National Westminster Bank Plc v Jones
[2019] WASC 422
•21 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NATIONAL WESTMINSTER BANK PLC -v- JONES [2019] WASC 422
CORAM: MASTER SANDERSON
HEARD: 16 OCTOBER 2019
DELIVERED : 21 NOVEMBER 2019
FILE NO/S: FRJ 1 of 2019
BETWEEN: NATIONAL WESTMINSTER BANK PLC
Plaintiff
AND
MARK EDWIN JONES
First Defendant
JANE JONES
Second Defendant
Catchwords:
Foreign Judgments Act 1991 (Cth) - Application to set aside order on basis of failure to serve foreign proceedings on defendants - Turns on own facts
Legislation:
Foreign Judgments Act 1991 (Cth)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr D Suttner |
| First Defendant | : | In Person |
| Second Defendant | : | In Person |
Solicitors:
| Plaintiff | : | Minter Ellison |
| First Defendant | : | In Person |
| Second Defendant | : | In Person |
Case(s) referred to in decision(s):
Insurance Commissioner v Joyce (1948) 77 CLR 39
Jones v Dunkel (1959) 101 CLR 298
MASTER SANDERSON:
On 5 March 2019, Acting Master Whitby registered a judgment in favour of the plaintiff against the defendants. The registration was made pursuant to s 6 of the Foreign Judgments Act 1991 (Cth) (the Act). By order 6 of the judgment the defendants were given 30 days after service of the orders on them to apply to set the judgment aside. On 26 April 2019, the first defendant filed an affidavit which was, in effect, in support of a motion to set aside the registered judgment. Strictly speaking, the defendants ought have proceeded by way of chamber summons. Sensibly the plaintiff did not take that point and the matter has proceeded on the basis an application within the terms of paragraph 6 of the judgment has been brought and was brought within time.
Section 7 of the Foreign Judgments Act is in the following terms:
(1)A party against whom a registered judgment is enforceable, or would be enforceable but for an order under section 8, may seek to have the registration of the judgment set aside by duly applying to the court in which the judgment was registered, or (where applicable) a court in which the judgment was registered under Part 6 of the Service and Execution of Process Act 1992, to have the registration of the judgment set aside.
(2)Where a judgment debtor duly applies to have the registration of the judgment set aside, the court:
(a)must set the registration of that judgment aside if it is satisfied:
(i)that the judgment is not, or has ceased to be, a judgment to which this Part applies; or
(ii)that the judgment was registered for an amount greater than the amount payable under it at the date of registration; or
(iii)that the judgment was registered in contravention of this Act; or
(iv)that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(v)that the judgment debtor, being the defendant in the proceedings in the original court, did not (whether or not process had been duly served on the judgment debtor in accordance with the law of the country of the original court) receive notice of those proceedings in sufficient time to enable the judgment debtor to defend the proceedings and did not appear; or
(vi)that the judgment was obtained by fraud; or
(vii)that the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court; or
(viii)that the rights under the judgment are not vested in the person by whom the application for registration was made; or
(ix)that the judgment has been discharged; or
(x)that the judgment has been wholly satisfied; or
(xi)that the enforcement of the judgment, not being a judgment under which an amount of money is payable in respect of New Zealand tax, would be contrary to public policy; or
(b)may set the registration of the judgment aside if it is satisfied that the matter in dispute in the proceedings in the original court had before the date of the judgment in the original court been the subject of a final and conclusive judgment by a court having jurisdiction in the matter.
(3)For the purposes of subparagraph (2)(a)(iv) and subject to subsection (4), the courts of the country of the original court are taken to have had jurisdiction:
(a)in the case of a judgment given in an action in personam:
(i)if the judgment debtor voluntarily submitted to the jurisdiction of the original court; or
(ii)if the judgment debtor was plaintiff in, or counter‑claimed in, the proceedings in the original court; or
(iii)if the judgment debtor was a defendant in the original court and had agreed, in respect of the subject matter of the proceedings, before the proceedings commenced, to submit to the jurisdiction of that court or of the courts of the country of that court; or
(iv)if the judgment debtor was a defendant in the original court and, at the time when the proceedings were instituted, resided in, or (being a body corporate) had its principal place of business in, the country of that court; or
(v)if the judgment debtor was a defendant in the original court and the proceedings in that court were in respect of a transaction effected through or at an office or place of business that the judgment debtor had in the country of that court; or
(vi)if there is an amount of money payable in respect of New Zealand tax under the judgment; or
(b)in the case of a judgment given in an action of which the subject matter was immovable property or in an action in rem of which the subject matter was movable property—if the property in question was, at the time of the proceedings in the original, court situated in the country of that court; or
(c)in the case of a judgment given in an action other than an action of the kind referred to in paragraph (a) or (b) ‑ if the jurisdiction of the original court is recognised by the law in force in the State or Territory in which the judgment is registered.
(4)In spite of subsection (3), the courts of the country of the original court are not taken to have had jurisdiction:
(a)if the subject matter of the proceedings was immovable property situated outside the country of the original court; or
(b except in the cases referred to in subparagraphs (3)(a)(i), (ii) and (iii) and paragraph (3)(c), if the bringing of the proceedings in the country of the original court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of the country of that court; or
(c)if the judgment debtor, being a defendant in the original proceedings, was a person who under the rules of public international law was entitled to immunity from the jurisdiction of the courts of the country of the original court and did not submit to the jurisdiction of that court.
(5)For the purposes of subparagraph (3)(a)(i), a person does not voluntarily submit to the jurisdiction of a court by:
(a)entering an appearance in proceedings in the court; or
(b)participating in proceedings in the court only to such extent as is necessary;
for the purpose only of one or more of the following:
(c)protecting, or obtaining the release of:
(i)property seized, or threatened with seizure, in the proceedings; or
(ii)property subject to an order restraining its disposition or disposal;
(d)contesting the jurisdiction of the court;
(e)inviting the court in its discretion not to exercise its jurisdiction in the proceedings.
(6)Where the registration of a judgment is set aside on an application to a court in which the judgment was registered under Part IV of the Service and Execution of Process Act 1901, the applicant must:
(a)forthwith notify the Registrar of the court in which the judgment was registered under this Act of the order setting the judgment aside; and
(b)within 7 days lodge a certified copy of the order in that court.
The defendants made their application on a number of different grounds. However, the main ground related to s 7(2)(a)(v). The defendants said they were never served with the document lodged by the plaintiff in the court in the United Kingdom. The plaintiff said the defendants were so served. There being a conflict on the evidence between the parties I ordered that there be cross‑examination of the second defendant and the process server who allegedly served the documents. Before detailing that cross‑examination I will refer to the evidence in the affidavit material.
In his affidavit filed 26 April 2019, the first defendant says he and the second defendant are husband and wife. By paragraph 4 of his affidavit he says neither he nor his wife were present in the originating court's jurisdiction at the time of service. The plaintiff did not make any allegation to that effect. It was their position the defendants were served at their residential address in Western Australia and were served personally. The first defendant also says in the same paragraph that the defendants did not submit to the foreign court's jurisdiction. This was an issue between the parties and I will deal with it later in these reasons. By paragraph 5 of his affidavit, the first defendant says that neither he nor the second defendant were properly served with the process from the originating court. It is this paragraph which raises the issue which was crucial to the determination of this application.
In opposition to the defendants' application the plaintiff relied on two affidavits of Angus Charles Paterson the first affirmed 13 June 2019, the second affirmed 19 July 2019. In this first affidavit Mr Paterson sets out the circumstances in which proceedings were issued in the County Court Money Claims Centre in England and how leave was granted to serve the claim out of the jurisdiction and in Western Australia. He says that on or around 28 September 2016 service was attempted by sending via registered post, the relevant documents. For reasons which do not emerge from the evidence the documents did not reach the defendants. On or around 8 February 2017 a further attempt at service via registered post was also unsuccessful. In May of 2017 a further attempt at service by registered post, using DHL Express Tracking, was also unsuccessful. In August of 2017 the plaintiff's English solicitors engaged Global Investigations to effect service. They subsequently received an affidavit of service sworn by Paul Anthony Wilson dated 15 September 2017. A copy of that affidavit appears as attachment ACP‑14 to Mr Paterson's affidavit.
The affidavit is succinct. Mr Wilson says that on 10 September 2017 at 9.15 am he personally served the second defendant – Mrs Jane Jones – at her home at 15 Aleri Circuit, Quinns Rock. He also says that the second defendant accepted service on behalf of the first defendant. He identifies the documents which were allegedly served.
The second defendant swore an affidavit on 20 June 2019. She says that she was not served by Mr Wilson or anyone else with any claim documents. In paragraph 4 of the affidavit she says:
I also state that my usual working days and hours include working on Sundays between the hours of 6.00am and 2.00pm and that on the abovenamed date (10 September 2017) and time I was at my place of work at Fresh and Crusty, Carine Glades Shopping Centre, 485 Beach Road Duncraig WA 6023.
The affidavit also deals with the second defendant's knowledge of the judgment and how it was founded. Paragraphs 5 and 6 of her affidavit are in the following terms:
5.Until this action under the Foreign Judgments Act, noted as FRJ1 of 2019, was brought to my attention on 1st April 2019, I had no knowledge of any proceedings taken against us by the Applicant under any jurisdiction, or in any place.
6.I state that the Applicant has no claim in law and in any jurisdiction against me or my spouse and I have not agreed to the jurisdiction of the Originating Court by any means, be that by contract, agreement, other document, appearance or by word. I was not in the jurisdiction of the Originating Court, at the time of any of these actions and I was not at this time ordinarily resident or domiciled in that jurisdiction. I have not effected an agreement in that jurisdiction and I know of no document where this can be claimed.
On 26 June 2019, the first defendant lodged a further affidavit sworn on that date. The affidavit deals with the entitlement of the plaintiff to judgment in the English courts. With respect the affidavit is a little difficult to follow. It would seem the first defendant is saying that he did not have a complete copy of the loan documentation which gave rise to the judgment. In paragraph 4(a)(iv) of the affidavit he says that the loan document 'does not make a binding agreement of jurisdiction between the applicant and the respondents'. The first defendant appears to allege that there is no complete copy of the Loan Agreement (the Agreement) and for that reason it was unenforceable. Otherwise, the affidavit repeats the second defendant's claim she was not properly served.
Mr Paterson's second affidavit attaches a number of documents in particular the Agreement between the plaintiff and the defendants.[1] Of particular importance is clause 16 of the National Westminster Bank's Base Rate Loan Terms Partnerships tlbp 1009.[2] By this clause the parties agree to be governed by English law and the customers irrevocably submit to the jurisdiction of the relevant English court. There was no issue that the Agreement had been signed by the first and second defendant. The defendants relied on a further affidavit of the first defendant sworn 5 August 2019. This affidavit is concerned with the circumstances in which the Agreement was entered into. By paragraph 3(f) of that affidavit, the first defendant says that he and his wife were 'bullied and threatened' and it was on that basis they signed the Agreement. The rest of the affidavit is either irrelevant or adds only marginally to that allegation. It must be acknowledged however that the affidavit does hint at, although it does not necessarily flesh out, a claim of economic duress.
[1] Annexure ACP‑1 to the affidavit of Angus Charles Paterson affirmed 19 July 2019.
[2] Annexure ACP‑2 to the affidavit of Angus Charles Paterson affirmed 19 July 2019.
The plaintiff relies on an affidavit of Paul Anthony Wilson sworn 7 August 2019. Mr Wilson says on the day of service he took a photograph of the address at which he served the documents. The circumstances in which he said service was affected are set out in paragraph 5 of his affidavit. That paragraph reads as follows:
5.It was uncommon for me to be serving someone in relation to such a large debt. I clearly remember the following:
(a)at 9am on 10 September 2017, I knocked on the door at the Address and there was no answer. I could hear the shower running.
(b)as I had travelled from Fremantle, approximately 56 kilometres away, which was a relatively lengthy distance to carry out a service, instead of leaving and re‑attempting service later, I waited to see if someone would accept service after the shower stopped running.
(c)at 9.15am on 10 September 2017, I knocked on the door again. A female answered from behind the door asking who it was. I said to her 'Jane Jones?' and she said 'yes'. She opened the door.
(d)When she opened the door the hallway was dark but I noted she had wet hair and was dressed in a gown. I asked her again whether she was Jane Jones to which she replied 'yes'. I served Jane Jones by hand with:
(i)Covering letter from Shoosmiths solicitors address to Jane Jones;
(ii)Order of Deputy District Judge Goodwin dated 16th September 2016;
(iii)Claim Form and Particulars of Claim; and
(iv)Response pack.
Finally, there was a further affidavit of the first defendant sworn 8 October 2019. The purpose of that affidavit was to attach an employee roster for Carine Glades Bakery for the weekend in 10 September 2017. The first defendant says he was provided with a copy of that roster by the second defendant. He points out, quite correctly, the roster shows the second defendant was to work on 10 September 2017 between the hours of 6.00 am and 2.00 pm.[3] He also provided a number of other rosters presumably to illustrate the way in which the rosters were consistent over time.
[3] Affidavit of Mark Edwin Jones filed 8 October 2019 at par 3.
During the course of the hearing there was some discussion about whether or not these rosters ought be admitted into evidence. Eventually they were and they were given a separate exhibit number (EXH 1). Not without some hesitation counsel for the plaintiff did not object to the roster being tendered. In any event, during the course of her evidence the second defendant said in her capacity as an employee of the bakery she actually drew the rosters. On that basis it was proper they be admitted into evidence.
The defendants were unrepresented at the hearing. The first defendant conducted the case on their behalf. He called the second defendant. She confirmed the contents of her affidavit. She said she particularly remembered the day of 10 September because that was the date upon which her father passed away some years earlier. Furthermore, she recalled that it was the first Sunday after the end of the football season when she had not been saddled with the need to ferry her son to and from a game. In other words, she had a very clear recollection of the date. She was certain she was working and was not home at 9.15 am. She maintained she had never been served by Mr Wilson or anyone else with the plaintiff's documents.
In cross‑examination she did not alter her position as to service of documents upon her. Counsel for the plaintiff very fairly put to her the plaintiff's version of events as set out in Mr Wilson's affidavit. She denied in emphatic terms she was home or that she received any documentation.
Counsel then referred her to her affidavit of 20 June 2019 and in particular paragraphs 5 and 6 which I have set out above. The second defendant was forced to admit parts of those paragraphs were wrong. She was aware she had signed a loan agreement and although she may not have had a copy, she was well aware of her obligations under that agreement. It became apparent during cross‑examination that the correspondence between the plaintiff and the defendants which had taken place some years ago was well known to the second defendant. Really what she hoped was that the plaintiff's claim would simply not be pursued. Perhaps as part of this approach she assumed, given the passage of time, loan documents might not exist.
Mr Wilson was called and he confirmed the contents of his affidavit. He said he recalled travelling for some distance to the defendants' premises. He also recalled the documents to be served referred to a substantial amount of money. He was unable to identify the second defendant in court. He said it was a woman with blonde hair who came to the door. But, the door was a mesh screen and he could not make out the features of the person he was serving. He did however confirm the individual had identified herself as Jane Jones.
Mr Wilson was an impressive witness. He gave his evidence in a clear and concise manner and he answered directly questions put to him by the first defendant. He is a very experienced process server. In response to questions in re‑examination he also made the point, if he had not been able to serve the second defendant for one reason or another, he would simply have returned on a later date. If that had been necessary he would have charged accordingly. So in sense at least, there was some incentive to fail to serve. He also made the point that a part of his livelihood was service of documents and part was private investigations. If it were shown he had sworn a false affidavit his livelihood was threatened. Mr Wilson made the point this was a strong incentive to maintain integrity.
As I mentioned above, in the course of his evidence Mr Wilson said he could not positively say the woman he served was the second defendant. All he could say was the person he served had blonde hair (and the second defendant has blonde hair) and she was female. It would have been very easy for Mr Wilson to identify the second defendant who he saw in court before she gave evidence as the person he served. The fact he was so guarded in identifying the individual who came to the door added credibility to his evidence.
There was nothing in the evidence given by the second defendant, or her answers in cross‑examination, which led me to the view her evidence was intrinsically unbelievable. But, there were two significant matters which undermined her position. It is difficult to understand why, if she was working on the day in question, she did not have someone she worked with confirm she was at her place of employment at 9.15 am. The rosters are really of little or no relevance. If for some reason no person was available to give evidence then surely there must have been some system her employer had in place to record her attendance. As counsel for the plaintiff submitted, this really is a Jones v Dunkel (1959) 101 CLR 298 situation. Rich J put the position with some colour in Insurance Commissioner v Joyce (1948) 77 CLR 39 when he said:
When circumstances are proved indicating a conclusion and the only party who can give direct evidence of the matter prefers the well of the court to the witness box a court is entitled to be bold.
On that basis, the irresistible conclusion of the failure on the part of the defendants to call an employee who worked with the second defendant on the day in question leads to the conclusion no such evidence was available. That very much undermines the defendants' position. Furthermore the affidavit evidence in which the second defendant denied the existence of the Agreement demonstrates a certain disregard for the truth. It does not necessarily undermine the second defendant's position entirely. But, it does indicate she has a propensity to not necessarily tell the truth when it suits her purposes.
On balance, I prefer the evidence of Mr Wilson. I am satisfied he served the second defendant. The second defendant said in evidence that had she received any documents she would have passed them on to the first defendant. Accordingly I am satisfied that he too was served. As the documents have been served, the defendants cannot rely on s 7 of the Act to set aside the registration of the judgment.
As to any other matters raised under s 7 of the Act there is no evidence to suggest the English court did not have jurisdiction. As I have indicated above, the parties consented to the jurisdiction of the English courts. Insofar as the evidence hints at there being some economic duress there is no evidence which would support any such finding. Certainly there is no evidentiary basis upon which the registration of the judgment could be set aside.
The application to set aside the registration of the judgment will be dismissed. The defendants should pay the plaintiff's costs of the application including reserved costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
Associate to Master Sanderson21 NOVEMBER 2019
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