Mitchell Boat Building Co Pty Ltd v Toberfish Pty Ltd

[1988] TASSC 34

Serial No 22/1988
List “A”

CITATION:      Mitchell Boat Building Co Pty Ltd v Toberfish Pty Ltd [1988] TASSC 34; A22/1988

PARTIES:  MITCHELL BOAT BUILDING CO PTY LTD
  v
  TOBERFISH PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
FILE NO/S:  252/1988
DELIVERED ON:  11 July 1988
JUDGMENT OF:  Green CJ

Judgment Number:  A22/1988
Number of paragraphs:  10

Serial No 22/1988
List "A"
File No 252/1988

MITCHELL BOAT BUILDING CO PTY LTD v TOBERFISH PTY LTD

REASONS FOR JUDGMENT  GREEN CJ

11 July 1988

1. On 10 March 1988 the plaintiff filed a writ bearing, inter alia, the following words which appear in form 3 of the forms prescribed by the Civil Process Rules 1985:

"TAKE NOTICE that:

(1)      If you wish to dispute the Plaintiff(s)‘ claim or any part of it or for any reason wish to take part in this action you or your solicitors(s) must, within twenty–one days following the service of this Writ on you, lodge a Notice of Appearance at a Registry of the Supreme Court and serve a sealed copy thereof on the Plaintiff(s) at his/her/their/its address for service of documents (Note A).

(2)Forms of Notice of Appearance may be obtained from any Registry of the Court. These are located at Salamanca Place, Hobart, Alexander Street, Burnie and Cameron Street, Launceston.

(3)If you fail to lodge and serve a Notice of Appearance within the time stated, the Plaintiff(s) may obtain a judgment without further notice to you."

1. On 19 April 1988 the writ and a statement of claim were served on the defendant in the State of Victoria.

1. On 24 May 1988, pursuant to O30 r2 of the Rules of the Supreme Court, the plaintiff sought to enter judgment by default on the ground that the defendant had not delivered a defence "within the time allowed for that purpose". The Acting Registrar declined to enter judgment on the ground that the time for delivering a defence had not expired. Pursuant to O77 r29 the plaintiff now applies for a direction to the Acting Registrar to enter judgment.

1. Order 23 r6 requires a defendant to deliver his defence "within fourteen days from the time ... limited for appearance". Order 2 r10 provides that:

   "10     The time to be limited by a writ of summons, or any other originating process to which an appearance is required to be entered, issued for service outside the jurisdiction of the Court for entering an appearance thereto, shall be not less than that prescribed by or fixed pursuant to the following table:–

   If the writ or other originating process is to be served –

(a)    In any State, in the Australian Capital Territory, or in the Northern Territory ... ... Twenty–one days after service of the originating process, inclusive of the day of service;".

1. For the following reasons I hold that for the purposes of O23 r6 "the time limited for appearance" is the time limited on the writ, not one of the times referred to in O2 r9 or r10.

1Rules 9 and 10 refer to the time "limited by a writ of summons";

2Rules 9 and 10 do not on their face purport to prescribe any particular period of time, but merely specify the minimum time which may be limited by a writ of summons;

3Giving a defendant notice of the time within which he is required to file an appearance if he wishes to defend or take part in the action would be a pointless and misleading exercise if the time so limited could be a different time fixed by the rules rather than the time referred to in the notice.

1. For the same reasons I reject the submission made by the plaintiff that the notice in the writ of summons should be construed as incorporating the phrase "inclusive of the day of service" appearing in O2 r9 and r10. That phrase is merely part of the formula which the draftsman of those rules has chosen to use to specify the minimum period which may be limited by a writ of summons, but there is nothing in the rules to suggest that the same formula has to be used in the notice appearing in a writ of summons, and, a fortiori, there is no justification for reading such a phrase into a notice in a writ of summons which does not contain such words. All that the rules require is that the time limited by a writ of summons shall be not less than the specified number of days after service inclusive of the day of service, but they do not lay down any particular way in which the time limited must be specified or expressed in the writ.

1. Order 23 r6 required the defendant in this action to deliver his defence "within fourteen days ... from the time limited for appearance". It is properly accepted by the plaintiff that it is well established that that period is to be reckoned exclusively of the last day of the period within which the defendant was required to enter an appearance.

1. The time limited by the writ of summons for entering an appearance was "within twenty one days following the service of this writ" on the defendant. Had that phrase appeared in a rule or in a statute prima facie the period referred to would be reckoned exclusively of the day of service: Acts Interpretation Act 1931, s29. As this is a notice to a defendant in a document and not a legislative provision, it may be that the same prima facie rule should not necessarily be applied to its construction. However, even if that were the case, the result would be the same because the ordinary meaning of the phrase "within twenty one days following" service of the writ is the same as the meaning given by statute and the common law and thus giving it its ordinary meaning, the notice should be construed as excluding the day of service.

1. I hold that the last day of the time limited for entering an appearance was 10 May 1988 and that it follows that the defendant was required to deliver a defence not later than 24 May 1988. I hold therefore that the plaintiff was not entitled to enter judgment by default until 25 May 1988.

1. The application is refused.