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High Court of Australia |
LICUL AND OTHERS v CORNEY [1976] HCA 6; (1994) 180 CLR 213
High Court
HIGH COURT OF AUSTRALIA
BARWICK CJ(1), GIBBS(2), STEPHEN(3), MASON (4) AND JACOBS(3) JJ
High Court - Appellate jurisdiction - Appeal from State Supreme Court -Interlocutory judgment - Leave required for appeal - Judgment setting aside order for substituted service and order deeming irregular service valid - Whether final or interlocutory - Judiciary Act 1903 (Cth), s. 35(1)(a).
DECISION
BARWICK CJ One of the three appellants, Rita Licul, has lodged an appeal to this Court as of right against an order of the Full Court of the Supreme Court of Victoria which allowed an appeal brought by the respondent against an order made by the County Court of that State.
2. The respondent has objected to the competency of this appeal and all three
appellants, Rita Licul and her two children Oriana
and Elio, in the event of
the success of that objection, have notified their intention to apply for
leave or special leave. The basic
ground of the objection to competency is
that the order of the Full Court was not a final order. It is submitted that
it did not
of its own force terminate the action between the parties.
3. A brief recital of a series of events is necessary to appreciate the
matter in contest between the parties.
4. On 26 July 1972, the appellants commenced proceedings in the County Court
at Melbourne against the respondent for damages, for
personal injuries which
they had suffered. As appears in the papers before this Court, the appellants
were passengers in a car driven
by Ratko Licul which was involved in a road
accident allegedly caused by the negligence of the respondent. The initiating
summonses
were for service in Victoria but on 2 February 1973, the original
summonses not having been served, the appellants obtained from
the County
Court concurrent summonses. It was said that the appellants had experienced
difficulty in attempting to serve the original
processes on the respondent but
no details of their endeavours to do so are in evidence.
5. On 21 February 1973, copies of the concurrent summonses were delivered to
the respondent at the R.A.A.F. Barracks in Penrith
in the State of New South
Wales. This delivery as apparently effected in purported pursuance of the
provisions of the Service and
Execution of Process Act 1901 (Cth). However, it
is quite clear that these summonses did not conform to the requirements of
that
Act and that the delivery of the concurrent summonses did not constitute
service under that Act or at all.
6. The respondent did not file in the County Court any notice of intention to
defend. The appellants apparently became aware that,
by reason of the defects
in the concurrent summonses, there had been no effective service of the
processes. They then applied again
to the County Court for concurrent
summonses. That Court on 8 February 1974, issued documents purporting to be
concurrent summonses.
It is plain enough that these documents were void as
concurrent summonses. The original summonses were then stale and no longer in
force. No application had been made to extend the time for service of the
original summonses, either before or at the time of the
issue of the so-called
concurrent summonses. These "concurrent summonses" were not served.
7. Applications for orders for substituted service of the original summonses
which were limited, as I have said, to service within
Victoria, were made to
the County Court on 8 April 1974. The original summonses had then expired.
Clearly, there was no basis upon
which to make orders for substituted service
of the original summonses. The orders in that behalf were, in my opinion,
improperly
made.
8. It is also quite clear that the delivery of the concurrent summonses to
the respondent in New South Wales did not constitute
service under the Service
and Execution of Process Act. To the deficiencies in these concurrent
summonses for the purposes of that
Act the Supreme Court properly called
attention in its reasons for making the order under appeal.
9. Upon the respondent's insurer, the State Motor Car Insurance Office, being
served with the orders for substituted service, application
was made by that
office on 14 June 1974, in the name of the respondent to set aside those
orders. Solicitors were instructed by the
insurer to act in that behalf.
10. The appellants on 24 July 1974, each made application to the County Court
for the following orders:
1. That the service of the within proceedings effected on the 21st day of
February, 1973, be deemed valid.
2. That the service of the within proceedings effected on the 23rd day of
April, 1974, the 26th day of April, 1974 and/or the 30th
day of April, 1974,
be deemed valid.
3. That the Plaintiff be relieved from non-compliance with any rules of
practice in the service of the within proceedings effected
on the 21st day of
February.
4. That the Plaintiff be relieved from non-compliance with any rules of
practice in the service of the within proceedings effected
on the 23rd day of
April, 1974, the 26th day of April, 1974 and/or the 30th day of April, 1974.
5. That the Summons served on the 21st day of February, 1973 be amended by
(b) replacing the word 'fourteen' with the word 'twenty'.6. That the time for service of the within proceedings be enlarged to the 30th day of April, 1974.
7. That(a) the time for service of the within proceedings be enlarged to the 31st day of August, 1974, (b) service of the within proceedings be effected by delivery of a sealed copy of the original Summons herein dated the 26th day of July, 1972 to the State Motor Insurance Offfice, 480 Collins Street, Melbourne, on or before the 31st day of August, 1974, and that such service be deemed good and sufficient service.
8. That leave be granted to proceed with the within action.9. Such further or other Order including an Order as to the costs of this Summons as to the Judge appears just."
11. On the day on which the appellants' applications for the abovementioned
orders were lodged, the appellants' solicitors asked
the solicitors who had
been instructed by the insurers to make the applications to set aside the
orders for substituted service whether
they would "consent to the enlargement
of time in order that service of the Summonses in these actions would be
validated or validly
made"; but consent was refused.
12. There are two rules of the County Court Rules 1964 (Viet.) relevant to
the extension of time within which the original summonses
might be served.
13. Order 3, r. 1 provides:
1. (a) Every summons to appear to a plaint shall be served not later than
twelve months from the day of the date thereof, including
the day of such
date, or within such further period as a Judge or the Registrar by order under
this Rule may allow.
(b) If any defendant named in the summons shall not be served therewith, the
plaintiff may, before the expiration of twelve months
from the day of the date
thereof, apply to a Judge or the Registrar to extend the time for service; and
a Judge or the Registrar,
if satisfied that reasonable efforts have been made
to serve such defendant, or for other good reason, may extend the time for
such
further period not exceeding twelve months from the date of such order as
it or he shall think fit."
14. Order 50, r. 1 provides:
"1. Parties may by consent enlarge or abridge any of the times fixed by the
rules for taking any step, or filing any document,
or giving any notice in any
action or matter. Where such consent cannot be obtained, either party may
apply to the Court or a Judge,
on notice to the nonconsenting party, for an
order to effect the object sought to have been obtained with the consent of
the other
party, and such order may be made although the application for the
order is not made until after the expiration of the time allowed
or
appointed."
15. Two important aspects of these rules which are both express and specific
are, first, that an ex parte application for extension
of the time within
which an original summons can be served can only be made before the expiry of
the time within which such a summons
must be served, that is, within one year
of its issue. Secondly, the power of a judge to enlarge that time after it has
expired depends
upon the inability of the applicant to obtain the consent of
the other party to the enlargement of the time and upon the giving of
notice
to the non-consenting party. There is no general power expressed in the County
Court Rules to enlarge or abridge the times
fixed by the rules of court. In
particular, there is no provision in the County Court Act 1958 (Vict.) or the
County Court Rules comparable to O. 64, r. 6 of the Rules of the Supreme Court
(Vict.).
16. On the hearing of the applications heard together, the County Court
dismissed the applications to set aside the orders for substituted
service and
made the following orders on the appellants' applications:
1. That the service of the within proceedings effected on the 21st day of
February, 1973 be deemed valid.
2. That the service of the within proceedings effected on the 23rd day of
April, 1974, the 26th day of April, 1974, and/or the
30th day of April, 1974,
be deemed valid.
3. That the Plaintiff be relieved from non-compliance with any rules of
practice in the service of the within proceedings effected
on the 23rd day of
April, 1974, the 26th day of April, 1974 and/or the 30th day of April, 1974.
4. That leave be granted to proceed with the within action."
17. It was from these orders that the present respondent successfully
appealed to the Supreme Court. That Court set aside these
orders and the order
for substituted service.
18. The first question arising from the objection to the competency of the
appeal to this Court is whether the order of the Supreme
Court was a final
order within the meaning and operation of s. 35(1)(a) of the Judiciary Act
1903 (Cth) (as amended). To be final for this purpose, the order, in my
opinion, must of its own force put an end to the action or proceeding
between
the parties. It is not enough, in my opinion, that by reason of circumstances
unconnected with and uncontrolled by the order
itself, it may be or become
impossible or impracticable to proceed with this action.
19. Here, all the proceedings between the parties are interlocutory. The
orders which the Supreme Court set aside were all interlocutory
orders. The
action between the parties could not proceed because the original summonses
had not been served. The time for that service
had expired but it remained
capable of extension if, consent to such extension being refused, notice of an
application to extend
that time were given to the respondent. Whether or not
such an extension was or is to be granted rests on the discretion of a judge
of the County Court. But nothing appears in the record before this Court which
would preclude a judge of that Court from granting
the extension of time if he
were persuaded in point of discretion to do so. In particular, no time
limitation for the commencement
of an action of the present kind would stand
in the way of the grant of such an extension. The proceedings had been
commenced in
due time. Further, in point of discretion, the respondent had
become aware in 1973 of the pendency of the proceedings.
20. I am clearly of opinion that the order of the Supreme Court was not a
final order disposing of the action between the parties
and settling their
substantive rights. Their actions remain on foot and are capable of being
pursued if a judge of the County Court
is minded upon an application duly made
to extend the time for service of the original summonses.
21. The appellants seek leave or special leave. In my opinion, they need
special leave. The Supreme Court's order not being a final
order, it does not
directly or indirectly bear upon the appellants' claim to damages. Thus, the
fact, if it be the fact, that the
appellants each might fairly expect to
recover $3,000 or more if successful in the actions, does not mean that the
Supreme Court's
order affects or involves that sum of money.
22. I find no reason to grant special leave to appeal. In the first place,
neither the argument of the appellants' counsel, competently
and persuasively
presented, nor my perusal of the matters contained in the appeal book has
convinced me that there is any substantial
doubt as to the correctness of the
conclusion of the Supreme Court, or of its reasons therefor. Indeed, on the
contrary, these are,
in my opinion, correct.
23. It was submitted that the Supreme Court misunderstood in part the nature
of the appellants' applications of 24 July 1974, to
the County Court. It was
said that the Supreme Court overlooked the fact that, in so far as those
applications sought an extension
of the time within which to serve the
original summonses, it was founded on notice to the respondent. But it is
clear, in my opinion,
that the Supreme Court was under no misapprehension. The
reasons for judgment advert to the service of the applications upon the
solicitors employed to apply to set aside the orders for substituted service.
The Court was not prepared to consider such service
as adequate to satisfy the
terms of O. 50, r. 1 because of the circumstances in which such solicitors
came to be retained by the
respondent's insurers. I am not prepared to differ
from the Supreme Court's view in that respect.
24. I ought here to advert to the submission that the Supreme Court ought
itself to have made orders extending the time for serving
the original
summonses. But, accepting that the Supreme Court was asked to do so, orders
enlarging the time, or orders refusing to
do so, would in either case be no
more, in my opinion, than interlocutory orders. It is certainly, in my
opinion, not an order which
would warrant the grant of special leave or, in my
opinion, leave.
25. Further, and in any case, this is not a matter in which the Court's
interference through the grant of its leave would be warranted.
26. I would allow the objection to competency, refuse special leave and, if
it were appropriate, leave. I would dismiss the appeal
as incompetent.
GIBBS J On 12 April 1970, Mrs. Rita Licul and her two infant children, Oriana Licul and Elio Licul, were passengers in a motor vehicle driven by Mr. Ratko Licul when it was involved in a collision with another vehicle driven by Mr. Geoffrey Corney. It is alleged that the collision was caused by the negligence of Mr. Corney. All three passengers sustained injuries. According to material which is at present uncontradictcd the collision occurred at an intersection and the car driven by Mr. Corney was at all material times on the left of the other vehicle, and if actions which have been brought against Mr. Corney proceed, Rita Licul is likely to recover damages amounting to at least $3,000 in respect of her personal injuries and Oriana Licul and Elio Licul are each likely to recover damages of less than $3,000. For convenience I shall refer to Rita Licul, Oriana Licul and Elio Licul as the applicants and to Geoffrey Corney as the respondent.
2. On 26 January 1971, the solicitors for the applicants wrote to the State
Motor Car Insurance Office (the Insurance Office), the
respondent's insurer,
stating that they were in the process of issuing proceedings and requesting
the Insurance Office to nominate
solicitors to accept service. A
correspondence ensued; the Insurance Office requested particulars of damages,
and was supplied with
some information, but it did not nominate anyone to
accept service.
3. On 26 July 1972, separate actions were commenced in the County Court at
Melbourne by Rita Licul, Oriana Licul (by her next friend
Rita Licul) and Elio
Licul (by his next friend Rita Licul), respectively, as plaintiffs, against
the respondent as defendant, claiming
damages for personal injuries sustained
in the collision. The facts relating to the progress of each of these three
actions are exactly
the same, and it will therefore be convenient, for the
most part, to speak in the singular, as though there were one action. The
action was commenced by an ordinary summons, intended to be served within the
jurisdiction upon the respondent, whose address was
shown as "care of R.A.A.F.
Base Laverton". However, the respondent could not be found within the
jurisdiction - apparently he had
been transferred - and on 2 February 1973, a
concurrent summons was issued for service out of the State of Victoria and in
the State
of New South Wales. Such concurrent summons ("the first concurrent
summons") was, on 21 February 1973, served on the respondent at
the R.A.A.F.
Barracks, Penrith.
4. Unfortunately the first concurrent summons was irregular in a number of
respects. It was not marked "concurrent" as required
by s. 7 of the Service
and Execution of Process Act 1901 (Cth). It bore the date on which it was
issued (2 February 1973) instead
of the date of the original summons (26 July
1972). More importantly, it bore an endorsement notifying the respondent that
if he
intended to defend the claim he must, within fourteen days after
service, return to the Registar and serve upon the plaintiff a copy
of a
notice of intention to defend. By s. 8 of the Service and Execution of Process
Act, the period specified in a summons issued
in one State and to be served in
another as the period within which a defendant might enter to make an
appearance to the summons
was required to be not less than twenty days after
service of the summons had been effected. No doubt the legal representatives
of
the applicants must take responsibility for any defects in the summons that
they caused to be issued, but it is nevertheless true
to say that the issue of
the defective summons was an act of an officer of the County Court.
5. The applicants' solicitors proceeded to prepare for trial, and on 30
November 1973, lodged with the County Court a certificate
of readiness for
trial and a request to set the action down for hearing. Later, the Registrar
of the County Court was requested to
advise what had been done pursuant to the
request, and it was then discovered that the summons required the notice of
intention to
defend to be served within fourteen, rather than twenty, days.
Thereupon the applicants' solicitors, on 8 February 1974, caused another
concurrent summons ("the second concurrent summons") to be issued. The errors
that had appeared on the first concurrent summons were
not repeated in the
second, and it has not been suggested that the second concurrent summons is in
any way defective in point of
form. However, at the time when the second
concurrent summons was issued the original summons could no longer be served -
the period
of twelve months specified by O. 3, r. 1(a) of the County Court
Rules 1964 (Vict.) had expired and the time for service had not been
extended.
6. The second concurrent summons was not served. A process server reported
that he had made extensive inquiries in an attempt to
locate the respondent
and that he had been advised by the R.A.A.F. that the respondent had left the
Air Force some twelve months
previously and was now believed to have gone to
somewhere in North Queensland but his whereabouts were not known. The
applicants
thereupon made application to a judge of the County Court for an
order for the substituted service of the second concurrent summons.
On 8 April
1974, Judge Stabey ordered that publication of an appropriate notice in The
Age and the Townsville Daily Bulletin, together
with delivery of a copy of the
summons and the order to the Insurance Office should be deemed good and
sufficient service of the
summons on the respondent. Of course this order was
irregular since the summons could not be effectively served unless the time
for
service was extended. However, in April 1974 the notices were published
and the documents were delivered to the Insurance Office
in accordance with
the order.
7. On 14 June 1974, there was filed in the County Court an application on
behalf of the respondent to set aside the order of Judge
Stabey and the
service of the summons. The application was filed by the solicitors for the
respondent who, as might have been expected,
were also the solicitors for the
Insurance Offfice. It appears that the respondent personally was not aware
that this application
was being made on his behalf, but nothing turns on that
fact, no one has questioned that the Insurance Office has power to conduct
the
proceedings in the name of the respondent and on his behalf (2). The
solicitors for the applicants then filed, on 24 July 1974,
a summons seeking a
variety of relief validation of the service effected on 21 February 1973, and
again under the order for substituted
service, relief from non-compliance with
any rules in respect of such service, amendment of the first concurrent
summons, enlargement
of the time for service, a further order for substituted
service, and leave to proceed. On the same day the solicitors for the
applicants
requested the solicitors for the
(2) See s. 58 of the Motor Car Act 1958 (Vict.).respondent to consent on behalf of the respondent to the enlargement of time in order that service of the summons could be validated or validly made, but such consent was refused. The crossapplications were heard by Judge Rapke on 1 August 1974. The learned judge dismissed the summons of 14 June 1974, and on the summons issued on 24 July 1974, ordered as follows:
8. His Honour also ordered the applicants to pay the respondent's Costs.
9. The respondent appealed to the Full Court of the Supreme Court from the
order made by Judge Rapke in each action and the three
appeals were heard
together. The Full Court allowed the appeals and set aside each order of Judge
Rapke (except in so far as it dealt
with costs) and also set aside the order
of Judge Stabey. The applicants submitted to the Full Court that if the order
made by Judge
Rapke were set aside, the time for service of the summons should
be enlarged either to 30 April 1974 (that is, a date after the orders
for
substituted service had been complied with) or to some future date; it was
submitted that the matter should be remitted to Judge
Rapke for this purpose,
or that the Full Court should itself grant the extension. No notice of
cross-appeal was necessary to enable
these submissions to be made (3). The
Full Court rejected these submissions but made no formal order in relation to
them.
10. The applicant Rita Licul has brought an appeal as of right against the
order made by the Full Court in her case and has also
made application for
leave, or alternatively special leave, to appeal. The two infant applicants
accepting that in their cases the
judgment could not be said to involve any
question respecting any civil right of the vale of $3,000, made application
for special
leave to appeal.
11. The respondent has objected to the competency of the appeal of Rita Licul
and in my opinion the objection must be sustained.
An appeal will only lie
without leave if the judgment of the Full Court was a final judgment which
involved directly or indirectly
a claim,
(3) O. 58, r. 10 of the Rules of the Supreme Court (Vict.).demand or question respecting a civil right of the value of $3,000 within s. 35(1)(a) of the Judiciary Act 1903 (Cth). The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh (4) - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant (5), should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgnaent. It does not have the effect of finally disposing of the rights of the parties. It leaves it open - at least in theory - to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be. If it were right to test the matter by looking at the application rather than at the order the same result would follow even more clearly, since the application was not of such a character that whatever order was made on it would finally have disposed of the matters in dispute; in fact of course the order made by Judge Rapke did not do so. Rita Licul therefore needs leave to appeal or, if the judgment does not involve a question respecting a civil right of the value of $3,000, special leave. I need not decide the rather difficult question whether $3,000 is involved within the meaning of s. 35(1) of the Judiciary Act since, for the reasons I shall give, I consider that special leave is warranted in all three cases.
12. The Full Court had to decide what was the proper course to be taken by
Judge Rapke on 1 August 1974. It is clear that the order
made by Judge Stabey
had to be set aside unless it were possible in some way to validate it. The
period of twelve months mentioned
in O. 3, r. 1(a) of the County Court Rules
had expired before the application was made to Judge Stabey. It followed that
the summons
was no longer in force for the purposes of service, although it
had not become a nullity (6). Without first renewing the summons
Judge
(4) (1971) 2 QB 597.
(5) [1966] HCA 36; (1966) 117 CLR 423.(6) In re Kerly, Son and Verden, (1901) 1 Ch 467, at p 478; Sheldon v. Brown Bayley's Steel Works Ltd. and Dawnays Ltd., (1953) 2 QB 393, at pp 398, 400, 401-402.
13. That rule enables the time for service of a summons to be extended on an
application made after the twelve months have expired
but it has the result -
inconvenient perhaps in some cases - that an application for enlargement can
only be made on notice to the
nonconsenting party. Of course, the application
made to Judge Stabey was not made on notice to the respondent.
14. The position was, however, different at the time when the application was
heard by Judge Rapke. The respondent's solicitors
(7) See Sheldon v. Brown Bayley's Steel Works Ltd. and Dawnays Ltd., (1953)
2 QB, at pp 398, 401-402.
had been given notice of the application; they had been asked to consent to an
extension of time and had refused. The conditions
stated in O. 50, r. 1 were
satisfied, and Judge Rapke had power to extend time for service of the summons
and, having done so, to
make an order for its substituted service. He did not
do so because he thought it sufficient to make an order deeming valid the
service
already effected. The Full Court considered that Judge Rapke intended
to exercise the power given by O. 3, r. 18 of the County Court
Rules but held
that that rule had no application to the circumstances of the case. Assuming
(without deciding) that this view is
correct, and that the order made by Judge
Rapke should be set aside, the question then arises whether an order should be
made extending
time for service of the summons, either to a date after
substituted service was effected under Judge Stabey's order, or to a future
date. The learned judges who constituted the Full Court considered that it
would not be a proper exercise of discretion to grant
an extension of time,
for a reason which they expressed as follows:
"The defendant has not given notice of intention to defend or otherwise
entered an appearance. All he has done is to issue summonses
to set aside
service. But he has done so only because orders for substituted service have
been wrongly made. If those orders had
never been made (and they should in
fact not have been made) the defendant would not have had to make an
application and no opportunity
would have existed for the plaintiffs to serve
chamber summonses on the defendant's solicitors. This being so, it would, we
think,
be a wrongful exercise of discretion to order an extension of time on
an application made on notice where the application could never
have been made
on notice but for the making ex parte of orders which should no have been
made."
15. With the greatest respect, I cannot think it right to treat the
proceedings as a gentlemanly game in which it would be unsportsmanlike
to take
advantage of a slip made by an opponent or by the umpire. Order 50, r. 1 makes
it a condition precedent to the making of
an order for a renewal of a summons,
after the time for service has expired, that application be made on notice to
the other party,
who has first been asked for his consent and has not given
it, and that condition has been fulfilled. If the substantial objects
of the
rule are to ensure that the parties first endeavour to agree on the making of
an order so that the time of the Court may be
saved, and that no application
be made except on notice, those objects have been achieved. It is immaterial
that notice could not
have been given if the respondent had not chosen to seek
to set aside an irregular order The case is in no way analogous to that
of a
defendant who enters a conditional appearance and seeks to set aside
proceedings on the ground that the Court lacks jurisdiction.
Here the Court
was incontestably seized of jurisdiction but the proceedings had been
irregular.
16. However, by the time when Judge Rapke heard the matter the limitation
period, within which an action arising out of the accident
might be brought,
had expired. In Sheldon v. Brown Bayley's Steel Works Ltd. and Dawnays Ltd.
(8), Singleton LJ said: "The court
will not normally exercise its discretion
in favour of the renewal of a writ after the period of service has expired if
the effect
of doing so will be to deprive a defendant of the benefit of a
limitation which has accrued." Denning LJ, (9), made a similar statement.
In
Jones v. Jebras and Hill (10), I had occasion to discuss the authorities, in
some of which the view has been expressed that the
Court will not exercise its
discretion in favour of renewal in such a case. That view is too extreme, and
it should now be accepted
that the balance of authority is against it, and
that the rule is correctly stated by Singleton LJ - in other words there is a
general
rule that the Court will not exercise its discretion in favour of
renewal, but that rule is subject to exceptions. The English cases
in which
this is recognized are conveniently collected in In re Chittenden (decd.)
(11). I have referred to some of the Australian
cases in Jones v. Jebras and
Hill (12), and would add a reference to Pino v. Prosser (13). It is sometimes
said that the general
rule will be departed from only in exceptional
circumstances; others would express the matter by saying that the Court will
order
a renewal only if there is sufficient cause, or good reason. I need not
choose between these forms of expression. The circumstances
of the present
case are exceptional, and they provide sufficient cause or good reason to
extend time for service. The Insurance Office
which might in the ordinary
course of events be expected to meet any judgment obtained by the applicants,
had been informed of the
claim in January 1971, and had sought and obtained
some further information as to damages. The respondent had been personally
served
with a summons - albeit a defective one - on 2 February 1973. This
therefore is not a case in which the respondent had been
(8) (1953) 2 QB, at p. 398.
(9) ibid., at p. 401.
(10) (1968) Qd R 13.(11) (1970) 1 WLR 1618, at pp. 1622-1626: (1970) 3 All E.R. 562, at pp. 566-570.
(12) (l968) Qd R, at p. 19.
(13) [1967] VicRp 107; (1967) VR 835.left in ignorance of the fact that proceedings had been taken against him; on the contrary, he had become aware of that fact before the limitation period had expired. An obvious reason why no application for an extension was made during the limitation period was that it was believed that service had been effected and that no extension was necessary. That belief was supported by the fact that an officer of the Court had issued the concurrent summons of which service was effected and that the respondent had chosen simply to ignore it rather than to seek to have it set aside. There is not the slightest suggestion that the delay has in any way been detrimental to the respondent. On the other hand, the applicants will lose rights which are prima facie valuable if an extension is refused. In all these circumstances the interests of justice seem to me to require that the time for service of the summons be extended. In my opinion an appropriate course would be to enlarge the time for service to a specified date and to order that service be effected by delivering a sealed copy of the original summons to the respondent's solicitors before that date. Since such service would be effected within the jurisdiction no leave to proceed would be necessary.
17. If what I have so far said were thought to be incorrect, that would not
conclude the matter in favour of the respondent, for
it would then be
necessary to consider the position in relation to the first concurrent summons
which was served on 21 February 1973.
That summons was defective in three
respects. Notwithstanding that s. 7 of the Service and Execution of Process
Act requires that
a summons issued as a concurrent summons with one for
service within a State should be marked as "concurrent" it is impossible to
suppose that the omission of that one word would nullify the summons. The
erroneous date on the summons was no more than an irregularity,
and could not
have misted the respondent because the summons was served within twelve months
from the date that should have appeared
upon it. It was submitted that the
most serious defect was the statement that fourteen days were allowed for
service of the notice
of intention to defend. I shall assume that this was an
error, although the provisions of s. 8 of the Service and Execution of Process
Act speak of the period specified "as the period within which a defendant may
enter or make an appearance to the writ of summons?'.
In fact no entry of
appearance is required under the County Court Rules. Although "writ of
summons" is defined in s. 3 of the Service
and Execution of Process Act widely
enough to include a summons of the kind issued in the present case, the word
"appearance" is
not defined. Section 5(a) of the Service and Execution of
Process Act indicates that not every writ of summons within the meaning
of the
Act will be a writ "to which, by the law of" the relevant State "an appearance
is required to be entered". There is therefore
a question whether a notice of
intention to defend given in accordance with the County Court Rules is an
appearance within the meaning
of the Service and Execution of Process Act, and
whether s. 8 of the latter Act has any application to a County Court summons.
Since
this question was not discussed in argument I shall not deal with it
further. Assuming that the respondent should have been allowed
twenty days in
which to serve the notice of intention to defend, the fact that he was allowed
only fourteen days was no more than
an irregularity. The view taken in Cadd
and Co. Ltd. v. Ludsei (14), that the provisions of s. 8 relate to a matter of
procedure
and do not lay down a condition precedent to the exercise of
jurisdiction, has not, so far as I am aware, ever been challenged, and
it is
in my opinion correct. It is usual to order amendment and reservice of a writ
that when served was irregularly endorsed, but
that course need not
necessarily be followed in every case. However, as I have already indicated,
on the view that I have taken it
is unnecessary to consider whether Judge
Rapke had power to treat the service effected on 21 February 1973, as valid,
or to validate
it. There may have been more than one way in which Judge Rapke
could have enabled the actions to proceed, as he obviously wished
to do.
18. The Court is no doubt reluctant to grant special leave to appeal in cases
where only matters of procedure fall for decision.
However, the present case
raises questions of some general importance as to the effect of the provisions
of the Service and Execution
of Process Act and of the County Court Rules and
in all the circumstances of the case, which I have already related, I regard
the
case as one in which special leave ought to be granted.
19. I would grant special leave to appeal in each case, and would allow each
appeal. In lieu of the order made by the Full Court
I would dismiss the appeal
from the orders made by Judge Rapke, but would vary those orders in the manner
indicated by these reasons.
STEPHEN AND JACOBS JJ We would allow the objections to competency upon the
ground that leave to appeal was required. That the order
appealed from is
interlocutory is made clear by the fact that the summons issued out of the
Melbourne County Court on 26 July 1972,
properly commenced proceedings for the
damages claimed; that summons, although it was not served within the twelve
(14) (1908) 10 WALR 27.months allowed by O. 3, r. 1(a) of the County Court Rules 1964 is still on foot even though it cannot now be served; the time for service cannot be extended under O. 3, r. 1(b) because application for extension of the time was not made before the expiration of that period of twelve months; but the parties under O. 50, r. 1 may by consent enlarge that time and, if the consent of a party cannot be obtained, the plaintiff may apply on notice to the non-consenting party for an order to effect the object sought to have been obtained by consent, namely, the extension of the time within which the summons may be served. By O. 50, r. 1 such an order may be made although the application for that order will not have been made until after the expiration of the twelve months allowed by O. 3, r. 1(b).
2. Thus the proceedings commenced on 26 July 1972, have not come to an end.
Whether or not a County Court judge will exercise his
power under O. 50, r. 1
if appropriate steps are taken by the plaintiff is a matter of discretion. We
agree with the Chief Justice
that nothing appears in the record before this
Court which would preclude a County Court judge from granting the extension of
time
if he be persuaded in point of discretion to do so.
3. We would not in the circumstances grant leave to appeal. We are not
convinced that the conclusion of the Supreme Court on the
effect of the events
which have occurred up to this time was wrong. We agree with the reasons which
the Chief Justice has expressed
for this conclusion.
MASON J Whether the questions of law raised by these cases are of sufficient general importance to warrant the grant of special leave is itself a question that I have not found easy to decide. However, having had the advantage of considering the reasons for judgment prepared by Gibbs J, I have come to the conclusion that these questions, so far as they relate to the effect of the Service and Execution of Process Act 1901 (Cth) and to the County Court Rules 1964 (Vict.) (which are partly in common form), are of sufficient importance to justify the grant of special leave.
2. I agree, for the reasons given by Gibbs J, that each appeal to the Full
Court of the Supreme Court from the orders made by Judge
Rapke should be
dismissed, subject to the variations in those orders which Gibbs J now
proposes.
3. Objection to competency allowed.
4. Appeal dismissed with costs as incompetent.
5. Applications for special leave or leave to appeal refused.
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