Zhang v Rose

[2024] ACTSC 113

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Zhang v Rose

Citation: 

[2024] ACTSC 113

Hearing Date: 

7 March 2024

Decision Date: 

7 March 2024

Before:

McCallum CJ

Decision: 

(1)    The appeal is dismissed.

(2)    The appellant is to pay the respondent’s costs of the appeal.

Catchwords: 

APPEAL – PRACTICE AND PROCEDURE – Appeal from Magistrates Court – where plaintiff did not file an affidavit of service within 1 year after filing originating process – where plaintiff’s originating claim dismissed by Magistrate pursuant to r 75 of the Court Procedures Rules – whether “issued” runs from sealing or filing and stamping of a document

Legislation Cited: 

Legislation Act 2001 (ACT), s 2A

Court Procedures Rules 2006 (ACT), rr 7, 32, 54, 75, 76, 6302, 6304

Cases Cited: 

Balnaves v Armellin [2011] ACTSC 67

South Western Sydney Local Health District v Gould [2018] NSWCA 69; 97 NSWLR 513

Zeltner v Deputy Registrar of the Supreme Court [2022] ACTCA 30; 370 FLR 78

Parties: 

Xuewen Zhang ( Appellant)

Michael Charles Rose ( Respondent)

Representation: 

Counsel

M Condon ( Appellant)

G Blank ( Respondent)

Solicitors

Juris Cor Legal ( Appellant)

Chamberlains Law Firm ( Respondent)

File Number:

SCA 40 of 2023

Decision Under Appeal: 

Court/Tribunal:           Magistrates Court

Before:   Special Magistrate Urbas

Date of Decision:       4 July 2023

Case Title:                  Zhang v Rose

McCALLUM CJ:       

1․Xuewen Zhang appeals from what purports to be an order of the Magistrates Court that proceedings commenced by him by originating claim filed 15 October 2021 are taken to be dismissed pursuant to r 75(1)(a) of the Court Procedures Rules.

2․That the proceedings stood dismissed was the effect of the rule, which had effect regardless of any order of the court.  The matter came before the Magistrate because the appellant (the plaintiff in that court) contended that the rule did not operate in the manner understood by the Registry and accordingly that the proceedings did not stand dismissed by force of the rule.  The Magistrate heard argument on that issue and made an order in the terms I have indicated.  It may be doubted whether an order in those terms was required to be made or, indeed, was an exercise of his Honour’s judicial power.  The plaintiff in effect sought review by the Magistrate of the administrative act within the Registry of treating the proceedings as dismissed by force of a rule of court. 

3․In any event, I have concluded that, whether or not an order was required, the Magistrate’s construction of the rules was correct and that the proceedings do indeed stand dismissed by force of the operation of r 75(1)(a).

4․My reasons for reaching that conclusion are as follows.

5․The circumstances in which the issue arose were not in dispute.  The appellant (at that point the plaintiff) e-lodged an originating claim and statement of claim on 15 October 2021.  The first page of the originating claim, which appears at page 18 of the appeal book, was marked “Filed 15 October 2021 via e-lodgement.”  For reasons I will explain, the Court’s seal was not then applied to the originating claim. 

6․The plaintiff accepts that the annotation appearing on page 18 was a “stamp” within the meaning of the Court Procedures Rules.

7․On 19 October 2021, the Deputy Registrar wrote to the plaintiff as follows:

I am unable to process the attached document(s): Originating Claim, for the following reasons:

1․     The defendant’s name must be consistent throughout the claim, I refer you to the header of the statement of claim.

2․     FYI: you cannot re-lodge via e-lodgement, please ensure when you re-lodge you provide a signed originating claim and statement of claim also please insert your filed by details in the footer of the statement of claim:

8․I note in passing that the appellant’s written submissions in this Court were rejected by the Registry for the same reason, namely, failure to put the “filed by” details in the footer of the submissions and that those submissions also only supplied every second page of the document prepared by Senior Counsel for the appellant. Nothing turns on this because written submissions are not required to be filed in the Registry, but the problem was emblematic of the plaintiff’s conduct of the proceedings in the Magistrates Court. 

9․The plaintiff did not respond to the requisition until 28 September 2022, almost a year later, notwithstanding the fact that all that was required was to insert the defendant’s middle name in part or parts of the document.

10․On 28 September 2022, the plaintiff’s solicitor sent to the Court copies of the originating claim and the statement of claim by express post.  Those documents were evidently processed in the Registry the followed day.  They were marked “Re-filed 29 September 2022” but also bore the original stamped date of 15 October 2021.  The proceedings continued, in the re-filed document, to bear the proceedings number allocated when the first document was filed, namely, CS186/2021.

11․At some point, the Court’s seal was applied to the re-filed document.  As submitted by Mr Blank on behalf of the defendant, it is not possible to tell from the Court’s seal the date on which that occurred.  That is to say, the seal is made up as a means of imprinting the Court’s seal on a document without requiring the person imprinting the seal to specify the date on which that occurred.

12․The amended originating claim and statement of claim were then served on the defendant on 11 October 2022 and an affidavit of service was filed on the same date. 

13․Rule 75(1)(a) provides:

When proceeding taken to be dismissed

(1) A proceeding is taken to be dismissed in relation to a defendant if—

(a)at the end of 1 year after the day the originating process is issued, an affidavit of service of the process on the defendant has not been filed in the court…

14․The single question raised by the appeal is the meaning of the word “issued” in that rule.  That term is defined in the dictionary as follows: “issued, for a document filed in the court, means the document has been sealed or stamped by the court.”

15․However, the plaintiff relies on the content of the second note in r 7 of the Court Procedures Rules, which provides:

Note 2A definition in the dictionary (including a signpost definition) applies to the entire rules unless the definition, or another provision of these rules, provides otherwise or the contrary intention otherwise appears.

16․It may be noted that notes in legislation are explanatory and do not form part of the Act: see s 2A of the Legislation Act 2001 (ACT). In any event, the plaintiff submits that a contrary intention appears in the present case and that the word “issued” must mean “sealed”.

17․The burden of the argument was that the word “issued” must there mean “sealed” because an originating process must be sealed before it may be served.  That is an over-simplification of the plaintiff’s argument, to which I will return in more detail.

18․The plaintiff submitted that the Magistrate construed the word “issued” to mean “filed”.  That is not how I read his Honour’s decision.  His Honour recorded the two competing interpretations at [40] of the decision as follows:

The Plaintiff’s submission is that, because of the requirement that originating process must be sealed in order to be issued, a proceeding is “taken to be dismissed in relation to a defendant if at the end of 1 year after the day the originating process is [issued by being sealed], an affidavit of service of the process on the defendant has not been filed in the court”.

The Defendant’s submission is that the use of the term “issued” in r 75 must be rendered in accordance with the statutory definition of that term, so that a proceeding is “taken to be dismissed in relation to a defendant if at the end of 1 year after the day the originating process is [issued by being sealed or stamped], an affidavit of service of the process on the defendant has not been filed in the court”.

19․The choice there appeared to be posited by his Honour as a choice between the word “issued” meaning issued by being sealed or issued by being sealed or stamped.  As already noted, it is common ground here that the originating process was stamped.  The Magistrate accepted the defendant’s contention that, as the document had been stamped, it had been issued within the meaning of the rules.

20․The Notice of Appeal specifies a single ground of appeal, namely, that the Magistrate erred in concluding that r 75(1)(a) was enlivened. The written submissions filed on behalf of the appellant begin with reference to the Macquarie Concise Dictionary definition of the word “issued”, the submission being that the Magistrate’s conclusion does not accord with the definition of “issued” considered by reference to both the dictionary and its ordinary, everyday meaning.

21․The dictionary definition referred to is that the word “issue” means “to send out, discharge” and, as another meaning, “to be sent or put forth authoritatively or publicly as a writ, money, etc.”  Care must be taken in arguing a point of statutory interpretation from the premise that a term used in a statute should be understood as defined in a dictionary.  The relevant principles are helpfully summarised by Leeming JA in the decision of the New South Wales Court of Appeal in South Western Sydney Local Health District v Gould [2018] NSWCA 69; 97 NSWLR 513 at [76]-[83].

22․In that judgment at [78], Leeming JA said (Meagher JA agreeing):

The legal meaning of a statutory term is but rarely assisted by resort to a dictionary definition.  On at least three occasions, joint judgments of a majority of the High Court have approved Learned Hand J’s statement in Cabell v Markham 148 F 2d 737 at 739 (1945) to the effect that a mature and developed jurisprudence does not “make a fortress out of the dictionary”.

23․The present case provides an illustration of the vice of such an approach. As already indicated, the Court Procedures Rules define the term “issued” by reference to activities that occur in the Registry. A careful analysis of the Court Procedures Rules discloses the importance of the date on which a document is first presented in the Registry to subsequent steps required to be taken by the parties and subsequent determinations that are required to be made.

24․The relevant rules, or at least some of them, were carefully addressed by Mr Blank in his oral submissions. He noted that, according to r 32, civil proceedings start on the day the originating process is filed. There can be no doubt that, in this case, that date is 15 October 2021. Mr Blank then referred to r 54 which provides that “an originating claim and accompanying statement of claim must be filed in the court and a sealed copy then served on each defendant.” Similarly, in the case of an originating application, the document must be filed in the court and a sealed copy then served on each defendant.

25․Mr Blank also noted r 6302, which provides that the Registrar may keep a “cause book” in which there must be recorded, for each originating process filed, the distinguishing number or other unique identifier given to the proceeding and the date when the process was filed in the Court. Mr Blank noted that, conversely, there is no requirement for the Registrar to record in that book the date when the originating process was sealed. 

26․Mr Condon of Senior Counsel, who appears for the appellant, placed considerable reliance on r 6304, which provides:

(1)A document must be sealed if the document is—

(a)issued by the court; and

(b)required to be sealed under these rules.

(2)The registrar may stamp a document filed electronically to indicate that it has been filed if—

(a)the document has been filed by a party; and

(b)a copy of the document must or may be served on another party; but

(c)the document is not required to be sealed under these rules.

(3)The registrar may stamp a copy of a document to indicate that it is a copy of a filed document if—

(a)the document has been filed by a party; and

(b)a copy of the document must or may be served on another party.

27․He submitted that, when the definition of the word “issued” provided in the dictionary to the Court Procedures Rules (“issued…means the document has been sealed or stamped by the court”) is imported into r 6304, it creates an absurdity because that rule requires the document to be sealed. Mr Condon argued the requirement that the document be sealed before being served is what makes plain that the word “issued” must refer to an originating process that has been sealed.

28․In my respectful opinion, the absurdity is revealed in the contrary way, that is, if the word “sealed” is imported into the rule, it does not make sense.  Rather, the rule assumes that a document that is an originating process might have been issued separately before being sealed.  That interpretation finds support in the practice of the Registry indicated by the terms of the Deputy Registrar’s letter in which it was stated that the Deputy Registrar was “unable to process” the document, notwithstanding the fact that it had plainly been accepted as filed and stamped as such.

29․What is revealed by the analysis of the rules which Mr Blank took me through is that the Registry processes are unique, and in that context the definition of the term “issued” in the Court Procedures Rules makes sense. To turn to a dictionary to qualify or find contrary intention in that definition would, I think, reflect a wrong approach to statutory construction.

30․Mr Condon then submitted at [11] of his written submissions that r 75(1)(a) is concerned with the process of service of an originating claim and the consequences of service not being effected in a timely manner. It is not clear to me that the rule is entirely concerned with the process of service of an originating claim but, in any event, the submission continues that sealing denotes an exercise of the power of the Court, as opposed to the exercise of the power of filing given to an officer as persona designata. 

31․In that context the appellant relied on the decision of the ACT Court of Appeal in Zeltner v Deputy Registrar of the Supreme Court (No 2) [2022] ACTCA 30; 370 FLR 78 at [40]. That was a case concerned with a seal applied to a warrant.

32․It may be accepted that sealing denotes that a document becomes the document of the Court, but that does not answer the question raised in the present proceeding.  As I have endeavoured to explain, the processes in the Registry contemplate that a document might be stamped and sealed on separate dates and that the critical consideration for the purposes of the commencement of the proceedings is when the document is filed.  I see no reason why a plaintiff who invokes the jurisdiction of the Court by filing an originating process should not have time run against them from the time when the document is filed.

33․The appellant submitted that, on its construction of the rule, time would only begin to run when the essential prerequisite for service (the sealing of the document) is completed and that r 75 “should be construed as attributing significance only to that step, rather than a non-essential process” (which may have been a reference to either filing or stamping – it is not clear) “which does not permit service of an originating process”. The submission concluded, “a fortiori given the potentially serious consequences to a plaintiff of non-compliance”, citing Balnaves v Armellin [2011] ACTSC 67 at [10]. But, with respect, there is no reason why the point at which time begins to run and the point at which a sealed originating claim is available for service need be the same.

34․This case illustrates the good sense in not construing the rule in that way.  The date of filing in the present case was more than 11 months earlier than the date on which the simplest requisition (a request that a person’s middle name be included uniformly throughout the document) was addressed. 

35․In response to the contention that this may give rise to potentially serious consequences, regard may be had to the fact that the harshness of a deeming rule such as r 75 is recognised and ameliorated by the existence of r 76, which gives a party an opportunity to make an application to have the proceedings reinstated. The appellant in the present case offered no explanation as to why such an application was not brought.

36․In my view, the defined meaning of the term “issued” as either “stamped” or “sealed” makes sense when it is understood that, within the many activities conducted in the Registry, documents may be filed and sealed at the same time, filed and sealed at different times, stamped and sealed at different times and so on. No contrary intention is revealed to indicate that the word should not be understood in r 75 as it is defined in the dictionary. For those reasons the Magistrate’s conclusion was correct.

37․The respondent filed a Notice of Contention.  In the circumstances, it is not necessary to address that.

38․Turning to the appropriate relief, left to my own devices, I might have set aside the Magistrate’s order for the reasons considered at the outset of this judgment.  However, that point was not argued by the parties.  In that circumstance, the preferable course is to embrace the course taken by the parties, which achieves the same outcome.

Orders

39․For those reasons the following orders are made:

(1)The appeal is dismissed.

(2)The appellant is to pay the respondent’s costs of the appeal.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: 18 April 2024