Babcock & Brown DIF III Global Co-Investment Fund, LP v The Royal Bank of Scotland PLC [2016] VSC 769

1 In Babcock & Brown DIF III Global Co-Investment Fund, LP & Anor v Babcock & Brown International Pty Limited & Ors,[1] I dismissed stay applications brought by a number of the defendants, including the 16th defendant, The Royal Bank of Scotland PLC ('RBS'). The plaintiffs' allegations against RBS are summarised in those reasons at paras [2]-[34].

2 Having failed in its stay application, RBS now seeks relief which, if granted, will have a similar effect. In order to define the issues for determination, it is necessary to set out some relevant procedural history and correspondence.

3 The writ in this proceeding was issued on 13 November 2013, one day before the expiry of a six year limitation period. On 12 November 2014, the final day that the writ remained valid for service, the plaintiffs purported to serve the writ on RBS in Sydney, New South Wales (the 'purported service'). That service was ineffective, by operation of s 16 of the Service and Execution of Process Act 1992 (Cth) (the 'Act'), because the notice required by s 16 was not attached to the writ at the time of service (the 'SEPA notice').

4 After the purported service, RBS had three choices as to which course to adopt:

(1) it could file an unconditional appearance, thereby submitting to the jurisdiction of this Court, and then proceed to defend itself against the allegations against it;

(2) it could file a 'conditional appearance' as permitted by r 8.08 of the Supreme Court (General Civil Procedure) Rules 2005 which were in force at the time (the 'Rules'), thereby conditionally submitting to the jurisdiction of this Court, and then apply to set the purported service aside within the time prescribed; or

(3) before filing any appearance (either unconditional or conditional), apply to the Court under r 8.09 for orders setting aside the purported service.

5 Rules 8.08 and 8.09 provided at the time as follows:

8.08 Conditional appearance

(1) A defendant may file a conditional appearance.

...

(3) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless on application by the defendant the Court otherwise orders.

(4) Application under paragraph (3) shall be made by summons within 14 days after the day the conditional appearance is filed.

8.09 Setting aside writ or originating motion

Notwithstanding Rule 8.08, the Court may exercise its jurisdiction to -

(a) set aside a writ or originating motion or its service;

(b) make an order under Rule 46.08;

(c) stay a proceeding -

on application made by the defendant before filing an appearance, whether conditional or not.[2]

6 Rule 8.08(3) provides in clear terms that a conditional appearance has the effect of an unconditional appearance 'for all purposes ... unless on application by the defendant, the Court otherwise orders'. A r 8.08(3) application must be made within 14 days after the day the conditional appearance is filed.

7 On 3 December 2014, RBS chose to file a conditional appearance, rather than make an application under r 8.09 before filing any appearance. By doing so, it exposed itself to the operation of r 8.08(3) if it did not apply to the Court within the specified 14 day period.

8 The 14 day period expired on 17 December 2014. On that day, the plaintiffs and RBS consented to an order being made by Lansdowne AsJ extending the time for RBS to file and serve any application contemplated by r 8.08(3) until 4:00 pm on 9 March 2015 - an extension of about 11½ weeks (the 'r 8.08 extension order').

9 Prior to that, on 3 December 2014, her Honour ordered, on an ex parte basis, that the period of validity of the writ for service be extended until 3 June 2015 pursuant to r 5.12(2) of the Rules (the 'validity extension order').

10 The invalidly served writ was accompanied by a general indorsement. The plaintiffs served a statement of claim on RBS and other defendants in February 2015.

11 The registry was not open on 9 March 2015, as it was a public holiday. Accordingly, the time for RBS to file and serve an application under r 8.08(3) was extended to 4:00 pm on 10 March 2015.[3] RBS did not file or serve any r 8.08(3) application within that time. Instead, at 4:42 pm (ie 42 minutes after the extended time for filing its application expired) its solicitors sent a letter by email to the plaintiffs' solicitors in the following terms (the '10 March letter'):

[omitting formal parts]

We refer to the orders made by Associate Justice Lansdowne on 17 December 2014 (the Orders).

Paragraph 2 of the Orders provides that any defendant who has filed a conditional appearance file and serve any summonses contemplated by rule 8.08 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) by 4pm on 9 March 2015. That day being a public holiday, under rule 3.01(5) any summonses may be filed on 10 March 2015.

The purpose of this letter is to confirm that our clients, the sixteenth and seventeenth defendants (The Royal Bank of Scotland plc and RBS Equity Corporation), reserve all their rights to make an application in relation to service and/or jurisdiction in the future.

In circumstances where we understand that several of the other defendants intend to bring applications either seeking a stay of the proceedings, or the setting aside of any purported service on them, it is appropriate in the interests of minimising unnecessary costs for the parties that our clients reserve their position on any application they may make until the position of the other defendants, and the outcome of any applications made by them, becomes clearer.

[Signed][4]

12 There are a number of relevant matters concerning the 10 March letter.

13 First, it was sent by email 42 minutes after the expiry of the period allowed by the r 8.08 extension order.

14 Second, it did not state that a r 8.08(3) application would be made on the next day, or at all. Instead, it sought to 'reserve all [RBS's] rights to make an application in relation to service and/or jurisdiction in the future'.

15 Third, it does not identify the right being reserved except in a most general way. In particular, the letter does not state that service of the writ was ineffective because s 16 of the Act had not been complied with, and nor does it mention any other reason why RBS had filed a conditional appearance.

16 Fourth, it asserts that 'it is appropriate in the interests of minimising unnecessary costs for the parties that [RBS] reserve [its] position on any application [it] may make' until the determination of applications by 'other defendants' for a stay of the proceeding or to set aside service on them, which were then foreshadowed. That was not an explanation for the failure to file and serve a r 8.08(3) application within the extended time in the r 8.08 extension order. Moreover, no such explanation has since been given - either in evidence or submissions. The terms of the r 8.08 extension order were clear. If RBS had wanted to reserve its rights for the reasons mentioned, it was required to serve a r 8.08(3) application within the (generously) extended time and then apply to adjourn it pending the outcome of the foreshadowed stay applications. At this time, RBS had no reasonable basis to expect the plaintiffs would grant a further extension; although I infer it was intending to bring about that result, in circumstances where it was yet to reveal to the plaintiffs that it would argue that the purported service was invalid on the basis of the technical (albeit potentially fatal) deficiency of failure to serve a SEPA notice.

17 The plaintiffs rejected RBS's attempt to reserve its rights. By email letter sent 11 March 2015 its solicitors stated that RBS's conditional appearance was, by operation of r 8.08(3), effective for all purposes as an unconditional appearance; and that they were instructed to oppose any application made by RBS to further extend the time for filing and service of a r 8.08(3) application.

18 The 11 March 2015 letter prompted RBS into action. On 13 March 2015, it filed a summons seeking to: (1) set aside the purported service of the writ on 12 November 2014; and (2) set aside the validity extension order. However, notwithstanding the terms of the 11 March letter from the plaintiffs' solicitors, the summons did not include any application to further extend the time for filing a r 8.08(3) application.

19 Also on 11 March 2015, RBS's solicitors wrote to the plaintiffs' solicitors, referred to r 29.10,[5] and requested that they provide copies of all documents referred to in the statement of claim which had not previously been provided, including but not limited to 36 specified documents, by 4:00 pm on 20 March 2015.

20 The 13 March 2015 summons was not served on the plaintiffs until 18 March 2015. The letter accompanying service noted that an affidavit in support had not yet been filed.

21 By letter dated 24 March 2015 from RBS's solicitors to the plaintiffs' solicitors, RBS referred to its reservation of rights in the 10 March letter and expanded upon its position. In response to the plaintiffs' solicitors' statement in their 11 March 2015 letter as to the effect of RBS's failure to file a r 8.08(3) application within the time fixed by the r 8.08 extension order, they contended that RBS had not submitted to the jurisdiction of this Court or 'waived [its] rights to raise an objection in relation to service or jurisdiction'. The letter continued:

In the event that it is necessary, our clients will seek orders providing for a short extension of the date referred to in paragraph 2 of [the r 8.08 extension order] to accommodate RBS plc's application. Your clients cannot have suffered any prejudice as a result of our client's application being filed on 13 March instead of by 10 March. However, please let us know if our assumption in that regard is incorrect and what the prejudice to your clients is.[6]

22 The 24 March 2015 letter also revealed to the plaintiffs that RBS was relying upon the fact that the writ served on it on 12 November 2014 was not accompanied by a SEPA notice, and the purported service was therefore invalid.[7]

23 As appears above, before the time for service of the writ expired, the plaintiffs applied to an Associate Justice to extend the validity of the writ. At that time, the plaintiffs' solicitors believed RBS had been validly served. The application for an extension of the period of validity was for the purpose of enabling service on foreign defendants under the Hague Convention.

24 Lansdowne AsJ made the order sought - the validity extension order - on an ex parte basis. It was not limited to particular defendants. Accordingly, on its face, the order permitted the plaintiffs to re-serve RBS in a valid manner in compliance with s 16 of the Act. When the plaintiffs learned in March 2015 that the purported service was invalid, and of RBS's contentions that it had not submitted to the jurisdiction, on 16 April 2015 they re-served RBS in a manner compliant with the Act. RBS contends that the validity extension order should be set aside, such that the plaintiffs' re-service of it in compliance with the Act is ineffective.

25 RBS also seeks to amend its 13 March 2015 summons (the 'amendment application'), so as to seek an order further extending the time for it to make a r 8.08(3) application from 4:00 pm on 9 March 2015 to 4:00 pm on 18 March 2015, being the date the 13 March summons was served (the 'further extension application').

(1) What is the effect of RBS's failure to make a r 8.08(3) application within the extended time?

(2) Should the time for RBS to make a r 8.08(3) application be further extended?

(3) If the time is further extended, and the purported service of the writ on 12 November 2014 is set aside, should the validity extension order, and thus the second service of the writ on 16 April 2015, be set aside?

What is the effect of RBS's failure to make a r 8.08(3) application within the extended time?

27 The plaintiffs contend that the admitted deficiency in the purported service on 12 November 2014 was waived, superseded or became irrelevant when, by operation of r 8.08(3) and (4) combined with RBS's failure to make a r 8.08(3) application within the time fixed by the r 8.08 extension order, RBS's conditional appearance became 'for all purposes ... an unconditional appearance'.[8]

28 I accept that submission. In my opinion, the proper interpretation of r 8.08(3) is that RBS's conditional appearance had effect as an unconditional appearance for all purposes upon the failure to make the application contemplated by that rule within time. Further, when no r 8.08(3) application was made within the time limited by the r 8.08 extension order, RBS lost its limited opportunity to object to the jurisdiction of this Court in the proceeding. Its conduct is the equivalent of submission to the jurisdiction. This position is to be contrasted with a defendant who chooses to file no appearance of any kind, and makes an application under r 8.09 to object to the jurisdiction on the grounds of invalid service or otherwise.

29 The plaintiffs contend further that the words 'for all purposes' must be understood as a reference to the authorities concerning the effect of an unconditional appearance, as those authorities stood at the time r 8.08 was introduced by amendment to the Rules in 1986; and that the effect of that pre-existing authority is that an unconditional appearance amounts to a submission to the jurisdiction of the Court, notwithstanding any irregularities in service or, indeed, whether the originating process has been served at all.

30 RBS contends that it has not submitted to the Court's jurisdiction because: 'there can be no waiver of the requirements of the [Act] by force of State procedural rules without intentional action on the part of the defendant amounting to submission to the jurisdiction and there was no such action by RBS in this case.'[9] For the reasons given below, I do not accept that submission.

31 I accept the plaintiffs' submission that the words 'for all purposes' in r 8.08(3) must be given meaning, and that this meaning is to be found in the authorities concerning the effect of filing an unconditional appearance.

32 In Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad',[10] Gibbs J stated the general rule that 'an unconditional appearance amounts to a submission to the jurisdiction of the Court and to a waiver of irregularity, e.g. in the manner of service.'[11] In other words, a submission to the jurisdiction by unconditional appearance operates irrespective of any previous procedural irregularity. In my opinion, where a submission to jurisdiction arises by force of an unconditional appearance being filed, it is unnecessary to examine whether the requirements of a waiver under the general law have been established.

33 In Lindgran v Lindgran,[12] Smith J considered a case involving a summons returnable in the Magistrates' Court to obtain a maintenance order under the Maintenance Act 1928. The case did not concern the effect of filing an unconditional appearance, notice of intention to defend, or like document. In this case, counsel for the defendant announced his appearance before the magistrate and then raised an objection to jurisdiction based on the complainant's failure to endorse the summons in accordance with the requirements of a predecessor to the Act. The magistrate held that the announcement by the defendant's counsel of his appearance waived any objection to the validity of service. On the facts of the particular case, Smith J disagreed in the following terms:

I do not consider that the material which was before the magistrate when he over-ruled the objection was sufficient to warrant any such inference as to the intention of the defendant. The fact that counsel for the defendant did not state the objection until after he had informed the Court what party he was appearing for was not, in my opinion, sufficient to warrant such an inference, seeing that the case proceeded no further before the objection was taken by him. Any reasonable person desirous of ascertaining whether the defendant intended to rely upon the objection would, I think, have found himself unable to draw any conclusion as to what the defendant's intention was until he saw whether the defendant allowed the case to proceed further without taking the objection.[13]

34 Before giving his decision on the facts, Smith J analysed some authority and concluded that 'in order to constitute a waiver in a case such as this, there must at least be words or conduct of such a nature that an inference can properly be drawn therefrom that the party alleged to have waived the objection does not intend to rely upon it'.[14] His Honour recognised that the defect was capable of being waived, but had not been in the circumstances.

35 As Lindgran did not involve a case where a formal document constituting an unconditional appearance was filed with the Court, thus attracting the general principles stated in Caltex Oil, the decision of Smith J does nothing to undermine that authority. Its only relevance to this case is that Smith J held that non-compliance with an equivalent requirement to s 16 of the Act is capable of being waived.

36 In Portelli v Seltsam Ltd,[15] the Full Court considered a case where service of a summons was invalid because it depended for its efficacy on a court order which was 'ineffective'. The order was ineffective as it had been made without obtaining leave to proceed under a predecessor to the Act. The Full Court was of the opinion that the order remained ineffective 'unless there is thereafter in fact [1] an appearance entered or made or [2] an equivalent step of submission to the jurisdiction'.[16] No document constituting an appearance had been entered or made by the appellant, so submission to the Court's jurisdiction did not arise on the first basis. However, the appellant had made an application for leave to appeal 'confined to the merits and not related in any way to jurisdiction',[17] and thus submitted to jurisdiction on the second basis. The distinction between the two ways in which a defendant may submit to the jurisdiction is inconsistent with RBS's contention. In my opinion, it is only necessary to consider whether, on the facts, a defendant has engaged in conduct which can be classified as intentionally submitting to the jurisdiction where the defendant has not filed an unconditional appearance. In this case, its conditional appearance has the effect of being an unconditional appearance by operation of r 8.08(3).

37 In Re Marlan Financial Services Pty Ltd,[18] Byrne J summarised the effect of Caltex Oil and the decision of Smith J in Lindgran in the following terms:[19]

By the filing of an appearance a defendant submits to the jurisdiction of the court and waives any patent irregularity in its process or in the service of the process[20] or even the absence of service of the process.[21] Moreover, waiver will cure an irregularity in interstate service arising out of a non-compliance with the Service and Execution of Process Act, being a failure to attach the statutory notice to a writ.[22]

38 Counsel for RBS contends that these statements were obiter dicta, as the basis of his Honour's decision was that the failure to effectively serve an application to set aside a statutory demand within the time prescribed by s 459G of the Corporations Law meant that the Court had no jurisdiction.[23] That may be so. But there is no such jurisdictional issue in this case, and I would respectfully adopt Byrne J's above-cited statement as consistent with the Full Court's statement of principle in Portelli v Seltsam and as a correct summary of the law.

39 In McM v C (No 2),[24] a defendant's conditional appearance became unconditional, and thus operated as a submission to the jurisdiction of the Court, as a consequence of the determination of his application challenging jurisdiction. The applicable New South Wales rules in that case were in relevant respects similar to rr 8.08 and 8.09. RBS seeks to distinguish the case based on the fact that McLelland J gave a further reason for holding that the defendant had submitted to the jurisdiction of the Court, namely that the defendant had participated in a hearing on the merits.[25] That may be the case, but that further reason was unnecessary to his Honour's conclusion that the dismissal of the defendant's motion to set aside service had the effect of rendering his conditional appearance unconditional under the equivalent of r 8.08(3) and, consequently, 'ha[d] effect for all purposes as an unconditional appearance, which operates as a submission ... to the jurisdiction of the Court.'[26] The reasoning in this case supports my conclusion.

40 RBS relies on three cases where defendants who have entered an unconditional appearance were nevertheless permitted by the Court to challenge service of the writ. In my opinion, those cases do not assist its contentions.

41 In Maronis Holdings Ltd v Nippon Credit Australia Ltd,[27] Bryson J considered an application made by a New Zealand defendant to cross-claims in proceedings in the New South Wales Supreme Court to set aside the service of those cross-claims. The applicant applied under a New South Wales rule which gave the Court an unfettered discretion on the hearing of an application made under pt 10 r 6A of the New South Wales Supreme Court Rules 1970 to make a range of orders under pt 11 r 8.[28] In the result, Bryson J set aside the service on the applicant on the basis of his 'personal circumstances' which made defending the cross-claims in New South Wales burdensome on him. Other issues such as the strength of the case, where the cause of action against the defendant arose and forum non conveniens grounds were considered but not decisive.[29]

42 The case did not involve any issue concerning irregularities in service of the cross-claim in New Zealand.[30] Based on the particular rule under consideration, Bryson J did not consider that the entry of an unconditional appearance, and consequent submission to the jurisdiction of the New South Wales Supreme Court, prevented the applicant from making his application under pt 10 r 6A of the New South Wales Rules. In the course of his reasons, Bryson J held that:

the fact that a person applying under pt 10 r 6A has submitted to the jurisdiction of the court by filing an appearance is a relevant factor within the ambit of discretion under the rule, but is not conclusive and does not exclude the discretionary power.[31]

43 In my opinion, Maronis considered an entirely different set of circumstances, and different rules of court than apply in this case. It is of no assistance in resolving the issues presently before me.

44 Next, RBS relies on the decision of Ward J in Weston v Publishing and Broadcasting Ltd.[32] In that case, the initiating process was issued shortly before expiry of the applicable limitation of actions period. The period of validity for service was successively extended following ex parte applications by the plaintiffs. The defendants were regularly served within the extension period but after expiry of the limitation period. They entered unconditional appearances and then applied to set aside the ex parte validity extension orders. Ward J decided that the defendants were not prevented by their unconditional appearances from bringing the applications.[33]

45 Counsel for the plaintiffs accept the correctness of this decision, but contend that it relates only to RBS's application to set aside the validity extension order. I agree. Weston did not involve irregular service followed by an unconditional appearance. Rather, it concerned the right of any party to a proceeding to apply to set aside an order affecting it which was made in its absence. The fact that the validity extension order in that case was made before service of the writ is not to the point. Rule 46.08(b) gives the Court a general discretion to set aside or vary any order made without notice to a person affected. Moreover, in this case, the validity extension order was made after the ineffective purported service. The decision in Weston says nothing about the effect of a rule such as r 8.08(3).

46 Next, RBS relies upon the decision of Thomas J (as he then was) of the Commercial Court of the High Court of England and Wales in Akai v People's Insurance Co Ltd.[34] In that case, the plaintiff sued a Singaporean insurer in both the Supreme Court of New South Wales and the High Court of England and Wales. Following appeals in Australia, the High Court of Australia refused to stay the proceeding in New South Wales. Thomas J held that the High Court decision was not binding on English courts and ought not, as a matter of comity, be given effect to. In that context, far removed from the facts of this case, Akai's application to stay the English proceeding was dismissed and the defendant was granted an injunction restraining Akai from continuing the proceedings in New South Wales. In reaching that decision, Thomas J considered the approach of English courts in considering what steps can amount to a submission to the jurisdiction of the New South Wales Supreme Court. Thomas J applied the statement of Cave J in Rein v Stein that:

in order to establish a waiver, you must show that the party alleged to have waived his objection has taken some step which is only necessary or only useful if the objection has been actually waived, or if the objection has never been entertained at all.[35]

Adopting this observation, the question for the Court, in determining whether the steps taken by a party in an overseas Court amounts to a submission [to jurisdiction under the Civil Jurisdiction and Judgments Act 1982 (UK)] is whether the step was only necessary or useful if the party was not objecting to the jurisdiction.[36]

48 On this basis, Thomas J held that, by taking the 'technical step of filing a notice of appearance' in circumstances where it was otherwise clear that Akai was objecting to the jurisdiction, it did nothing 'necessary or useful' towards any other step in the proceeding than prosecuting that objection, and Akai had not waived its right to object to the jurisdiction.[37]

49 In my opinion, the decision in Akai on the effect of filing an unconditional appearance is inconsistent with the position in Australia. Akai is, however, consistent with the second basis on which a defendant may submit to the jurisdiction, as occurred in Portelli v Seltsam Ltd.[38] The decision was applied for this purpose by the Full Court of the Supreme Court of Western Australia in Brealey v Board of Management Royal Perth Hospital.[39] In that case, the writ was served on the Hospital a week after its validity for service expired. Later, a registrar extended the period of validity of the writ for service, but, after that order was made, the writ was re-served only on another defendant, Dr Hardcastle, and not on the Hospital. Dr Hardcastle applied to set aside the order of the Registrar. The Hospital sent an articled clerk to the hearing of that application on a 'watching brief'. In these circumstances, the issue for determination on appeal was whether, in the absence of the Hospital filing an unconditional appearance or like document, it had by its conduct submitted to the jurisdiction of the Court in the proceeding. This enquiry was similar to that in Lindgran v Lindgran[40] and Portelli v Seltsam Ltd.[41] In that context, Ipp J (Malcolm CJ agreeing) referred to the above quoted statements of Thomas J in Akai as a useful test for determining whether, in the absence of filing an unconditional appearance, the relevant defendant had submitted to the jurisdiction of the Court.[42] Ipp J also referred with approval to Lindgran as supporting his decision in the appeal that the relevant defendant had not submitted to the jurisdiction of the Court.[43]

50 The Brealey decision is consistent with Lindgran and Portelli v Seltsam Ltd. It does not adopt Thomas J's dismissal in Akai of the filing of an unconditional appearance as a mere 'technical step'. RBS's reliance on this decision is misplaced on the facts of this case.

51 I conclude that, by filing a conditional appearance and failing to make a r 8.08(3) application within the time extended by the r 8.08 extension order, RBS placed itself in the same position as a defendant who files an unconditional appearance. As a result, RBS has waived any right to object to the ineffectiveness of the purported service of the writ on 12 November 2014, and has submitted to the Court's jurisdiction.

52 In these circumstances, the critical issue for determination is whether the amendment application should be allowed and, if so, whether the time for RBS to make an application under r 8.08(3) should be further extended.

Should the time for RBS to make a r 8.08(3) application be further extended?

53 It is first necessary to note that the amendment application was made about 19 months after the 13 March 2015 summons was filed and served, notwithstanding that RBS had foreshadowed making such an application in the 24 March 2015 letter and knew that the plaintiffs would oppose any application for a further extension of time to file a r 8.08(3) application.

54 The plaintiffs and RBS both referred to the history of the proceeding since the 13 March 2015 summons was served. There was first a contested application by the first and second defendants to restrain the plaintiffs' solicitors from acting. After that application was determined adversely to the first and second defendants, directions were made for the hearing of the stay applications brought by RBS and other defendants. Those stay applications were not determined until 21 October 2016.[44] Directions were then made for the hearing of the 13 March 2015 summons. The amendment application was first made in RBS's submissions for this application filed on 25 November 2016. As appears above, RBS contends that the amendment application is unnecessary, and that it has only brought it on as a precaution in case its submissions concerning the operation of r 8.08(3) are rejected.

55 In my opinion, the delay in making the amendment application is not to the point. I accept that RBS foreshadowed making such an application as long ago as 24 March 2015, and that no prejudice has been suffered by the plaintiffs by reason of the lateness of the amendment application. Even if the amendment application had been made promptly in March 2015, the history of the proceeding is such that (without fault on any party's behalf) it is likely that it would not have been heard until after the stay applications were dismissed. In these circumstances, I will allow the amendment application and consider the merits of the further extension application. For the following reasons, that application should be dismissed.

56 First, RBS sought and obtained an 11½ week extension to the time specified in r 8.08(4). That was an extraordinarily long indulgence given by the plaintiffs.

57 Second, having been given such an indulgence, and having regard to the clear terms of r 8.08, RBS ought to have set about expeditiously preparing a r 8.08(3) application and supporting material. There is no evidence that it did any of those things.

58 Third, in seeking a further extension of time to bring a r 8.08(3) application, RBS is seeking a further indulgence. In such circumstances, there is an onus on RBS to establish, by evidence if necessary, sufficient grounds upon which the Court should exercise its discretion to grant a further extension. In particular, a defendant in RBS's position should, by evidence, explain why the requisite application was not filed within the extended time agreed to by the plaintiffs. There is no such evidence or other explanation for the failure to file the application within the extended time.

59 Fourth, the only grounds put forward in support of the application for a further extension are that: (1) RBS made its position clear in March 2015 that it did not accept the need to make such an application, but would make one 'in the event it is necessary'; and (2) RBS only seeks an extension for a short time (8 days). As to the first ground, for the reasons given above, the application was always necessary. RBS's assertions in March 2015, and thereafter, that the application was not necessary are wrong. As to the shortness of the period of extension sought, that is not to the point. RBS chose to file a conditional appearance, and thus attracted the operation of r 8.08. The plaintiffs acted generously in giving RBS a lengthy extension of time to make a r 8.08(3) application. Had the further extension application been made on 11 March 2015, I would have refused it. Even if it be accepted that RBS and its solicitors believed that failure to make a r 8.08(3) application within time would not have the effect that RBS submitted to the jurisdiction of this Court (about which there is no evidence and only mere assertion in a letter written soon after the extended time had passed), knowingly taking the risk that they were wrong provides an insufficient basis to grant RBS a further extension.

60 Accordingly, the amendment application is allowed but the further extension application is refused.

61 It is thus unnecessary for the plaintiffs to rely upon the validity extension order or the consequent second service of the writ on RBS in April 2015.

If the time is further extended, and the purported service of the writ on 12 November 2014 is set aside, should the validity extension order, and thus the second service of the writ on 16 April 2015, be set aside?

62 For the above reasons, it is unnecessary to consider whether the validity extension order should be set aside.

63 There are no further applications by any defendants challenging the jurisdiction of the Court to hear and determine this dispute. Accordingly, at the next directions hearing, the Court will consider when the defendants should file their defences.

[1] [2016] VSC 623.

[5] Relevantly, r 29.10 gives a defendant the right to give a plaintiff a notice to produce any document referred to in any originating process or pleading filed by the plaintiff.

[9] RBS's reply submissions [4]. Emphasis added. Although potential inconsistency between the Act and the Rules was mentioned in a footnote to RBS's reply submissions, no argument under s 109 of the Commonwealth Constitution was advanced.

[10] [1976] HCA 65; (1976) 136 CLR 529.

[11] Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' [1976] HCA 65; (1976) 136 CLR 529, 539.

[12] [1956] VicLawRp 34; [1956] VLR 215.

[13] Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215, 220 (emphasis added).

[15] Portelli v Seltsam Ltd [1988] VicRp 43; [1988] VR 337.

[16] Ibid 345 (emphasis and numbering added).

[18] [1999] VSC 435; (1999) 33 ACSR 259.

[19] [1999] VSC 435; (1999) 33 ACSR 259, 267 [30] (emphasis added) (citations in original).

[20] Caltex Oil (Australia) Pty Ltd v The Dredge 'Willemstad' [1976] HCA 65; (1976) 136 CLR 529, 539 (Gibbs J).

[21] Green v Braddyll [1856] EngR 440; (1856) 1 H&N 69; 156 ER 1121.

[22] Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215, 219-20 (Smith J).

[23] Re Marlan Financial Services Pty Ltd [1999] VSC 435; (1999) 33 ACSR 259, 267-8 [31]-[34].

[27] [2000] NSWSC 507.

[32] [2011] NSWSC 433; (2011) 83 ACSR 206.

[35] Rein v Stein (1892) 66 L.T. 469, 471, cited in Akai v People's Insurance Co Ltd [1998] 1 Lloyd's Rep 90, 96 (emphasis added).

[36] Akai v People's Insurance Co Ltd [1998] 1 Lloyd's Rep 90, 96-7 (emphasis added).

[37] Ibid 97. Civil Jurisdiction and Judgments Act 1982

[38] [1988] VicRp 43; [1988] VR 337.

[39] Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79.

[40] [1956] VicLawRp 34; [1956] VLR 215.

[41] [1988] VicRp 43; [1988] VR 337.

[42] Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79, 87 [38].

[43] Ibid 88 [41]; see also, 98 [85] (Anderson J).

[44] Babcock & Brown DIF III Global Co-Investment Fund, LP & Anor v Babcock & Brown International Pty Limited & Ors [2016] VSC 623.