Administrative law - Writ of prohibition sought to restrain District Court of WA from taking any steps in relation to an action

Practice and procedure - Service out of jurisdiction - Conditional appearance becoming unconditional - Whether submission to the jurisdiction - Turns on own facts

BP Australia Ltd v Kirki Shipping Corporation & Anor, unreported; SCt of WA; Library No 940612; 1 November 1994

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163

Golden Ocean Assurance Ltd and World Mariner Shipping SA v Martin & Ors ("The Goldean Mariner TGM") [1990] 2 Lloyds Rep 215

Hill v King (1993) 31 NSWLR 654

King-Brooks v Roberts (1991) 5 WAR 500

Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874

Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215

Monger, Re; ex parte Dutch & Ors [2001] WASCA 220

Porter v Freudenberg [1915] 1 KB 857

R v Coburn; Ex parte Fomin (1981) 9 NTR 1

R v Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185

Re Family Court of Australia; Ex parte Herbert [1991] 65 ALJR 688

Smith & West Australian Development Corporation; Ex parte Rundle & Ors (1992) 5 WAR 295

Waterside Workers Federation of Australia v Gilchrist Watt & Sanderson Ltd [1924] HCA 61; (1924) 34 CLR 482

1 TEMPLEMAN J: The applicant, Andrew Arief Darmoko, is an Indonesian national who lives in Indonesia. The applicant seeks a Writ of Prohibition to prohibit the District Court of Western Australia from taking any steps in relation to an action which has been brought against him by QBE Insurance Ltd ("QBE").

2 The grounds on which the applicant claims relief are:

1. There has been no leave granted by the District Court of Western Australia to issue the Writ 463 of 2000 for service out of the jurisdiction, pursuant to O 5 r 9 of the Rules of the Supreme Court.

2. On 27 September 2000 the District Court of Western Australia through the decision of Deputy Registrar Harman refused an application by QBE ... for retrospective leave pursuant to O 5 r 9 of the Rules of the Supreme Court to issue the said writ; and

3. Notice of the Writ of Summons has never been served in accordance with O 10 r 1 of the Rules of the Supreme Court and Notice of the Writ of Summons has never been filed in the District Court of Western Australia.

3 In May 2001, I heard an application in chambers for an order nisi. The application was made ex parte, following the usual practice. Because of the unusual nature of the application, I directed that it be served on QBE, pursuant to O 56 r 2 of the Rules of the Supreme Court. I also ordered that the action be stayed but that QBE should have liberty to apply on two clear days notice to vary or set aside that order.

4 The application was listed before me again on 31 January 2002, when the applicant and QBE appeared by counsel. Both counsel thought I had granted an order nisi in May 2001, when that was not my intention. Counsel therefore came prepared to argue the substantive application.

5 Until October 2001, an order nisi for a prerogative writ was returnable only before the Full Court unless the matter was urgent. In that case, a single judge of the Court had jurisdiction to deal with the application. In October 2001, O 56 r 3 was amended so as to permit a single judge to deal with a substantive application "for other good cause".

6 The present application cannot be regarded as urgent: both parties seem to have been content to suffer a delay of some seven months. However, in the circumstances set out above, I consider that there is good cause for me to deal with the substantive application. Both parties wish me to do so; there is no dispute of any substance about the facts; and the application raises only short points of law. I therefore turn to the merits of the application.

7 On 14 February 2000, QBE commenced proceedings against Alcaston Nominees Pty Ltd ("Alcaston") by writ issued out of the District Court. In the action, QBE claimed $75,000 by way of damages for breach of contract and fraudulent misrepresentation arising out of a claim made by Alcaston pursuant to a contract of insurance between Alcaston and QBE.

8 On 22 February 2000 QBE issued a similar writ against the applicant, on the basis that he was at the material time a director of Alcaston. The writ was addressed to the applicant at a residential property in Dianella.

9 When QBE's solicitors issued the writ against the applicant, they knew that he was the owner of the Dianella property, but also that he was not then in residence there, and that a warrant had been issued for his arrest.

10 QBE's solicitors assert that when they issued the writ against the applicant, they believed he was in Indonesia, but only temporarily, and that he would return to Australia in due course. Their intention was to serve the writ when the applicant returned.

11 The applicant's solicitors, however, contend that QBE's solicitors could not have held that belief: or at least, not reasonably. That is because, as QBE's solicitors knew, two dates had passed on which the applicant had said he would return to Australia and he had not returned.

12 I am not prepared to disbelieve QBE's solicitors when the solicitor who has the conduct of the matter has deposed to her belief that the applicant would return and has not been cross examined on her affidavit. However, as counsel for the applicant accepts - and correctly, in my view - the belief of QBE's solicitors is irrelevant. QBE was entitled to issue a writ in the hope (if not the expectation) that the writ could be served on the applicant within the jurisdiction in due course.

13 On 23 or 24 February 2000 Alcaston's solicitors filed a memorandum of appearance on behalf of Alcaston in the action which had been commenced on 14 February.

14 There was a meeting between the solicitors on 29 February. Alcaston's solicitors then informed QBE's solicitors that they had been instructed to act for the applicant as well as for Alcaston. The applicant's solicitors said they were in regular contact with the applicant who was in Indonesia. The applicant's solicitors said also that the applicant knew a warrant had been issued for his arrest and that if he returned to Australia he would be charged with offences relating to the insurance claim. The applicant's solicitors went on to say that on their instructions, the applicant did not intend to return to Australia in the immediate future; that he was considering the sale of the Dianella property and that they had no instructions to accept service of the writ.

15 On 7 March, QBE applied pursuant to O 10 r 1 for leave to serve notice of the writ on the applicant out of the jurisdiction. The application was supported by an affidavit sworn by QBE's solicitor. The affidavit made out a case pursuant to several of the grounds on which service out of the jurisdiction is permissible.

16 The application was heard by a Registrar, who, on 21 March, made an order that QBE have leave to serve notice of the writ on the applicant out of the jurisdiction.

17 The applicant contends that the order of 21 March was defective in that it did not (as it should have done pursuant to O 10 r 5) limit a time within which the applicant was required to enter an appearance. However, nothing turns on that for the present purposes because QBE took no steps to serve outside the jurisdiction. Instead, QBE made an application to the Court for substituted service. The application was made informally by letter dated 24 March from QBE's solicitors to the Registrar who had made the order for service out of jurisdiction. The letter referred to the application for leave to serve outside the jurisdiction. It continued:

"We confirm you indicated that you would be prepared to make an order for substituted service under Order 72 Rule 4, on receipt of an appropriate application and affidavit. We enclose for filing a copy of these documents and look forward to receiving confirmation from you that orders have been made in terms of the application."

18 Order 72 Rule 4 empowers the Court to make an order for substituted service if it appears that personal service is "impracticable". The rule also requires an application for an order for substituted service to be supported by an affidavit stating the facts on which the application is founded.

19 It is submitted by counsel for the applicant that the affidavit in support of the application for substituted service was defective in that it did not prove that personal service was impracticable. I accept that submission. The application for substituted service was supported by a short affidavit by QBE's solicitor in which it was said that QBE relied on the same matters as had been set out in the affidavit in support of the application for service out of the jurisdiction. However, an application for substituted service within the jurisdiction must set out the efforts which have been made to effect personal service outside the jurisdiction and establish that it was impracticable to do so: Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 64 ALR 155at 157.

20 On the other hand, an application for service outside the jurisdiction can succeed only if it is shown that by such means service will in fact be affected.

21 It follows that QBE could not properly have relied upon the affidavit in support of the application for service outside the jurisdiction to support the application for substituted service. Indeed, in Afro Continental Nigeria Ltd v Meredian Shipping Co SA [1982] 2 Lloyds Rep 241, an order for substituted service was set aside when it became apparent that no steps had been taken to effect personal service: see p 248.

22 Counsel for the applicant contends that the order for substituted service was defective on another ground. That is, it was an order for service of the writ, not the notice of the writ. Counsel submits that an order for substituted service can only be made in respect of the document which would otherwise be served personally: in this case, the notice of the writ.

23 This submission raises a question of construction of O 72 r 4. The Rule provides:

"Where by these Rules personal service of a document is required and it appears to the Court that personal service of such document on a person required to be served is impracticable, the Court may order that the document be served on that person by substituted service."

24 By O 9 r 1(1) a writ is to be served personally on a defendant, subject to the provisions of any Act and the Rules.

25 Order 10 provides that service of a writ or notice of a writ out of the jurisdiction is "permissible", with the leave of the Court, when the situation falls within one of the categories of O 10 r 1(1). However, as Seaman points out in par [10.3.1], notice of the writ and not the writ itself is served outside Australia "because it would not promote the comity of nations for the Royal command to enter an appearance to be given in another country: Hewitson v Fabre [1888] 21 QBD 6 at 8."

26 Although service of notice of a writ outside the jurisdiction is permitted, the Rules nevertheless require personal service of a writ as a matter of principle. That being so, I see no objection to an order for substituted service of a writ even though an order has been made for service of notice of that writ out of the jurisdiction. The purpose of an order for substituted service is to bring the writ to the knowledge of the defendant. That object is clearly achieved by an order for substituted service of the writ itself.

27 Counsel for the applicant accepts that the defects to which I have referred above are capable of being cured pursuant to O 2. Order 2 r 1(1) provides that any failure to comply with the requirements of the Rules:

"Whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein."

However, counsel for the applicant submits also that the Court has not cured the irregularities because QBE's application to do so was dismissed.

28 That is true, but in the circumstances of this case, I consider it to be irrelevant. The circumstances include the fact that on 17 April 2000, the applicant's solicitors filed a conditional memorandum of appearance pursuant to O 12 r 6. The nature of the condition was not set out in the memorandum.

29 Order 12 Rule 6(2) requires a defendant who has entered a conditional appearance to "forthwith apply to the Court to have the question raised by his conditional appearance decided". If such an application is not made within 14 days from the entry of the conditional appearance, the conditional appearance is to become and operate as an unconditional appearance, unless the Court orders otherwise.

30 In the present case, the applicant did not make any application within 14 days. On 12 June 2000, some 55 days after the entry of the conditional appearance, the applicant applied pursuant to O 3 r 5 for leave to bring, out of time, an application to have QBE's writ set aside because of its failure to obtain leave pursuant to O 5 r 9 to issue a writ for service out of the jurisdiction.

31 The applicant sought to have the writ set aside also on the basis of QBE's failure to obtain leave to serve notice of the writ out of the jurisdiction pursuant to O 10 r 1. This part of the application was clearly misconceived because QBE had obtained such leave on 21 March.

32 Apparently in response to that application, QBE made an application on 20 June 2000 for retrospective leave to issue the writ for service outside the jurisdiction pursuant to O 5 r 9.

33 The applicant's application was dismissed by a Deputy Registrar of the District Court on the basis that the applicant had offered no explanation for the delay in making his application.

34 The application having been dismissed, the Deputy Registrar also dismissed the plaintiff's application on the ground that it was unnecessary.

35 The applicant then appealed to a Judge of the District Court who upheld the decision of the Deputy Registrar.

36 The result of the dismissal of the applicant's application to have the writ set aside is that his conditional appearance, which became unconditional on 2 May 2000 at the latest, remains unconditional. Thus, the applicant must be taken to have waived any defect in service of the writ. That is because the conditional appearance is to be regarded as having been entered unconditionally: and because O 9 r 1(3) provides that:

"Where a writ is not duly served on a defendant but he enters an unconditional appearance in the action begun by the writ, the writ shall be deemed to be duly served on him and to have been so served on the date on which he entered the appearance."

37 This Rule accords with the position at common law as stated by Gibbs J in Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad [1976] HCA 65; (1976) 136 CLR 529, at 539 that:

"As a general rule an unconditional appearance amounts to a submission to the jurisdiction of the Court and to a waiver of irregularity, eg in the manner of service."

Gibbs J went on to say that only a defendant could enter an appearance. Counsel for the applicant submits that a person who has not been served properly in accordance with the Rules should not be regarded as a defendant for present purposes. Two things may be said about that submission. First, it is inconsistent with O 9 r 1(3). Secondly, the proposition stated by Gibbs J was made in the context of an Admiralty action in rem which had been brought against a ship. The Master of the ship had entered an appearance. However, that appearance was unauthorised in the sense that the Master had no interest in the ship and had no right to appear. That being so, the Master's appearance did not convert him into a defendant.

38 No such considerations apply in the present case.

39 QBE relies also on the principle that a party who takes a step in an action which is not consistent with or relevant to a challenge to the jurisdiction, would usually be taken to have submitted to the jurisdiction. However, the Court must consider the matter objectively. Where the steps relied on are the actions of a solicitor, they must be considered in the context of all the relevant circumstances: Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79, at 87.

40 In the present case, QBE relies on a number of matters. However, some of these matters relate to other proceedings and some are not the subject of any evidence. In relation to the QBE action against the applicant, the only matter of any consequence is a request by the applicant's solicitors for the action to be consolidated with the action which QBE had brought against Alcaston. It is not clear when the applicant's solicitors made the request. However, in a letter dated 4 May 2000, QBE's solicitors informed the applicant's solicitors that they were "happy" for the two actions to be consolidated. QBE's solicitors requested a defence on behalf of the applicant within seven days.

41 Then on 23 May 2000, QBE's solicitors sent a draft consent order for consolidation to the applicant's solicitors.

42 In my view, although a request to consolidate the two actions is inconsistent with submission to the jurisdiction, the request does not constitute a step in the action and would not, without more, bring the case within the Brealey principle. I therefore base my decision only on the fact that the applicant's conditional appearance became unconditional.

43 In all the circumstances, I am satisfied that the applicant has submitted to the jurisdiction of the District Court with the result that he can make no complaint arising from the fact that QBE did not obtain leave to issue a writ for service out of the jurisdiction and that it served the writ, rather than notice of the writ on his solicitors. The application for a writ of prohibition must therefore be dismissed.