Welldog Pty Ltd v Prox Pty Ltd [No 3] - [2018] WASCA 26

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WELLDOG PTY LTD -v- PROX PTY LTD [No 3] [2018] WASCA 26

CORAM: MURPHY JA

HEARD: 16 FEBRUARY 2018

DELIVERED : 16 FEBRUARY 2018

PUBLISHED : 1 MARCH 2018

FILE NO/S: CACV 27 of 2017

BETWEEN: WELLDOG PTY LTD
First Appellant
GAS SENSING TECHNOLOGY CORPORATION
Second Appellant
THE BLUE SKY GROUP (as representative of the shareholders of the second plaintiff)
Third Appellant
AND
PROX PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
File No  :CIV 2859 of 2016

Catchwords:

Practice and procedure - Respondent's entitlement to costs against second appellant after discontinuance by second appellant - Respondent's application to serve out of the jurisdiction a means inquiry summons on a foreign corporation under the Civil Judgments Enforcement Act 2004 (WA) - Whether Court of Appeal has jurisdiction to determine application or whether application should be brought in the General Division of the Supreme Court

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 9, s 27, s 29
Interpretation Act 1984 (WA), s 5
Supreme Court Act 1935 (WA), s 4, s 7, s 58
Supreme Court Rules 1971 (WA), O 1 r 4(2), O 10 r 7, O 66 r 57
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 1 r 3, pt 5 r 59(4)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant             :     Ms R Heath
Second Appellant         :     No appearance
Third Appellant           :     No appearance
Respondent:     Mr J R Shepherd

Solicitors:

First Appellant             :     Squire Patton Boggs
Second Appellant         :     No appearance
Third Appellant           :     No appearance
Respondent:     HWL Ebsworth Lawyers

Case(s) referred to in judgment(s):

Nil

MURPHY JA:
(These reasons were delivered extemporaneously and have been edited from the transcript.)

This is an application by the respondent for leave pursuant to O 10 r 7 of the Rules of the Supreme Court 1971 (WA) (Rules) to serve a 'means inquiry' summons under s 29 of the Civil Judgments Enforcement Act 2004 (WA) (Act) outside the jurisdiction on the second appellant.[1] The second appellant appears to be an American corporation.
[1] It appears that the second appellant was not served with the application on the basis that the respondent contended that the application should be made ex parte under O 10 r 7 of the Rules (a point which it is unnecessary to determine for present purposes).
Order 10 r 7 of the Rules provides that:
The Court may grant leave to serve a person outside Australia with any originating process, other than a writ, or with any summons, order or notice in any proceedings duly instituted, whether by writ of summons or otherwise, and rules 1A, 4 and 5, with any necessary changes apply to such service.
I will assume for present purposes, without deciding, that a summons under s 29 of the Act is a summons within the meaning of O 10 r 7.
The power provided for in O 10 r 7 is a power vested in the 'court'. The 'court' is defined, relevantly, in O 1 r 4(2) as the Supreme Court, and in s 4 of the Supreme Court Act 1935 (WA) (Supreme Court Act) as the Supreme Court of Western Australia. Accordingly, any application to be made under O 10 r 7 should be made to the Supreme Court of Western Australia which, in this context, would prima facie mean the General Division, as provided for in s 7(1)(a), s 7(2) and s 7(4) of the Supreme Court Act, rather than the division of the Supreme Court referred to in s 7(1)(b) of the Supreme Court Act as the Court of Appeal with its jurisdiction under s 58 of the Supreme Court Act.
As I have indicated, the summons sought to be served outside the jurisdiction is a summons sought to be issued under s 29 of the Act. By s 27(1) of the Act, a judgment creditor may apply for a means inquiry to be held in respect of the judgment debtor. By s 27(3)(c) of the Act, if the judgment debtor is a corporation, the application must contain the name and address of an officer of the corporation.
Section 29(1) of the Act provides that where a person is named in an application under s 27(3) of the Act, in respect of such a person, the court may issue a summons to attend a means inquiry to give oral evidence and a summons to attend and produce to the court, for use in the inquiry, things relating to the matters listed in s 26 that are detailed in the summons. Section 29(3) provides that '[a] summons … must be served personally'.
Section 29(4) and (5) provide as follows:
(4)If a person who has been summoned under subsection (1) does not attend as ordered by the summons, the court may issue a warrant to have the person arrested and brought before the court.
(5)A person who has been summoned under subsection (1) and who, without a reasonable excuse -
(a)does not obey the summons; or
(b)refuses to be sworn or answer any lawful question,
is guilty of a contempt of court.
There would seem to me to be some doubt, at least, that the court, merely by issuing a summons under s 29 of the Act, even with leave to serve out under O 10 r 7, could bring about the result that a foreign national could be arrested and brought before the court. Be that as it may, the relevant court to make the application for a summons under s 29, seems to me to be the Supreme Court of Western Australia in its General Division.
It is true that by s 9 of the Act, any application under the Act is to be made 'to the court that gave the judgment'. However, s 5(a) of the Act refers, relevantly, to the 'Supreme Court' and by s 5 of the Interpretation Act 1984 (WA) the 'Supreme Court' means the Supreme Court of Western Australia. Section 9 does not prima facie 'require' an application to be heard and determined 'by the Court of Appeal'.[2]
[2] cf s 58(m) of the Supreme Court Act.
Accordingly, it would seem to me that any application made for a means inquiry summons under the Act, and any consequential application for leave to serve such a summons out of Australia under O 10 r 7 of the Rules (assuming, without deciding, that such a summons falls within the meaning of O 10 r 7) are to be made to the Supreme Court of Western Australia in its General Division. Each would seem to me to be an application in the original jurisdiction of the Supreme Court of Western Australia rather than the appellate jurisdiction of the Supreme Court of Western Australia. That would mean that this application ought to be brought in the General Division of the Supreme Court of Western Australia, rather than in the Court of Appeal.
That conclusion tends, I think, to be confirmed by the fact that the appeal has been concluded within the meaning of pt 1 r 3 of the Supreme Court (Court of Appeal Rules) 2005 (WA) (Court of Appeal Rules). Relevantly for present purposes, the second and third appellants in this matter discontinued their appeal. That gave the respondent under the Court of Appeal Rules the right to have their costs paid. Part 5 r 59(4) of the Court of Appeal Rules provides:
An appellant who discontinues an appeal must pay the respondent's costs in respect of the appeal which must be taxed if they are not agreed.
As counsel for the respondent (the applicant in the present application) appeared to concede, the second appellant's liability for costs, by virtue of the application of pt 5 r 59(4) of the Court of Appeal Rules is not a 'judgment' within the meaning of the Act. The Court of Appeal has not, relevantly as against the second appellant, given a 'judgment' within the meaning of s 29 of the Act, although it may be accepted that the registrar's certificate of taxation is deemed to be a judgment.[3]
[3] Order 66 r 57 of the Rules.
The result is that I am not persuaded that the Court of Appeal division of the Supreme Court has the jurisdiction to make the orders sought in the applicant's application dated 31 January 2018.
My view is that that application should be brought in the General Division of this court. I would dismiss the application on that basis.