Yunghanns v Colquhoun-Denvers - [2016] VSC 403

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2016 01170

PETER NICHOLAS YUNGHANNS	Plaintiff
v
NICHOLAS COLQUHOUN-DENVERS	Defendant

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 JULY 2016
DATE OF JUDGMENT:	19 JULY 2016
CASE MAY BE CITED AS:	YUNGHANNS v COLQUHOUN-DENVERS
MEDIUM NEUTRAL CITATION:	[2016] VSC 403

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PRACTICE AND PROCEDURE – Service of originating process out of Australia – Application to set aside service on the basis that service of the writ out of Australia not authorised under r 7.01(1) – Relevant test – Whether tort committed in Victoria – Whether damage partially suffered in Victoria– Failure to indorse the writ – Discretionary considerations – No prejudice – Compliance with r 7.02 dispensed with – Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 7.01(1) (i) & (j), 7.02.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Houghton QC with Mr B Holmes	Strongman & Crouch Solicitors
For the Defendant	Dr S Bogan	Batten Sacks Harvey Bruce

HIS HONOUR:

By summons dated 31 May 2016, the defendant applied to set aside service on him out of Australia of the writ.

The plaintiff’s writ, issued on 31 March 2015, claims damages for defamation consequent on the publication of two emails. A statement of claim accompanied the writ. It states the plaintiff’s address to be Collins Street, Melbourne and the defendant’s address to be London, England. A certificate from the Senior Court of England and Wales, Foreign Process Section, dated 16 May 2016 certifies that the originating process was served on the defendant on 10 May 2016 at the defendant’s address in London as noted in the writ. The certificate states that the documents were served by posting them through the defendant’s letterbox, which is described as good service under rule 6.3(1)(c) of the Civil Procedure Rules of England and Wales.

The defendant’s solicitor, Mr Harvey Bruce, has deposed that he has been instructed by the defendant to act for him. Concerning service, he stated that the defendant was handed a copy of the writ and statement of claim in London on 20 April 2016. On or after 6 May 2016, the defendant received a further copy of the writ and statement of claim in London purportedly being served under the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters (The Hague Convention). For present purposes, it is not necessary to reconcile the precise date of service. There is no dispute that service was effected in accordance with The Hague Convention and that, pursuant to Order 80 of the Supreme Court (General Civil Procedure) Rules 2016, the writ and statement of claim came to the notice of the defendant.

The defendant’s summons raises a different issue. The summons alleges that service out of Australia was not authorised by r 7.01(1).

Correspondence between the parties’ solicitors about that matter followed service of the summons. On 2 June…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 403
Decision Date: 19 JULY 2016

CaseChat Overview and Summary

Yunghanns v Colquhoun-Denvers involved the plaintiff, Mr Yunghanns, who sought to institute proceedings against the defendant, Colquhoun-Denvers, in the Supreme Court of Victoria. The dispute arose from an alleged tort committed in Queensland, which resulted in damages that were partially suffered in Victoria. The defendant argued that the service of the writ out of Australia was not authorised under the relevant rules, specifically rule 7.01(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The case hinged on whether the tort was committed in Victoria, or whether the damage was partially suffered within the state, as these factors are critical in determining jurisdiction under the rules.

The court had to decide whether the tort in question was committed in Victoria or whether the damages were partially suffered in Victoria, as these are the jurisdictional criteria under rule 7.01(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). Furthermore, the court needed to consider whether the failure to indorse the writ on the basis of the tort being committed in Victoria or the damages being partially suffered there, warranted setting aside the service. Additionally, the discretionary considerations under rule 7.02 of the same rules were to be examined, particularly whether there was any prejudice to the defendant and whether compliance with rule 7.02 could be dispensed with.

The court found that although the writ was not indorsed in the required manner under rule 7.02, the failure to do so did not prejudice the defendant. Given the absence of prejudice and the fact that the court was satisfied that the service met the jurisdictional criteria under rule 7.01(1), the court exercised its discretion to allow the application to set aside the service. The court held that the service of the writ was valid and that dispensing with compliance with rule 7.02 was appropriate in the circumstances. The court's decision effectively allowed the plaintiff's action to proceed despite the procedural irregularity.

The final orders of the court were to set aside the service of the writ and to permit the proceedings to continue. The court also directed that compliance with rule 7.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) be dispensed with. This ruling ensured that the plaintiff could pursue his claim in Victoria, while also recognising the procedural oversight and allowing for a fair resolution of the dispute.

Orders