Appeal - Application for extension of time in which to appeal - Application for leave to appeal - Failure to comply with O 6 r 3 - Whether master was correct to set aside the writ - Whether noncompliance with rules an irregularity

Rules of the Supreme Court 1971 (WA), O 2, O 6 r 3

Adam Brown Male Fashions Pty Ltd v Phillip Morris Pty Ltd [1981] HCA 31; (1981) 148 CLR 170

Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad [1976] HCA 65; (1976) 136 CLR 529

Hismelt Corporation v Pratt [2007] WASCA 192

Otway Developments Pty Ltd v Waller (Unreported, WASC, Library No 9042, 1991)

Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412

Simonsen v Legge [2010] WASCA 238

The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40

Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Wilson v Metaxas [1989] WAR 285

1 PULLIN JA: This is an appeal against an interlocutory order of Master Sanderson, dated 18 March 2010, setting aside the writ of summons. Leave to appeal is required.

2 An appeal against an interlocutory decision must be commenced within 14 days of the order appealed against: r 26(1) Supreme Court (Court of Appeal) Rules 2005 (WA). An appeal is commenced by filing and serving an appeal notice: r 27 Supreme Court (Court of Appeal) Rules. The appellant filed a notice of appeal on the 14th day after the master's order, but the appeal notice was not served until 11 May 2010. The appellant previously had solicitors acting for her but she filed the appeal notice herself. She then instructed her current solicitors and it was only on 11 May 2010 that her new solicitors learned she had not served the appeal notice. The new solicitors effected service on the same day.

3 The principles to be applied when deciding whether to grant an extension of time have recently been restated in Simonsen v Legge [2010] WASCA 238 [8]. The four major factors which are usually considered on an application to extend time for appealing are the length of the delay, the reasons for the delay, the prospects of the applicant succeeding in the appeal and the extent of any prejudice to the respondent. Here, the length of the delay is not long and the fact is that the appeal notice was filed within time, but not served as required by the rules because the appellant was in the course of changing solicitors. If the appellant has good prospects of succeeding in the appeal, time for appealing should be extended because there will be no prejudice to the respondent.

4 The principles which apply to an application for leave to appeal against an interlocutory decision, are set out in Wilson v Metaxas [1989] WAR 285. The principles are that in most cases an appellant must show that the original decision was wrong or at least attended by sufficient doubt to warrant the grant of leave and that substantial injustice would occur if the decision was left to stand. These criteria are not rigid or exhaustive requirements and leave may be granted in circumstances where the interests of justice demand it: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 [56] - [57] and Hismelt Corporation v Pratt [2007] WASCA 192 [14]. The court will be more readily disposed to give leave to appeal against an interlocutory decision that effectively terminates or finally determines a party's rights: Adam Brown Male Fashions Pty Ltd v Phillip Morris Pty Ltd [1981] HCA 31; (1981) 148 CLR 170, 177. The master's decision did terminate the action.

5 The writ of summons in this case was issued on 11 September 2009. Order 6 r 3 Rules of the Supreme Court 1971 (WA) provides, in effect, that a statement of claim may at the option of the plaintiff be indorsed on the writ but not where fraud is alleged. A statement of claim was indorsed on the writ. It pleaded that the respondent forged the plaintiff's signature on documents, converted moneys to which he was not entitled, made fraudulent misrepresentations and misappropriated funds. Some of these pleaded alleged facts would support common law claims and some would support suits in equity. These events were said to have occurred between 1988 and 1992.

6 The word 'fraud' in O 6 r 3 is not restricted to allegations of deceit. It refers to allegations of impropriety: Otway Developments Pty Ltd v Waller (Unreported, WASC, Library No 9042, 1991), 4. The explanation for this rule is said to be that a writ of summons is a public document that anyone may inspect, whereas a statement of claim filed separately from the writ, is not accessible by the public as of right and that unproven allegations of fraud should not be available for publication by the mere filing of a writ: Seaman P, Civil Procedure Western Australia (at 13 January 2011) [6.3.1].

7 By chamber summons dated 4 December 2009, the respondent applied for an order that the writ of summons be set aside on the basis that the writ was irregular 'by the operation of O 6 r 3(a)'. Alternatively, an order was sought that the statement of claim be struck out on the grounds that the allegations raised in it were all statute-barred or time-barred by analogy. In the further alternative, the respondent sought an order that parts of the pleading which referred to certain documents provided under subpoena, in breach of an implied undertaking that they would not be used for a collateral purpose, should be struck out pursuant to O 20 r 19. Finally, the respondent's summons sought an order that certain parts of the statement of claim were vague or embarrassing or failed to disclose a cause of action. The appellant responded to the latter aspect of the respondent's summons by applying to substitute a new statement of claim.

8 The appellant filed an affidavit sworn 15 March 2010 in opposition to the respondent's chamber summons for summary dismissal. The affidavit referred to the history of the marriage between the appellant and the respondent, the breakdown of the marriage, the fact that the appellant suffered from various illnesses requiring psychiatric care and admission to hospital, that she separated from the respondent in 1994 and then eventually decided to take Family Court proceedings. The appellant's affidavit then continues:

1. In 1998 I started to prepare a family court case against the Defendant for my share of the marital assets and spousal maintenance.
2. This took many years as I commenced in Tasmania, was struggling to pay legal fees, and there was an overwhelming amount of paperwork and I was continuing to suffer from stress, anxiety and OCD.
3. I had never done this kind of review of documents before and I did not expect there to be forgeries.
4. In 2003 I was self represented as I could not afford to pay my family lawyers any more and I was reviewing documents I had obtained from the bank that related to Jewell Furnishings Pty Ltd and preparing for a trial that was scheduled for 2004.
5. I had been reviewing the same papers over and over and was finding it very confusing and overwhelming, I was still suffering from depression, anxiety and OCD.
6. During that review I noticed on one loan application that the signature did not look like mine. As soon as I saw it I knew it was not mine, it did not look like my signature though it was my name.
7. I could not believe it, I thought it was my imagination at first, I was flabbergasted and wondered if I was seeing things. I wondered because of my illness that I was seeing something that I wanted to see or seeing things that are not really there.
8. Because of my illness I was not sure whether to trust my judgement, because I never believed that a husband would do that to a wife especially as we were still together at the time. I knew he had deceived me over the car by drawing down loan monies and he had also refused to return the only video footage I had of my late parents but I did not think he would forge documents.
9. I immediately started looking for more signatures and found two others among the papers.
10. Annexed hereto and marked 'GMTG1' is a copy of a loan application dated 21st December 1988 for $20 000 which has a simulated version of my signature.
11. Annexed hereto and marked 'GMTG2' is a copy of a loan application dated 4 May 1989 for $81 000 which has a simulated version of my signature.
12. Annexed hereto and marked 'GMTG3' is a copy of a loan application for $20 000 dated 31st January 1990.
13. Annexed hereto and marked 'GMTG4' is a copy of a loan application for $90 000 dated 30 July 1990.
14. I took the suspect loan applications to a handwriting expert, Stephen John Dale whom I located from the Yellow Pages, to be certain of what I suspected.
15. I then found another suspect signature and provided that to the expert as well.
16. Annexed hereto and marked 'GMTG5' is a copy of the report of Stephen John Dale, Forensic Document Examination Consultant dated 8 September 2003, which concludes that the signatures are a 'simulation' of my signature.
17. Discovering the forgeries made me reflect on the circumstances that the other marital properties had been sold and it was not until then that I suspected that the Defendant could have deceived me in respect of those as well.

9 The respondent submitted that the causes of action referred to in the statement of claim accrued in the 1990s and were barred by the Limitation Act 1935 (WA), in the main, in the 1990s.

10 Counsel for the appellant submitted that the appellant only gained a suspicion in 2003 that her signatures were forged and did not finally know they were forged until the report of Mr Dale was received. The appellant submitted that the alleged forging of her signature involved concealed fraud and that in relation to claims enforceable in equity, the limitation period applying by analogy did not begin to run until the fraud was discovered. As to which see Meagher RP, Gummow WMC and Lehane JRF, Equity: Doctrines and Remedies (4th ed, 2002) 34-085. The appellant submitted that the fraud was only 'discovered' when the report of Mr Dale was received in September 2003 and that the writ issued a few days before the expiry of six years after the receipt of the Dale report.

11 On the other hand, the respondent submitted that even if the doctrine of concealed fraud applied, the court should infer from the appellant's affidavit evidence that the appellant had all of the documentary information available to enable her to reach a conclusion in August 2003 as to whether there were causes of action which could be pursued against the respondent and that on that basis the causes of action were statute barred six years later in August 2009, which was the month before the writ issued.

12 As to O 6 r 3, the appellant admitted that provision had been contravened but in her written submissions to the master, the appellant contended that this was an irregularity, that the court had power where there was an irregularity to rectify it under O 2 and that the appellant would suffer prejudice if the writ was set aside as it could result in the action being time barred if the writ was struck out and a new writ had to be issued. The appellant's written submissions to the master concluded by stating that the court 'ought to find that the writ may be substituted to comply with O 6 and not struck out, to avoid prejudice to the plaintiff'.

The hearing before the master and the master's reasons

13 On 18 March 2010, the respondent's chamber summons and the appellant's application to substitute a new statement of claim came on for hearing before the master. The master said that he would first deal with the summary dismissal application and said he would hear from counsel for the appellant first. Counsel for the appellant began addressing the issue about whether there was concealed fraud and submitted that time did not commence to run until the discovery of the fraud. The transcript then revealed the master interrupting counsel for the appellant saying '[l]ook, before you get to that, you've got a problem with Order 6 rule 3(a)' (ts 2). The master referred to the commentary on O 6 r 3 in Civil Procedure Western Australia [6.3.1], which referred to Otway Developments v Waller, noting that the writ was irregular and 'liable to be set aside' (ts 3). Counsel for the appellant made a further submission that the court had a discretion to set the writ aside. The transcript then reveals the following:

THE MASTER: I understand all of that but the simple fact remains that this is a very serious allegation of not just fraud in the sense that the civil law knows it but criminal conduct. It can't be allowed to stand on the face of the record. If you want to make such an allegation then you will need to commence proceedings with an endorsement of claim on the writ. The present writ should be set aside.

HORWOOD, MS: Sir, I would submit that it be regularised by the court, that the court can regularise the position.

THE MASTER: No, it can't. It is not referred to in the commentary but I have looked at that position in the past and I am satisfied that it can't be rectified. If this action is to proceed it should proceed by way of a fresh writ with an endorsement of claim.

The orders that I intend to make are that the writ is set aside and that the costs of this application and the costs of the action be paid by the plaintiff.

HORWOOD, MS: Sir, justice isn't served by that, sir.

THE MASTER: That's as may be but there is a Court of Appeal to put right any wrongs as you perceive them. They will be the orders that I make.

The appellant appeals on the ground that:

1.1 the learned master erred in law by setting aside the writ in that there was no defect in the writ that could not be cured by an appropriate amendment or substitution of the statement of claim with an indorsement; and

1.2 the learned master failed to consider and implement Order 2 Rule 1; and

1.3 striking out the writ constituted an injustice to the appellant by reason of the fact that as a consequence her claims may now be statute barred.

15 At the hearing, the appellant sought and was granted leave to amend the grounds of appeal to add a ground 1.4 which, in effect, alleged that the master had no jurisdiction to make the order because the respondent had filed an unconditional appearance thereby waiving the irregularity.

Whether the decision was wrong or attended by sufficient doubt to warrant the grant of leave

16 Noncompliance with O 6 r 3 or indeed any of the rules of court, is an irregularity. Order 2 r 1(1) states that where there has been a failure to comply with the requirements of the rules, the failure 'shall be treated as an irregularity' and shall not nullify the proceedings. Order 2 confers a power on the court to set aside the proceedings if there has been a failure to comply with the rules. The reason for the existence of O 2 is referred to in Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 [48]. Order 2 r 1(2) and (3) read:

(2) Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.

(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) An application under this Rule shall be made by summons or motion, as the case may require, and the grounds of objection must be stated in the summons or notice of motion.

17 The master, in his brief reasons, was correct to state that the statement of claim revealed there were serious allegations of fraud and criminal conduct on the part of the appellant. However, the master erred in stating that the irregularity could not be cured. The master's reasons reveal that he thought that because of non-compliance with O 6 r 3 he was obliged to set aside the writ. In fact, O 2 r 1(2) confers a discretion to set aside the proceedings. It provides that the court 'may', not 'must', set aside the proceedings. All of the relevant circumstances have to be taken into account before exercising the discretion. The circumstances which were relevant in this case and which had to be taken into account included the other issues raised in the respondent's summons and in the appellant's application. The master failed to consider these circumstances and failed to consider whether the discretion conferred by O 2 should be exercised. As a result the appellant has made out grounds 1.1 to 1.3.

Ground 1.4 - the effect of the unconditional appearance

18 Notice of this ground was given by the appellant to the respondent less than one hour before the commencement of the hearing of the appeal. The parties were given the opportunity to file further written submissions. There is no dispute that an unconditional appearance was filed by the respondent on 21 October 2009. As a general rule, the entry of an unconditional appearance is a waiver of irregularity: see Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad [1976] HCA 65; (1976) 136 CLR 529, 539.

19 The respondent submitted that the appellant should not be allowed to succeed by raising this new issue on appeal. The respondent correctly points out that the case was conducted before the master without any point being taken by the appellant that the irregularity (the failure to comply with O 6 r 3) had been waived because an unconditional appearance had been filed. This court has a discretion to permit a new point to be raised on appeal but it must be expedient and in the interests of justice for the new issue to be entertained on appeal: Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, 497.

20 The respondent submits that it will suffer prejudice by the appellant raising this new point only on appeal. The prejudice the respondent points to is the fact that by taking the point now, the appellant has deprived the respondent of the opportunity to apply under O 23 r 1 to set aside the unconditional appearance in answer to the allegation of waiver of the irregularity. This submission has merit. As a result, it would not be expedient or in the interests of justice to uphold ground 1.4. It must be added that these reasons are not read as an indication whether or not such an application by the respondent under O 23 r 1 would succeed. It would be for the master to decide the question based on any evidence which might be advanced in support of any such application.

Whether there would be any substantial injustice in leaving the decision unreversed

21 As grounds 1.1, 1.2 and 1.3 have merit, it is necessary before granting leave to appeal, to consider whether there would be any substantial injustice in leaving the decision unreversed. If the decision is not reversed and the appellant could, without prejudice simply issue a new writ of summons and proceed with the action, then no substantial injustice would be suffered by the appellant and leave to appeal should be refused. There would be extra fees payable for the issue of the new writ but that would not be substantial injustice and the appellant would, in any event, have the prospect of recovering from her solicitor the fees paid in relation to the writ which was struck out. In those circumstances, the appellant would suffer no prejudice at all and it would be appropriate for an order that leave to appeal be refused.

22 However, the appellant contends that if she has to issue a new writ she would suffer prejudice because the foreshadowed limitation defence would then have a much greater prospect of success. It seems clear that this is so. On the appellant's best case, the writ was issued just in time to avoid the expiry of the limitation period and if a new writ has to be issued, then it would appear unlikely that the appellant would have any basis for arguing that the limitation defence should fail. Thus the loss of the opportunity of persuading the master to exercise the court's discretion under O 2 will produce a substantial injustice.

23 The respondent attempted to persuade the court that there was no substantial injustice because the application before the master for summary dismissal was bound to succeed because there was a cast iron limitation defence even if no new writ is issued. The respondent submits that the appellant's affidavit evidence does not support the allegation that there was any concealment in relation to claims which are not based on forgeries. The respondent further submits that even if there is a concentration on the forgery charges and even if it is accepted (which the respondent disputes) that the appellant did not 'discover' that her signature had been forged until the Dale report was received, the report must have been received on or about 10 September 2003 and that the appellant's writ issued on 11 September 2009, which on the best case for the appellant, is a day outside the limitation period. The appellant answers this submission by contending that in the ordinary course of post, the report would have been received on or about 15 September 2003 and that this meant that the writ was issued within 6 years of that date. Both parties attempted to convince the court on this point by attaching to written submissions, documents from the Australia Post website showing expected delivery times for various items of post. It is not appropriate for the Court of Appeal to be dealing with such submissions without there having been any consideration of the issues in the primary court and the attempt to proffer evidence in this way is not in accordance with the rules of evidence. The High Court in Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533 said that where a limitation defence depends upon findings of fact being made, that it is usually undesirable to deal with the limitation issue before trial. However, this is not to say that there are not some cases where the facts are beyond dispute and where it is clear that a limitation defence must succeed, in which case the action may be dismissed summarily.

24 All of the arguments advanced by the parties about whether there was or was not an unanswerable limitation defence were arguments which should have been considered by the master. It is not possible to hold that there will be no injustice if the master's decision was left to stand and so leave to appeal should be granted.

25 In view of the master's error, the appropriate course is to extend time for appealing, to grant leave to appeal, to uphold grounds 1.1, 1.2 and 1.3

to set aside the master's order and return the application for a rehearing before the master where all of the issues raised can be fully considered and dealt with.

(a) that time for commencing the appeal be extended to 11 May 2010;

(d) the master's order be set aside and the case remitted to the master for redetermination.