;

(c) Undertaking as to Damages;

(d) Certificate of Urgency;

(e) Submissions; and

(f) Notice of Change of Representation, Service Details or Address.

The matter was originally listed for this morning at 9.15. However, Master Sanderson made an order that the matter be urgently re-listed for 9.15 am tomorrow Wednesday 5 October 2016 in order that the plaintiff be allowed time for solicitors to represent the company.

Accordingly, the documents on the court record need to be changed to reflect the fact that the company is now represented by Cullen Macleod.

Please find attached our Notice of Change of Address. Please uplift the original documents on the court record and replace with the enclosed docs at (a) to (f) above.

The court records need to include these documents in time for the hearing tomorrow at 9.15 am.

13 Mr Frichot deposed to the following events at the Registry:8

3. On attending the Registry Office I was served by Sean. I advised him that the documents were requested to be filed by Master Sanderson.

4. I informed him that I had filed the said documents save for the Notice of Change and the Submissions the previous day.

5. He checked the computer records and stated that he could not see any orders from The Master directing the Plaintiff to file the documents listed above in paragraph 2.

6. I requested him to make contact with the Master's Associate as the directions could had been given verbally and may not have shown up on the records as yet.

7. The clerk tried to call someone then left the front desk and went to the back before returning some minutes later.

8. He advised me that he was unable to reach the Master's Associate but would have the documents delivered to her in the course of business.

9. A copy of all the documents was then received by the clerk and I returned the duplicate copies including the Original sealed Originating Summons which I had brought with me back to the offices of Cullen Macleod.

14 Ms Catriona Macleod is a director of the company that trades as Cullen Macleod. Ms Macleod deposed to having organised for Mr Frichot to file the letter and court documents on 4 October 2016. She also deposed to having a conversation with Mr Frichot and then sending an email to the Master's Associate at 2.50 pm on 4 October 2016. The email states:9

Further [to] Melglow's appearance this morning, please see attached replacement documents showing that we represent the plaintiff applicant (plus a letter to you explaining).

Our process sever attempted to file these half an hour ago but they would not accept them for filing until the Master approved them doing so, as there was no actual order on the court file. The registry officer is sending the documents over to you for that purpose. If you need to chase them up, it was a man at section / line 2 who took the documents.

Can you please urgently have the Master OK and let the registry know that they can be accepted for filing so that we can serve them on Landgate and the second defendant this afternoon?

I will call you shortly to ensure you have received the docs and th[i]s email.

15 Ms Macleod then telephoned the Associate. She says the following in her affidavit:10

In a telephone conversation with the Associate to Master Sanderson I explained that I had sent her an email that explained that there was some confusion at the registry regarding some documents that we had attempted to be filed for the hearing tomorrow. I explained that from what our outside clerk had told me the registry appeared to need the Master's confirmation that they could accept the documents and could she please organise that urgently. She advised that the Master had told her to tell the registry it was fine, which she had done. However, the registry could not understand why she was speaking to them because they had (either 'filed' or 'already accepted', I cannot remember the exact words) the documents. She said the 'short of it' was that 'all the documents are here.'

16 The same afternoon, Ms Macleod relayed her communications with the Associate to Ballygrowman's solicitors and emailed copies of the fresh court documents to them.

17 Melglow's lawyers, Avon Legal, responded by an email which read, relevantly, as follows:11

The orders made this morning by Master Sanderson were to the effect that the original proceedings were defective by virtue of the way in which they [had] been commenced and that those proceedings remained alive until tomorrow at 9.15am on the question of costs only. Specifically, the Master expressed in clear terms that a new Originating Summons would need to be issued.

We note that you appear to be seeking to substitute documents in circumstances where in our view you were required to commence a new action. There is no ability to uplift and substitute the Originating Summons as it was defective at the outset. If you have any authority that permits you to substitute the Originating Summons in this manner, then would you please advise in writing urgently.

18 Avon Legal did not otherwise challenge the purported service of the documents by email.12 Ms Holford deposes to the effect that at that time she assumed that the Registry had accepted the second originating summons for filing.13

The 5 October 2016 hearing

19 On 5 October 2015, both parties were represented by counsel. The Master clearly had the new set of papers before him. The following exchange occurred:14

YELDON, MR [for Melglow]: What has occurred [since the 4 October hearing] is that my instructing solicitors sought permission from the registry to uplift those documents, and new documents have been filed, and they are the documents which I understand are before you.

THE MASTER: Yes.

YELDON, MR: And so we submit that the proceedings are regular. They have been reissued.

THE MASTER: Yes.

YELDON, MR: And they're in a regular form, and I seek to proceed on those proceedings.

THE MASTER: All right. Mr Ashdown.

ASHDOWN, MR: Well, Master, that's somewhat news to us in the sense about the uplifting. So I'm a little bit in the dark as to exactly what has happened. We've received, effectively, the same documents with the solicitors' endorsement on them, but at this point in time as far as we were aware there was no application to amend or to uplift or to do anything of the sort.

There was an attempt to reuse these proceedings when we say that they were a nullity from the commencement ...

...

THE MASTER: I wonder - looking at the papers, there's a range of issues, as - in relation to this matter. What I had in mind doing was extending the operation of the caveat till a date to be fixed at the convenience of the parties, allowing your client to consider the papers, put on any affidavit material that it might wish to put on together with some submissions and then have a hearing at least in relation to the caveat matter some time next week.

20 The Master then addressed other issues including potential mediation and the matter was briefly adjourned for conferral between the parties. The parties returned with a minute of agreed proposed orders. Later that day the Master made the Orders (which were consistent with the minute). On their face, the Orders were made in CIV 2707 of 2016. Importantly, the Orders provided that the caveat be extended until the substantive hearing of the originating summons.

The 18 October 2016 hearing

21 On 12 October 2016, the Master re-listed the matter for further directions on 18 October 2016, informing the parties (via his Associate) that, 'The originating summons and all supporting documents [of 4 October 2016] have not yet been filed'.15

22 At the directions hearing, Melglow was represented by new lawyers and Mr Chitty appeared on its behalf. Ms Joseph appeared for Ballygrowman. It is necessary to record what transpired:16

THE MASTER: … The difficulty here appears to be - now, when I last dealt with this, I'm sure you know the history, Mr Chitty, but I will just run through it. The proceedings appeared to be issued by the director of the company and not by the company itself. Cullen [Macleod] then indicated - I think I adjourned it through to the day after, they lodged - and I use that word advisedly, lodged another set of papers which were effectively solicitors acting on behalf of a company. Now, the solicitors have changed and I understand your firm is now acting.

CHITTY, MR: That's right.

THE MASTER: But procedurally there's a difficulty. It doesn't appear that the matter has actually been properly commenced and to simply lodge the documents in that earlier proceedings just won't work, procedurally. So I think what has to happen is that there has to be a fresh set of proceedings. Have you got a different view on that?

CHITTY, MR: All I can really advi[s]e is what I have been told by the previous lawyers. There was some communication, I believe, with your - it might have been your acting associate, I think, that the registry had sort of taken the paper but hadn't actually, you know, accepted it.

THE MASTER: Well, that's exactly right because what happened was - I just forget the gentleman's name now, the director, but

CHITTY, MR: Mr [C]ramer.

THE MASTER: Yes. He wasn't aware that he couldn't act on behalf of the company. The proceedings had been issued. Mr Yeldon then appeared at a subsequent hearing and maintained that there was a strong argument for granting the relief sought. At the time, I had authorised the registry to accept the papers which had been lodged by Cullen [Macleod], having not thought the matter through, but a conditional appearance had been entered to the original proceedings calling into question, naturally enough, the jurisdictional difficulty.

I don't think that there is any alternative but to issue a fresh set of proceedings. Now, if that's done the present documents can be transferred to that file, but I think there has to be a fresh set of proceedings. So the purpose of today was to draw that procedural problem to your attention. If you then liaise with the central office, if there is any difficulties I will do what I can to resolve them. If you can find a way around the problem of having to issue fresh proceeding and all the costs involved in that, well, I will do what I can to assist but at the moment I think that's what's necessary before this matter can progress.

CHITTY, MR: Okay. We will accept your guidance on that and talk to the registry.

THE MASTER: All right. All right. Anything to add?

JOSEPH, MS: Master, in that regard it's the first defendant's position that by operation of section 138B of the Transfer of Land Act, the caveat has already lapsed. So there's an additional issue there in terms of if no order was capable of being made to extend the caveat because of a lack of jurisdiction, the terms of 138B has effectively caused the caveat to lapse. So there is no caveat to now subsequently be extended.

THE MASTER: Yes. It's a problem. I hadn't taken that into account when I called this matter back on. You're going to have to have a look at that, Mr Chitty, and work out how you approach it, because the argument might be right. It may be that there was jurisdiction to extend the caveat, but it's hard to see how that can be done on a - in an action which isn't properly on foot. All right. Well, for the present I will simply adjourn the matter and it can be brought back as and when necessary simply by notifying my associate.

23 The matter was then adjourned.

New proceedings issued

24 Not surprisingly, in light of the Master's comments, Melglow issued new proceedings on 20 October 2016. It did so by uplifting the second originating summons and supporting documents and filing them at the Registry with a covering letter referring to the comments that had been made by the Master. The 'new' proceedings were allocated action number CIV 2827 of 2016.

Ballygrowman issues summons to set aside orders

25 Ballygrowman then filed the summons now before the court in CIV 2707 of 2016 seeking to set aside the Orders, including, relevantly, the order extending the caveat pending further order. It relies on O 12 r 6(2) of the RSC.

26 It seeks, relevantly, the following orders:

3. The originating summons that the Plaintiff attempted to file in the proceeding purportedly create by the First Originating Summons and served on the First Defendant by the Plaintiff on 4 October 2016 be set aside for reasons of irregularity, informality and want of jurisdiction.

4. The orders purportedly made by the Master on 5 October 2016 be vacated or revoked for want of jurisdiction, specifically Order 3 providing for the extension of Caveat N390642.

Ballygrowman's submissions on setting aside

27 Ballygrowman contends:

(a) the proceedings issued by way of the first originating summons are a nullity due to the operation of O 4 r 3;

(b) the Master ordered Melglow to issue new proceedings;

(c) Melglow failed to do so and instead sought to file the second originating summons as a replacement in the first proceedings which are a nullity;

(d) Melglow's actions did not comprise issuing new proceedings;

(e) the second originating summons was not issued in accordance with O 58 of the RSC and was incapable of commencing new proceedings (and I note the written submissions did not disclose in what manner it was asserted O 58 had not been complied with);

(f) the court does not have jurisdiction over a defendant unless an originating process is validly served and as the second originating summons was invalid it could not be validly served;

(g) O 2 of the RSC cannot be relied upon to regularise the 'defect';

(h) the Orders were made in proceedings which were a nullity;

(i) the Master accordingly lacked jurisdiction to make the orders; and

(j) therefore, the Orders are invalid, there was no valid order made extending the caveat prior to its lapsing and so the caveat has lapsed.

28 During the hearing before me, Ballygrowman disclosed that it also contended that the second originating summons was not validly issued because it was not sealed, it appeared no filing fee had been paid and Ballygrowman had not been served with a sealed copy.

Melglow's submissions

29 Melglow contends that the second originating summons was filed and properly commenced proceedings. It does not rely on the first originating summons and has not done so since 4 October 2016. It says that if the only issue is that a new file number was not allocated by the Registry then that can now be done if necessary. Counsel did not specifically deal with O 2 of the RSC.

30 Melglow also says that Ballygrowman's summons is an abuse of process as a collateral attack on the Orders.

Determination

Order 2 - history and role

31 The starting point is to recognise the significance of O 2 of the RSC.

32 The rule provides (relevantly):

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.

(2) Subject to subrule (3) the Court may, on the ground that there has been such a failure as is mentioned in subrule (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

33 As summarised by the Court of Appeal in The Pilbara infrastructure Pty Ltd v BGC Contracting Pty Ltd:17

This order was in the rules when they came into existence in 1971. The order is in the same terms as the English O 2 r 1, which was introduced into the English rules in 1964. According to Lord Denning in Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 735 - 736:

'This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice.'

Lord Denning said at page 734 that the new rule was enacted so as to 'get over the decision in Re Pritchard (Deceased) [1963] Ch 502'. In Metroinvest Ansalt v Commercial Union Cumming-Bruce LJ said at 518:

'It is quite clear from Harkness v Bell's Asbestos and Engineering Ltd … that the mischief at which the revision of the rules was aimed was to remove the distinction between irregular purported proceedings which were ab initio a nullity from irregular proceedings which were not void ab initio. The content of Order 2 is designed to enable the court, whenever faced with anything done or left undone in proceedings which constitutes a failure to comply with the requirements of the rules, to exercise the powers conferred by the rules without having first to decide whether the jurisdiction conferred by the rules applies at all.'

See also the discussion by Spender J in Re Zagoridis; Ex parte Q'Plas Group Pty Ltd (1990) 27 FCR 108 about the history of the rule.

Limits on operation of O 2

34 The broad, remedial power under O 2 cannot be invoked to cure a breach of statute or a substantive express rule.

35 For example, it cannot assist a plaintiff who has obtained a default judgment irregularly. The court is bound to set aside an irregular default judgment.18

36 Order 2 will not assist a plaintiff who has failed to serve a stale writ without the stamp specifically required by O 7 of the RSC.19

37 It will not assist a plaintiff company that has sought to institute proceedings other than by a solicitor under O 4 r 3 of the RSC.20

38 It will not assist in statutory demand proceedings under the stringent regime provided for by s 459G of the Corporations Act 2001 (Cth).21

39 It is therefore important to assess the irregularity complained of in order to ascertain if O 2 may operate and, if so, whether the court's discretion should be exercised.

First originating summons

40 It is not in issue that the proceedings initiated by the first originating summons and allocated action number CIV 2707 of 2016 were irregularly instituted. That irregularity has the consequence that the first originating summons must be set aside. It is established that O 2 cannot be used to regularise proceedings that do not comply with O 4 r 3. Melglow accepts that position. In light of O 2 r 1, it is not correct to refer to the proceedings as a 'nullity'. Use of that expression since the introduction of O 2 is inappropriate.22

Second originating summons

41 It follows that the second originating summons was capable of commencing proceedings, subject to compliance with the RSC.

42 If Melglow failed to comply with the RSC, the question is whether the court should 'kill or cure':23 that is, should the court make a dispensing order waiving the irregularities, or set aside the proceedings commenced 4 October 2016, including the Orders.

43 It is necessary to consider the relevant RSC as to commencing and serving proceedings.

44 Order 4 r 1 provides, relevantly, that subject to the provisions of any Act and of the RSC, civil proceedings between parties to be heard in chambers must be commenced by originating summons.

45 Order 58 deals with proceedings by originating summons. It provides that the summons must be in the prescribed form. Order 58 r 14(1) provides that the issue of an originating summons takes place upon its being sealed in the Central Office.

46 Order 72 provides that personal service of the originating summons is effected by leaving a copy of the document with the person served and, if requested, showing the person the original originating summons.

47 The fact that the solicitors referred to the documents as 'replacements' does not determine their legal effect (and in any event the use of that word was accurate). Nor does the fact that the 4 October 2016 documents bore on their face action number CIV 2707 of 2016 prevent them from operating to commence proceedings, particularly in circumstances where the earlier proceedings bearing that number could not proceed. I do not accept that the mere use or allocation of the pre-existing action number determines whether or not the second originating summons was validly issued.

48 Whilst not entirely analogous, there are examples where the court has considered the relevance of an action number and made it clear that an error or omission is an irregularity that can be rectified. In Pilbara Infrastructure v BGC, a memorandum of appearance was filed by the defendant with the wrong action number indorsed and default judgment was entered. The Court of Appeal held that the entry of the incorrect action number on the appearance was an irregularity, and made an order under O 2 retrospectively amending the memorandum of appearance to substitute the correct number.24 In National Australia Bank Ltd v Meehan,25 the defendant was served with a copy of a writ where the action number was not inserted at all. The Court of Appeal considered such defect to be a mere technicality and not such as to invalidate a judgment.26

49 In my view, the second originating summons was 'filed'. I note that O 58 does not require 'filing'. Rather, an originating process must be 'issued'. The learned Master did not have the benefit of submissions as to the application of O 2 or the requirements of O 58 at the time he apparently formed the view that the second originating process had not been 'filed'.

50 The term 'to file' is defined in O 1 r 4 and means, 'to file in the Central Office'. I have also taken into account references to 'filing' in the RSC and the Consolidated Practice Directions (CPD): see, for example, O 67 r 9, O 67 r 19, O 67 r 20 and CPD 1. Those provisions do not expressly require 'acceptance' before 'filing' or 'lodgement' when referring to filing in person at the Registry in the General Division - Civil (the Registry being part of the Central Office). Those provisions do not expand upon what it means to 'file' in that context. There is some authority in other jurisdictions to the effect that, where a provision provides that a document is to be filed, filing occurs when the document is deposited at the court office.27

51 Regardless, in this case there was more than a mere depositing at the Central Office. The documents were physically received on 4 October 2016, were provided to the Associate to the Master and Cullen Macleod were told they were either 'filed' or 'accepted'. The documents were before the Master on 5 October 2016. It may be that the internal steps of the Registry had not been carried out in the usual manner in light of the urgency of the issue of new proceedings. However, to my mind the conduct comprised 'filing'.

52 Therefore, to the extent there was a requirement of 'filing' (in addition to issuing), in my view it was met. If it were not met, then under O 2 the consequence of any defect in the filing may be waived.28

53 There is no evidence as to whether or not a filing fee was paid at the time the second originating summons was filed. However, nor is there any evidence that there was any application for a refund of the filing fee on the first originating summons. Presumably it was open to the Registry to apply any fee already paid to the second originating summons. I am not prepared to infer that no filing fee was paid absent evidence supporting the first defendant's contention.29

54 There is some evidence as to the sealing of the second originating summons. I read par 9 of Mr Frichot's evidence as being to the effect that he received from the Registry a sealed original of the second originating summons to take back to Cullen Macleod. Counsel for Ballygrowman submitted that I should read Mr Frichot's evidence as being a reference to an original of the first originating summons (although that original should have been returned to Cullen Macleod on 30 September 2016). As the question of sealing was only raised during the hearing, it is not surprising that any ambiguity had not been addressed by Melglow.

55 Based on Mr Frichot's evidence, I favour the view that the second originating summons was sealed. If I am wrong, then in any event, I consider failure to affix a seal to be an irregularity in the issuing of proceedings. It falls squarely within the words of O 2: something has been left undone or there has been a failure to comply with a rule, 'in beginning or purporting to begin any proceedings'. The error is not such as to fall within any of the identified categories where O 2 cannot be utilised. Accordingly, it is open to me to exercise my discretion to regularise the irregularity. I note for completion that in Leal v Dunlop Bio-Processes International Ltd,30 whilst obiter, Slade LJ considered that the wording of O 2 r 1 was broad enough to give the court jurisdiction to cure the irregular 'issue' of a writ.31

56 Finally, Ballygrowman says that it was not served with a copy of a sealed second originating summons. The issue of service of an unsealed copy of a writ was addressed in Esanda Finance Corporation v McInerney. The relevant rule as to personal service of the writ was to the same effect as O 72 of the RSC. Muller DCJ held that the omission to incorporate an appropriate mark denoting the seal of the court on the documents served meant that they were not 'copies' within the meaning of the rule but there was no obligation to serve a copy that was sealed and the omission was an irregularity capable of being regularised under O 2.32 The irregularity in that case caused no prejudice. There was no suggestion the defendant was deceived or led into error because the writ as served did not bear a seal.

57 I am of the view that each of the irregularities complained of are capable of being regularised under O 2 and that I should exercise my discretion to do so. The fact that there is a potential cumulation of irregularities does not change my view.

58 The factors I take into account are:

(a) This is not a scenario involving a default judgment or orders made in the absence of a party. Despite the irregularities, counsel for Ballygrowman appeared before the Master on 5 October 2016, was heard, conferred with counsel for Melglow and agreed to certain consent orders;

(b) Ballygrowman received all the papers ahead of the 5 October 2016 hearing. Counsel for Ballygrowman had asked for service on its solicitors, the documents were emailed and received, and save for the point about the proceedings being replacement proceedings issued in the existing action number, no real point was taken about service;

(c) Expiry of the caveat was identified as the reason for the urgency around the proceedings being issued on 4 October 2016. Whilst it is fair to say Ballygrowman aired a concern about whether the proceedings were properly filed on 4 October 2016, there is nothing to suggest that when the consent orders were drafted the parties proceeded on anything other than an assumption that the Master could make those orders and an assumption that the caveat position was preserved pending hearing. That is what the orders expressly provided for;

(d) According to the evidence before me, it was not until after the Master suggested on 12 October 2016 that the second originating summons had not been 'filed' that Ballygrowman asserted the caveat had therefore lapsed on 5 October 2016. By then, the time has passed for Melglow to ascertain the position as to the issue of the second originating summon and, if necessary, seek to rectify the irregularity. The prejudice to Melglow if the irregularities are not validated is obvious: it can no longer rely upon the caveat. Whilst at this stage the question of the underlying validity of the caveatable interest has not been determined, it should have the opportunity to test its interest, an opportunity it has been pursuing since 30 September 2016;

(e) It is clear that there was some confusion on the part of Melglow's solicitors as to the status of the second originating documents but they sought to clarify the position. They relied upon information from the court to the effect that the documents had been filed or accepted and were before the Master. In such unusual circumstances, brought about by the urgency of the lodgement of the second set of documents, I do not consider Melglow's conduct should deny the exercise of my discretion in its favour;

(f) It is easy to say with the benefit of hindsight that Melglow should have expressly sought a new action number when the second set of documents was filed: but action numbers are allocated by the Registry and in my view the decision to attempt to re-file in proceedings considered to be of no effect was not conduct of such a nature that would deny the exercise of my discretion in its favour;

(g) There was no prejudice to Ballygrowman arising from the fact it did not receive a copy of the sealed originating summons. It was not misled by that omission; and

(h) Ballygrowman has known since 30 September 2016 that Melglow was seeking a court order extending the caveat pending hearing. Whilst it would be fortuitous for Ballygrowman if there were a defect in Melglow's attempts to issue proceedings, such that the caveat automatically expired despite those attempts, the interests of justice do not favour such a result.

59 As a matter of procedure, Melglow has not sought relief under O 2. However, the court can of its own volition exercise its discretion and the operation of O 2 was in any event raised by Ballygrowman. I consider the discretion under O 2 can and should be exercised.

60 In light of my decision as to O 2, I do not need to consider Melglow's contention that the application by Ballygrowman is an abuse of process as a collateral attack on the Orders. However, for completion, I note that I do not consider that the application is such an attack. As a general rule, the court will allow the issue of invalidity of orders to be raised in any proceedings where it is relevant.33

Orders

61 It follows that the proceedings instituted by the first originating summons are set aside (a course not in issue) and I otherwise dismiss Ballygrowman's application.

62 I will hear the parties as to appropriate orders validating the issue and service of the second originating summons, dealing with Ballygrowman's appearance and consolidating the proceedings allocated respective action numbers CIV 2707 of 2016 and CIV 2827 of 2016.

______________________________________

1 The affidavit of Robert Cramer filed 30 September 2016 (re-filed 20 October 2016 in CIV 2827 of 2016).

2 Cramer affidavit [4].
3 Cramer affidavit, RJC5.
4 Second affidavit of Jeremy James Chitty filed 1 November 2016, JJC8.
5Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372. The authorities are usefully compiled in Bell v Cribb [2013] WASC 32 [73] - [74].
6 ts 5 - 6.
7 Affidavit of Maurice Eugene Frichot filed 1 November 2016, MEF1.
8 Frichot affidavit [3] - [9].
9 Affidavit of Fiona Catriona Macleod filed 1 November 2016, FCM3.
10 Macleod affidavit [14].
11 Affidavit of Chenara Jade Holford filed 19 October 2016, CJH-5.
12 Holford affidavit [11].
13 Holford affidavit [12].
14 ts 10 - 11.
15 Holford affidavit, CJH6.
16 ts 2 - 3.
17The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 [48].
18Ianello v Bottoli (1998) 19 SR (WA) 27 [31].
19Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79; Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [34].
20Bell v Cribb [73].
21LJAW Enterprises Pty Ltd v RJK Enterprises Pty Ltd [2004] QSC 134.
22Pilbara Infrastructure v BGC [49].
23Metroinvest Ansalt v Commercial Union Assurance Co plc [1985] 1 WLR 513, 520 (Cumming-Bruce LJ).
24Pilbara Infrastructure v BGC [49], [66].
25National Australia Bank Ltd v Meehan (Unreported, VSCA, 8407 of 1993, 24 February 1994) (also cited in Esanda Finance Corporation Ltd v McInerney (1997) 18 SR (WA) 84, 91).
26 Whilst the Victorian Supreme Court Rule equivalent to O 2 was referred to, it is not clear that the Court relied upon that power or whether it considered it did not need to resort to the power in the circumstances in order to be satisfied there had been valid service.
27Re Commercial Union Assurance Co (Ltd) (1899) 18 NZLR 585, 588; Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1, 10; Davies v Lewis [2001] NTSC 105; (2001) 11 NTLR 81 [34].
28Beecham (Australia) Pty Ltd v Roque Pty Ltd (10).
29 If there were evidence that no filing fee was paid or met by application of other funds, then a question would have been open in any event as to the operation of s 6 of the Supreme Court (Fees) Regulations 2002 (WA).
30Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874.
31Leal v Dunlop Bio-Processes International Ltd (884). In that case, the writ was served out of the jurisdiction without leave: the Court of Appeal considered the O 2 jurisdiction was available to it but declined to exercise it in the circumstances.
32Esanda Finance Corporation Ltd v McInerney (93).
33Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549, 560.