Thorp v Hudson
[2020] WASCA 53
•9 APRIL 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THORP -v- HUDSON [2020] WASCA 53
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 8 APRIL 2020
DELIVERED : 8 APRIL 2020
PUBLISHED : 9 APRIL 2020
FILE NO/S: CACV 5 of 2020
BETWEEN: DOUGLAS HENRY ALBERT THORP
Appellant
AND
PAUL DOUGLAS HUDSON
First Respondent
NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937
Second Respondent
NICHOLAS JAMES MURFETT
Third Respondent
TIMOTHY RICHARD STEPHENSON
Fourth Respondent
CAMERON VICTOR EASTWOOD
Fifth Respondent
RICHARD SIDNEY THORP
Sixth Respondent
STEVEN DALE CIUPRYK
Seventh Respondent
RICKY WILLIAM COOPER
LIANN COOPER
Eighth Respondents
THE REGISTRAR OF TITLES
Ninth Respondent
DEPUTY COMISSIONER OF TAXATION
Tenth Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER SANDERSON
Citation: NATIONAL AUSTRALIA BANK LIMITED -v- THORP [2019] WASC 394
File Number : CIV 1515 of 2019
Catchwords:
Appeal - Procedure - Power of the court to order substituted service when a respondent to the appeal, who submitted to the exercise of the Supreme Court's jurisdiction in the General Division, is outside Australia - Whether all parties in proceedings below need to be joined as parties to the appeal
Legislation:
Rules of the Supreme Court 1971 (WA), O 72 r 4
Supreme Court (Court of Appeal) Rules 2005 (WA), r 26A
Supreme Court Act 1935 (WA), s 58(1)(b)
Result:
Order made removing second to tenth respondents as parties to the appeal
Order for substituted service made
Extension of time to file and serve appellant's case granted
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| First Respondent | : | No Appearance |
| Second Respondent | : | No Appearance |
| Third Respondent | : | No Appearance |
| Fourth Respondent | : | In Person |
| Fifth Respondent | : | No Appearance |
| Sixth Respondent | : | No Appearance |
| Seventh Respondent | : | No Appearance |
| Eighth Respondents | : | No Appearance |
| Ninth Respondent | : | No Appearance |
| Tenth Respondent | : | No Appearance |
Solicitors:
| Appellant | : | In Person |
| First Respondent | : | No Appearance |
| Second Respondent | : | No Appearance |
| Third Respondent | : | No Appearance |
| Fourth Respondent | : | T R Stephenson |
| Fifth Respondent | : | No Appearance |
| Sixth Respondent | : | No Appearance |
| Seventh Respondent | : | No Appearance |
| Eighth Respondents | : | No Appearance |
| Ninth Respondent | : | No Appearance |
| Tenth Respondent | : | No Appearance |
Case(s) referred to in decision(s):
Currie v Currie (No 2) [2019] WASCA 2
Laurie v Carroll (1958) 98 CLR 310
JUDGMENT OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the court's record of the proceedings.)
Introduction
This substantive appeal is against orders made by the master on 10 December 2019, to the effect that one half of the proceeds of the sale of a property in East Fremantle is the sole property of the first respondent (Mr Hudson) and should be paid to him. The master gave written reasons for that decision.[1]
[1] National Australia Bank v Thorp [2019] WASC 394.
The orders were made in primary proceedings commenced by the second respondent (the Bank), which was the mortgagee of the East Fremantle property, seeking the removal of caveats against the property. Before its sale by the Bank, the appellant (Mr Thorp) and Mr Hudson were joint registered proprietors of the East Fremantle property. Mr Thorp and Mr Hudson were two of the ten respondents to the primary proceedings. They were the only protagonists who participated in the making of the impugned orders of 10 December 2019.
The matter comes before us on an amended registrar's notice to attend to:
(1)Show cause why the appeal should not be dismissed because Mr Thorp has not obeyed the Supreme Court (Court of Appeal) Rules 2005 (WA) (CoARules) or any order made under them.
(2)Consider Mr Thorp's application in an appeal filed on 2 April 2020, seeking to remove the second to tenth respondents as parties to the appeal, and for substituted service of Mr Hudson.
As to the first of these matters, Mr Thorp has not filed a service certificate as required by r 28 of the CoA Rules, affidavits of service as required by the Registrar's order of 20 February 2020, or an appellant's case as required by r 32 of the CoA Rules.
It is convenient to deal with the following issues raised by the registrar's notice and the appellant's application in an appeal:
(1)Whether the second to tenth respondents should be removed as parties to the appeal?
(2)Whether an order for substituted service should be made in relation to Mr Hudson?
(3)Whether the time for Mr Thorp to file an appellant's case should be extended?
Joinder of parties
Mr Thorp joined all of the parties to the primary proceedings as parties to the appeal. It appears, from his affidavit filed on 2 April 2020, that Mr Thorp did so by reason of his understanding of advice he claims to have received from registry staff. He deposes that, by reason of financial and health difficulties, he was only able to serve the fourth respondent, (Mr Stephenson) with the notice of appeal.
Mr Stephenson has filed a notice of respondent's intention indicating that he intends to take part in the appeal. However, by email sent to the Court of Appeal office on 27 March 2020, and in his oral submissions today, Mr Stephenson indicated that he did not consider himself to have any interest in the orders made by the master on 10 December 2019.
Mr Thorp deposes that, after he emailed the respondents, all of the respondents other than Mr Hudson responded expressing no interest in the appeal.
Under r 26A(1) of the CoA Rules, each person who would be directly affected by the relief sought in an appeal must be a respondent to the appeal. Rule 26A(4) gives this court power to order that a party be removed.
It is not apparent, from the material before us, that any of the respondents other than Mr Hudson has or claims any interest in the half‑share of the proceeds of the sale of the East Fremantle Property which is the subject of the appeal. In these circumstances, it seems appropriate to order that the respondents, other than Mr Hudson, be removed as parties to the appeal.
However, in moving for an order to that effect Mr Thorp should understand that he is responsible for ensuring that the appeal proceedings are properly constituted. A failure to join a party who has or claims an direct interest in the proceeds of the sale of the East Fremantle property, or whose interests are otherwise directly affected by the orders sought in the appeal, will at least ordinarily, lead to any orders made in Mr Thorp's favour being set aside.[2]
[2] See Currie v Currie (No 2) [2019] WASCA 2 [236] - [237].
Substituted service
In the primary proceedings, Mr Hudson was represented by Solomon Brothers solicitors. Those solicitors have declined to accept service of the appeal notice on Mr Hudson's behalf. Mr Thorp deposes that Mr Hudson's last known address is in China.
Mr Hudson participated in the primary proceedings, and by doing so submitted to the jurisdiction of the Supreme Court. The jurisdiction of the Court of Appeal division of the Supreme Court does not depend on personal service of the appeal notice on Mr Hudson. That is in contrast to the position where proceedings are commenced in the General Division by writ: as to which see Laurie v Carroll.[3] The jurisdiction of the Court of Appeal division is conferred by s 58(1)(b) of the Supreme Court Act 1935 (WA), and is relevantly founded on the making of an order of the master which is the subject of an appeal. Given that this court has jurisdiction to hear an appeal against the master's orders, irrespective of the location of the parties, there is no impediment, of the kind referred to in Laurie v Carroll, to an order for substituted service of an appeal notice on a person who resides outside Australia.
[3] Laurie v Carroll (1958) 98 CLR 310.
We are satisfied, given the personal circumstances of Mr Thorp and the location of Mr Hudson, that it would be impracticable to effect personal service at this time.[4] We are satisfied that an order for substituted service by post and email on Mr Hudson and his former solicitors will bring the current appeal to his notice.
[4] See Order 72 r 4 of the Rules of the Supreme Court 1971 (WA), with which the CoA Rules are to be read under r 5 of the CoA Rules.
Extension of time to file and serve appellant's case
The appeal notice was filed on 21 January 2020. An appellant's case was to be filed 35 days thereafter. Mr Thorp requires an extension of time in which to file an appellant's case. In all the circumstances, including that there are no other currently active parties in the appeal, we are satisfied that it is appropriate for an extension of time to be granted. Given the time which has already passed, we are of the view that a three week extension is appropriate. However, Mr Thorp should ensure that an appellant's case which complies with the rules is filed and served by that time.
Orders
For the above reasons, at the hearing we considered it appropriate to make orders removing the second to tenth respondents (inclusive) as parties to the appeal, providing for personal service of the appeal notice and extending the time for filing an appellant's case to 4.00 pm on 22 April 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Research Orderly to the Honourable Justice Mitchell9 APRIL 2020
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