Sesa v Workers Compensation Nominal Insurer (No 1)

[2015] NSWDC 88

District Court

New South Wales

Medium Neutral Citation:	Sesa v Workers Compensation Nominal Insurer (No 1) [2015] NSWDC 88
Hearing dates:	23 April 2015
Date of orders:	23 April 2015
Decision date:	23 April 2015
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Leave granted to plaintiff by Judicial Registrar to file and serve amended statement of claim valid
Catchwords:	PRACTICE AND PROCEDURE – Proceedings commenced against defendant that no longer existed – Nullity at common law but only irregularity under Uniform Civil Procedure Rules – Leave granted to plaintiff to file and serve amended statement of claim valid
Legislation Cited:	Civil Procedure Act 2005 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
Cases Cited:	Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 Electronic Industries Imports Pty Ltd v The Public Curator (Queensland) [1960] VR 10 Re Pritchard [1963] 1 All ER 873
Category:	Procedural and other rulings
Parties:	Jovanka Sesa (Applicant/Plaintiff) Sesa v Workers Compensation Nominal Insurer (Respondent/Defendant)
Representation:	Counsel: Mr J Dodd (Applicant/Plaintiff) Mr A Hourigan (Respondent/Defendant) Solicitors:
File Number(s):	2014/278404
Publication restriction:	No

Judgment

1. HIS HONOUR: The basis of the common law is adversarial litigation. At common law one cannot sue oneself, even if one sues as a beneficiary under a will of which one is the executor, or to claim workers compensation even where the applicant is the widow of her employer, who is deceased, and the applicant is also the executrix of the deceased employer. Thus, at common law, proceedings which were commenced against a party who did not exist were a nullity. That was stated by Lord Denning MR in his dissenting judgment in Re Pritchard [1963] 1 All ER 873. His Honour said at 879:

“The only true cases of nullity that I have found are when a sole plaintiff or a sole defendant is dead (see Tetlow v Orela Limited [1920] Ch 2 24) or non-existent (see Lazard Brothersand Co v Midland Bank Limited [1933] AC 289 at 296); and I would like the word ‘nullity’ confined to those cases in future.”

In the same case, Upjohn LJ, with whom Danckwerts LJ concurred, said this:

“The authorities do establish one or two classes of nullity such as the following. There may be others, although for my part I would be reluctant to see much extension of the classes.

(i) Proceedings which ought to have been served but have never come to the notice of the defendant at all. This, of course, does not include cases of substituted service, or service by filing in default, or cases where service has properly been dispensed with, see e.g., Whitehead v Whitehead (orse Vasbor) [1962] 3 WLR 884; [1962] 3 All ER 800 CA;

(ii) Proceedings which have never been started at all owing to some fundamental defect in issuing the proceedings;

(iii) Proceedings which appear to be duly issued but fail to comply with a statutory requirement; see e.g. Finnegan v Cementation Co Limited [1953] 1 QB 688.”

2. These cases were considered by Priestley JA in Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734. His Honour pointed out at p 752 that s 81 of the Supreme Court Act 1970 mirrored amendments to the English rules made after the decision in Re Pritchard, the new English rule being Order 70, r 1. That rule was to the following effect:

“Non-compliance with any of these Rules, or with any Rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.”

Priestley JA said at 753B:

“In view of the speed with which Order 70 r 1 was replaced by the new rule after the decision in Re Pritchard it seems a fair inference that the rule makers had the decision before them when redrafting the rule, and that one of the objects of the words ‘purporting to begin’ was Upjohn LJ’s class (ii) nullity. Then in 1967 Harknes v Bell’s Asbestos and Engineering Limited [1967] 2 QB 729 (referred to by Grove J [the trial judge]) was decided by the Court of Appeal. Although the circumstances of that case have some analogy to the present, they are not sufficiently similar to make it worthwhile to note them here, beyond saying that they were at least as difficult for the plaintiff as those in the present case. Lord Denning said, with reference to the new Order 2 r 1 subr (1) at (735):

‘It is said that this rule does not cover this case, for two reasons. First, it is said that at the time of the registrar’s order there were no ‘proceedings’ because no writ had been issued. So the rule, it was said, did not apply. I think this is far too narrow an interpretation. This rule should be construed widely and generously to give effect to its manifest intentions. I think that any application to the Court, however informal, is a ‘proceeding’. There were ‘proceedings’ in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the registrar.’

A little later he said (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. It can at least be asserted that it is not possible for an honest litigant in her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation’: see Pontim v Wood [1962] 1 QB 594 per Holroyd Pearce LJ at 609. This could not be said in 1963: see In Re Pritchard…But it can be in 1966. The new rule does it.

This is plainly a case where we should put the matter right under the new provision and the leave should be treated as granted properly.’

Diplock and Russell LJJ both agreed with Lord Denning.

The incorporation of the new English rule into the Supreme Court Act 1970 as s 81 should be taken, in my opinion, to have been done with the intention that it should be construed by New South Wales judges in the wide and generous way laid down in Harknes in 1966.”

3. Section 81 of the Supreme Court Act 1970 is one of the precedents for s 63 of the Civil Procedure Act 2005. The verbiage of s 81 and of the new s 63, although not identical, is similar. It is clear that the Uniform Civil Procedure Rules envisage that in an originating process a defendant be named. Rule 6.1A provides five circumstances in which proceedings may be commenced without naming a defendant, subject to any order that the Court may make. Proceedings can, therefore, be commenced without a defendant. That proceedings can subsist without a defendant is also established by Electronic Industries Imports Pty Ltd v The Public Curator (Queensland) [1960] VR 10.

4. Accordingly, although at common law these proceedings were commenced, as a nullity, (because the named defendant no longer existed) that nullity can be treated under s 63 as an irregularity and excused and therefore the orders made by the Judicial Registrar granting the plaintiff leave to file and serve an amended statement of claim joining as a party to the proceedings an existing legal entity, is valid.

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Decision last updated: 10 June 2015