Tsangaris v Fung and Ors (Ruling)
[2020] VCC 427
•20 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
MEDICAL LIST
Case No. CI-18-01767
| MELONY TSANGARIS | Plaintiff |
| v | |
| WILLIAM WAI YIP FUNG | First Defendant |
| and | |
| AVANT MUTUAL GROUP LIMITED (ACN 123 154 898) | Second Defendant |
| and | |
| MONJO PTY LTD trading as CIVIC PARADE MEDICAL CENTRE | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2020 | |
DATE OF JUDGMENT: | 20 April 2020 | |
CASE MAY BE CITED AS: | Tsangaris v Fung & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 427 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Service of originating process – writ – whether personal service by indirect means – whether service effected before writ became stale – subsequent personal service after writ became stale – whether a subsequent order for extension of time for service made retrospectively
Legislation Cited: County Court Civil Procedure Rules 2008
Cases Cited:Mildura Aboriginal Corporation and Stewart v Australian Broadcasting Corporation [2001] VSC 82; Pino v Prosser [1967] VR 835; Hartley Poynton Ltd v Ali [2005] VSCA 53
Ruling: Declaration that personal service has been effected.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Lamb | Slater & Gordon Ltd |
| For the First Defendant | The first defendant appeared in person | - |
| For the Second and Third Defendants | No appearance | - |
HIS HONOUR:
The dispute
1 Where the parties are at odds is over service of the Writ on the first defendant, William Wai Yip Fung (“Dr Fung”). The plaintiff submits that the Writ was served in accordance with the County Court Civil Procedure Rules 2018 (“the Rules”). Dr Fung disagrees.
Who appeared
2 Mr P Lamb of counsel appeared for the plaintiff. Dr Fung appeared in person.
3 There was no appearance for the second and third defendants. Although, it is ultimately a matter for the plaintiff, it occurred to me that the second and third defendants are superfluous in what is a medical negligence claim.
The problem
4 It is necessary to set out a short chronology as background to what is in dispute.
5 The writ was filed within the Registry of this court on 26 April 2018. By reason of Rule 5.12, the Writ is valid for service for one year after the day it is filed. The Writ would become stale at the close of business of the Court on 26 April 2018. By reason of Rule 3.05, service after 4.00pm on any day on which the office of the Court is open is calculated as service on the following day. The effect of this Rule is that the Writ became stale after 4.00pm on 26 April 2018.
6 On 18 April 2019, the solicitors for the plaintiff sent an email to Dr Fung at the following email address: [email protected] enquiring of him whether he would accept service of the Writ which was sent as an attachment to the email. He replied by email on the same day that he would not accept service. On 20 April 2019, his wife, Jane Buckland, relayed his instructions by email that he would not accept service of the Writ.
7 On 20 April 2019, Ms Buckland emailed the solicitors for the plaintiff, informing them that she had brought the Writ to the attention of Dr Fung. She confirmed his instructions that he would not accept service of the Writ.
8 Dr Fung filed an application dated 18 December 2019 in which he confirmed that an attempt was made to serve the Writ on him by email on 18 April 2019. He confirmed that Ms Buckland is his wife, and that she replied by email on the same day that he would not accept service. He further confirmed that his position relevant to service was confirmed by Ms Buckland in a further email which I infer was the email of 20 April 2019.
9 On 24 April 2019, a process server attempted service on Dr Fung. The attempt was unsuccessful. A further attempt was made at service on 26 April 2019 by a process server. The Writ was served at Dr Fung’s rooms at 65 Millers Road, Altona 3018 at 3.15pm on Ms Lynette David who, when asked if she was authorised to accept service, replied that she was.
10 Dr Fung takes issue with the method of service on Ms David and the time when service was effected. Firstly, Dr Fung submits that service in that manner does not constitute personal service. Secondly, the first affidavit of service of the process server describes service as being effected at 6.30pm on 26 April 2019. Service after 4.00pm on that day is, by reason of Rule 3.05, deemed to be service on the following day. In other words, service at that time was service of a Writ which was stale, and therefore, ineffective service.
11 The process server was employed by Probe Field Services. The solicitor for the plaintiff discovered that the relevant process server had in fact served the writ at 3.15pm, not at 6.30pm. The process server swore a second affidavit of service deposing to that as being the time of service.
Rules and service
12 Rule 6.02(1) provides that originating process “shall be served personally” on a defendant. Rule 5.01 provides that a writ is a form of originating process. Rule 6.03(1) provides that personal service is effected by leaving a copy of the document with the person to be served, and if the person to be served does not accept the copy, then service can be effectively undertaken by putting a copy of the document down in the person’s presence and telling the person of the nature of the document.
13 However, the strictness of this construction of the Rules is ameliorated by Rule 6.11, which provides that where a document has not been served in the manner required by the Rules, but the document has come to the notice of the person to be served, then “the document shall be taken to have been served on the day it came to the person’s notice”.
The competing submissions
14 The plaintiff submits that Ms Buckland’s email of 20 April 2019 is an unequivocal demonstration that she brought the Writ to the attention of Dr Fung. The fact that Dr Fung responded that he would not accept service of the Writ is probably based upon his understanding that for service to be effective, it must be personal service consistent with Rule 6.03(1), it is not clear to me whether that was an intuitive conclusion which he reached, or one which he understood was the case by reason of some understanding by which he came of the particular Rule.
15 Rule 6.11 has been interpreted to apply to circumstances where the writ came to the direct notice of the defendant by an indirect means.[1] The evidence discloses that Ms Buckland understood that the attachment to the email of 18 April 2019 contained the Writ, and her email of 20 April 2019 demonstrates that she brought the Writ to the attention of Dr Fung. Dr Fung acknowledged that he knew of the Writ. His response was that he had not been personally served, not that the Writ had not been brought to his attention.
[1]Mildura Aboriginal Corporation and Stewart v Australian Broadcasting Corporation [2001] VSC 82
16 The alternative relied on by the plaintiff is the service by the process server on 26 April 2019 at 3.15pm. The Court recognises the predicament of a self-represented litigant. Hence the reason why self-represented litigants were referred to Judge Saccardo for his expert management of their litigation. The Order made by his Honour on 27 November 2019 is an exemplar of his management of self-represented litigants.
17 Order 4 of those Orders provides that the parties were to file, among other things, affidavit evidence upon which each sought to rely in “advancing its position as to each individual application”. Dr Fung did not avail himself of the opportunity to file and serve any affidavit evidence, and in particular, affidavit evidence challenging the second affidavit of service of the process server that service was effected at his rooms on Ms David in the manner described in the affidavit of service, and with the acknowledgement that service was being effected and that Ms David had authority to accept the Writ on behalf of Dr Fung.
18 The allegation made by Dr Fung is a very serious one. It amounts to the process server having committed perjury by swearing to an affidavit of service which is untrue. I am not prepared to accept Dr Fung’s submission that I should not accept the second affidavit of service as being true. There is no basis upon which I can do that in the face of an explanation that the time noted in the first affidavit of service was made in error.
19 Service undertaken in this way is sufficient to constitute personal service where Ms David said unequivocally that she was authorised to accept service of the Writ, meaning that she would bring it to the notice of Dr Fung. This appears to be consistent with the conclusion reached in Pino v Prosser.[2]
[2][1967] VR 835
20 The last alternative is based upon the personal service of the Writ on Dr Fung on 10 May 2019. Although, the Writ was stale, an Order was subsequently made on 13 May 2019 extending the time for service of the Writ for a period of three months. The plaintiff submitted that such an Order would retrospectively validate the Writ, rendering service of it on 10 May 2019 effective service. The plaintiff relied on Hartley Poynton Ltd v Ali.[3]
[3][2005] VSCA 53
21 I am not convinced that I have the power to declare that service on 13 May 2019 is effective service. Rule 5.12(2) contemplates that the Court may from time to time by order extend the period of validity of a writ; however, the Rule provides that such an order will be for “such period from the day of the order as the Court directs …”. The Order made on 13 May 2019 provides that the “period of the validity of the writ for service be extended for a period of three (3) months”. In the absence of the Order being made retrospective to a date prior to 10 May 2019, then the only interpretation I can give to the Order is that it is an extension of the time for service of the Writ for a period of three months from the date of the Order; that is, to 13 August 2019. On that interpretation, the Writ remained stale from 4.00pm on 26 April 2019 until the making of the Order.
What next?
22 For the reasons I have set out above, I am satisfied that the service of the Writ on Dr Fung was undertaken effectively through the exchange of emails on 18 and 20 April 2019 and service on Ms David, and in conformity with what is contemplated under Rule 6.11.
23 It now follows that I must make a number of Orders from what flows from the finding I have just made, and also relevant to the freezing order. The Orders I will now make are as follows:
(a) Dr Fung must file and serve an Appearance by 4.00pm on Wednesday, 29 April 2020;
(b) Dr Fung must file and serve a defence to the Statement of Claim by 4.00pm on Wednesday, 6 May 2020;
(c) The freezing order made 13 November 2019, as extended, is further extended until further order;
(d) Any application made by the plaintiff or Dr Fung to increase or reduce the sum of the freezing order in paragraph 8 and 9, or the vacation of that Order, must be made on notice in writing better than 4 PM on 11 May 2020.
(e) Any such application:
(i) must set out the grounds of the application; and
(ii) the orders sought; and
(iii) be supported by affidavit evidence;
(f) The application/s must be referred to the senior associate of Judge Misso: [email protected]. Any application/s will be listed for hearing before Judge Misso, who will give whatever directions are necessary for the efficient hearing of the application/s.
(g) The costs of this application are reserved.
(h) Irrespective of whether either the plaintiff or the defendant make any of the applications referred to above, the parties must attend directions hearing on 18 May 2020 at 10:30am for the purpose of pre-trial directions being made, and the hearing of any of the applications referred to above at the same time.
(i) Liberty to apply.
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