Choy v Tiaro Coal Ltd

Court of Appeal (NSW)|2018-08-28|Before: Gleeson JA, Leeming JA, Payne JA

and (2008) 237 CLR 66; [2008] HCA 42 Plowman v Palmer (1914) 18 CLR 339; [1914] HCA 41 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Tolcher v Gordon [2005] NSWCA 135; 53 ACSR 442 Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; 117 ACSR 176 Weston v Publishing and Broadcasting Ltd [2012] NSWCA 79; 88 ACSR 80 Texts Cited: E Campbell, Rules of Court: A Study of Rule-Making Powers and Procedures (1985, Law Book Company Ltd) K Lindgren, "Harmonisation of Rules of Court in Australia" [2004] FedJSchol 12 Category: Principal judgment Parties: Francis Choy (First Applicant) Rado Jacob Rebek (Second Applicant) Ibrahim Menudin (Third Applicant) Wei Huang (Fourth Applicant) Hudson Resources Ltd (Fifth Applicant) Hudson Corporate Ltd (Sixth Applicant) Tiaro Coal Ltd (in liquidation) (Respondent) Representation: Counsel: M Condon SC, N Bender (Applicants) R Dick SC, D Sulan (Respondent)

Solicitors: Baker & McKenzie (Applicants) Bridges Lawyers (Respondent) File Number(s): 2018/201123 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2018] NSWSC 828 Date of Decision: 05 June 2018 Before: Black J File Number(s): 2017/137955

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] On 8 May 2017, the respondent filed an originating process in the Supreme Court naming the first to sixth applicants as defendants. The claim attracted the operation of the Corporations Rules 1999 (NSW) (Corporations Rules). Rule 2.7(1) of the Corporations Rules relevantly provided that "As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process". Rule 6.2(4) of the Uniform Civil Procedure Rules 2005 (NSW) (Uniform Rules) relevantly provided that an "originating process is valid for service … for six months after the date on which it is filed." The respondent served the applicants in November 2017 - slightly less than six months after the proceedings were commenced. The reason for the delay was that the respondent wished to secure an arrangement with a litigation funder before effecting service. The applicants applied to have the originating process set aside for non-compliance with r 2.7. The primary judge considered the application on the basis, favourably to the applicants, that there had been such non-compliance, but nonetheless dismissed the application on discretionary grounds. The applicants sought leave to appeal. Held, by Leeming JA, Gleeson JA and Payne JA agreeing:

Where a civil proceeding is commenced under the Corporations Act 2001 (Cth), the Corporations Rules apply, and the Uniform Rules apply to the full extent that they are relevant and not inconsistent with the Corporations Rules: at [20].
Discussion of the background of and relationship between the Uniform Rules and the Corporations Rules: at [10]-[20], [24]-[26].
Non-compliance with the requirements as to service in r 2.7 of the Corporations Rules is an irregularity within the meaning of s 63 of the Civil Procedure Act 2005 (NSW) entitling the recipient to apply under s 63(3) for orders setting aside service, but does not of itself invalidate the proceedings or the service: at [36]-[37].
Insofar as r 6.2(4) of the Uniform Rules would authorise a plaintiff to delay effecting service, it is inconsistent with r 2.7 of the Corporations Rules, with the latter prevailing to the extent of the inconsistency, and the former applying to the extent that the rules are not inconsistent: at [45]-[46].
In respect of the dispositive reasoning of the primary judge, there is no question of principle or of general importance, and none of the applicants' proposed grounds of appeal warrant a grant of leave to appeal: at [65], [70]-[72], [76], [78], [81].

Judgment

GLEESON JA: My reasons for joining in the orders of the Court on 28 August 2018 that leave to appeal be refused with costs, accord with the reasons of Leeming JA with which I agree.
LEEMING JA: These are my reasons for joining in orders made at the conclusion of the hearing that leave to appeal be refused with costs.
The first to sixth applicants are six of the nine defendants to proceedings commenced by originating process filed on 8 May 2017. The respondent, which is the plaintiff in those proceedings, is a company to which liquidators were appointed on 10 December 2015 (they had previously been administrators appointed under s 436A of the Corporations Act 2001 (Cth)).
The nature of the litigation is best revealed by a draft statement of claim, which was annexed to an affidavit accompanying the originating process. In that pleading, five of the nine defendants are said to have been directors of the respondent, while a sixth is said to have been its chief financial officer. One of the men said to have been a director, and the man said to have been the chief financial officer, are alleged to have been, respectively, the director and chief financial officer of each of the three corporate defendants. All six of the natural person defendants are alleged to have breached fiduciary duties and duties under ss 180 and 181 of the Corporations Act owed by them to the plaintiff company. There are also claims of knowing receipt of property transferred in breach of duty.
The allegations of breach and knowing receipt arise out of transactions associated with six exploration permits for coal issued under Queensland legislation and the entry into an Executive Services Agreement in around February 2008 with one corporate defendant, which is said to have been assigned to another corporate defendant on around 11 March 2011. The other transactions alleged need not be summarised. Most occurred in the period between March and November 2011. The originating process was filed on 8 May 2017 and, for present purposes, it suffices to say that prominent in the submissions advanced at first instance and in this Court was the possibility of at least some of the causes of action being statute-barred, to the knowledge of the liquidators.
The defendants were not served until the first week of November 2017, slightly less than six months after the proceedings were commenced. Promptly after they were so served, the defendants moved to set aside the originating process, or alternatively the service of the originating process upon them. (In what follows, I shall for concision follow the parties' usage and refer merely to setting aside service of the originating process.) The application was heard by the primary judge (Black J) on 9 May 2018, and dismissed by judgment delivered on 5 June 2018: In the matter of Tiaro Coal Ltd (In liq) [2018] NSWSC 828. It is from that judgment that the applicants seek leave to appeal.
Leave is required because the judgment of the primary judge is interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e). The principles governing the grant of leave are well established, and have recently been summarised thus: "Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]." See Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] and Breen v Clough [2018] NSWCA 172 at [41].
Plainly enough, the judgment is one that relates to a matter of practice and procedure, attracting the appellate restraint and reluctance mentioned in Treadtel International Pty Ltd v Cocco [2016] NSWCA 360; 117 ACSR 176 at [29]. Further, as will be seen below, the dispositive reasoning of the primary judge amounted to the exercise of a discretion, and the applicants accepted that appellate intervention was only permissible on the grounds identified in House v The King (1936) 55 CLR 499; [1936] HCA 40. The applicants accepted that the determination whether to set aside service of the originating process involved a "balancing process" which included an evaluation of the extent of the respondent's delay and the reasons for it, and the extent to which the applicants had demonstrated, or might be presumed to have suffered, prejudice. However, success on the part of the applicants would have ended the litigation against them. Accordingly, the position is on all fours with that considered by Jordan CJ in In re the Will of F B Gilbert (decd) (1946) 46 SR (NSW) 318 at 323, namely, an exercise of discretion on a point of practice or procedure which determines substantive rights. In this class of case, "a Court of Appeal submits itself to self-imposed restraints, but restraints which, though strict, are somewhat less stringent than those adopted in matters of practice or procedure".
The hearing in this Court proceeded concurrently, and the parties had the opportunity to present full submissions not only on the question of leave, but also on the appeal itself.

The construction and operation of the Uniform Rules and the Corporations Rules

The application was said to raise questions of general importance, relating to the construction of the Supreme Court (Corporations) Rules 1999 (NSW), and their interaction with the Uniform Civil Procedure Rules 2005 (NSW). It will be convenient to refer to the Corporations Rules and the Uniform Rules, respectively. They have quite different pedigrees, and their inter-relationship is complex.
The Corporations Rules were originally named the Corporations Law Rules. They were made by the Supreme Court Rule Committee pursuant to the power conferred by s 124 of the Supreme Court Act 1970 (NSW). They commenced on 1 March 2000. At all times, they were delegated legislation. Being rules of court, they are excluded from the automatic repeal otherwise required by s 10(2) of the Subordinate Legislation Act 1989 (NSW): see definition of "statutory rule" in s 3 read with Schedule 4.
The Uniform Rules are the rules found in Schedule 7 of the Civil Procedure Act 2005 (NSW) as originally enacted, and as amended and repealed by the Uniform Rules Committee in accordance with s 9 of that Act. The Uniform Rules are in large measure the successor to the Rules of the Supreme Court, which were found in the Fourth Schedule to the Supreme Court Act 1970 (NSW) as originally enacted, as amended and repealed by the Supreme Court Rule Committee. The enactment of rules as a schedule to a statute, which statute also confers power upon a committee to make further rules, and to amend or repeal the existing rules, may also be seen in the rules appended to the Supreme Court (Judicature) Act 1875 (38 & 39 Vic c 77), summarised in E Campbell, Rules of Court: A Study of Rule-Making Powers and Procedures (1985, Law Book Company Ltd), 7-11.
Both the Corporations Rules and the Uniform Rules are "harmonised". By that is meant that attempts have been made for a measure of uniformity. The narrower subject matter addressed by the Corporations Rules appears to have led to a high degree of harmonisation, and from an earlier point in time: see K Lindgren, "Harmonisation of Rules of Court in Australia" [2004] FedJSchol 12, where the history is summarised. The Uniform Rules are intended to apply to all forms of civil litigation, including in inferior and superior courts. However, the breadth of that field of operation has the result that there are further rules applicable to aspects of proceedings which only arise in particular courts (thus for example, there are other rules dealing with trustees and probate applicable only to the Supreme Court, as well as rules applicable only to the classes of matters within the exclusive jurisdictions of the Dust Diseases Tribunal and the Land and Environment Court).
Section 3 of the Civil Procedure Act defines "uniform rules" as the rules made, or taken to have been made, under s 9 of the Act, and "local rules" to mean "rules of court other than uniform rules". Thus the Corporations Rules are "local rules" for the purposes of the Civil Procedure Act.
Section 11 of the Civil Procedure Act provides: "11 Relationship between uniform rules and local rules (1) The uniform rules prevail over any provision of any local rules unless the uniform rules expressly provide that the provision of the local rules is to prevail. (2) One rule prevails over another, as referred to in subsection (1), to the extent only of any inconsistency between them."
However, r 1.7 of the Uniform Rules provides: "1.7 Local rules that prevail over these rules The rules of court specified in Schedule 2 prevail over these rules."
The Corporations Rules are specified in Schedule 2. When s 11 is read with r 1.7, it is clear that the qualified invocation of inconsistency applies in two distinct ways. In the ordinary case, absent a provision such as r 1.7, the Uniform Rules will prevail over local rules, but only to the extent of any inconsistency between them. By reason of r 1.7, the Corporations Rules prevail over the Uniform Rules, but, once again, only to the extent of any inconsistency between them. Thus the supremacy given to the prevailing rules is in all cases qualified by the words "to the extent" and "only". Both those qualifications are important. Their effect is to bring about the result that subordinate rules will be inapplicable only insofar as is necessary to avoid inconsistency with prevailing rules.
Those provisions dovetail with the application provision in the Corporations Rules. Rule 1.3 provides: "1.3 Application of these Rules and other rules of the Court (1) Unless the Court otherwise orders: (a) these Rules apply to a proceeding in the Court under the Corporations Act ... (2) The other rules of the Court apply, to the extent that they are relevant and not inconsistent with these Rules: (a) to a proceeding in the Court under the Corporations Act ..."
It was common ground that the liquidators had caused the company to commence a "proceeding in the Court under the Corporations Act" within the meaning of r 1.3 of the Corporations Rules, such that those rules applied. It was for that reason that the litigation was commenced by originating process, rather than summons or statement of claim. Other rules of the Court, including the Uniform Rules, applied "to the extent that they are relevant and not inconsistent with" the Corporations Rules: r 1.3(2).
The upshot is that where, as here, a civil proceeding is commenced under the Corporations Act, the Corporations Rules apply, while the Uniform Rules apply to the full extent that they are relevant and not inconsistent with the Corporations Rules.

The difference between commencement and service

It is as well lest there be confusion to distinguish between the commencement of civil litigation and the service of an originating process.
Civil proceedings are ordinarily commenced by filing an originating process, although in extremely urgent cases proceedings may be commenced and relief obtained before an originating process is filed. Service also goes to jurisdiction, in the sense that a court's authority to decide a dispute ordinarily depends upon the valid service of its process: see for example Laurie v Carroll (1958) 98 CLR 310 at 323-324; [1958] HCA 4. However, service is not required to commence proceedings. To the contrary, r 6.2 of the Uniform Rules relevantly provides that "a person may commence proceedings in the court by filing a statement of claim or a summons", and r 2.2 of the Corporations Rules provides that (subject to presently immaterial qualifications) applications under the Corporations Act which are not made in a proceeding which has already been commenced must be made by filing an originating process. The form of the document is different, but in each case its filing is sufficient to commence proceedings.
Service is a requirement of the rules, but as the terms of those rules (as well as the power to make orders dispensing with service or for substituted service) make clear, proceedings are commenced even though service has not been effected.

Both sets of rules deal with service of process

Both the Corporations Rules and the Uniform Rules deal with service of process. Rule 6.2(4) of the Uniform Rules provides, relevantly, that an "originating process is valid for service … in the case of proceedings in the Supreme Court … for six months after the date on which it is filed". It will be seen that, to the extent that that rule is applicable, it was complied with (subject to one minor matter addressed by the primary judge at [18], [23] and [67] which is outside the scope of this appeal and may therefore be passed over).
The six month period specified in r 6.2(4) reflects the result of a process of legislative change which has steadily shrunk the period within which an originating process is valid for service. Without being exhaustive, Pt 7 r 7 of the Supreme Court Rules 1970 provided for a period of two years, and made no specific provision for the court to extend time. In 1998, by the Supreme Court Rules (Amendment No 323) 1998, the period was reduced to one year from the date of filing, and provision was made for the court to otherwise order. At all times since the commencement of the Uniform Rules, the rule has been in the form reproduced above.
The Corporations Rules also deal with service of process. Division 2 of the Corporations Rules is headed "Proceedings generally" and makes provision as to the contents and service of an originating process. An originating process must be in accordance with Form 2 (r 2.2(3)(a)) and upon receiving it the Registrar "must fix a time, date and place for hearing and endorse those details on the originating process": r 2.3(a). The same obligation also applies to an interlocutory process. Rule 2.7 provides: "2.7 Service of originating process or interlocutory process and supporting affidavit (1) As soon as practicable after filing an originating process and, in any case, at least 5 days before the date fixed for hearing, the plaintiff must serve a copy of the originating process and any supporting affidavit on: (a) each defendant (if any) to the proceeding, and (b) if the corporation to which the proceeding relates is not a party to the proceeding - the corporation. (2) As soon as practicable after filing an interlocutory process and, in any case, at least 3 days before the date fixed for hearing, the applicant must serve a copy of the interlocutory process and any supporting affidavit on: (a) each respondent (if any) to the application in the interlocutory process, and (b) if the corporation to which the application in the interlocutory process relates is not a party to the application in the interlocutory process - the corporation."

Was there a contravention of r 2.7?

Before the primary judge and in this Court, the applicants submitted that there had been a non-compliance with r 2.7, in so far as the originating process had not been served until almost six months after it had been filed. That period of time was, so it was put, neither "as soon as practicable after filing", nor "at least five days before the date fixed for hearing". The originating process had been endorsed by the Registrar with a hearing date of 9am on 24 May 2017.
The applicants contended that r 2.7 imposed two time constraints ("as soon as practicable", and "in any case at least 5 days before the date fixed for hearing") that the respondent was obliged to serve the originating process before each of those times specified, and that a delay of more than five months complied with neither limb.
The respondent disputed that there was any non-compliance with r 2.7. Its submission turns upon two questions of construction. The first contended that compliance with r 2.7 was achieved if service was effected before either of the two times specified in its opening words: "The rule provides for two periods in which the originating process can be served: firstly, as soon as practicable; and then those words 'and in any case at least five days fixed before the date fixed for hearing' is a second time period. Compliance with either satisfies the rule."
Secondly, it was submitted that the second of those times specified, namely, "five days before the date fixed for hearing", should be read as referring to five days before "a substantive hearing" in the proceedings, which was a "hearing at which the claims that are the subject of the process are going to be heard and determined".
Large obstacles stand in the way of acceptance of either of the respondent's submissions on construction. 1. As for the first, the obligation to serve within the time periods is expressed to be cumulative, not only by the conjunction "and", but also and especially by the words "in any case". It is difficult to see how those words could be consistent with a construction which leaves it to the plaintiff to elect which time period is applicable. On a natural reading, those words mandate in all cases service five days before a certain date, recognising that there may be room for dispute as to what is "as soon as practicable" in any particular case, but in no case relieving the plaintiff from the obligation to serve at least five days before the date. 2. As for the second, the rules are to be read as a whole. The words in r 2.7 "the date fixed for hearing" echo r 2.3(a) (the provision requiring the Registrar to endorse the originating process with "a time, date and place for hearing"); in contrast, nowhere in the rules is reference made to a date fixed for a "substantive hearing". The words in r 2.7(1) are also to be contrasted with the three day period specified in r 2.7(2) for service of interlocutory processes. The fact that a different timeframe is specified for the different document, upon which the Registrar is also obliged by r 2.3 to fix a date, suggests that the reference is to that date.
The respondent prayed in aid what was said in Horne v Retirement Guide Management Pty Ltd [2017] VSCA 47; 118 ACSR 509 at [109]. It is to be doubted whether that paragraph supports the respondent's construction, and, as Mr Dick SC (who with Mr Sulan appeared for the respondent) acknowledged, other paragraphs of that judgment, including [110], tended against that construction. In any event, the reasoning in that decision was not directed to any of the matters pointing against the submission referred to above.
However, it will not be necessary to determine the correctness of any of the submissions on construction because, no differently from the primary judge (as will be seen below), it is sufficient to proceed on a basis, favourable to the applicants, that there was non-compliance with r 2.7. Questions of construction of the rules should be reserved for determination on an occasion where the answers are dispositive.

The consequences of contravening r 2.7

Section 63 of the Civil Procedure Act provides as follows: "63 Directions with respect to procedural irregularities (1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect. (2) Such a failure: (a) is to be treated as an irregularity, and (b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings. (3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1): (a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part, (b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally. (4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure."
Professor Campbell has explained that provisions such as s 63 reflect amendments made following the decision of the Court of Appeal in In re Pritchard decd [1963] Ch 502, and a line of decisions (including for example Plowman v Palmer (1914) 18 CLR 339 at 344, 346 and 347-348; [1914] HCA 41) distinguishing departures from the rules which were nullities as opposed to mere irregularities: see E Campbell, Rules of Court, 208-222. The consequence under the amended form of rule was stated in Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729 at 735: "This new rule does away with the old distinction between nullities and irregularities".
The applicants accepted that the effect of s 63 was that the non-compliance with r 2.7 was an irregularity which entitled them to apply pursuant to s 63(4) for orders setting aside the service of the originating process pursuant to s 63(3). They disavowed any submission that the non-compliance might itself and of its own force render the service invalid. That concession was correctly made, for these reasons. 1. First, s 63 applies to "rules of court". Section 3 of the same Act defines "uniform rules" as the rules made, or taken to have been made under s 9 of the Act, and "local rules" to mean "rules of court other than uniform rules". Thus the failure to comply with rules of court referred to in s 63(1) includes a failure to comply with r 2.7 of the Corporations Rules. 2. Secondly, the concession reflects the operation of s 63(2). Any non-compliance with r 2.7 does not invalidate either the proceedings or the service of the originating process. 3. Thirdly, r 2.7 is probably contravened dozens of times every week. Every time short service is ordered, there will probably be a contravention of the rule. 4. I mention this because notwithstanding the applicants' understandable emphasis upon the contravention of the rules, it remains essential to bear steadily in mind "the basic principle that the rules of the court are to be the servant of justice, not its master": Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279 at [38]. That echoed what had been said more than a century earlier in Clune v Watson (1882) Tarl 75 and In re Clear and Ravenshear [1907] 1 KB 1 at 4. It is easy to envisage situations where the overriding purpose in s 56 of the Civil Procedure Act is served by non-compliance with the rules. The legal system is highly complex, and its procedural rules are quite different from the rules of, say, a game of chess. One reason for this is that a court is empowered to dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case: Civil Procedure Act, s 14 (and, as Knight Bruce and Turner LJJ said in Ferrand v The Mayor, Aldermen and Burgesses of Bradford (1856) 8 De G M & G 93 at 95; 44 ER 324 at 325, there was also inherent power to dispense with compliance with the rules). Another reason is that although framed as "rules", departure from them is not unusual, and need not be accompanied by any impropriety whatsoever. A familiar and very common example, where litigation has been preceded by an exchange of solicitors' correspondence, is a defendant waiving an entitlement to be served personally. 5. None of the foregoing is to be understood as sanctioning departure from the rules which serve as the default requirements in civil litigation. The starting point of determining what is to occur in order to comply with a litigant's obligation to give effect to the overriding purpose will be compliance with the rules. Moreover, as the present litigation well illustrates, non-compliance enlivens other powers which may operate to the detriment of the defaulting litigant.
A variety of consequences may attend the failure to comply with a statutory requirement. Consistently with what was said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [91], the question is one of statutory construction. Not uncommonly, the statute is silent on the consequences of non-compliance, and so it becomes necessary to turn to legislative purpose. However, s 63 of the Civil Procedure Act makes express provision for the legal consequences of the failure to comply with, relevantly, r 2.7. The effect of s 63(2) and (3) is twofold. Subsection (2) means that the non-compliance is an irregularity and is of no consequence unless subsection (3) applies. Subsection (3) empowers the court to make an order which, unlike the non-compliance, will have immediate and direct consequences for the parties. These two subsections reinforce the basic conception that what ultimately matters is not mere non-compliance with the rules per se, but the exposure to a court order consequent upon such non-compliance.
Subsection 63(4) conditions the court's power to make orders converting the irregularity into something which is of legal consequence by the party (a) making application within a reasonable time and (b) not waiving the non-compliance by taking a fresh step after becoming aware of the non-compliance. It was not contended by the respondent that the qualifications in s 63(4) had not been satisfied. Indeed, somewhat remarkably, the solicitors for four of the applicants were able to obtain instructions from their clients to file interlocutory process seeking to set aside the originating process on the day after it had been served.
In that way, it has at all times been accepted that it was for the applicants to make out a case, displacing the effect of s 63(2), for orders setting aside the originating process or its service upon them.

Was r 6.2(4) of the Uniform Rules relevant to the discretion?

Nothing in s 63 expressly circumscribes the matters to which regard may be had in exercising the power to set aside service of originating process. As will be seen below, the primary judge had regard to the six month period for service in r 6.2(4). His Honour's doing so was not a ground of appeal, although the parties' submissions extended to its applicability. It is thus as well to explain why r 6.2(4) was, in part, applicable.
The parties exchanged all-or-nothing submissions as to whether r 6.2(4) applied. The applicants submitted that it was inconsistent with the obligations in r 2.7 and therefore inapplicable: "GLEESON JA: So when you look at the consequences of the breach of r 2.7 is not one matter the Court could take into account r 6.2? CONDON: In our submission no because there's an inconsistency between the two provisions. 2.7 says to the plaintiff 'You must serve this document,' the originating process, 'as soon as practicable,' et cetera, et cetera."
The respondent submitted that r 6.2(4) was directed to the validity of the originating process, not the timing of service, and thus was not inconsistent with r 2.7 and therefore relevant to the exercise of discretion: "There is no inconsistency between 2.7 and 6.2(4)(a) principally because 2.7 is not a rule that deals with the validity for service - of a period of validity for service - of an originating process filed in a corps list matter. It doesn't say anything about validity."
Reference was made, albeit with understandable reticence and qualification, to an analogy with inconsistency under s 109 of the Constitution, to "covering the field", and even to the older notion of repugnancy, although the significance of the qualified provisions of s 11 of the Civil Procedure Act and r 1.3 of the Corporations Rules, which are squarely directed to the resolution of conflicts, was absent from both sides' submissions.
No differently from many cases relating to the interaction of two statutory regimes, the answer turns upon a precise analysis of the rights, powers, privileges and immunities conferred by the provision. Rule 6.2(4) of the Uniform Rules relevantly does two things. First, it provides that an originating process may be served without the need for an extension within six months after it has been filed. Insofar as service of a valid originating process is an element of effective service, it thus identifies a timeframe during which service is valid. Secondly, at least when r 6.2(4) is considered in isolation, it gives a right to a plaintiff to effect personal service at any time in those six months. Another way of putting this is that it renders a defendant liable to personal service of valid originating process at any time within the six months following commencement of proceedings.
Rule 2.7 of the Corporations Rules says nothing about when an originating process ceases to be valid. However, it does impose an obligation to serve an originating process which is inconsistent with a plaintiff having an unfettered right to delay service for up to six months.
Insofar as r 6.2(4) would authorise a plaintiff to delay effecting service, it is inconsistent with r 2.7. The latter prevails and to that extent r 6.2(4) is not applicable. However, s 11 of the Civil Procedure Act and r 1.3 of the Corporations Rules ensure that r 6.2(4) nonetheless applies to the extent that they are not inconsistent. There is no inconsistency between r 2.7 and r 6.2(4) insofar as the latter specifies the time after which an originating process becomes stale and will need to be renewed if valid service is to be effected. To that extent, r 6.2(4) applied.
The somewhat complex result of the qualified provisions governing the interaction between the Corporations Rules and the Uniform Rules may be tested as follows. Plainly enough, it is no answer to a contravention of r 2.7 to say that there was no contravention of r 6.2(4); that is the point of their being inconsistent with the former prevailing. However, there is a significant difference between exercising the power under s 63 as a result of an irregularity resulting merely from the contravention of r 2.7, and exercising the power following a contravention of both r 2.7 and r 6.2(4). It is material in the latter case for the Court to bear in mind that not only was service not effected as soon as practicable, but also that the relatively generous six month period for service was not complied with.

The reasons of the primary judge

The primary judge summarised the evidence as to the steps taken by the liquidators prior to commencing proceedings at [6]-[24]. As noted above, the liquidators were appointed as such on 10 December 2015. In their former capacities as administrators, they had reported to creditors on 2 December 2015 that they had obtained advice that a liquidator could consider commencing legal proceedings against a number of current and former directors and officers of the company. The primary judge addressed, at [7], efforts taken by the liquidators to obtain funding in 2016. The primary judge rejected a submission made by the applicants that no attempts were made to secure funding prior to 9 February 2017, and found instead that: "the administrators had sought funding from Mr Aw immediately after their appointment, that funding arrangement contemplated the provision of third party funding for the potential proceedings and the liquidators had taken steps to pursue funding by third party funds between their appointment in December 2015 and February 2017."
The primary judge explained at [8], [9] and [12]-[17] that there was a series of further negotiations throughout 2017 with two separate potential litigation funders, resulting in the entry into of a funding agreement on 4 July 2017. However, following a due diligence period, that funder elected not to fund the proceedings on 6 September 2017, and a further agreement was entered into with a different litigation funder on 16 October 2017. The company's entry into that agreement was approved by orders made by the Federal Court of Australia on 23 October 2017. Service was effected shortly thereafter.
The primary judge addressed the discretionary decision whether the service of the originating process should be set aside or the proceedings dismissed at [49]-[66]. His Honour introduced the nature of the applicant's submission as follows (at [50]): "The delay was caused by the liquidators' decision, without good reason, to delay service until a time that was convenient to [TCL] almost six months after service was required by r 2.7(1). [TCL] has offered no reason as to why that occurred beyond the invalid reason that it wished to procure funding. The prejudice is properly characterised as being self-inflicted. During this period, presumptive prejudice accrued to the [Applicants] as a consequence of the liquidators' decision. That is a sufficient justification for the prejudice to [TCL] arising from the loss of some or all of its causes of action to be discounted entirely."
His Honour said that he would first have regard to the applicant's criticisms of the liquidators' conduct and the delay in service: at [52]. His Honour rejected a submission, which had not been put to the liquidators in cross-examination, that there had been a knowing non-compliance with r 2.7. His Honour relied upon what had been said by Tobias JA, with the agreement of Ipp JA, in Tolcher v Gordon [2005] NSWCA 135; 53 ACSR 442 at [126(b)]: "The liquidator made a conscious decision not to attempt service of the SLC before 1 August 2003 as he wished the litigation funding to be in place before that occurred. Although in a sense this was, as the primary judge found, a 'commercial decision' by the liquidator, nonetheless in my opinion it was appropriate, prudent and responsible and not a decision for which the liquidator can be justifiably criticised - at least without the benefit of hindsight."
The primary judge then continued at [55]: "In Weston v Publishing and Broadcasting Ltd (2012) 88 ACSR 80 at [187], Sackville AJA similarly doubted any proposition that a desire to secure litigation funding 'can never justify delay in serving initiating process', although the Court found that the delay in the particular case was not justified. A similar proposition appears to have been accepted by Ball J in Hastie Group Ltd (in liq) v Moore [2016] NSWSC 1682 where his Honour noted (at [58]) that it would have been imprudent for the liquidators in that case to serve proceedings before they had a reasonable degree of confidence that they would be able to meet their costs, including any costs orders made against the company in liquidation. As Mr Dick points out, cases in which reference has been made, without disapproval, to a delay in order to obtain litigation funding involve delays that were significantly longer than the delay that arose in this application."
Two important paragraphs in his Honours reasons are [57] and [58]: "It seems to me that Mr Goyal could properly be concerned that substantial proceedings should not be commenced, and the costs (including costs that would be unrecoverable on an assessment) of defending them not imposed upon the Applicants until TCL was in a position that it had the funding not merely to commence but to continue the proceedings to a determination on their merits. It seems to me that a liquidator may properly be, and very likely ought to be, concerned as to the impact of commencing substantial proceedings that he or she is not funded to continue to their conclusion. This conclusion is a factor tending against the exercise of the Court's discretion to grant the relief sought by the Applicants. The Applicants also submitted that it would have been open to Mr Goyal to serve the Originating Process and to seek, by agreement or by application to the Court, a stay of the proceedings in respect of any subsequent application for security for costs. That submission impliedly recognises that, had TCL adopted a different procedural approach, the proceedings could properly have been commenced but not progressed during the relevant period, although the Applicants contend that the proceedings should now be dismissed because TCL did not adopt that different approach. With respect, that submission emphasises the absence of detriment suffered by the Applicants by the approach adopted by TCL, by pointing to the fact that the Applicants would be in substantially the same position as they now are had TCL taken that different approach. I have not neglected that that different approach would have drawn the detail of the allegations made to the Applicants' attention at a somewhat earlier point. However, that highlights the absence of persuasive evidence of any disadvantage suffered by the Applicants, in the particular case, from the delay in drawing the detail of those allegations to their attention. This factor also tends against the grant of the relief sought by the Applicants."
Next, his Honour addressed a submission that the liquidator's delay amounted to an "impermissible arrogation from the Court to a third part [of] the right to decide the period by which the time for service is to be extended": at [59]. The applicants had invoked what had been said in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [82]. However, his Honour considered that nothing done by the liquidators had adversely impacted the Court's exercise of discretionary power.
His Honour addressed prejudice at [60]-[65]. There was no evidence of actual prejudice. There was evidence that a person retained by one of the corporate applicants had become aware of the proceedings in around May 2017 when she saw the matter listed. His Honour noted that senior counsel then appearing for the applicants accepted in oral submissions "that the evidence did not identify any particular prejudice to the Applicants but submitted that ... delay generally involves prejudice": at [60].
The primary judge made express reference to "presumptive prejudice" at [63] and [65]. However, his Honour noted that the applicants had not led evidence of any substance of actual prejudice, and regarded that a submission based on "presumptive prejudice" did not "adequately address the need for balancing between the interests of the applicants on the one hand, and the interests of TCL and its creditors in obtaining a trial on the merits on the other": at [65].
For those reasons, his Honour concluded that a basis did not appear to have been established for the Court to exercise its discretion to set aside service. His Honour concluded (at [66]): "Assuming, without deciding, that non-compliance with r 2.7 of the Corporations Rules was established, and the extension of the time for service sought by TCL, I would not exercise the judicial discretion arising under UCPR r 12.11(1) or s 63 of the Civil Procedure Act so as to set aside service of the Originating Process upon the Applicants or dismiss the proceedings."

The proposed grounds of appeal

The draft notice of appeal contained seven proposed grounds. Grounds 1, 2 and 4 were directed to questions of the construction of, and interaction between, rr 2.7 and 6.2(4)(a). Ground 3 challenged the failure to find that it had been practicable to effect service shortly after the proceedings were commenced. None of these grounds was dispositive, because the primary judge exercised the discretion to set aside service of the originating process on the basis, reproduced immediately above and favourably to the applicants, that there had been a contravention of r 2.7. Accepting that the construction of r 2.7 of the Corporations Rules is of general importance, as is its interaction with the six month period contained in r 6.2(4)(a) of the Uniform Rules, there is no occasion to grant leave to determine those points unless they are dispositive.
The two proposed grounds directed to the dispositive exercise of discretion by the primary judge were grounds 5 and 6. Ground 5 identified 12 errors in the "balancing exercise" conducted by the primary judge in determining whether or not to set aside service of the originating process. Ground 6 was directed to the re-exercise of discretion in the event that appellable error was established.
Proposed ground 7 addressed an alternative aspect of the reasoning of the primary judge. At [67]-[68], the primary judge addressed the respondent's alternative case which included extending the time for service. The primary judge said that were it necessary to do so, he would have extended the time for service so as to validate the service of the originating process. His Honour said that he would do so: "because I am satisfied that the interests of justice would not be served by a result that the statutory claims in these proceedings could not be pursued by TCL, in circumstances that corresponding general law claims could have been pursued by it in reliance on UCPR r 6.2(4), and such an extension would otherwise promote the interests of justice for the reasons noted above." This ground was dependent upon the success of grounds 5 and 6. It does not arise on the view I take of proposed grounds 5 and 6.

The grounds of appeal challenging the dispositive reasoning of the primary judge

The most convenient course is to address the various sub-grounds within ground 5, and the parties' submissions elaborating them, together, before turning to ground 6.

Sub-ground (a) - Failure to have regard to ss 56-59 of the Civil Procedure Act

The first sub-ground in ground 5 is that the primary judge failed to have regard to the mandatory requirements of ss 56-59 of the Civil Procedure Act, including the obligations to give effect to the overriding purpose to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". His Honour did, and expressly, have regard to s 56 in the course of evaluating the competing constructions of the rules, at [31]. The force of the applicant's submission was that in the dispositive exercise of discretion, no express mention was made of those sections.
It was accepted that no point was expressly made based on ss 56-59, notwithstanding the 23 single-spaced pages of written submissions, with 77 footnotes, advanced by the applicants to the primary judge. Nor was any such point put orally. That by itself makes this ground an unlikely vehicle for the grant of leave.
However, it is, with respect, clear that the entirety of the reasoning, directed as it was to the efficient conduct of the proceeding, the criticisms of delay on the part of the liquidators and questions of prejudice to the applicants, implicitly reflected the overriding purpose in the rules and the particular instantiations of that purpose in these rules. Delay by the respondent and the explanation for it, prejudice to the applicants (whether demonstrated or presumptive) and knowledge by the applicants all feed directly into whether the discretionary exercise of power to set aside service will facilitate the just, quick and cheap resolution of the real issues in the proceedings. There was no requirement upon the primary judge expressly to mention either the purpose or the sections of the Civil Procedure Act which mandate giving effect to it.
This proposed ground does not warrant a grant of leave.

Sub-grounds (b), (c), (d), (e), (f) and (g) - the reasons for the respondent's delay

These sub-grounds were all directed to the unchallenged evidence that service had been delayed until the respondent had obtained funding from a litigation funder. They were essentially as follows: 1. failing to find and take into account that the decision not to serve was deliberate, and actuated by a desire to obtain forensic advantages and other benefits and was contrary to the public policy of having an originating process filed shortly before the expiration of a limitation period being brought promptly to the defendant's notice (sub-ground (b)), 2. failing to find and take into account that the only reason proffered for the delay in service was a desire to secure litigation funding (sub-ground (c)), 3. finding that the respondent's decision not to serve until funding had been secured reflected a proper concern and was a factor tending against exercise of the Court's decision to grant relief to the applicants (sub-ground (d)). 4. failing to take into account the delays in procuring funding in the period from December 2015 until February 2017 (sub-ground (e)), 5. failing to find and take into account that the delay in service "was caused by the willingness of the respondent to do nothing about service while awaiting a decision from a litigation funder as to whether or not to provide the necessary funds" (sub-ground (f)), and 6. failing to find and take into account that the respondent did not have a good reason to delay service (sub-ground (g)).
Stripped of their prolixity, these sub-grounds advance three main complaints. The first, which is found in (b) and (c), is that the liquidators gained a forensic advantage by their delay, through avoiding a prompt application for security for costs, with the likelihood of a stay until security were provided and the possibility of the proceedings being dismissed if security were not provided thereafter. It was submitted that: "[The liquidator] made a deliberate decision not to serve a proceeding to get that advantage. It may have been security for costs; it may have been otherwise; it may have been to protect himself, but that was not a choice that he should have been allowed to arrogate to himself."
The second complaint is a challenge to the finding that it was appropriate for the respondent to delay service until a funding agreement was put in place (this is squarely raised by ground (d) and its converse ground (g)). The third is to the effect that the primary judge erred in failing to find that the months which elapsed prior to a funding agreement being put in place should have told against the exercise of discretion: "If one is going to assess the issue of the length of the delay one has to have regard, with respect, to the imperative words of that it has to be done as soon as practicable, and against the context of a long delay which in our submission attended the liquidator's conduct beforehand."
The first point was put very squarely in this Court, but much less strongly at first instance. Indeed, when this Court asked to be referred to where it was advanced before the primary judge, the reference supplied was to paragraph 96 of the written submissions, which makes no complaint as to the gaining of a forensic advantage. That paragraph relevantly states: "The Originating Process could have been served in compliance with r 2.7(1) shortly after it was filed. The delay was caused by the liquidator's decision, without good reason, to delay service until a time that was convenient to the Plaintiff almost 6 months after service was required by r 2.7(1). The Plaintiff has offered no reason as to why this occurred beyond the invalid reason that it wished to procedure funding. The prejudice is properly characterised as being self-inflicted. During this period, presumptive prejudice accrued to the Applicants as a consequence of the liquidator's decision. That is a sufficient justification for the prejudice to the Plaintiff arising from the loss of some or all of its causes of action to be discounted entirely."
There is no good reason to grant leave to determine a ground of appeal which is based upon a submission which was not made to the primary judge. "[W]hen a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious": Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120].
I also do not accept the second point. The entirety of paragraph 57 is reproduced above. There is no error in the carefully drafted and qualified finding in that paragraph. The primary judge was not finding, as a universal proposition, that a liquidator ought invariably be concerned to obtain funding before commencing substantial proceedings. His Honour addressed the unchallenged evidence that the reason for the delay, of almost six months, in effecting service was delays in obtaining funding and declined to find that there had been shown to have been any impropriety in the liquidators' taking that stance. That entirely accords with the statements in Tolcher v Gordon and Weston v Publishing and Broadcasting Ltd [2012] NSWCA 79; 88 ACSR 80, to which the primary judge referred.
Nor do I accept the third point. Perhaps the liquidators could have moved more quickly. But it is important to bear in mind that it was for the applicants to advance a proper basis for the making of an order following the irregularity reflected by the non-compliance with s 2.7. They chose not to cross-examine the liquidators, who gave evidence that two funders had dropped out, the first after providing some funds, the second after the expiration of a due diligence period. The adjective most frequently invoked in submissions in this Court was that the liquidators had been "dilatory" in securing funding. Whether or not that is so is not established on the evidence, especially when it is borne in mind that the terms of the commercial deal which is struck between funder and liquidator will impact upon the distribution to creditors in the event that the litigation is successful. The price of speedier negotiations may be funding that is more expensive, to the ultimate detriment of creditors. Further, that was a matter which would reflect adversely upon the conduct of the liquidators and should have been put to them.

Sub-grounds (h), (i), (j) and (k) - prejudice to applicants

These proposed sub-grounds addressed the findings relating to prejudice and presumptive prejudice. As to the former, it was said to disclose error to find and take into account that the respondent's delay caused no detriment to the applicants, because the same position would have arisen had service been effected sooner and the applicants sought and obtained a stay given the liquidators' absence of funding (sub-grounds (h) and (i)). As to the latter, there was said to be error in "failing to give any significant weight to the presumptive prejudice" from the delay (sub-grounds (j)), as well as in the finding that at least in respect of substantial parts of the proceeding, the respondent had commenced within the 6 year limitation period (sub-ground (k)).
The short answer to these grounds is that the assessment of prejudice reflected the way the submissions had been advanced at first instance. Senior Counsel said: "Can the applicants point to a direct particular prejudice? One accepts that the evidence doesn't say that but that doesn't mean there is no prejudice. Most of the applicants are human beings. The courts have repeatedly recognized the prejudice inherent in delay ... from the events that happened now seven years ago. So there is presumptive prejudice and there is no suggestion that the applicants do not suffer it."
There was no evidence of actual prejudice and there could be no error in proceeding on that basis. In relation to presumptive prejudice, it is to be borne in mind that for most of the six years, the company was controlled by some of the defendants. Further, there was evidence that the liquidators had conducted examinations of at least some of the directors, and had told creditors that they believed there were valuable causes of action available to the company. There is nothing to suggest that the liquidators ever indicated to one or more of the applicants that proceedings would not be brought against them.
It follows that the proposed grounds do not warrant a grant of leave to appeal insofar as they are directed to the way the primary judge addressed prejudice.

Knowledge of the applicants (sub-ground (l))

This final proposed sub-ground was a failure to find that, other than as deposed to by Ms Tan, none of the applicants had any knowledge of the proceedings prior to service. This sub-ground was far from the forefront of the applicants' submissions. If such a finding was sought from the primary judge, this Court was not directed to where it was made. This finding was not one of the 13 findings sought in paragraph 87 of the applicants' written submissions before the primary judge. Indeed, those submissions fell short of such a submission and rather contended that, save for Ms Tan, there was no evidence that any of the applicants had any knowledge of the proceedings before they were served (paragraph 38).
Bearing in mind that it was for the applicants to make out a case for the exercise of discretion, what has been said is sufficient to demonstrate that this proposed ground does not warrant a grant of leave.

Ground 6 - re-exercise of discretion

Let it be assumed that the primary judge's discretion in some way miscarried, and it fell to this Court to re-exercise it. There are difficulties in doing so, because not all of the material before the primary judge was made available to this Court, despite this hearing taking place on a concurrent basis. However, based on the material in the appeal books, I very much doubt that any other order would be made, essentially for the reasons indicating the absence of strength of proposed ground 5.
The originating process was in fact served within the time prescribed by r 6.2(4). That is a relevant consideration, having as it does the consequence that it is for the applicants to propound a case for the exercise of a discretion in their favour setting aside service, rather than the respondent to propound a case for extending the time within which to effect service. The reason for the delay by the respondent was explained - albeit with some gaps - by evidence that litigation funding was sought to be put in place before service was effected and costs incurred by the applicants. That explanation was not challenged. On the other hand, there was no evidence of any actual prejudice to the applicants.
It is not necessary to reach a final conclusion on how the discretion would be exercised. The threshold question is whether leave should be granted. In respect of the dispositive reasoning of the primary judge, there is no question of principle or of general public importance. What has been said above discloses that this is not a case of an injustice which is reasonable clear, in the sense of going beyond what is merely arguable.
For those reasons, I considered that leave should be refused.
PAYNE JA: I have read the judgment of Leeming JA in draft. I agree with his Honour's reasons. Those reasons explain why I joined in the orders of the Court made on 28 August 2018.

Amendments 20 September 2018 - [31(1)]: final sentence, "more than" changed to "at least" [31(2)]: first sentence, "as" inserted after "read" 17 June 2019 - [14]: Comma inserted after second "made". [19]: Final sentence, comma inserted after "Uniform Rules". [36(4)]: Second sentence, "Coles v Ravenshear" changed to "In re Clear and Ravenshear". [49]: First sentence, comma deleted after "[12]-[17]". [66(3)]: "relied" changed to "relief". [73]: Heading amended to omit sub-ground (l). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2019

& 39 Vic c 77) Supreme Court Rules 1970(NSW)

Corporations Rules 1999(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (8)

Cases Cited (25)

Cited By (9)