Unmack and Unmack v White
[2008] WADC 151
•10 OCTOBER 2008
UNMACK & UNMACK -v- WHITE & ANOR [2008] WADC 151
| Link to Appeal : | [2009] WADC 7 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 151 | |
| Case No: | CIV:2760/2005 | ||
| Coram: | DEPUTY REGISTRAR HARMAN | 10/10/08 | |
| PERTH | |||
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| PDF Version |
| Parties: | UNMACK & UNMACK RUSSELL JOHN WHITE SHAWN WILLIAM REISS |
Catchwords: | Practice Western Australia Practice under the Rules of the Supreme Court of Western Australia Application to set aside judgment in default Judgment under springing order Turns on its own facts |
Legislation: | Rules of Supreme Court 1971 |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
RUSSELL JOHN WHITE
First Defendant
SHAWN WILLIAM REISS
Second Defendant
Catchwords:
Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to set aside judgment in default - Judgment under springing order - Turns on its own facts
Legislation:
Rules of Supreme Court 1971
Result:
Application successful
(Page 2)
Representation:
Counsel:
Plaintiff : Mr W Goodlet
First Defendant : Not applicable
Second Defendant : Mr M Robinson
Solicitors:
Plaintiff : Unmack & Unmack
First Defendant : Hayter & Co
Second Defendant : Hammond Worthington
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 DEPUTY REGISTRAR HARMAN: The plaintiff's claim in the action is for the cost of professional services provided to the defendants by the plaintiff as their solicitor. The action progressed to the point that it had been listed for trial when on 29 October 2007 the court pronounced as follows:
"THIS ACTION having come on for listing conference and UPON HEARING Mr Goodlet for the plaintiff and there being no appearance for the first and second defendants IT IS ORDERED that:
On the plaintiff's application dated 11 September 2007:
1. unless the second defendant do file and serve answers or objections to the interrogatories dated 15 August 2007 within 21 days of service of this order, the second defendant's defence and counterclaim herein be struck out and there be judgment for the plaintiff against the second defendant in the claim and the second defendant's counter claim;
2. the plaintiff serve a copy of the interrogatories dated 15 August 2007 on the second defendant with this order;
3. the trial listed to commence on 11 December 2007 be vacated;
4. the first defendant have liberty to apply to vary the order in par 3, such liberty to be exercised within 7 days of service of this order on the first defendant;
5. by 5 November 2007 the plaintiff serve a copy of this order on the first defendant;
6. the costs be in the cause."
2 On 3 December 2007 the court made an order for substituted service of the order of 29 October 2007 on the second defendant by way of personal service of it on the first defendant. On 1 February 2008 the court struck out the second defendant's defence and counterclaim and awarded the plaintiff judgment against him. The second defendant now seeks to have judgment set aside.
3 The onus in the application is on the applicant. The first consideration is whether the judgment was regularly obtained.
(Page 4)
- The circumstances that would open up consideration of that issue include those in play prior to the hearing on 29 October 2007.
4 On 24 August 2007 an order had been made that subject to compliance with O 8 r 7 of the Rules of the Supreme Court1971 the second defendant's solicitor cease to represent him in the action.
5 On 4 October 2007 the second defendant's former solicitor satisfied the condition of the order releasing him from any involvement in the action. In the intervening period by way of an application to which the second defendant was the sole respondent the plaintiff had obtained leave to interrogate the second defendant. As the result of the second defendant's failure to respond to the interrogatories the plaintiff sought judgment but obtained the benefit of a springing order against him. On 15 October 2007 the springing order was revoked. The reasons are set out in the letter of Deputy Registrar Hewitt dated 15 October 2007, the relevant parts of which are as follows:
"This file was referred to me by the Registry on the plaintiff's motion for judgment based on non compliance with my orders dated 2 October 2007.
That order has not been extracted and accordingly I retain the power to vary the order if I think it appropriate. I have decided to exercise that power and have accordingly revoked the orders made on 2 October 2007 and substituted the following:
1. the application be adjourned sine die;
2. Deputy Registrar Hewitt be disqualified from any further hearing of the application;
3. costs of the hearing on 2 October 2007 be in the cause.
My reasons for taking this course are as follows:
a) I was a member of the plaintiff's firm approximately 25 years ago and I am personally acquainted with Mr W Goodlet, who is a principal of the firm. As such I think a reasonable apprehension of bias could arise and I should not have heard the application.
b) I have formed the view that the plaintiff's pursuit of interrogatories has been for the sole purpose of obtaining a judgment in default and as such is an abuse of process."
(Page 5)
6 There is nothing to indicate that the letter was sent to the second defendant.
7 Perhaps understandably in his reply the plaintiff expressed dismay at the turn of events. I will simply observe that the claims made by the plaintiff and indeed on every part of the pleadings the defendants are undifferentiated. In reflecting upon what had been before the Deputy Registrar when he wrote the letter it is difficult to come to any different conclusion than he expressed at par (b) of his reasons.
8 By letter dated 23 October 2007 the plaintiff sought to have the same application listed before another registrar. By letter dated 25 October 2007 the parties were given notice that it had been listed on 16 November 2007. The notice reveals that the address of the second defendant was then unknown.
9 A notation on the registry's copy of the notice, evidentially made by a member of registry staff is as follows:
"Phoned Hayter & Co who were previously acting for Mr Reiss. They have no physical address but the email address below appears in court documents. My email to Mr Reiss is attached NR. 25/10/07."
10 Also on the file is the print-out of an email evidently sent by a member of the registry staff to an email address, "[email protected]". On that document there is a notation as follows:
"25/10/07 Came back as undeliverable mail. NR."
11 According to O 8 r 9 of the Rules of the Supreme Court in circumstances where a party's solicitor has ceased to act the address for service of that party is the last known address of that party.
12 The affidavit of the second defendant's former solicitor sworn in support of his application to cease to act does not reveal any address for the second defendant. It appears from the court's file that at all times prior to the date of his former solicitor's application that second defendant had been represented by that solicitor. On 4 April 2005, in a notice lodged by that solicitor in the Local Court at Perth (the Court in which the litigation commenced), the address of the second defendant was given as 32 Zenobia Street, Palmyra. The source of the information relating to the email address is not specified however the circumstances that pertained at the time were such that r 18 of the District Court Rules 2005 (which refers
(Page 6)
- to communications to an email address) would not apply. In any event such an address would not amount to an address for service. According to O 8 r 9 the address at Zenobia Street would be the second defendant's address for service. There is nothing other than the content of the note to which I have referred to indicate why the notice dated 25 October 2007 was not given to the second defendant.
13 I will now digress for a moment. On 14 August 2007 the hearing fee for the trial had been notified to the plaintiff. According to notations made within the Registry on the copy of that notice, in the period from 13 September 2007 to 19 October 2007 there had been communications with the plaintiff in relation to payment of the amount due. The last notation, which is undated, indicates that the action would be listed for a call over in listing conference the following week. By notice dated 24 October 2007 the plaintiff was informed of that listing. The file copy of the notice does not reveal that the defendants were notified. There is nothing to indicate what transpired on that day in relation to the outstanding hearing fee. Indeed all that is recorded is the order of the Principal Registrar that I cited at the commencement of my reasons and that a letter written by the plaintiff to the first defendant's solicitor was handed up. The substantive parts of it are as follows:
"We have your letter of 25th and 26th October 2007.
We are sorry if we misled you.
It is simply the case that Shawn Reiss having apparently absconded we are content to get a default judgment against him and not to bother to pursue your client Mr White.
On the other hand we recognise that Russell White may well wish to pursue his claim against us and we invite you to enter that matter for trial at once."
14 Other than a passage in a letter subsequently sent to the registry by the plaintiff dated 12 November 2007, the circumstances that led to the application listed for 16 November 2007 being heard on 29 October 2007 are not apparent. The relevant passage is as follows:
"We ask that the hearing on the 16th November 2007 be vacated as the Order appears to have been granted spontaneously by the Registrar at a listing Conference on the 29th October 2007."
(Page 7)
15 By his letter dated 31 October 2007, the first defendant's solicitor wrote to the Associate to the Principal Registrar as follows:
"I refer to our telephone conversation today and enclose a copy of your letter dated 25 October 2007 together with a copy of orders made 29 October 2007 received by me today.
I confirm that I was not notified that this matter was coming back before the Court on 29 October 2007 the orders noting that there was no appearance from the First Defendant which of course is no surprise when neither I nor the First Defendant were aware that the matter was coming back before the Court.
Could you please firstly advise as to why I was not notified as the solicitor on record for the First Defendant of the matter coming back before the court on 29 October 2007 and secondly as to what the Court now proposes to do in view of its failure to advise me of the matter coming before the Court on 29 October 2007.
I have forwarded a copy of this letter and enclosures to my client, the First Defendant and await his instructions. I fail to see why the First Defendant should be required to incur costs to apply to vary vacation of the listing of the matter for trial when he was never given the opportunity to be represented at the hearing referred to. …"
16 The response to that communication appears to have been a telephone call of which a note was made by a member of the registry as follows:
"1/11/07 – Phoned Mr Hayter and explained that Unmack & Unmack were asked to appear on 29/10/07 because of unpaid trial fees. The resulting orders arose out this."
17 Thereafter on 3 December 2007 the Principal Registrar made the order for substituted service of the springing order. The terms of that order included the stipulation that the springing order be served on the first defendant in a sealed envelope addressed to the second defendant. I have no difficulty with the proposition that the second defendant was then in breach of the springing order but the period between the date of the order for substituted service and the date of the judgment would have provided time to reflect upon the likely effectiveness of the order for substituted service. At its core service is a process of communication.
(Page 8)
- I struggle with the proposition that communication between the court and the second defendant would be effected by service of a sealed envelope that bore no information other than the name of the second defendant on someone other than the second defendant. Had the order the envelope contained been served at least there would have been a real prospect that the recipient would understand that the court had expected that he would undertake a particular task. The fact that the subject of what was intended to be communicated was a springing order only compounds my difficulty.
18 Be that as it may, for present purposes the critical consideration is that at par 3 of the plaintiff's affidavit in support of the application for judgment is as follows:
"On the 19th December 2007 I received by mail a letter from the solicitor for the first defendant a copy of which is hereto annexed … together with the unopened sealed envelope addressed to the second defendant."
19 Part of that letter reads as follows:
"I refer to previous correspondence and in particular your letter of 10 December 2007 addressed to my client. My client has today provided me with a sealed envelope addressed to Shawn Reiss which in your letter of 10 December 2007 you asked me (sic) client to pass on the letter to Shawn.
My client instructs me that he cannot pass on the letter to Shawn as he does not know Shawn's current address.
I am sure that you will bring the contents of this letter to the attention of the District Court."
20 I only need to refer to what is fundamental to the process of service. It may be all very well to construct a basis for default judgment to be entered but whether it is appropriate to enter judgment depends upon an assessment of the material that I have canvassed. Ultimately I am satisfied that the judgment obtained was irregular as the court could not have been satisfied that the second defendant had either been served or otherwise been informed of what was necessary in order to justify judgment being entered against him.
21 I accept that the consequences of that determination may be considered to be significant. The important consideration is that the application now before me has given the judgment debtor the first
(Page 9)
- opportunity to address the court in relation to the matters that had put before the court when the plaintiff sought judgment.
22 I am inclined to add that at most of the points of the exercise that I have conducted I consider that either the registry staff or the court has failed to act appropriately.
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