CHITTLEBOROUGH -v- TROY GROUP PTY LTD [2024] WASCA 22 (7 March 2024)

(4) Subrule (5) applies to these documents -

(a) an affidavit;

(b) a consent to the Court doing anything;

(c) a document signed by a person who is not a party to the proceedings.

(5) A document to which this subrule applies must not be presented for filing using the ECMS or email unless it is signed and is presented in a .pdf electronic format.

(6) Subrule (7) applies to any document that is not listed in subrule (4) and that, under these rules, must be signed before it is filed.

(7) If a document to which this subrule applies is to be presented for filing -

(a) it must be signed before it is presented; and

(b) a copy of it, in .docx electronic format, that states the name of the person who is required to sign it instead of showing the person's signature, at any place in it where the signature is required, must be presented instead of the signed copy; and

(c) the electronic copy must be presented using the ECMS or, subject to subrule (2), email; and

(d) the person filing it must retain the signed copy and produce it if required to do so by the Court.

...

(9) Subject to subrules (4) to (7), all documents presented to the Court for filing using the ECMS ... must be in an electronic format specified by the Practice Directions.

1. In this manner, an affidavit, a consent notice and a 'document signed by a person who is not a party to the proceedings' are to be presented for filing in a .pdf format with a scanned manual signature, conformably with O 67A r 4(5). Other documents which are required to be signed are to be presented for filing in a .docx format, conformably with O 67A r 4(7), with the name of the person required to sign the document printed in the place where the signature is required. Relevantly, in terms of O 67A r 4(4)(c) read with O 67A r 6, a document signed by a person who is a party to the proceedings - being a document that, under the Rules, must be signed before it is filed - is to be presented for filing in the .docx format conformably with O 67A r 4(7).
2. Under O 67A r 4(10), a document filed electronically is taken to have been filed on the day and at the time recorded by the ECMS. Order 67A r 4(14) provides:

A document that is presented for filing using the ECMS or email but not in accordance with the requirements of the ECMS and this rule is taken not to have been filed.

1. In the present case, the appeal notice was presented for filing using the ECMS in a .docx format with the name of the appellant's legal practitioner, David Charles Huggins, printed in the place where the signature of the appellant or appellant's legal practitioner is required.
2. In Frigger, the plaintiffs applied to strike out the defendants' memoranda of appearance presented to the ECMS for filing in .docx format with the name of the relevant law practice printed in the place where a signature was required. Order 12 r 2(1)(a) relevantly provides that, to enter an appearance, a defendant who defends an action by a legal practitioner must file the relevant form signed by 'the legal practitioner who acts for the defendant'.
3. Hill J struck out the appearances on the grounds that:
   1. Order 12 r 2(1)(a) required the appearance to be personally signed by an 'Australian legal practitioner' as defined in the Legal Profession Uniform Law (WA) (Uniform Law).[4]
   2. A document signed by a legal practitioner acting for a party was a 'document signed by a person who is not a party to the proceedings' for the purpose of O 67A r 4(4)(c) and so was required to be filed in .pdf format, conformably with O 67A r 4(5).[5]
   3. The documents lodged by the defendants were taken not to have been filed under O 67A r 4(14) and should be struck from the court record.[6]
4. Applied to the provisions of the CoA Rules, the effect of the decision in Frigger is that the appeal notice presented to the ECMS for filing in the present case is taken not to have been filed. That is because the appeal notice is in .docx rather than .pdf format and contains the printed name of the appellant's legal practitioner rather than his manual signature.
5. However, for the following reasons we are satisfied that Frigger was incorrectly decided and should not be followed - both in its own procedural setting and in the context of the CoA Rules.

1. Rule 11(1)(a) read with r 11(3) of the CoA Rules provides for a registrar to refer to the court 'any question arising in respect of a CA matter or its conduct'. 'CA matter' is defined in r 3(1) of the CoA Rules to mean:

any cause or matter, however described, that, under the Act section 58(1) or any other written law, the Court of Appeal has jurisdiction to hear and determine[.]

1. The purported appeal notice concerns a matter that the Court of Appeal has jurisdiction to hear and determine under s 79 of the District Court of Western Australia Act. Accordingly, it is a CA matter. We are satisfied that the question of whether the appeal notice should be accepted for filing in light of the decision in Frigger is a question arising in respect of the CA matter or its conduct within the meaning of r 11(1)(a). We are also satisfied that it is appropriate to determine that question.
2. Once the question was referred by the Court of Appeal registrar, we considered it to be in the interests of justice to determine the question promptly in light of the limited time available for an appeal. We heard the matter late on the afternoon of 5 March 2024 in a context where the time for commencing an appeal would otherwise expire on 6 March 2024.
3. The question was considered and determined in the absence of the respondents. That is unsurprising in circumstances where a respondent has no occasion to enter a notice of respondent's intention before an appeal notice is accepted for filing. We were satisfied that the interests of the respondents were not prejudicially affected by the question of the format in which the appeal notice was presented to the ECMS for filing. If, on 5 March 2024, we had ruled that the appeal notice was in the wrong format, then the appellant would simply have filed a new notice in a compliant format before the time for appealing expired. In those circumstances, determining the question in the absence of the respondents did not, in our view, involve any failure to accord procedural fairness to the respondents.

Signature by 'a person who is not a party to the proceedings'

1. As noted above, a document signed by a person who is not a party to the proceedings is required to be presented for filing using the ECMS in a .pdf format with a manual signature. It is otherwise where the document is signed by a person who is a party to the proceedings.
2. In our view, a document signed by a legal practitioner acting on behalf of a party to proceedings is signed by that party to the proceedings for the purpose and within the meaning of O 67A r 4(4)(c) of the Rules (ie it is a document that is not listed in subrule 4(4) for the purpose of subrule 4(6)). Where, under the Rules, the document must be signed before it is filed, a document signed by a legal practitioner on behalf of a party to proceedings is appropriately presented for filing using the ECMS by lodging it in a .docx format with the name of the person signing printed in the place where a signature is required. We would, in this respect, construe the reference to a document signed by a person who is a party to the proceedings as meaning a document signed by or on behalf of a person who is a party to the proceedings.
3. Statutory references to the signature of a person are commonly read as including a signature by the agent of the person signing on the person's behalf.[7] Against that background, it is natural to read the reference in O 67A r 4(4)(c) to the signature of a person as including a signature by the person's legal practitioner on the person's behalf.
4. The purpose of requiring a manual signature in documents signed by persons who are not a party to the proceedings is to enable proper verification of the person's signature. The Rules provide for a person to become an 'authorised user' of the ECMS. Order 1 r 8 of the Rules provides for documents to be given to and provided by authorised users of the ECMS. The term 'authorised user' is defined in O 1 r 4(1) of the Rules to mean:

a person who is registered with the Court to send documents to the Court, and to receive documents from the Court, by means of the ECMS[.]

1. The process of registration as an authorised user of the ECMS involves verification of the registered person's identity and the allocation of a unique log in and password.[8] An authorised user, whether the user be a legal practitioner or party, who presents a signed document for filing must do so by verifying the user's identity through logging into the ECMS. The presentation of the document by a party indicates the party's authorisation of the printing of the party's name where a signature is required on the document. The presentation of the document by a legal practitioner acting for a party indicates the authorisation of the printing of the legal practitioner's name in that place. Where a document presented by a legal practitioner has the name of the practitioner's client printed in a place required for the signature on the document, the printing of the name is authorised by the legal practitioner as the party's agent. By contrast, where an authorised user presents a document signed by a non-party for filing using the ECMS, there would be nothing to indicate that the printing of the name of the non-party was authorised by the person.
2. The above purpose of the provisions is achieved by requiring a manual signature of a person other than a party or the legal practitioner representing the party. There is no apparent purpose to be achieved by requiring a manual signature of a legal practitioner acting for a party on a document which the legal practitioner presents for filing using the ECMS.
3. We respectfully disagree with the view, expressed by Hill J in Frigger, that the way in which the ECMS operates is of little assistance in the proper construction of the Rules.[9] The Rules and the ECMS were not developed independently or in isolation from each other. The two go hand in hand. Order 67A of the Rules was made to facilitate, and generally make mandatory, the use of the ECMS. It would be illogical and irrational to make a rule requiring the use of the court's system for filing documents and at the same time impose a requirement for the filing of documents which could not be satisfied using the court's system. Such an objective intention should not be attributed to the judges who made the amendments introducing the relevant provisions into O 67A of the Rules.
4. In this respect it is well settled that inconvenience or improbability of result assists in preferring an alternative meaning over a literal meaning where the alternate construction is reasonably open and more closely conforms to the legislative intent.[10]
5. The fact that the operation of the ECMS requires the filing of certain signed documents, including an appearance, in .docx format (and did so when the relevant provisions of O 67A were introduced) is context against which the Rules must be construed. The fact that the ECMS does not (and did not when the relevant provisions of O 67A were introduced) accommodate the filing of appearances by an unrepresented party in .docx format and appearances by a represented party in .pdf format counts strongly against Hill J's construction of O 67A r 4(4)(c) of the Rules.
6. In our view, the reference in O 67A r 4(4)(c) to 'a document signed by a person who is not a party to the proceedings' is to a document which is not signed either by the party or by a legal practitioner acting on behalf of the party. That construction best accommodates the language of the provision when considered in the context of common law interpretive rules, the purpose of the provision and the features of the ECMS which the Rules generally require parties to use.
7. There may be instances where the subject matter, terms and context of a particular rule indicate an intention, despite the terms of O 67A, that a manual signature by a party and/or legal practitioner is required. However, there is nothing in the terms of r 29 read with Form 2 of the CoA Rules (or in O 12 of the Rules) which suggests such a contrary intention.
8. In the present case, the appeal notice signed by the appellant's solicitor is not a document signed by a person who is 'not a party' to the proceedings within the meaning of O 67A r 4(4)(c) of the Rules. It is, as a document signed on behalf of the appellant by his legal practitioner, relevantly a document signed by a person who is a party to the proceedings within the meaning of O 67A r 4(4)(c) of the Rules. The appeal notice was appropriately presented for filing using the ECMS in a .docx format with the name of the legal practitioner (in this case Mr Huggins) printed in the place where a signature is required.

1. Even if we were wrong in reaching the above conclusion, the result would not be that the appeal notice was a nullity. Under O 2 r 1(1) of the Rules:

Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these 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.

1. Order 2 r 1(2) provides for the court's discretionary power to set aside proceedings, a step taken in proceedings, or a document, judgment or order therein, on the ground that there has been a failure to comply with the Rules. Order 2 r 2 makes provision in relation to an application by a party to set aside for irregularity any proceedings, a step taken in proceedings, or a document, judgment or order therein.
2. Order 67A r 4(14) relevantly provides that a document that is presented for filing using the ECMS but not in accordance with the requirements of the ECMS and O 67A r 4 is taken not to have been filed. That provision must be read with, and operates subject to, O 2 r 1 of the Rules. In reconciling the two provisions of the Rules, it is necessary to bear in mind the requirement in O 1 r 4B(2) that the Rules are to be construed so as best to ensure the attainment of the objects referred to in O 1 r 4B(1) of the Rules. Those objects include promoting the just determination of litigation.
3. If a document presented for filing using the ECMS and accepted for filing by the court, but which did not comply with the requirements of O 67A r 4 in some respect, was a nullity about which nothing could be done, then the Rules would provide for the antithesis of the just determination of litigation. It would constitute not merely the triumph of form over substance but rather the triumph of the formatting of electronic documents over substance.
4. In that regard, the formatting requirements of O 67A r 4 are not confined to the requirements for signed documents which we have noted. They include, under O 67A r 4(9), formatting requirements specified by the Practice Directions. Those formatting requirements include, for example, that the space for details of the party filing the document and the date of the document must not exceed 50 mm in depth.[11] It can hardly be supposed that a document will be of no effect if the space were 51 mm, and that this defect, whenever it might be discovered, is incurable.
5. In our view, O 67A r 4 operates subject to O 2 r 1 of the Rules. A document presented for filing using the ECMS which does not comply with the formatting requirements of O 67A r 4 of the Rules, and which is accepted for filing, is not a nullity. In an appropriate case, the document might be set aside on the ground of that irregularity under O 2 r 1(2) or O 2 r 2. However, given that the requirements of O 67A r 4 are concerned only with formatting, cases in which it will be appropriate to set aside the document on grounds of the irregularity should be exceedingly rare.
6. Aspects of the operation of O 2 r 1 were considered by this court in The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd,[12] and Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia.[13] It is unnecessary to consider any of the issues left open in those cases. In our view, formatting errors in documents presented to the ECMS for filing provide a paradigm example of a case where O 2 r 1 should be applied to deal with any irregularity.
7. In the present case, if (contrary to our view) the appeal notice was irregular, then that would be because it was in a .docx format with a printed name of the person signing rather than in a .pdf format with a manual signature of the person signing. Nothing of substance in the appeal proceedings could turn on that different formatting. There could be no prejudice to the respondents. In those circumstances any irregularity should be dealt with under O 2 r 1 of the Rules in a way that does not involve setting aside the document.

Requirement for signature by a 'legal practitioner'

1. In the circumstances of the present case, it is not necessary to decide whether in Frigger Hill J was correct to conclude that the reference to a 'legal practitioner' in O 12 of the Rules is to an Australian legal practitioner (such a person being an individual natural person rather than a law firm or an incorporated legal practice). That is because the appeal notice in this case was signed by an Australian legal practitioner. However, because of the importance of the matter to the general practice of the court we consider it appropriate to make the following (necessarily obiter) observations about the issue.
2. The Rules do not define the term 'legal practitioner'. However, in s 5 of the Interpretation Act 1984 (WA) it is provided that in that Act and every other written law the term 'legal practitioner' means an Australian legal practitioner as defined in s 6(1) of the Uniform Law.[14] By s 6(1) of the Uniform Law:

Australian legal practitioner means an Australian lawyer who holds a current Australian practising certificate.

1. An 'Australian lawyer' is defined in s 6(1) to mean a person admitted to the Australian legal profession in Western Australia or any other relevant jurisdiction. Necessarily the term is confined to individual natural persons.
2. Although Hill J did not expressly refer to the Interpretation Act definition in Frigger, her Honour in effect found that it applied to the term as used in O 12 r 2(1)(a) of the Rules. Taken to its logical conclusion, that finding would mean that a law firm or an incorporated legal practice could not act for a party in beginning, continuing or defending an action in the Supreme Court. That is because a law firm or an incorporated legal practice is neither a 'solicitor' (O 4 r 3(2) of the Rules) nor a 'legal practitioner' (O 12 r 1 of the Rules). We do not accept that construction of the Rules. It adopts a literal application of the defined words 'legal practitioner' which is inconsistent with context and purpose.
3. There is a presumption that defined words in a statute have their defined meanings which are not to be displaced without good reason.[15] However, all statutory definitions yield to a contrary intention.[16] A statutory definition may be displaced expressly or by implication. In this respect, interpretation clauses must be interpreted reasonably - and so as to promote, not to defeat, the purposes of the Act which they are intended to elucidate.[17] Definitions contained in the Interpretation Act are no different and, as provided for in s 3 of that Act, operate subject to any intent and object which is inconsistent with such application.
4. The term 'legal practitioner' is used throughout the Rules. We accept that there are occasions where it is used conformably with the defined meaning in s 5 of the Interpretation Act, such as rules which require certificates to be given by a legal practitioner.[18] In context, having due regard to the purpose of those rules, the obligation is that an identified Australian lawyer holding a current Australian practising certificate acting for the litigant provide the certificate. But this is not always the case. In our view, it is not the case in O 12 r 1(1) and r 2(1)(a) of the Rules. The statutory definition is displaced by necessary implication. The reference in O 12 r 1(1) and r 2(1)(a) of the Rules to a 'legal practitioner' is to be read and construed as any person or entity entitled to engage in such legal practice in Western Australia (ie a person or entity who is entitled to practice law or provide legal services in defending proceedings in the Supreme Court). There are four reasons for this conclusion.
5. First, as a matter of historical context, solicitor firms have acted for bodies corporate and natural persons in beginning, continuing and defending proceedings in the Supreme Court before the introduction of the Rules and prior to the various amendments to O 4 r 3 and O 12 of the Rules. Hitherto it has never been suggested that the entitlement to do so is restricted to sole practitioners meeting the criteria of being an Australian lawyer holding a current Australian practising certificate - or, alternatively, that such an identified individual Australian lawyer must be on the record on behalf of a law firm or other law practice acting for a litigant. The historical practice - one that informs the proper understanding and construction of O 4 r 3 and O 12 r 1 of the Rules - has been that the reference to a 'solicitor' or a 'legal practitioner' has been to those persons or entities entitled to engage in legal practice of the relevant kind in Western Australia. The words should be given a meaning conformable with that understanding of the historical practice, a historical practice of which the court was well aware in making the Rules.
6. Secondly, unlike O 12 r 1, O 4 r 3 of the Rules uses the term 'solicitor'. Order 4 r 3 and O 12 r 1 of the Rules should be read in close conjunction if the Rules are to be read consistently - O 12 r 1 is dealing with the other side of the coin to O 4 r 3 of the Rules. This, in our view, provides a clear contextual indicator that 'legal practitioner' is not used in the sense of its strict defined meaning under s 5 of the Interpretation Act. Rather, understood and construed in context, the term 'legal practitioner' in O 12 r 1 is equivalent to the term 'solicitor' in O 4 r 3 of the Rules - the reference is to a person or entity entitled to engage in legal practice of the relevant kind in Western Australia.
7. Thirdly, nothing in the statutory purpose or object that underpins O 12 r 1 of the Rules gainsays this construction. But, if O 12 r 1 of the Rules was read and construed as requiring that a party could only enter an appearance and defend an action by a legal practitioner as defined (ie an Australian lawyer who holds a current Australian practising certificate) there would be an exclusion of many kinds of law practices that are otherwise entitled to engage in legal practice of the relevant kind in Western Australia. The strict application of the defined meaning does not promote the purpose or object underlying the rule - namely, that a party to proceedings in the Supreme Court be represented by a person or entity entitled to engage in such legal practice in Western Australia.
8. Fourthly, the ability of a law practice to act for a party in Supreme Court proceedings is not governed by either the Rules or the CoA Rules. Rather, it is governed by the provisions of the Uniform Law. The Rules, as subsidiary legislation, would be void to the extent they were inconsistent with the provisions of the Uniform Law giving law practices the right to engage in legal practice including representing parties in proceedings in the Supreme Court.[19]
9. By s 10(1) of the Uniform Law, an entity must not engage in legal practice in Western Australia unless it is a qualified entity. The term 'qualified entity' is defined in s 6(1) of the Uniform Law to include both an Australian legal practitioner and a 'law practice'. A 'law practice' is defined in s 6(1) to include a law firm and an incorporated legal practice. A law firm is defined in s 6(1) to include a partnership consisting only of Australian legal practitioners.
10. Under s 32 of the Uniform Law, legal services may be provided under any business structure, subject to the provisions of the Uniform Law and the Uniform Rules (that term being defined in s 6(1)). 'Legal services' are defined in s 6(1) to mean work done, or business transacted, in the ordinary course of legal practice. Representing parties in prosecuting or defending proceedings in the Supreme Court plainly involves the provision of legal services as defined. A construction of the term 'legal practitioner' in O 12 of the Rules which prevented a party from prosecuting or defending proceedings by a law firm or an incorporated legal practice would be inconsistent with s 32 of the Uniform Law.
11. Part 3.7 of the Uniform Law deals with incorporated and unincorporated legal practices.[20] In this respect div 1 of pt 3.7 commences:
    1. Application of this Division

This Division applies to a law practice that is an incorporated legal practice or an unincorporated legal practice.

A law practice to which this Division applies is entitled to engage in legal practice in this jurisdiction, and may also provide other services.

1. The phrase 'engage in legal practice' is defined in s 6(1) to include practising law or providing legal services. The construction adopted by Hill J in Frigger would see the Rules purport to deny the entitlement conferred by s 103 of the Uniform Law on incorporated legal practices.
2. For the above reasons, the construction of the term 'legal practitioner' in O 12 of the Rules adopted in Frigger is incorrect and should not be followed.
3. Various provisions of the CoA Rules, including in pt 4 of the Rules, contemplate that a 'legal practitioner' may act for a party in an appeal. Having regard to the statutory context noted above, the references to a 'legal practitioner' in these provisions and in the associated forms for an appeal notice in the CoA Rules are, in our opinion, references to any person or entity entitled to engage in such legal practice in Western Australia.

1. For the above reasons, at the hearing of the Court of Appeal registrar's reference we directed that the appeal notice in this case be accepted for filing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Frigger v Professional Services of Australia Pty Ltd [No 2] [2024] WASC 46.

[2] See the definition of 'ECMS' in O 1 r 4 of the Rules.

[7] See the discussion of relevant legal principles in Nielsen v Capital Finance Australia Ltd [2014] QCA 139; [2014] 2 Qd R 459 [51] - [70] (Muir JA, Douglas J agreeing).

[8] See Supreme Court of Western Australia, Consolidated Practice Directions, 18 October 2023, Practice Direction 1.1.4.21 - 1.1.4.27.

[10] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384, 408.

[11] See Consolidated Practice Directions, Practice Direction 1.2.1.10.

[12] The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; (2007) 35 WAR 412 [47] - [54].

[13] Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112 [35] ‑ [44].

[14] The Uniform Law is the law set out in sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic) as applied as a law of Western Australia by s 6 of the Legal Profession Uniform Law Application Act 2022 (WA).

[15] DFD Rhodes Pty Ltd v Hancock Prospecting Pty Ltd [2022] WASCA 97 [361].

[16] Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150 [89].

[17] Re application of Fourth South Melbourne Building Society [1883] VicLawRp 46; (1883) 9 VLR (E) 54, 58.

[18] For example, various certificates as to discovery must be given by a legal practitioner: see O 26 r 16A and O 26A r 8 of the Rules.

[19] See s 43 of the Interpretation Act.

[20] The phrase 'unincorporated legal practice' is defined in s 6(1) of the Uniform Law to mean partnerships and certain other associates which are not a law firm, a community legal service or an incorporated legal practice.