Packham Pty Ltd v Teo
[2006] WASC 135
•27 JUNE 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PACKHAM PTY LTD -v- TEO [2006] WASC 135
CORAM: MILLER J
HEARD: 27 JUNE 2006
DELIVERED : 27 JUNE 2006
FILE NO/S: CIV 2342 of 2005
BETWEEN: PACKHAM PTY LTD (ACN 056 326 884)
Plaintiff
AND
GRACIE TEO
Defendant
Catchwords:
Practice Service by facsimile Whether sending defence by facsimile constitutes effective service Whether facsimile sent to solicitors' office within normal business hours Turns on own facts
Legislation:
Corporations Law
Rules of the Supreme Court 1971 (WA), O 41 r 1, O 72, O 72 r 5, O 72 r 5(1)(a)
Result:
Motion for judgment dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr B R Gannon
Defendant: Mr J L H Formby
Solicitors:
Plaintiff: Solomon Brothers
Defendant: Formbys
Case(s) referred to in judgment(s):
Biotech International Ltd v Peptech Ltd [2000] WASC 120
Hastie & Jenkerson v McMahon [1990] 1 WLR 1575
NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26
Case(s) also cited:
Bowman v Durham Holdings Pty Ltd (1973) 131 CLR 8
Brown v Heffer (1967) 116 CLR 344
Chan v Cresdon Pty Ltd (1989) 168 CLR 242
Dougan v Ley (1946) 71 CLR 142
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Hewett v Court (1983) 149 CLR 639
JC Williamson Ltd v Lukey (1931) 45 CLR 282
Johnson v Agnew [1980] AC 367
Legione v Hateley (1983) 152 CLR 406
Lewes Nominees Pty Ltd v Strang (1983) 49 ALR 328
Oskar v Bank of New South Wales [1984] WAR 262
Pianta v National Finance & Trustees Ltd (1964) 180 CLR 146
Re Ocean Distributors Pty Ltd (1990) 2 ACSR 486
Strang v Lewes Nominees Pty Ltd [1983] WAR 139
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
MILLER J: On 22 March 2006, Registrar Boyle made an order that unless by Monday, 3 April 2006 the defendant complied with an order made on 14 December 2005 to file and serve its defence, the plaintiff should be at liberty to move for judgment in terms of orders sought in its motion for specific judgment.
On 12 April 2006, the plaintiff filed a motion for specific judgment pursuant to O 41 r 1 of the Rules of the Supreme Court 1971 (WA) ("Supreme Court Rules") to the effect that:
(a)The defence of the defendant filed on 3 April 2006 be struck out.
(b)The plaintiff have leave to move for judgment on certain terms and conditions.
The motion of 12 April 2006 came before Master Sanderson on 20 April 2006 and was adjourned to 27 April 2006.
On 27 April 2006, the Master further adjourned the matter to a Judge in chambers. This is the return of the motion pursuant to that order.
The facts reveal that the defence in the proceedings was filed in the Central Office of the Supreme Court on 3 April 2006. The defence bears the date 3 April 2006.
A copy of the defence was served on the plaintiff by facsimile on 3 April 2006. It was received on the plaintiff's facsimile at 16.33 hours on 3 April 2006. It was a full and legible copy.
The relevant rule of the Supreme Court Rules in relation to the service of documents is O 72.
Personal service is not required in this case because the plaintiff had an address for service of documents, namely that of its solicitors.
Order 72 r 5 provides that a document which is not required to be served personally may be served:
(a)by leaving the document at the proper address of the person to be served; or
(b)by sending the document by post addressed to the person to be served at his proper address; or
(c)in such manner as the Court may direct.
Practice Direction No 7 of 2005 relates only to the filing of documents in the Supreme Court. It provides for filing by facsimile transmission in civil proceedings and deems that a document filed by facsimile is to be taken to have been received at the Central Office:
(a)if the whole document is transmitted before 4 pm on a working day on that day;
(b)otherwise, on the next working day.
We are not here dealing with the filing of a defence within time, but the serving of the defence on the plaintiff within time. There is no doubt that the defence was filed on time.
The submissions of the defendant contend that service by facsimile is sufficient service within the meaning of O 72 r 5.
Order 72 r 5 does not provide for service by facsimile.
However, the provisions of O 72 r 5 are not an exclusive code for the ordinary service of documents in proceedings. If a party is able to prove that by other methods a document was delivered to and received by a person for whom it was intended in such time as is necessary, good service will have been effected: Hastie & Jenkerson v McMahon [1990] 1 WLR 1575 (at 1581, 1585 and 1586).
Generally speaking, service at a facsimile number is not service in terms of O 72 r 5(1)(a) and parties who are obliged to serve documents place themselves at risk if they rely upon the fax machine. However, if it can be proved that the party to be served did in fact receive the document in a legible and complete form as a result of a facsimile transmission, this may be sufficient proof of service to prevent a springing order. Order 72 r 5 is facultative only.
In Biotech International Ltd v Peptech Ltd [2000] WASC 120 Owen J was dealing with the question whether the sending of a notice under the provisions of the Corporations Law by facsimile to a business office constituted effective service. That is a different question from that which is before the Court today.
Owen J reviewed numerous authorities relating to the question of service and noted that in NM Superannuation Pty Ltd v Hughes (1992) 27 NSWLR 26 Cohen J had held that where modern forms of communication are used and equipment is kept available for the receipt of messages, service by that medium will be sufficient notwithstanding that the message may arrive outside normal business hours.
Owen J went on to say that "nobody who has been in legal practice would ever take judicial notice that the working day ends at the expiration of normal working hours".
However, in the case in question, there was clear evidence that at 5 pm on the day upon which a facsimile transmission had been sent there was nobody in the office.
That is not the present case.
In the present case Bradley Ryan Gannon, a solicitor in the employ of Solomon Brothers, solicitors for the plaintiff, has deposed in an affidavit of 12 April 2006 that the facsimile copy of the defence and the action was received by Solomon Brothers at 16.33 hours on 3 April 2006.
In my opinion, 16.33 hours is within normal business hours in a solicitors' office. As Owen J pointed out one would normally expect a solicitors' office to be working past 5 pm, but that is not the question in this case. At 16.33 hours the office would most certainly have been open. There is no evidence to the contrary.
The question is not whether filing of a document by facsimile is required prior to 4 pm on a normal business day, but whether the defence was brought to the attention of the solicitors for the plaintiff in the course of the working day of 3 April 2006.
Although service may not have been in accord with the provisions of O 72 of the Supreme Court Rules, those rules are not an exclusive code for service.
In all the circumstances I am satisfied that on 3 April 2006 a copy of the defence in the action was served at the office of the solicitors for the plaintiff and this constituted effective service.
The motion for judgment is therefore dismissed.
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