Westpac Banking Corporation v Summerscales
[2023] NFSC 2
•22 June 2023
SUPREME COURT OF NORFOLK ISLAND
Westpac Banking Corporation v Summerscales [2023] NFSC 2
File number: SC 4 of 2022 Judgment of: BESANKO CJ Date of judgment: 22 June 2023 Date of publication of reasons: 10 August 2023 Catchwords: PRACTICE AND PROCEDURE — orders pursuant to rule 6 of the Court Procedures Rules 2006 (ACT) and section 29 of the Supreme Court Act 1960 (NI) Legislation: Supreme Court Act 1960 (NI) ss 11, 19, 29
Court Procedures Rules 2006 (ACT) rr 6, 70, 6304
Number of paragraphs: 11 Date of hearing: 22 June 2023 Counsel for the Plaintiff: Mr G Atkinson (as town agent) Solicitor for the Plaintiff: MinterEllison Counsel for the Defendant: The Defendant Appeared in Person ORDERS
SC 4 of 2022 BETWEEN: WESTPAC BANKING CORPORATION ABN 33 007 457 141
Plaintiff
AND: GRANT OLIVER SUMMERSCALES
Defendant
order made by:
BESANKO CJ
DATE OF ORDER:
22 JUNE 2023
THE COURT ORDERS THAT:
1.Out of an abundance of caution and pursuant to all enabling powers, including rule 6 of the Court Procedures Rules 2006 (ACT) and section 29 of the Supreme Court Act 1960 (NI), and subject to the Registrar sealing and signing such documents filed in the Court as are required to be sealed and signed by the said Rules, and the provision of such documents to each party, I dispense with the requirements of the said Rules in relation thereto and should there be a defect or irregularity, I declare the proceeding valid as I am satisfied there is no substantial injustice by reason of such defect or irregularity.
2.The defendant file any defence by 4:00 pm Norfolk Island time on 27 July 2023.
3.The matter be listed for a further case management hearing at 10:30 am Norfolk Island time on Thursday, 10 August 2023.
REASONS FOR JUDGMENT
BESANKO CJ:
These are reasons for an order I made on 22 June 2023.
In this proceeding in the Court, Westpac Banking Corporation (Westpac) is claiming to be the mortgagee of land at 10 Berrys Lane (also known as Portion 145G Berrys Lane), Norfolk Island and it seeks orders for the possession of the land of which the defendant, Mr Grant Summerscales, is said to be the registered proprietor. Westpac seeks the relief on the ground that Mr Summerscales has defaulted in the payment of monies secured by the mortgage over the land and failed to comply with the default notice served upon him.
Westpac commenced the proceeding by way of Originating claim and Statement of claim filed on 15 November 2022. Mr Summerscales filed a notice of intention to respond, application in a proceeding, interlocutory process and affidavit on 1 June 2023.
In his affidavit affirmed on 31 May 2023, and during the course of the first case management hearing before me on 22 June 2023, Mr Summerscales raised an issue that the documents served on him do not bear a seal of the Supreme Court of Norfolk Island. At the conclusion of the first case management hearing I made the following order:
1.Out of an abundance of caution and pursuant to all enabling powers, including rule 6 of the Court Procedures Rules 2006 (ACT) and section 29 of the Supreme Court Act 1960 (NI), and subject to the Registrar sealing and signing such documents filed in the Court as are required to be sealed and signed by the said Rules, and the provision of such documents to each party, I dispense with the requirements of the said Rules in relation thereto and should there be a defect or irregularity, I declare the proceeding valid as I am satisfied there is no substantial injustice by reason of such defect or irregularity.
By virtue of s 19(4) of the Supreme Court Act 1960 (NI) (the Act), the Court Procedures Rules 2006 (ACT) (the Rules) apply to this matter.
Rule 70 of those Rules provides that the Registrar must seal an originating process. What constitutes a seal is not defined in the Rules (see also r 6304). Section 11(1) of the Act sets out that the Court shall have a Seal of the Court for sealing writs and other instruments or documents issued out of the Court and required to be sealed.
The Originating claim, together with all other documents filed in the proceeding up to 22 June 2023 have been received and have been stamped by the Court on the top right hand corner of the first page. The stamp is a rectangular box containing the word “FILED”, the date of filing and the words “SUPREME COURT NORFOLK ISLAND”.
I proceed on the basis that the Originating claim needed to be sealed because it is an originating process. There are other documents that must be sealed, for example, a notice of intention to respond or a defence. It is for the Registry to determine, having regard to the Act and Rules, how documents are to be received and marked and to act accordingly.
Section 29 of the Act provides:
29 Proceedings not invalidated by formal defects
(1)Proceedings in the Supreme Court shall not be invalidated by any formal defect or by any irregularity, unless the Court is of the opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court.
(2)The Court or a Judge may make an order declaring that any proceeding is valid notwithstanding any defect or irregularity.
Rule 6 of the Rules provides that:
(1)The court may, by order, dispense with the application of a provision of these rules to a particular proceeding, before or after the provision applies and on any conditions it considers appropriate.
It seemed to me that any failure to seal or otherwise comply with the Rules had, in the circumstances, caused no injustice. The documents were documents of the parties and they were received and marked by the Court. The question then was as to the terms of the order. Clearly, there was no need to make an order as to how documents lodged in the future were to be dealt with. That is governed by the Act and Rules. As to the documents filed before the order was made, and in an attempt to bring matters as close to how they should have been, I included in the order a requirement that existing documents on the Court file should be sealed and signed to the extent required by the Rules and copies provided to the parties. Whether such a requirement is necessary in all cases may be debated, but that is not of present concern.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Besanko. Associate:
Dated: 10 August 2023
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