//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2017] ACTSC 2
Supreme Court of the ACT
2017-01-13
Refshauge ACJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 11)
PRACTICE AND PROCEDURE - JUDGMENTS AND ORDERS - Ex debito justitiae - application to set aside final judgment and orders ex debito justitiae - inherent power of the Court to set aside a judgment - whether judgment is a nullity - which procedural rules of the Court apply at a certain point in time - personal service of the Originating Application - what constitutes a step in the proceedings - appearance constitutes a voluntary submission to the jurisdiction of the Court - unconditional appearance constitutes a voluntary submission to the jurisdiction of the Court - irregularity of the Originating Application waived by the unconditional submission to the jurisdiction of the Court - whether the proceedings were a nullity - indorsement of the Originating Application - that the Originating Application was not amended when each iteration of the Statement of Claim was amended is irrelevant - failure to amend an Originating Application is an irregularity and not a nullity - application not made within reasonable time period - irregularity has no nullifying effect on the proceedings unless the Court otherwise orders - failure to identify in the title of the proceedings the representative capacity is a curable irregularity - personal service - defendant's properly parties for all purposes pursuant to Supreme Court Rules - application dismissed - Supreme Court Rules 1937 (ACT) - r 7000 of the Court Procedure Rules 2006 (ACT)
Corporations Act 2001 (Cth), ss 601AD, 601AH, 601AH(5), 601AH(2)(a)(i)
Court Procedures Act 2004 (ACT), s 68, Pt 5
Legislation Act 2001 (ACT), ss 84(1)(c), 146
Limitation Act 1985 (ACT)
Trade Practices Act 1974 (Cth)
Court Procedures Rules 2006 (ACT), rr 223, 1600, 6008(3), 6464, 6906, 7000
Supreme Court Rules 1937 (ACT), O 2 r 1, O 2 r 8, O 2 r 11, O 10 r 2, O 13 r 17, r 17(4), O 19 r 14, O 23 r 12, O 24 r 3, O 32 r 12, O 69 r 1, O 69 r 2, Div 40.2
Supreme Court Rules (Amendment) (ACT), Subordinate laws No 8, 9, 20, 21, 30, 31, 33, 38, 43 of 1997
Supreme Court Rules (Amendment) (ACT), Subordinate law No 46 of 2000
ABB Service Pty Ltd v Hetherington [2001] WASCA 235
ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402
ALYK (HK) Ltd v Caprock Commodities Trading Pty Ltd [2015] NSWSC 1006
Alyssa Treasury Services Ltd v Deputy Commissioner of Taxation [2009] FCA 1520; 77 ATR 917
Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) [2010] NSWSC 239; 77 ACSR 550
Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272; [2013] 2 Qd R 202
Ashwin v Minara Resources Ltd [2006] WASC 75; 200 FLR 80
Australian Securities and Investments Commission v Forge [2007] NSWSC 1489
Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529
Boswell v Fletcher Construction Australia Ltd [2006] TASSC 34
Boyle v Sacker (1888) 39 Ch D 249
Brealey v Board of Management of Royal Perth Hospital [1999] WASCA 158; 21 WAR 79
Bride as Trustee of the Pinwernying Family Trust v The Australian Bank Ltd (Unreported, Full Court of the Supreme Court of Western Australia, Wallwork, Franklyn and Heenan JJ, 25 September 1996)
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Buttigieg v VL Finance Pty Ltd [1986] VicRp 39; [1986] VR 392
Cain v Cain [1918] NSWStRp 7; (1918) 18 SR (NSW) 26
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Care Park Pty Ltd v Universal One Communication Pty Ltd [2009] NSWSC 1405
Chitty v Mason [1926] VicLawRp 60; [1926] VLR 419
Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592
Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245
Commonwealth v Davis Samuel Pty Ltd [1999] ACTSC 9
Commonwealth v Davis Samuel Pty Ltd [1999] ACTSC 136
Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146; 95 ACSR 258
Commonwealth v Davis Samuel Pty Ltd (No 8) [2014] ACTSC 312
Commonwealth v Davis Samuel Pty Ltd (No 10) [2016] ACTSC 364
Craig v Kanssen [1943] KB 256
Davis Samuel Pty Ltd v Commonwealth [2016] ACTCA 22
Davis Samuel Pty Ltd v Commonwealth (No 2) [2016] ACTCA 26
Coppo v Banalasta Oil Plantation Ltd; Borg v Pawski [2005] QCA 96
Dallas Development Corporation Pty Ltd v Western Australia Land Authority (Unreported, Supreme Court of Western Australia Full Court, Anderson and Wheeler JJ, 7 May 1998)
Deutsche Bank und Disconto Gesellschaft v Banque des Marchands de Moscou (1938) 158 LT 364
Deveigne v Askar [2007] NSWCA 45; (2007) 69 NSWLR 327
D'Orta-Ekenaika v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Emeris v Woodward (1889) 43 Ch D 185
Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103
Farrow Mortgage Services Pty Ltd (In Liquidation) v Victor Tunevitsch Pty Ltd (Unreported, Supreme Court of Tasmania, Crawford J, 8 July 1994)
Glendinning v Cuzens [2011] WASC 247
Glendinning v Cuzens [2009] WASCA 21
Green v Braddyll [1856] EngR 440; [1856] 1 H & N 69; 156 ER 1121
Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; 200 FCR 296
Hadley and Co v Henry [1895] VicLawRp 126; (1896) 21 VLR 646
Hamp-Adam v Hall [1911] 2 KB 942
Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729
Healey v Ballarat East Bowling Club [1961] VicRp 32; [1961] VR 206
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
Immer v Girotto Precast Pty Ltd [2009] NSWSC 1019
In re Dawson (dec'd) [1966] 2 NSWR 211
In Re Pritchard (dec'd); Pritchard v Deacon [1963] 1 Ch 502
In re Tottenham; Tottenham v Tottenham [1896] 1 Ch 628 International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 1 All ER 1017
Isaacs v Robertson [1985] AC 97
Jovanovic v The Queen [1999] FCA 1008; (1999) 106 A Crim R 548
Kanyilmaz v Nominal Defendant (Qld) (Unreported, Supreme Court of Queensland, Muir J, 12 January 2000)
Kingston Futures Pty Ltd v Waterhouse [2012] QSC 212; 1 Qd R 507
Klobucar v Neocoat Pty Ltd [1999] ACTSC 96
Lazard Bros and Co v Midland Bank Ltd [1933] AC 289
Lerga v Susa [1991] ACTSC 105
Lister v Schulte [1915] ArgusLawRp 77; [1915] VLR 374
Lombard Australia Ltd v Mulley (1976) 9 ACTR 23
Lyons v Labathas [2010] ACTSC 93; 244 FLR 37
MacFoy v United Africa Co Ltd [1962] AC 152
Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261
Metroinvest Anstalt v Commercial Union Assurance Co plc [1985] 2 All ER 318
Moore v Alwill (1881) 8 LR Ir (CL) 245; 15 Ir LT 54
Morris v Harris [1927] AC 252
Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409
Mulckern v Doerks (1884) 53 LJQB 526
NLC Holdings Pty Ltd (In liquidation) v Victoria [2009] VSC 603
Nocton v Lord Ashburton [1914] AC 932
Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360
Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444
Perkins v Williams (1900) 17 WN (NSW) 135
Philip Morris Ltd v Bridge Shipping Pty Ltd [1994] VicRp 51; [1994] 2 VR 1
Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; 35 WAR 412
Pontin v Wood [1962] 1 QB 594
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Cripps; Ex parte Muldoon [1984] QB 686
R v Gorman [2009] ACTSC 7
Re Moat; Land v Moat (1896) 7 QLJ (NC) 38
Re Orr v Ewing (1882) 22 Ch D 456
Rein v Stein (1892) 66 LT 469
Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584
Rideout v Glaxo Group Ltd [1996] 1 Qd R 200
Robertson v. Railroad Labor Board [1925] USSC 177; 268 US 619 (1925)
Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia (No 4) [2013] WASC 353
Rubenstein v Truth and Sportsman Ltd [1960] VicRp 75; [1960] VR 473
Ruzeu v Massey-Ferguson (Aust) Ltd [1983] VicRp 69; [1983] 1 VR 733
Seeto Kui (Holdings) Ltd v Chow [2015] QSC 193
Sheldon v Brown Bayley's Steel Works Ltd [1953] 2 QB 393
Singh v Atombrook [1989] 1 All ER 385
Spincer v Watts (1889) 23 QBD 350
SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229
Stergiou v Citibank Savings Ltd [2005] ACTCA 15
Sterman v EW & WJ Moore Ltd (a firm) [1970] 1 All ER 581
Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218
Stone James (A Firm) v Pioneer Cement (WA) Pty Ltd [1985] WAR 233
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382
The Assunta [1902] P 150
The Shell Company of Australia Ltd v Esso Australia Ltd [1987] VicRp 28; [1987] VR 317
United Service Insurance Co Ltd (in liq) v Lang [1935] NSWStRp 51; (1935) 35 SR (NSW) 487
Van Heyningen v Netherlands - Indies Government [1949] St R Qd 54
Vickers v Mayne [1998] WASCA 180
Walsh v Smith [1944] OWN 82
Warman International Ltd v Dwyer [1995] HCA 18; (1995) 182 CLR 544
Watchtower Bible and Tract Society of Australia v Sahas [2008] WASCA 51
Weldon v Neal (1887) 19 QBD 394
Western National Bank v Perez, Triana & Co [1891] 1 QB 304
Victorian Practice Book, N J Williams, Supreme Court Practice (Butterworths, Sydney, 1986) looseleaf
Davis Samuel Pty Limited ACN 083 081 985 (First Defendant)
Kamanga Holdings Pty Limited ACN 003 316 292 (Tenth Defendant)
Pellon Pty Limited ACN 082 375 951 (Eleventh Defendant)
Amative Pty Limited ACN 082 375 924 (Thirteenth Defendant)
Bisoya Pty Limited ACN 003 016 242 (Fifteenth Defendant)
Winton Oil NL ACN 001 863 878 (Sixteenth Defendant)
Quancorp Pty Limited ACN 002 755 133 (Seventeenth Defendant)
Allan Paul Endresz as representative of the members of 'Border Basketball Association Inc' an unincorporated association (Eighteenth Defendant)
Tresmonay Pty Limited ACN 073 120 635 (Twenty-first Defendant)
ACT Organics Pty Ltd ACN 008 628 662 (Twenty-second Defendant)
Graham McCann Pty Limited ACN 008 653 969 (Twenty-third Defendant)
TNG Limited ACN 000 817 023 (Twenty-seventh Defendant)
Snedden Hall & Gallop as agents for Jackson McDonald (Twenty-seventh Defendant)
1. In 1998, two large sums of money were paid from Commonwealth funds to two companies and thereafter disbursed to or for the benefit of various companies and individuals. The Commonwealth asserted that these payments were improperly made.
2. On 28 January 1999, the Commonwealth commenced these proceedings claiming the recovery of one of the amounts of the moneys paid and an accounting or damages from five defendants.
3. From time-to-time, various other causes of action and defendants were added to the proceedings until there were 27 defendants. A third party was also added by the 27th defendant.
4. The hearing of the proceedings commenced before me on 10 June 2008 and on 1 August 2013, judgment was delivered finding a number of the defendants liable to the Commonwealth in various ways: Commonwealth v Davis Samuel Pty Ltd (No 7) [2013] ACTSC 146; 95 ACSR 258.
5. The judgment, however, was complex and the precise orders required further consideration. Final orders were not made until 21 November 2014: Commonwealth v Davis Samuel Pty Ltd (No 8) [2014] ACTSC 312.
6. On 23 December 2014, a number of the defendants appealed to the Court of Appeal against the judgment and orders I had made. That appeal was dismissed for want of prosecution on 30 June 2016: Davis Samuel Pty Ltd v Commonwealth [2016] ACTCA 22.
7. Certain defendants have now applied to me for the final judgment and orders made by me to be set aside ex debito justitiae in the inherent jurisdiction of the Court. Those defendants are Peter Michael Cain, Allan Paul Endresz, Jozsef Endresz, Dawn May Endresz, and William Arthur Forge. I shall refer to these defendants collectively as "the Applicant Defendants". No other defendants have joined in the application.
8. In order to understand the application, it is necessary to set out the course of the proceedings in some detail as well as the relevant statutory provisions. I shall address these issues first.
9. As noted above (at [2]), the Commonwealth of Australia, a polity with power to sue or be sued (Commonwealth v Davis Samuel Pty Ltd (No 7) at 266; [12]), commenced proceedings by lodging for filing on 28 January 1999, an Originating Application under O 2 r 1 of the Supreme Court Rules 1937 (ACT).
10. That Originating Application listed five defendants: Davis Samuel Pty Ltd, Mr David John Muir, Callform Pty Ltd, Mr Cain and Mr Allan Endresz. A description of each of these and all the other defendants and their role in the events leading to these proceedings is set out in Commonwealth v Davis Samuel Pty Ltd (No 7) at 266-75; [11]-[112]. I do not need to repeat what I there said but rely on it for these reasons.
11. The section of the Originating Application describing the defendants was completed with the required details for the two corporation defendants, but, curiously, there was no mention in the relevant section of any of the three individual defendants.
12. The nature of the action and the relief claimed was set out as follows:
Nature of action: Recovery of money payable by the defendants to the plaintiff being funds of the plaintiff paid to the first defendant without the authority of the plaintiff; an accounting or damages for monies paid to the first defendant and a claim for breach of contract as against the third defendant.
Relief claimed: Repayment of $2,725,000, an accounting for monies had and received by the first defendant, damages and interest.
Interlocutory relief claimed: An injunction
Summary judgment is to be applied
for: Yes
Other amendments: Debt or liquidated demand: A Form 3 statement is attached.
13. For present purposes, it is not necessary to refer further to the Form 3 statement which complied with O 2 r 11 of the Supreme Court Rules. A Statement of Claim was also filed setting out the material facts said to justify the relief expressly claimed in it as follows:
14. At that stage, it was clear that the Commonwealth was only aware of the disposition from its funds of one amount, being the moneys described in Commonwealth v Davis Samuel Pty Ltd (No 7) at 275; [122], 290; [217]-[220] as "the September Funds", allegedly paid to Davis Samuel Pty Ltd, the first defendant. I shall use that description where appropriate in these reasons. This was the only sum which was the subject of the proceedings at that time.
15. Affidavits of Gary Smith, public servant, and of Robert James Morrison, public servant, were filed in support of the interlocutory relief sought and granted on 29 January 1999 being an interlocutory injunction, the details of which it is not necessary for the purpose of these reasons to recite.
16. Interlocutory orders for discovery by the defendant of the dealings with the September Funds were also made on 29 January 1999. At the hearing, as well as counsel for the Commonwealth, counsel appeared for Davis Samuel Pty Ltd; separate counsel appeared for Mr Muir.
17. Later that day, the Commonwealth sought an urgent hearing and, at 6.00 pm, the Court considered an application for orders relating to the second amount of money described in Commonwealth v Davis Samuel Pty Ltd (No 7) at 275; [122], 276; [124]-[127], as "the April Funds". Again, I shall use that description where appropriate in these reasons. At that hearing only the Commonwealth was represented; no other party appeared.
18. The Notice of Motion making the Application sought to join four further defendants, CTC Resources NL, Jozsef Endresz, Dawn May Endresz, and William Arthur Forge. It also sought leave for the Commonwealth to amend the pleadings.
19. Orders were made ex parte to join these four further defendants and similar interlocutory orders as those directed to the other defendants, but in respect of the April Funds, were also then made. There is no record, however, of an express leave or direction to amend the pleadings or the Originating Application, despite the leave granted to add the additional defendants.
20. The proceedings were listed for further mention on 1 February 1999 when counsel appeared for the plaintiff and the 1st and 4th to 9th defendants on the instructions of lawyers, Blake Dawson Waldron. Despite application by certain defendants, the Court declined to discharge the injunction made on 29 January 1999 and made orders for discovery and other matters.
21. Counsel who appeared for Mr Muir did not appear and there was still no appearance of counsel for Callform Pty Ltd. A memorandum of unconditional appearance was, however, filed for each of Mr Muir and Callform Pty Ltd.
22. Despite counsel appearing in Court on that occasion for Davis Samuel Pty Ltd, Mr Cain, Mr Allan Endresz, CTC Resources NL, Mr Jozsef Endresz, Mrs Dawn Endresz and Mr Forge, it does not appear as though any memorandum of appearance was actually filed by them.
23. On 4 February 1999, however, the firm of Ken Cush and Associates filed a Notice of Change of Solicitor for each of them. It contained an address for service, as required. That firm continued to act for those defendants until they commenced to act in person at various dates from May 2000 to June 2008.
24. The defendants, including some of the Applicant Defendants, participated actively in the proceedings. They filed affidavits, appeared by counsel at a number of interlocutory hearings, consenting to or opposing orders, and making applications to the Court.
25. Despite the lack of leave to amend the Originating Application, which may not have been required, an Amended Originating Application and Form 3 were filed on 11 February 1999. This document showed the additional defendants in the title. Again, equally curiously, the amended Originating Application added CTC Resources NL in the section, describing the defendants, but did not include the three additional individual defendants.
26. As well as adding the further defendants, amendment was made as follows to the nature of the action to refer to the April Funds which had been paid to CTC Resources NL, the sixth defendant:
Nature of action: Recovery of money payable by the defendants to the plaintiff being funds of the plaintiff paid:-
(a) to the first defendant without the authority of the plaintiff;
(b) an accounting or damages for monies paid to the first defendant;
(c) a claim for breach of contract as against the third defendant;
(d) to the sixth defendant without the authority of the plaintiff;
(e) an accounting or damages for monies paid to the sixth defendant; and
(f) a claim for breach of contract as against the third defendant.
Relief claimed: Repayment of $8,525,000, an accounting for monies had and received by the first defendant and an accounting for monies had and received by the sixth defendant, damages and interest.
27. The Applicant Defendants conceded at the oral hearing of the application before me that their lawyers had been served with the amended Originating Application. This is proper service where a party is legally represented and has provided an address for service at the office of their lawyer, which was the case here. See O 23 r 12 of the Supreme Court Rules.
28. A series of applications to add defendants and to amend the Statement of Claim was then made to the Court over succeeding weeks. On each occasion, the defendants were represented by counsel.
29. On 19 February 1999, certain orders were made by consent and the Commonwealth was given leave to join the 10th to 18th defendants. The Court ordered that the defendants be served with a notice of the order for joinder by facsimile transmission. Those defendants, other than Kamanga Pty Ltd, filed unconditional appearances on 24 February 1999 or 2 March 1999.
30. On 19 February 1999, the Commonwealth was also given leave to amend the Statement of Claim again. The title to the proceedings was amended to include the additional defendants. No order, however, was made that the Originating Application be amended, either by amending the parties by adding the additional defendants or amending the nature of the claim or the relief sought, though the title to the proceedings thereafter showed the added defendants after each occasion on which they were added. No amended Originating Application was filed or served.
31. On 23 February 1999, the Court ordered that the 19th, 20th and 21st defendants be added to the proceedings. Orders were also made permitting the Commonwealth to file in Court the amended Statement of Claim, for which leave was given on 19 February 1999, and to amend the Statement of Claim further to plead claims against the added defendants. The Commonwealth also sought on that day a Mareva injunction against the first nine defendants. Those nine defendants were represented by counsel at the hearing. The 11th and 12th defendants were also, separately, represented at the hearing. The orders were made.
32. The next day, Crispin J published reasons for agreeing that such orders should be made against some but not all of those defendants and made some comments about the adequacy of the Statement of Claim: Commonwealth v Davis Samuel Pty Ltd [1999] ACTSC 9.
33. On 24 February 1999, the 10th, 14th, 15th, 16th, 17th, 18th, 19th, 20th and 21st defendants filed unconditional appearances.
34. On 26 February 1999, the Commonwealth was given leave to file and serve any Further Amended Statement of Claim by 5 March 1999. That Further Amended Statement of Claim was filed on 8 March 1999. No amendments were made to the Amended Originating Application.
35. On 2 March 1999, the 11th, 12th and 13th defendants filed unconditional appearances by solicitors not already representing any other parties to the proceedings.
36. On 9 March 1999, a firm of solicitors, not then representing any other defendants, filed a notice of change of solicitor for the second and third defendants.
37. On 12 March 1999, when each of the Applicant Defendants, as well as other defendants, were represented, the Court granted leave to join the 22nd, 23rd and 24th defendants. All three of those defendants were represented at the hearing. The Commonwealth was granted leave to amend the Statement of Claim further. No order was sought by any defendant or made as to any amendment to the Originating Application, nor was any further amended Originating Application filed or issued. Indeed, no further amended Originating Application was thereafter filed.
38. On 16 March 1999, the Second Further Amended Statement of Claim, in accordance with an order of 12 March 1999, was filed.
39. On 17 March 1999, the 24th defendant filed an unconditional appearance. On 19 March 1999, the 22nd and 23rd defendants filed unconditional appearances.
40. On 15 April 1999, the first, fourth and fifth defendants filed a Notice of Motion seeking the discharge of one of the restraining orders made on 23 February 1999. On 4 June 1999, these defendants declined to proceed with the application, and it was dismissed. The filing of the Notice of Motion would appear to be a step in the proceedings: Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594.
41. Similarly, on 2 June 1999, the Applicant Defendants and other defendants filed a further Notice of Motion seeking the striking out of certain paragraphs of the Second Further Amended Statement of Claim, that a further Statement of Claim be filed, and other orders. That Application appears to have been dealt with on 2 July 1999, as to which see below (at [44]).
42. The Applicant Defendants filed further Notices of Motion or, after the Court Procedures Rules 2006 (ACT) were made, Applications in Proceedings from time-to-time relevant to continuing the litigation between the parties: Spincer v Watts (1889) 23 QBD 350 at 353.
43. On 4 June 1999, the Commonwealth applied to join the 25th, 26th and 27th defendants. An order for joinder of each of these defendants was made. The Applicant Defendants were represented on that occasion as were the 25th, 26th, 27th, 30th and 31st defendants. Leave was also granted to amend the Statement of Claim further. An order was made that each new defendant be served with a notice of the order by facsimile transmission in the first instance. On 2 July 1999, the 27th defendant filed an unconditional appearance. On 28 September 1999, the 26th defendant filed an unconditional appearance. On 30 May 2000, the 25th defendant filed an unconditional appearance.
44. On 2 July 1999, the Commonwealth applied for leave to join the 28th and 29th defendants. These two defendants were represented at the hearing of the application, as were the Applicant Defendants. The order was made. A direction was also made that the third Further Amended Statement of Claim be filed by close of business that day. No orders were made as to any amendment to the Originating Application, nor was any further amended Originating Application filed. It does not appear that the 28th or 29th defendants ever filed a memorandum of appearance.
45. On 3 September 1999, the Third Further Amended Statement of Claim was filed. In it the Commonwealth claimed the following relief:
46. This relief was claimed in each of the subsequent versions of the Statement of Claim, including the Sixth Further Amended Statement of Claim on which the ultimate hearing proceeded.
47. On 3 September 1999, the Court directed that each defendant serve his, her or its defence by close of business on 1 October 1999.
48. On 1 November 1999, each of the Applicant Defendants filed his, her or its defences. A number of other defendants also did so. It seems to me that the filing of the defence is the taking of a step in the proceedings as understood by authorities such as Artahs Pty Ltd v Gall Standfield & Smith (A Firm) [2012] QCA 272; [2013] 2 Qd R 202 at 211-2; [46]- [47]. See also Seeto Kui (Holdings) Ltd v Chow [2015] QSC 193 at [8]- [12].
49. On 15 December 1999, the Court dismissed an application by the 11th, 12th, 13th, 22nd and 23rd defendants for orders striking out the allegations pleaded against them in the Third Further Amended Statement of Claim: Commonwealth v Davis Samuel Pty Ltd [1999] ACTSC 136. The Court, however, granted leave to amend the Statement of Claim further.
50. On 24 December 1999, the Commonwealth filed the Fourth Further Amended Statement of Claim. No further amended Originating Application was filed.
51. On 17 February 2000, the Commonwealth discontinued the proceedings against the 14th defendant.
52. As at 1 March 2000, all defendants, save the second, third and 25th defendants, had filed defences. In their defences, the Applicant Defendants and some others made a counter-claim against the Commonwealth.
53. On 17 March 2000, it was ordered that the action proceed by way of affidavit evidence in accordance with Div 40.2 of the Supreme Court Rules.
54. On 21 June 2000, the Commonwealth was granted leave to amend the Statement of Claim further.
55. On 26 June 2000, the Commonwealth filed the Fifth Further Amended Statement of Claim. No further amended Originating Application was filed.
56. Initially on 8 December 2000, the trial was set down to commence on 10 July 2001 for eight weeks, but that date was, on 9 February 2001, vacated. A further hearing date of 3 September 2001 was set on 18 April 2001.
57. On 16 January 2001, the Commonwealth discontinued the proceedings against the 11th, 12th, 13th, 22nd and 23rd defendants who discontinued their counter-claims against the Commonwealth. All relevant parties consented to the discontinuances.
58. An application was made to amend the Statement of Claim further to add a claim under the Trade Practices Act 1974 (Cth) by Notice of Motion dated 9 April 2001, returnable on 11 April 2001. It was then adjourned for hearing to 18 April 2001. Counsel for the Applicant Defendants and the majority of the other defendants was not available on that day or any other day until after the limitation period for such a claim would expire. Accordingly, the application was adjourned with an undertaking given as a condition of the adjournment that, if the Statement of Claim was amended to permit such a claim to be pleaded, no defence based on the expiry of the limitation period would be pleaded by the defendants.
59. On 27 April 2001, leave was granted to the Commonwealth to plead that additional claim and to amend the Statement of Claim accordingly. This was the Sixth Further Amended Statement of Claim and was the Statement of Claim on which the proceedings were ultimately heard. It was filed on 21 June 2001. Each defendant was served with a copy of the Sixth Further Amended Statement of Claim.
60. This Statement of Claim pleaded five causes of action which I described in Commonwealth v David Samuel Pty Ltd (No 7) at 294-5; [250], as follows:
(1) The principal cause of action is in respect of a breach of fiduciary duty said to be owed by Mr Muir and Callform to the Commonwealth, being the making of the April payment and the September payment. I shall deal with that claim below.
Out of this claim, it is alleged that a number of the defendants either received funds, which were improperly paid in breach of the fiduciary duty owed by Mr Muir and Callform to the Commonwealth, or assisted in the transfer of funds which constituted the breach. Again, this will be dealt with further below.
(2) Secondly, it is alleged that Mr Muir and Callform breached their equitable duties of confidence which they owed to the Commonwealth by misusing confidential information which had been entrusted to them. It is then asserted that those defendants who participated in the breach of confidence were liable in equity to the Commonwealth as constructive trustees of property acquired as a result.
(3) Thirdly, it is claimed that the April payment and the September payment were made without power and that they were, therefore, money had and received by CTC Resources (the April Funds) and Davis Samuel or the Davis Samuel Partnership (the September Funds) and, as paid illegally and ultra vires, could be recovered by the Commonwealth and traced into the hands of the holder of those moneys.
(4) Fourthly, the Commonwealth claimed that the moneys paid in the April payment and the September payment were paid under an operative mistake and that the Commonwealth is entitled to restitution of the funds.
(5) Finally, the Commonwealth claimed that the making of certain accounts payable invoice entries by Mr Muir, which enabled the making of the April payment and the September payment, was conduct in trade and commerce, and was misleading and deceptive, in contravention of s 52 of the Trade Practices Act 1974 (Cth). To the extent that certain of the defendants participated in the breach of duty of Mr Muir and Callform, it is claimed that, under s 84 of the Act, these contraventions were made with the authority of those defendants.
E1.1 The Commonwealth claims the following relief against all defendants:
E1.1.1 A declaration that each of the April Funds Transfer and the September Funds Transfer are void and illegal.
E1.12 A declaration that each defendant holds any property derived directly or indirectly from the April Funds or the September Funds on trust for the Commonwealth.
E1.1.3 An order that each defendant disclose to the plaintiff what was done with the April Funds and the September Funds received by that defendant and in particular the identity and whereabouts of any property obtained by the use of any part of the said monies.
E1.1.4 An order that each defendant repay to the Commonwealth any part of the April Funds and the September Funds received by that defendant.
E1.1.5 An order that each defendant return to the Commonwealth any property held by such defendant which property was derived directly or indirectly from the April Funds or the September Funds.
E1.1.6 An order that each defendant account to the Commonwealth for the use by each such defendant of the whole of any part of the April Funds and the September Funds.
E1.1.7 An order that each of the defendants be restrained from dealing with or dissipating or diminishing in value any asset acquired through the use of the April Funds and the September Funds.
E1.1.8 Damages.
E1.1.9 Equitable compensation.
E1.1.10 An order for restitution.
E1.1.11 Interest.
E1.1.12 Costs.
62. On 21 June 2001, the defendants were directed to file and serve any amended defences by 5 July 2001. All of the active defendants, including all of the Applicant Defendants, were represented at that hearing. No order was sought by any party, including the Applicant Defendants, nor was any made to file a further amended Originating Application, and none was filed or served.
63. On 11 July 2001, all the Applicant Defendants, and others, filed amended defences responding to the Sixth Further Amended Statement of Claim.
64. On 13 July 2001, judgment was entered by consent against the second and third defendants in the sum of $8 000 000 with interest in the sum of $2 555 000 and costs.
65. On 17 August 2001, at a directions hearing at which all the active defendants, including the Applicant Defendants, were represented, the hearing date was again vacated.
66. Ultimately, the proceedings were heard in 2008, commencing on 10 June 2008 and extending for 51 days of hearing. At the hearing, the Commonwealth was represented by senior and junior counsel. By then, the Applicant Defendants had all filed notices of intention to act in person. Mr Allan Endresz appeared for himself, his parents, and his wife, as well as the third party for a time. Mr Cain and Mr Forge appeared for themselves. Mr Cain, who is an admitted lawyer, also appeared for a number of the corporate defendants.
67. This is not a complete description of the proceedings, representations or the parties. That is not necessary for these reasons.
68. As can be seen, there were, after the only amended Originating Application was issued, a number of defendants added, many of whom were represented by lawyers other than the lawyers representing the Applicant Defendants. The Statement of Claim was also amended on seven occasions. Counsel represented the Applicant Defendants and, from time-to-time, a number of the other defendants.
69. At no time did any defendant or any lawyer for any defendant raise the issue of whether there should have been a further amended Originating Application filed and served, or whether the failure by the Commonwealth to amend the Originating Application consequent upon the joinder of any defendant, cause of action pleaded or the amendment of any relief claimed in any amended Statement of Claim, had any effect on the validity of the proceedings.
70. The application depends on a number of provisions of the Supreme Court Rules. It is appropriate that the relevant provisions be set out, especially as it is not necessarily easy to find the Supreme Court Rules that were applicable at the time. The hearing was conducted under the Court Procedures Rules 2006 (ACT), but the initial Statement of Claim and all subsequent amendments up to and including the Sixth Further Amended Statement of Claim were made during the currency of the Supreme Court Rules.
71. It also is relevant that the Supreme Court Rules were, until 1997 when substantial changes were made to the Supreme Court Rules (Amendment) (ACT), relevantly what might be called Judicature Act Rules. That is to say, they were closely based on the Rules of the Supreme Court 1883 (UK). These Rules also formed the basis of the Rules of the Supreme Court 1958 (Vic), which were similar in many respects to the Supreme Court Rules, such that regular reference was made in practice to the Victorian Practice Book, N J Williams, Supreme Court Practice (Butterworths, Sydney, 1986) looseleaf. See Lombard Australia Ltd v Mulley (1976) 9 ACTR 23 at 25.
72. In 1997, however, the substantial changes noted in the previous paragraph were made to the Supreme Court Rules. The intention was to "modernise and simplify the procedures for commencement of actions ... in the court", as explained in the Explanatory Statement. Thus, the writ of summons was abolished and replaced by an Originating Application with required certain accompanying documents. A new form of Memorandum of Appearance was also provided.
73. In 2003-2004, there was a wholesale revision of the Rules. This revision resulted in the Court Procedures Rules which came into effect on 1 July 2006, completely replacing the Supreme Court Rules and applied to the Magistrates Court as well as to the Supreme Court. Many of the Court Procedures Rules, however, were the same as or similar to provisions in the Supreme Court Rules, in some cases the same rule just with more modern drafting.
74. The relevant rules in the Supreme Court Rules are not easy to find; the ACT Legislation Register, a most helpful source of legislation in the Territory, better, in my view, than any other legislation data base in Australia, has, nevertheless, some limitations and one of them is that the historical versions of the Supreme Court Rules starts with that version applicable for the period from 16 July 2001. That version, which appears to have been used by the Applicant Defendants in their submissions, includes amendments (such as to O 19 r 14) which was made by the Supreme Court Rules Amendment (ACT), Subordinate law No 46 of 2000, which came into effect on 14 December 2000 after all but the Sixth Further Amended Statement of Claim was amended, and well after all the defendants had been joined as parties.
75. As at the commencement of these proceedings, the relevant rules, contained in the Supreme Court Rules, were as follows:
Order 2 Commencement of actions
Division 2.1 Procedure on originating application
All actions shall be commenced by the filing of an originating application pursuant to this order, unless otherwise provided by these rules or any other law of the Territory.
4 Form of originating application
(1) An originating application shall be in accordance with schedule 1, form 2.
(2) An originating application shall identify the parties to the action.
(3) For the purposes of an originating application -
(a) the party claiming relief (including a relator) shall be referred to as the plaintiff; and
(b) any other party entitled to be heard shall be referred to as a defendant.
(4) An originating application shall include a statement of the following:
(a) if the plaintiff is a natural person - the full name and occupation of the plaintiff, together with his or her full residential or business address;
(b) if the plaintiff is a body corporate - the information specified under rule 5;
(c) if the plaintiff sues, or the defendant is sued, in a representative capacity - that capacity;
(d) if the plaintiff is represented by a solicitor -
- (i) the full name, address and telephone number of the solicitor; and
- (ii) the full name, address and telephone number of any other solicitor acting as agent of the firstmentioned solicitor in relation to the action;
(e) an address for service of documents for the proceeding;
(f) so far as the plaintiff knows -
(i) if the defendant is a natural person - the full name and occupation of the defendant, together with his or her residential or business address; and
(ii) if the plaintiff knows the defendant to be a natural person, but does not know the full name of the defendant - the sex of the defendant; and
(iii) if the defendant is a body corporate - the information specified under rule 5;
(g) the relevant time under rule 7 for the defendant to enter an appearance;
(h) the particulars of the action specified under rule 8;
(i) the particulars of the relief sought specified under rule 9.
(4A) If a person is represented by a solicitor, the address for service stated in the originating application may also include any of the following for the solicitor:
(a) the number of an Australian Document Exchange Pty Ltd exchange box in the Territory;
(b) the number of a postbox at a post office in the Territory;
(c) a fax number.
(5) An originating application shall be signed by the plaintiff, or by the plaintiff's solicitor.
5 Corporate information
(1) For the purposes of rule 4 (4) (b) and (f) (iii), an originating application shall specify the following information about a body corporate:
(a) if the body is a company - the company's Australian Company Number and the address of its registered office ...
...
8 Identification of action
(1) An originating application shall identify each cause of action sufficiently for the purposes of determining the relevant limitation period under the Limitation Act 1985, or under any other applicable law.
(2) If relief is claimed under a law of the Territory (other than the common law) or a law of the Commonwealth, a State or another Territory, the originating application shall identify the relevant provision of the law.
(3) The originating application in an action for defamation shall identify each relevant publication.
(4) An originating application including a claim for the determination or direction of the court on any question shall include a statement of the question
(1) An originating application shall specify the relief claimed in respect of each cause of action.
(2) An originating application shall specify any claim for exemplary damages.
(3) An originating application shall specify any claim for the taking of an account.
(4) Costs need not be specifically claimed in an originating application.
(5) A claim for interlocutory relief shall be specified separately in an originating application.
(6) An originating application may state whether the plaintiff intends to apply for summary judgment.
(7) An originating application shall state whether a statement of claim is attached.
...
10 Statements of claim
(1) A statement of claim shall accompany an originating application in the case of the following claims:
(a) a claim for debt or a liquidated demand;
(b) claim for damages in tort other than -
- (i) a claim for damages for a motor accident; or
- (ii) a claim for damages for death or bodily injury arising out of the negligence of an employer;
(c) a claim alleging fraud;
(d) a claim in respect of a trust (other than an express trust wholly in writing).
(2) A statement of claim shall not accompany an originating application in the case of the following claims:
(a) a claim for damages for a motor accident;
(b) a claim for damages for death or bodily injury arising out of the negligence of an employer.
(3) A statement of claim may accompany an originating application in any other case.
...
Order 10 Service of documents in Australia
2 Entry of appearance as sufficient proof of service
Where an appearance to an action has been entered for a defendant, the originating application is to be taken to have been duly served on the defendant on the day of the appearance, without any proof of service of the application.
...
Order 13 Appearance
...
17 Setting aside originating process etc
(1) On application by a defendant to an originating application, the court may, by order -
(a) set aside the originating application; or
(b) set aside the service of the originating application on the defendant; or
(c) declare that the originating application has not been duly served on the defendant; or
(d) discharge an order giving leave to serve the originating application outside the Territory or confirming service of the originating application outside the Territory; or
(e) discharge an order extending the validity for service of the originating application; or
(f) protect or release -
(i) property seized, or threatened with seizure, in the proceedings; or
(ii) property subject to an order restraining its disposition or disposal, or in respect of which such an order is sought; or
(g) declare that the court has no jurisdiction over the defendant in respect of the subject matter of the proceedings; or
...
(4) An application for an order under subrule (1) may be made without entering an appearance and is not taken to be a voluntary submission to the jurisdiction of the court.
Every pleading or other document required to be delivered to a party or between parties shall be delivered to the solicitor for each party who appears by a solicitor or to the party if he does not appear by a solicitor.
...
Order 24 Statement of claim
...
3 Alteration of claim without amendment of writ
Whenever a statement of claim is delivered, the plaintiff may therein alter, modify, or extend his or her claim without any amendment of the originating application.
...
Order 32 Amendment
1 By order or with leave
(1) Subject to subrules (2) to (7), the court may, at any stage of an action, on application by a party or on its own initiative -
(a) order that any document in the action be amended; or
(b) give leave to any party to amend any document of that party in the action;
in such manner and on such terms as the court considers just.
...
10 Mode - simple amendment
(1) Where the amendments authorised under this order to be made to a document are not so numerous or lengthy or otherwise of such a nature as would render the document difficult or inconvenient to read, the amendments may be made by -
(a) filing a notice specifying the amendments and the matters referred to in subrule (2); and
(b) if the document to be amended has been filed - writing the alterations in the document.
(2) A filed document amended in accordance with subrule (1) shall be endorsed with a statement specifying the date of the amendment and -
(a) if the amendment was made under an order - the date of the order; or
- (b) if the amendment was not so made - the rule authorising the amendment.
11 Mode - fresh document
(1) Subject to rule 10 (1), amendments authorised under this order to be made to a document shall be made by filing a fresh document, amended as so authorised and endorsed with a statement specifying the matters referred to in rule 10 (2).
(2) An amended document referred to in subrule (1) shall be in a form that -
(a) distinguishes between original and added text; and
(b) discloses any deleted text.
12 Service after amendment
Where a document has been served and is later amended, the party making the amendment shall, as soon as practicable, serve on the parties on whom the document was served a copy of -
...
Order 69 Effect of noncompliance
1 Noncompliance with rules not to render proceeding void
Noncompliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceeding void, unless the court so directs, but such proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms as the court thinks fit.
2 Application to set aside for irregularity
An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or after the party applying has taken any fresh step with knowledge of the irregularity.
...
76. The Applicant Defendants have now applied for the judgment entered against them to be set aside. Indeed, they have gone further and sought that the judgment against the 16th defendant (not one of the Applicant Defendants) also be set aside.
77. The Application in Proceedings seeks the following orders:
1. The final judgment and orders made in the proceedings by Refshauge J be set aside as against the applicants in the Court's inherent jurisdiction.
2. In the alternative to Order 1, the final judgment and orders made in the proceedings by Refshauge J be set aside as against all applicants except the First Defendant (Davis Samuel Pty Ltd) and the Sixth Defendant (CTC Resources NL) in the Court's inherent jurisdiction.
3. In the alternative to Order 2, the final judgment and orders made in the proceedings by Refshauge J be set aside as against the Sixteenth Defendant (Winton Oil NL) in the Court's inherent jurisdiction.
4. In the event that the final judgment and orders is set aside, a declaration that the Commonwealth has abandoned the claims indorsed on its originating application and is precluded from relying on them.
5. Any other orders that the Court considers appropriate.
78. The grounds of the application, also set out (as permitted by Prescribed Form 6.2 [AF2010-103]), are as follows:
1. The judgment and orders were founded on causes of action that were not indorsed on the originating process.
2. The judgment and orders were made against all applicants except the First Defendant (Davis Samuel Pty Ltd) and the Sixth Defendant (CTC Resources NL) in circumstances where those parties:
a. were not indorsed as parties on the originating process; and
3. The judgment and orders against the Sixteenth Defendant (Winton Oil NL Deregistered) were made against a non-existent legal entity.
4. The defects were fundamental and could not be waived or cured by amendment in the Court's discretion.
5. The applicants (or alternatively, certain of the applicants) are entitled to have the judgment set aside ex debito justitiae or as of right.
6. The causes of action indorsed on the originating process have now been abandoned.
79. As also permitted, the Applicant Defendants further set out what they said were the questions of law to be raised. As set out in the Application in Proceedings, they were:
1. Whether the applicants (or, alternatively, certain of the applicants) have a right to have the final judgment and orders set aside ex debito justitiae in the Court's inherent jurisdiction.
2. In the event that the final judgment and orders is set aside, whether the Commonwealth has abandoned the claims indorsed on its originating application such that it is precluded from relying on them.
80. The application was supported by an affidavit of Mr Allan Endresz and a Schedule of Correspondence. The Commonwealth also filed affidavits and a Schedule of Documents.
81. This evidence was generally directed to the course of the proceeding. There was no challenge to either the affidavits or to the Schedule of Correspondence. I have set out above (at [9]-[69]) the course of the proceedings based on this evidence and the documents in the Court file.
82. The Applicant Defendants raise in their Application the following issues which I need to address:
1. Whether the failure to serve an amended Originating Application on those defendants who were joined in the proceedings after the amendment to the Originating Application filed on 11 February 1999 meant that those defendants were not properly parties to the proceedings and so could not be defendants against whom judgment was to be entered;
2. Whether the failure to amend the Originating Application each time the Statement of Claim was amended rendered the proceedings void and a nullity such that any judgment based on such an amended Statement of Claim had to be set aside ex debito justitiae;
3. Whether the Commonwealth had, by amending the Statement of Claim, abandoned any relief sought in the Amended Originating Application;
4. Whether the judgment against the 16th defendant, Winton Oil NL, had to be set aside and beyond the Court's power;
5. Whether, assuming that the failure to amend the Originating Application as required is an irregularity and not a nullity, it can be rectified after judgment; and
6. Whether, assuming that the failure to amend the Originating Application as required is an irregularity and not a nullity, it can be waived and, if so, whether it has been waived by the Applicant Defendants.
83. These matters are of some technical complexity.
84. Before embarking on a consideration of the issues, it is appropriate to make some preliminary findings.
85. In the first place, there is a question about which rules of the Court apply. When the proceedings commenced on 29 January 1999, the Supreme Court Rules applied to the proceedings. The relevant rules are set out above (at [75]).
86. As noted above (at [73]), the Court Procedures Rules were made in 2006; they commenced on 1 July 2006. As a consequence of Pt 5 of the Court Procedures Act 2004 (ACT), the Supreme Court Rules were repealed on 1 July 2006. Thus, when the proceedings were heard, the Supreme Court Rules did not apply.
87. Many, but not all, of the Supreme Court Rules to which I have earlier referred have counterparts in identical or relatively similar terms in the Court Procedures Rules or are to the same effect. One not insignificant difference is that the provision of O 69 r 1 in the Supreme Court Rules now appears not in the Court Procedures Rules but as s 68 of the Court Procedures Act, to which I later refer (at [208]).
88. Rule 7000 of the Court Procedures Rules dealt with the transition from the Supreme Court Rules as follows:
(1) Unless the Supreme Court otherwise orders, these rules apply to an existing proceeding.
(2) If a difficulty arises in the application of subrule (1) to a particular proceeding, the court may make any order it considers appropriate to resolve the difficulty.
(3) The court may make an order under this rule on application by a party or on its own initiative.
(4) In this rule: "existing proceeding" means a proceeding started in the Supreme Court, but not completed, before 1 July 2006.
89. This accords with the general approach to statutory construction, whereby it is ordinarily held that statutory provisions which affect procedure but not substantive rights generally have what is sometimes called, perhaps a little elliptically, a retrospective operation: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267, 285-6. That is to say, the Court Procedures Rules then applied to proceedings already commenced under the Supreme Court Rules, though they do not apply to those steps in the proceedings that have already been taken or completed when the new rules came into force.
90. The joinder of the parties and the amendments to the Statement of Claim were all made and completed well before the Court Procedures Rules were made. It seems to me that, at least initially, I should consider the application in the light of the Supreme Court Rules. It may be, for example, that, if the proceedings were a nullity because of the asserted failures under the Supreme Court Rules, it would be too late for them to be retrospectively validated by application of the Court Procedures Rules as substantive rights may then have accrued which could not be affected by the repeal of the Supreme Court Rules: s 84(1)(c) of the Legislation Act 2001 (ACT).
91. If I find that the proceedings were, as at 1 July 2006, a nullity because the operation of the Supreme Court Rules, then I may have to deal with that issue.
92. It is for this reason that I have set out above (at [75]) only the relevant Supreme Court Rules and not the equivalent Court Procedures Rules.
93. There is no doubt that the amendments made by the Amended Statements of Claim after 11 February 1999 did not result in the Originating Application, which had then been amended, being further amended. It is a pity that Crispin J did not expressly address that issue. On the other hand, no party, including the Applicant Defendants, raised that issue either before his Honour or inter partes. The title to the proceedings was, however, regularly amended by the addition of the added defendants.
94. I note also that, as at the date of the Sixth Further Amended Statement of Claim, there was no issue under the Limitation Act 1985 (ACT) in respect of any amendment made in or by it. That is to say, there was no prospect that, apart from the one issue of some weeks between the application and the order for amendment of the Statement of Claim to permit a claim to be raised under the Trade Practices Act and which was dealt with by an undertaking by the party seeking the delay in hearing the application beyond the limitation period, a bar applied to any remedy sought by the Commonwealth in any of its amended Statements of Claim at the time they were amended or, indeed, for many years later. In other cases, this problem has bedevilled considerations of the kind on which I must embark, but I do not need to discuss that issue further.
95. That is not to say that, were the amendments to turn out to be nullities, the Commonwealth could now necessarily apply for a relevant amendment without encountering problems with a limitation period, though even those may not be as all encompassing as may be thought, having regard to the terms of the indorsement on the amended Originating Application and the liberal construction required by the authorities to be put on its terms. See, for example, Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233 at 239.
96. Finally, I am satisfied that the amended Originating Application was served on each of the defendants who were then defendants. This was conceded in the oral hearing of the application before me. On the evidence before me, the only one of the Applicant Defendants who was joined after that time was Mrs Joy Endresz. As noted above (at [33]), she filed an unconditional appearance.
97. I shall now deal with each of the issues in turn. The most significant relates to the question of service of an Originating Application duly amended to include the added defendants and whether there was failure of any requirement to amend the Originating Application to reflect any change in the identification of the action and of the relief sought. I shall deal with these issues first.
98. Before addressing each of the grounds, it is important to address the question of jurisdiction that I may have to determine. This is because, on 21 November 2014, final judgment was entered following my findings in the proceedings.
99. There is no doubt that, prior to a final judgment being delivered and the record of it being "drawn up, passed and entered", a superior court of record has full power to rehear the proceedings and vary the judgment pronounced. See Texas Co (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382 at 457. See also the helpful discussion of when a judgment has passed into the record of the court in Jovanovic v The Queen [1999] FCA 1008; (1999) 106 A Crim R 548 at 553-60.
100. Ordinarily, once a court has pronounced judgment, as I did in Commonwealth v Davis Samuel Pty Ltd (No 7), and final orders are made, as were made in Commonwealth v Davis Samuel Pty Ltd (No 8), and perfected, the Court which made those orders is functus officio (R v Cripps; Ex parte Muldoon [1984] QB 686 at 695), and its power to reconsider the subject matter of the proceedings is at an end: Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at 224; [19]- [20].
101. As so often happens in the law, there are, to this rule, exceptions. As the High Court said in D'Orta-Ekenaika v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at 17; [34]:
[C]ontroversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances.
102. One of those circumstances identified by the High Court was the right of litigants in certain circumstances to appeal the decision of the Court. The Applicant Defendants have availed themselves of this opportunity, but the appeal has been dismissed: Davis Samuel Pty Ltd v Commonwealth. An attempt to set that decision aside also failed: Davis Samuel Pty Ltd v Commonwealth (No 2) [2016] ACTCA 26. The Applicant Defendants may have an opportunity to appeal to the High Court. That is not a matter with which I am presently concerned.
103. Another exception is in the so-called "slip rule", which is enacted in r 6906 of the Court Procedures Rules and which permits an order duly entered (or "perfected", that is by the order of the Court being formally recorded in the records of a superior court of record: Burrell v The Queen at 224; [18]), to be amended where there has been a clerical mistake or an error in the order which resulted from an accidental slip or omission. See R v Gorman [2009] ACTSC 7 at [11]; Commonwealth v Davis Samuel Pty Ltd (No 10) [2016] ACTSC 364 at [5]- [6].
104. This is not, however, the power which the Applicant Defendants seek to have exercised here. They seek that the order and judgment be set aside because of a fundamental defect that, they submit, so infects the judgment that it cannot stand; it is, they assert, a nullity.
105. Such an application is sometimes described as based on the entitlement to relief from an injustice; that is, the Applicant Defendants are entitled ex debito justitiae to have the judgment set aside. As was said in Craig v Kanssen [1943] KB 256 at 262:
Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order, and that it is not necessary to appeal from it.
106. A judgment which has been procured by a failure to observe the rules of natural justice would be an example of where the judgment is a nullity: Hoskins v Van Den-Braak (1998) 43 NSWLR 290 at 298.
107. This is an inherent power in the Court and does not depend on any statutory power: Isaacs v Robertson [1985] AC 97 at 102-3. This inherent power, however, may be displaced by statute: Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 16.
108. The consequence of a finding that the judgment is a nullity is that it must be set aside without any consideration of the merits: Chitty v Mason [1926] VicLawRp 60; [1926] VLR 419 at 423. That is because there has, in effect, been no trial.
109. Unfortunately, in the cases, there is a looseness of language where "irregularity" is used to describe both judgments which are nullities as well as those which are not but suffer from some defect that may be able to be amended or is of no account; at other times "irregular" is used for the latter kind of defect in contradistinction to the first which are then called nullities to distinguish them. Thus, Crawford J in Farrow Mortgage Services Pty Ltd (In Liquidation) v Victor Tunevitsch Pty Ltd (Unreported, Supreme Court of Tasmania, Crawford J, 8 July 1994) said at p 4:
Most cases of irregular judgments fall into two categories. One category is when a plaintiff obtains a judgment in circumstances where he or she is entitled to no judgment whatever. Examples include a judgment in default of appearance or defence when either the writ has not been served or the statement of claim has not been delivered, or the time for the appearance or defence has not expired. Courts have almost always set aside such a judgment upon the basis that a defendant is entitled to an order setting it aside ex debito justitiae. The judgment is treated as a proceeding which is void or a nullity rather than one which is merely irregular. A void proceeding is of no legal effect and cannot be cured by amendment. Anlaby v Praetorius at 768-9; Craig v Kanssen (1943) KB 256 at 259. An exceptional case is Nevill v Hanley [1888] VicLawRp 66; (1888) 14 VLR 270 in which it was held that the obtaining of such a judgment was only an irregularity and an application to set it aside was refused, in the exercise of a discretion, because of the defendant's delay in applying.
The other main category of irregular judgments concerns situations where the plaintiff is entitled to a judgment for a sum of money by reason of some default on the part of the defendant, such as a failure to enter an appearance or to deliver a defence, but the amount for which the judgment is obtained is more than that to which the plaintiff is actually entitled. This is such a case and in some such cases judges have shown a preparedness to allow the plaintiff to amend the judgment so to remove the irregularity instead of setting the judgment aside, although the trend of decisions has been to set it aside unless the plaintiff applies to amend at an early stage. In Armitage v Parsons (1908) 2 KB 410 judgment in default of appearance was entered for a sum of money for debt plus 5 pounds, 16 shillings for costs, the amount for costs being overstated by 12 shillings. The defendant unsuccessfully applied to set aside the judgment, the plaintiff being allowed instead to amend the judgment under the slip rule.
110. The distinction was drawn by the Privy Council in MacFoy v United Africa Co Ltd [1962] AC 152 at 160 as follows:
The defendant here sought to say therefore that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity. But if an act is only voidable, then it is not automatically void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. Meanwhile it remains good and a support for all that has been done under it. So will this statement of claim be a support for the judgment, if it was only voidable and not void.
No court has ever attempted to lay down a decisive test for distinguishing between the two: but one test which is often useful is to suppose that the other side waived the flaw in the proceedings or took some fresh step after knowledge of it. Could he afterwards, in justice, complain of the flaw? Suppose for instance in this case that the defendant, well knowing that the statement of claim had been delivered in the long vacation, had delivered a defence to it? Could he afterwards have applied to dismiss the action for want of prosecution, asserting that no statement of claim had been delivered? Clearly not. That shows that the delivery of a statement of claim in the long vacation is only voidable. It is not void. It is only an irregularity and not a nullity.
111. In Re Pritchard (dec'd); Pritchard v Deacon [1963] 1 Ch 502 was a decision where an originating summons was issued from a local district registry where it should have been issued from the Central Office. The Court held, by majority, that this meant that the proceedings were a nullity. UpJohn LJ, for the majority, described the classes of nullity at 523-4 as follows:
The authorities do establish one or two classes of nullity such as the following. There may be others, though for my part I would be reluctant to see much extension of the classes. (i) Proceedings which ought to have been served but have never come to the notice of the defendant at all. This, of course, does not include cases of substituted service, or service by filing in default, or cases where service has properly been dispensed with: see, for example, Whitehead v Whitehead (orse. Vasbor) [1962] 3 WLR 884. (ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings. (iii) Proceedings which appear to be duly issued but fail to comply with a statutory requirement: see, for example, Finnegan v Cementation Co Ltd [1953] 1 QB 688.
112. The severity and rigidity of the decision in In Re Pritchard (dec'd); Pritchard v Deacon caused concern about fairness and justice. As a result, the Rules of the Supreme Court (Revised 1965) (UK) were amended to introduce a new provision to overturn the decision: Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 734. That same provision appears in the Supreme Court Rules as Order 69 rule 1. In Harkness v Bell's Asbestos and Engineering Ltd at 735, Lord Denning MR held that the rule "should be construed widely and generously to give effect to its manifest intentions". The other members of the Court do not appear to have gone quite so far, but the general point has since been accepted.
113. It is now important to recognise the new statutory regime introduced by this rule and to treat with caution authorities on the inherent jurisdiction that pre-date the rule. Indeed, McMurdo J went so far as to say in Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218 at [21] that a rule such as O 69 r 1 of the Supreme Court Rules "had provided that non-compliance with [the rules] should not render any proceedings void unless the court so directed", an approach with which, with respect, I entirely agree. Thus, the room for proceedings being a nullity is very limited, largely restricted to those proceedings where the plaintiff had no standing, no cause of action or no title to sue at the time of commencement of the proceedings: Deveigne v Askar [2007] NSWCA 45; (2007) 69 NSWLR 327. Whether such proceedings are so infected as to prevent them continuing after a plaintiff has later acquired a title to sue is a problem I do not have to address.
114. Thus, if there is, in the proceedings leading to the judgment in this case, a defect that is so fundamental that the proceedings are rendered a nullity, then the Applicant Defendants are entitled to have the judgment set aside and this is what they seek.
Jurisdiction of the Court and the Commencement of the Proceedings
115. Ordinarily, a court only has personal jurisdiction over a defendant if that defendant has been served personally with an originating process: Ex parte Bucknell (1867) 6 NSWSCR (L) 96 at 98-9,100.
116. This is, of course, a recognition of a fundamental value underpinning civil litigation, namely the principle of natural justice, that a party must have knowledge of proceedings against him, her or it before such proceedings can bind that party and then the opportunity to participate in the proceedings by adducing evidence and making submissions. As was explained in Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 at 589:
It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae, to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside (Craig v. Kanssen [1943] KB 256 at 262). In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial (Crane v. Director of Public Prosecutions [1921] 2 AC 299 at 332-3).
117. To the requirement for service, however, there are relevant exceptions, which do not breach the requirement for natural justice. For example, a lawyer for a party may have instructions to accept service of originating process and therefore service on that lawyer will constitute a submission to the jurisdiction of the Court under r 6464 of the Court Procedures Rules, without the need, otherwise required, for personal service on the actual party. The solicitor in such a case must take some positive act in accepting such service for it to be effective: Ezekiel-Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103 at [24]- [25].
118. A further important exception was noted by Brandeis J, speaking for the US Supreme Court, in Robertson v. Railroad Labor Board [1925] USSC 177; 268 US 619 (1925) at 622-3:
In a civil suit in personam, jurisdiction over the defendant, as distinguished from venue, implies, among other things, either voluntary appearance by him or service of process upon him at a place where the officer serving it has authority to execute a writ of summons.
119. This is the basis for the rule that the filing of a memorandum of unconditional appearance constitutes a submission to the jurisdiction of the Court: Boyle v Sacker (1888) 39 Ch D 249 at 252; Perkins v Williams (1900) 17 WN (NSW) 135 at 136. In the latter case, an unconditional appearance had been entered and the Court held that it was then too late to contest the jurisdiction of the Court. Effect was given to this principle in O 10 r 2 of the Supreme Court Rules.
120. There is no evidence that, apart from Mrs Joy Endresz, the Applicant Defendants were not served with the Originating Application. The fact that they were legally represented at the initial hearing on 29 January 1999 permits the inference to be drawn that they were so served. Mr Allan Endresz did not say in his affidavit that they were not served. No evidence was given by any of the lawyers who represented the Applicant Defendants. That permits me to draw that inference the more strongly: Jones v Dunkel (1959) 101 CLR 298. It was acknowledged at the oral hearing of the application that the Applicant Defendants had been served with the Amended Originating Application, as noted above (at [27]).
121. While as a matter of form, no unconditional appearance appears to have been entered by all the Applicant Defendants other than Mrs Joy Endresz, they all appeared by counsel instructed by a firm of solicitors, and thereafter, appointed another solicitor who filed a notice of appointment with an address for service. The solicitor thereafter filed a defence on behalf of each of them. The Applicant Defendants thereafter each filed an amended defence and then appeared at the hearing and participated by giving and otherwise adducing evidence, cross-examining witnesses, and making submissions.
122. It seems to me that this constituted a voluntary submission to the jurisdiction of the Court. Indeed, this was very similar to the position in Boyle v Sacker where at 252 Cotton LJ, with whom Bowen and Fry LJJ agreed, said:
The Defendant's counsel did not, even then, say 'we are not properly here,' they argued the case on the merits, which they had no right to do except upon the footing of the Defendant being a party. After this, I am of opinion that he cannot be heard to say that he was not properly served.
123. As to Mrs Joy Endresz, she entered an unconditional appearance on 24 February 1999. Under O 10 r 2 of the Supreme Court Rules, she was taken to have been served with the Originating Application.
124. In particular, insofar as the Originating Application may have been irregular because of the failure to refer expressly to the details of the individual defendants, as mentioned above (at [11]) and [25]), this irregularity was effectively waived by the unconditional submission of the Applicant Defendants to the Court. See Mulckern v Doerks (1884) 53 LJQB 526; Healey v Ballarat East Bowling Club [1961] VicRp 32; [1961] VR 206. This includes any irregularity in service: Western National Bank v Perez, Triana & Co [1891] 1 QB 304. It includes, indeed, an absence of service: Green v Braddyll [1856] EngR 440; [1856] 1 H & N 69; 156 ER 1121, Sheldon v Brown Bayley's Steel Works Ltd [1953] 2 QB 393.
125. For this reason, the reliance by the Applicant Defendants on what Ashley J said in Philip Morris Ltd v Bridge Shipping Pty Ltd [1994] VicRp 51; [1994] 2 VR 1 at 10, was misplaced. His Honour was dealing there with a different question of whether an order of the Court could provide for the commencement of proceedings prior to the date when, under the Court rules, the proceedings would commence, especially if intended to avoid the limitation period.
126. His Honour had nothing to say about the exception to those provisions provided by the filing of an unconditional appearance or the voluntary submission to the Court's jurisdiction. In that case, the defendants carefully filed a conditional appearance which would have no effect on submission to the jurisdiction of the Court. See Van Heyningen v Netherlands - Indies Government [1949] St R Qd 54 at 61. The defendants then sought, successfully, to have the joinder set aside. That decision has nothing to say about this case.
127. Similarly, Klobucar v Neocoat Pty Ltd [1999] ACTSC 96, also cited by the Applicant Defendants, related to joinder after the expiry of the limitation period, quite different to this situation. His Honour there referred (at [19]-[21]) to the application of the relevant rules but, understandably because it was not relevant, did not discuss, as here centrally relevant, the effect of submission to the Court's jurisdiction by the filing of an unconditional appearance. The case has nothing to say to the issues I have to decide.
128. Similarly, the factual circumstances in Vickers v Mayne [1998] WASCA 180, also relied on by the Applicant Defendants, was so different to the factual circumstances in this case that the statements made by the Court and its decision are of no assistance or relevance to this case.
129. The approach I take seems to me to be fortified by the provisions of O 13 r 17 of the Supreme Court Rules which give the Court a discretion to set aside the Originating Application but r 17(4) preserves the effect of a voluntary submission which would be effected by entry of an unconditional appearance. See Lister v Schulte [1915] ArgusLawRp 77; [1915] VLR 374 at 377; Cain v Cain [1918] NSWStRp 7; (1918) 18 SR (NSW) 26 at 29.
130. Primarily, the Applicant Defendants relied on what the High Court had said in Renowden v McMullin [1970] HCA 24; (1970) 123 CLR 584. In that case, the plaintiff, a solicitor, sued the members of a firm of accountants for losses claimed to have been suffered by him as a result of alleged breaches of duty by the defendants in the auditing of his books of account. The general indorsement on the writ issued at the request of the plaintiff alleged breach of contract and breach of a duty of care imposed on them under the Legal Profession Practice Act 1958 (Vic).
131. A statement of claim, subsequently delivered, made no claim for breach of contract. After the expiry of the relevant limitation period, the plaintiff sought leave to amend the Statement of Claim to introduce a cause of action alleging breach of contract. The Court, by majority, refused the application, holding that the causes of action were entirely referable to the Statement of Claim, which had superseded the indorsement of the writ and, as they did not, at the date of the application, include a cause of action for breach of contract, that cause of action was statute-barred.
132. At first sight, this seems to be a complete answer to the application of the Applicant Defendants, for here the judgment was obtained on the causes of action pleaded in the Sixth Further Amended Statement of Claim, which had been amended within the limitation period, save for a brief issue with the claim under the Trade Practices Act.
133. The Applicant Defendants, however, relied on some statements made in the decision which they said, supported their contention that relationship between the Amended Originating Application and the Sixth Further Amended Statement of Claim rendered the judgment here a nullity.
134. Although in dissent, Barwick CJ and McTiernan J set out some general principles which were consistent with the reasoning of the majority and have been followed since.
135. Their Honours first described at 595 the indorsement on the writ as follows:
The indorsement on the writ not being a statement of claim is not in the nature of a pleading. In our opinion, it should not be construed as such but read for what it is, namely, a notice of the nature of the plaintiff's claim, of the cause thereof and of the relief sought in the action. It suffices if it conveys that information generally and without particularity save where and to the extent to which particularity is indispensable to notify the required elements of the indorsement, e.g. on some occasions identification of the instrument upon which a claim is founded. But insufficiency of the indorsement does not render the writ a nullity.
136. Thus, the errors in failing to describe the individual defendants, if such they be, in the Originating Application - on the assumption that these principles apply - do not render the Originating Application a nullity. The proceedings have been properly commenced and that then permits the principles relating to service and waiver of service to apply.
On the other hand, the indorsement marks out the perimeter or range of the area within which the plaintiff may express his claim in a formal fashion in his statement of claim whether as originally filed or as sought to be amended.
138. Their Honours referred to what Dowse B had said in Moore v Alwill (1881) 8 LR Ir (CL) 245; 15 Ir LT 54 at 55, namely "The statement of claim is the specific way of stating the claim [the plaintiff] has endorsed on the writ".
139. Their Honours then addressed the way in which the indorsement of the writ governed subsequent applications relating to the Statement of Claim as follows:
Where it is sought to strike out a statement of claim on the ground that it asserts a claim not included in the writ or to amend a statement of claim the indorsement of the writ governs or determines whether the statement of claim should be struck out or amended as the case may be.
140. Their Honours then referred to O 20 r 2 of the Rules of the Supreme Court (Vic) (the Victorian Rules) which is relevantly identical to O 24 r 3 of the Supreme Court Rules, set out above (at [75]). Their Honours said (at 595-6):
The right given to the plaintiff by O. 20, r. 2, of the Victorian Rules does not in our opinion require any modification of that statement. The alteration, modification or extension of the claim pursuant to this rule must, in our opinion, remain within the area marked out by the indorsement. The basic nature of the claim in respect of which the action has been commenced may not be changed, however much room there is under the Rules for variation in the statement of facts, or the extent of the remedy or relief sought. 'A plaintiff may amend his statement of claim once without leave by which I understand that he may widen it or lessen it or express it in better terms, so long as he keeps it in substance consistent with what he claims in his writ' per Dowse B. in Moore v Alwill. Notwithstanding the terms of O. 20, r. 2, a defendant, in our opinion, could properly object to an amended statement of claim which was sought to be justified by reference to that Rule, if it transcended the area of claim notified by the indorsement of the writ by bringing in a new and independent cause of action: see judgment of Palles C.B. in Moore v Alwill. Such a conclusion is, in our opinion, quite in conformity with the liberalisation in procedure which the introduction of the Judicature Act system is generally claimed to have intended and to have effected. A plaintiff whose statement of claim is struck out as exceeding the indorsement is not thereby deprived of the right to issue another write.
141. It needs to be noted, however, that the reference to the issuing of another writ does not imply that an indorsement on a writ cannot be amended so as to enlarge the facts on which the plaintiff's claim or claims rely, the cause of action maintained or the relief sought. An indorsement on the writ may be amended: Pontin v Wood [1962] 1 QB 594 at 610; Sterman v EW & WJ Moore Ltd (a firm) [1970] 1 All ER 581 at 585-6; Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia (No 4) [2013] WASC 353; Glendinning v Cuzens [2009] WASCA 21. Of course, there may be problems in so doing if the limitation period has expired: Weldon v Neal (1887) 19 QBD 394.
142. The effect of O 20 r 2 of the Victorian Rules was then discussed, their Honours saying (at 596-7):
Order 20, r 2, of the Rules of the Supreme Court of Victoria which we have already mentioned provides that 'whenever a statement of claim is delivered the plaintiff may therein alter, modify or extend his claim without any amendment to the indorsement of the writ'. This, in our opinion, has the same effect as O. 18, r. 15(2), of the English Rules of the Supreme Court 1965 which says that 'A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ, or arises from facts which are the same as, or included or form part of, facts giving rise to a cause of action so mentioned; but subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him the indorsement of the writ without amending the indorsement'.
143. This approach has been followed since. See, for example, The Shell Company of Australia Ltd v Esso Australia Ltd [1987] VicRp 28; [1987] VR 317 at 350-1; Stone James (A Firm) v Pioneer Cement (WA) Pty Ltd at 238-9; NLC Holdings Pty Ltd (In liquidation) v Victoria [2009] VSC 603 at [8]- [17].
144. The Applicant Defendants also referred to Boswell v Fletcher Construction Australia Ltd [2006] TASSC 34 but that case involved not the indorsement on the writ to which this application refers but the endorsement of the person who served the writ of summons required within three days at most after service under O 9 r 10 of the Rules of the Supreme Court 1965 (Tas). Relying on Hamp-Adam v Hall [1911] 2 KB 942 at 943-4, Master Holt held that the failure to make this endorsement was fatal. That says nothing about this case. In any event, that approach was inconsistent with what Morling CJ held in Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245 at 250, namely that the failure so to indorse the writ was not a nullity but an irregularity. Had it been necessary to do so, I would have followed Morling CJ.
145. I shall, for the purposes of the proceedings, proceed as if the principles in Renowden v McMullin apply to these rules; I am by no means convinced that they do but further consideration of that issue can await another day.
146. The determination of this issue turns on two questions:
1. Was the pleadings in the Sixth Further Amended Statement of Claim within the terms of the indorsement on the Originating Application?
2. If not, was the Sixth Further Amended Statement of Claim a nullity?
147. I shall deal with each of these questions in turn.
148. The terms of the indorsement in the Amended Originating Application are set out above (at [26]). The causes of action are set out above at [60] and the relief claimed at [61].
149. I note, as explained in Stone James (A Firm) v Pioneer Concrete (WA) Pty Ltd at 239, that the indorsement should not be read narrowly. As was pointed out in Buttigieg v VL Finance Pty Ltd [1986] VicRp 39; [1986] VR 392 at 397, so far as the cause of action in an indorsement is concerned:
The word 'cause' is directed to the cause of action in the technical legal sense: see Ruzeu v Massey Ferguson Aust Ltd [1983] VicRp 69; [1983] 1 VR 733 at 737. The indorsement does not have to employ the precise legal nomenclature of a cause of action, such as 'detinue' or 'breach of contract', but it must be such as to give sufficient notice of what the cause of action is.
150. Further, McLure JA said in ABB Service Pty Ltd v Hetherington [2001] WASCA 235 at [11]:
The nature and extent of the information necessary to meet the requirement that the indorsement contain a concise statement of nature of the claim made and the relief or remedy required does not depend on a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the indorsement as a whole.
151. It is further clear from the express terms of O 2 r 8 of the Supreme Court Rules that the purpose of the indorsement is so that any relevant limitation period can be identified. This may well take the proper construction of these provisions outside the principles in Renowden v McMullin. As noted above (at [145]), however, I do not propose to consider that aspect further.
152. It is clear from the nature of the action together with the relief claimed in the Amended Originating Application that the factual base is that funds being $8 525 000 belonging to the Commonwealth were paid without proper authority to Davis Samuel Pty Ltd and CTC Resources NL. These are the facts on which the proceedings were conducted. This is not a case, like Rubenstein v Truth and Sportsman Ltd [1960] VicRp 75; [1960] VR 473, where an additional cause of action or a claim made outside the factual terms of the indorsement has been made.
153. The accounting claimed in the relief sought in the indorsement under the nature of the action is, of course, an equitable claim which arises consequent upon a breach of a fiduciary obligation. See Warman International Ltd v Dwyer [1995] HCA 18; (1995) 182 CLR 544 at 556-62. This seems to me to specify adequately the principal cause of action, namely breach of fiduciary duty.
154. The breach of confidence claim arose out of the contract between Callform Pty Ltd and the Commonwealth. This is, perhaps, the least adequately specified cause of action in the indorsement as it does not in terms refer to the involvement of other of the defendants. In any event, that cause of action was not upheld and was dismissed: Commonwealth v Davis Samuel Pty Ltd (No 7) at 486; [1677].
155. The third cause of action was the recovery of the money paid away without authority. This is expressly mentioned in and comes within the indorsement.
156. The fourth cause of action was that the two payments, the April Funds and September Funds, were made by the Commonwealth under an operative mistake. That claim was based on the receipt of the moneys, that is, as expressed in the indorsement, that the defendants had and received the moneys. In my view, this claim is within the indorsement.
157. Finally, the fifth claim was made under the Trade Practices Act. In my view, that claim was not easily identifiable in the indorsement, if it could be said to be included at all. Again, however, that claim failed: Commonwealth v Davis Samuel Pty Ltd (No 7) at 567; [2314].
158. The Commonwealth also pointed out, correctly, that the claim for damages would include equitable damages and that the accounting claim was apt to include alternate remedies such as the payments of compensation or, indeed, proprietary relief: Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; 200 FCR 296 at 415-7; [553]- [559].
159. Equitable compensation serves the same purpose as a claim for damages at law; it directs the defendant to restore the monetary value of the loss which he, she or it has caused to the plaintiff: Nocton v Lord Ashburton [1914] AC 932; In re Dawson (dec'd) [1966] 2 NSWR 211. The Applicant Defendants conceded in the oral hearing of the application before me that the claimed relief in the indorsement was adequate to encompass equitable damages. This was probably sufficient to justify the judgment in any event.
160. As indicated in Glendinning v Cuzens [2011] WASC 247 at [21]- [23], the indorsement sets out the "metes and bounds" of the claim. So far as the Sixth Further Amended Statement of Claim was concerned, it pleaded in greater detail claims than were set out in the indorsement; they, so far as they were upheld, came within those metes and bounds. It seems to me that the approach of the Western Australian Court of Appeal in Watchtower Bible and Tract Society of Australia v Sahas [2008] WASCA 51 at [19]- [23]; [53]-[62] justifies this conclusion.
161. That they did so by a much more detailed pleading is not to the point. Indeed, as held in Renowden v McMullin at 608, it is to the Statement of Claim and not to the indorsement that regard should be had in defining what the claims were that the plaintiff wished to litigate.
162. By remaining within the metes and bounds of the indorsement on the Amended Originating Application, the Statement of Claim, in this case the Sixth Amended Statement of Claim, becomes the pleading on which the proceedings are conducted without any need to refer to the indorsement or, indeed, to amend it.
163. That the Originating Application was not amended when each iteration of the Statement of Claim was amended is then irrelevant. Indeed, it was within what was permitted under O 24 r 3 of the Supreme Court Rules.
164. I have not addressed the relief claimed. It seems to me, however, that r 1600 of the Court Procedure Rules allows for relief, even if not claimed in the Originating Application or the Statement of Claim, to be given by the Court if the nature of the case requires: Coppo v Banalasta Oil Plantation Ltd; Borg v Pawski [2005] QCA 96 at [30], [82]-[83].
165. This is sufficient to dispose of the application by the Applicant Defendants. If however, I am wrong, I should consider the issue of whether the failure to amend the Amended Originating Application further needs to be considered.
166. As I have noted above at [109]-[113], the notion of what is a nullity has bedevilled the courts and there is no clear answer. It is also important to be clear that the statutory regime, especially O 69 r 1 of the Supreme Court Rules and the context in which it was enacted, is relevant to this issue.
167. The Applicant Defendants referred to the description given by Upjohn LJ in In re Pritchard (dec'd); Pritchard v Deacon at 523-4 of nullities. His Lordship said:
The authorities do establish one or two classes of nullity such as the following. There may be others, though for my part I would be reluctant to see much extension of the classes. (i) Proceedings which ought to have been served but have never come to the notice of the defendant at all. This, of course, does not include cases of substituted service, or service by filing in default, or cases where service has properly been dispensed with; see, for example, Whitehead v Whitehead (orse. Vasbor [1962] 3 WLR 884). (ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings. (iii) Proceedings which appear to be duly issued but fail to comply with a statutory requirement: see, for example, Finnegan v Cementation Co Ltd [1953] 1 QB 888.
168. These proceedings do not fall within either of the first two classes. If anything, they must fall within the third for the Sixth Further Amended Statement of Claim to be a nullity.
169. In this case, each amendment to the Statement of Claim was made by order of the Court. The Court is, of course, a superior court of record.
170. From this perspective, the following statement of McMurdo J, with whom McPherson JA and Holmes J agreed in Stone v ACE-IRM Insurance Broking Pty Ltd at [25]-[26], is apt:
[25] As Angel J remarked in Smart v Stuart [1992] NTSC 19; (1992) 83 NTR 1 at 7, the term "nullity" is a difficult one, because of its connotations of voidness. In the present case, there is, after all, a real proceeding: a claim and statement of claim has been sealed and issued. Had the appellant obtained a judgment in this proceeding, that judgment would not be a nullity: Cameron v Cole [1944] HCA 5; (1943) 68 CLR 571; Re Macks; ex parte Saint [2000] HCA 62; (2000) 204 CLR 158. In Cameron v Cole, McTiernan J said at 598-599:
Where a court is a superior court of record having general jurisdiction, it is impossible to treat any of its orders as a nullity. It may determine conclusively its own jurisdiction and whether the court determines it correctly or not, its order is valid.
In the same case, Rich J (Latham CJ agreeing) said at 590:
It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at worst voidable, and is valid unless and until it is set aside.
It may not now be correct to regard the Supreme Courts of the States as being courts of general jurisdiction: see Re Macks; ex parte Saint [2000] HCA 62; (2000) 204 CLR 158 at pp 211-212. But in the same case, Gleeson CJ cited with approval the above passage from the judgment of Rich J in Cameron v Cole, in which Rich J also said, at pp 590-591:
I am unable to feel any doubt that the Federal Court of Bankruptcy is a superior court. The language of Lord Green MR, in Craig v Kanssen [[1943] 1 KB 256 at 262], where he says that 'a person who is affected by an order which can properly be described as a nullity is entitled to have it set aside,' is correct as an abstract proposition; but since the order before his Lordship was one of a superior court, the expression is somewhat misleading, and his statement that the distinction is 'between proceedings or order which are nullities and those in respect of which there has been nothing worse than an irregularity' [at 258] fails, I venture to think with all submission, to meet the actual facts of the case. This is true enough in the case of an inferior court ( [[1943] ; but in the case of a superior court the distinction is between irregularities so fundamental as to create an unconditional right, , to have the judgment set aside, and non-fundamental irregularities as to which the court has a discretion.
171. This may be an answer to the Application by the Applicant Defendants. When judgment of a superior court of record has been given it is, on that account, unassailable except by appeal.
172. The decisions on which the Applicant Defendants rely are all decisions where proceedings were sought to be struck out before judgment. In those cases the Court has to decide whether to do so. In many cases, the Court has a discretion.
173. That discretion has been rendered into statutory form in O 69 r 1 of the Supreme Court Rules.
174. None of those decisions describe a Statement of Claim, which exceeds the indorsement on the writ, as a nullity, though many of them require claims that do exceed the indorsement to be struck out. Much of that was because the claims were added when the relevant limitation period had expired, a proper reason for striking them out in the interests of justice. That does not apply here as, save for a small, but resolved problem with the claim under the Trade Practices Act, all the amendments were made before expiry of the limitation period.
175. There is much authority to the effect that an inadequate indorsement on a writ is an irregularity and does not render the writ a nullity. See, for example, Glendinning v Cuzens (Court of Appeal decision) at [27]; Ruzeu v Massey-Ferguson (Aust) Ltd [1983] VicRp 69; [1983] 1 VR 733. Indeed, the fact that the inadequacy can be cured by delivery of a proper Statement of Claim, as pointed out in Pontin v Wood, makes it clear that it is not a nullity.
176. As made clear in Harkness v Bell's Asbestos & Engineering Ltd at 735-6, provisions in the rules such as O 69 r 1 of the Supreme Court Rules, have resulted in the position that the rules very largely do away with the distinction between irregularities and nullities. See also Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257; 35 WAR 412 at 426-7; [47]- [52].
177. It is also relevant that, apart from a reference at 595 to an insufficient indorsement or a writ not being a nullity, there was no reference in Renowden v McMullin to nullity at all.
178. Accordingly, the failure, if it is, to amend the Amended Originating Application is an irregularity and not a nullity. The question then is whether the Court can or should take any action under O 69 r 1 of the Supreme Court Rules.
179. The plaintiff submitted that under O 69 r 2, of the Supreme Court Rules, the Applicant Defendants had lost the right to rely on the irregularity. More than a reasonable time had passed without objection. As I have noted above (at [39]-[42]), the Applicant Defendants had taken steps in the proceedings. Indeed, quite apart from the steps there mentioned, they had filed evidence, made applications, appeared in the proceedings, adduced evidence, cross-examined witnesses, and made submissions.
180. In my view, the Applicant Defendants have not made this application within a reasonable time and have made it after taking significant steps in the proceedings.
181. Mr Allan Endresz, however, deposed in his affidavit that when, on 15 August 2015, the Commonwealth gave notice of its intention to apply to have the appeal dismissed for want of prosecution, he "felt compelled to conduct a thorough investigation of the proceedings" during which he "uncovered" a number of "serious and profound legal issues" which he submitted were "irregularities" and also some which rendered the proceedings "null and void". These included the matter the subject of this application.
182. Thus, it is submitted that there was no "knowledge" of the relevant breaches of the Supreme Court Rules. I have been unable to find any direct authority on the meaning of "knowledge" in O 69 r 2 of the Supreme Court Rules.
183. There is no doubt that the Applicant Defendants will have been aware that no further Amended Originating Application was filed as it was required to be served (O 32 r 12 of the Supreme Court Rules) and this would have been known. They did not receive such a document.
184. Further, at all relevant times, the Applicant Defendants were represented by solicitors and senior counsel. There can be no doubt that they had knowledge of the fact that no further Amended Originating Application had been prepared.
185. While I accept that the Applicant Defendants may not personally have been aware of the precise terms of all the Supreme Court Rules, that cannot be the relevant consideration, especially given the steps since taken and the fact that they were relevantly represented at the time by lawyers who can be expected to have been aware. That does not seem to have been relevant when a failure to challenge an irregularity was regarded as waived in Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444.
186. While I am not convinced that what is referred to in O 69 r 2 of the Supreme Court Rules is a waiver in the strict sense, the notion of waiver is at least helpful to assess the claim of the Applicant Defendants.
187. So far as jurisdiction is concerned, Cave J (in a decision upheld on appeal) said in Rein v Stein (1892) 66 LT 469 at 471 that, in order to establish a waiver of the right to object to the issuing of a writ out of the jurisdiction, it must be shown:
that the party alleged to have waived his objection has taken some step which is only necessary or only useful if the objection has been actually waived or if the objection has never been entertained at all.
188. In this case, it can be assumed that this requirement has been met. The Applicant Defendants proceeded vigorously with pursuit of not only their defence but also their counter-claim. There was no protest or reservation of rights as occurred in decisions such as Emeris v Woodward (1889) 43 Ch D 185 at 186 and Hadley and Co v Henry [1895] VicLawRp 126; (1896) 21 VLR 646 at 649.
189. Certainly, steps that have been considered to be a relevant waiver in such circumstances include filing an unconditional appearance (Re Orr v Ewing (1882) 22 Ch D 456), though this only strictly applies to Mrs Joy Endresz, arguing the merits of the proceedings on an application to set aside service (Boyle v Sacker), and making an application for security as to costs (The Assunta [1902] P 150). All of these took place in these proceedings.
190. The fact is that the Applicant Defendants have permitted the proceedings to be conducted at great expense to all without paying any attention to this issue which, apparently in desperation following the judgment against them and the dismissal of their counterclaim, they have now tried to resolve separately. To allow the Commonwealth to have proceeded in this way is clearly unreasonable: Lerga v Susa [1991] ACTSC 105.
191. I am satisfied that, insofar as O 69 r 2 of the Supreme Court Rules applies, that the Applicant Defendants have lost the right to object to any irregularity that has occurred in these proceedings.
192. The Applicant Defendants submitted that, as the defects were fundamental defects, they could not be waived. Reference was made to cases such as SS Constructions Pty Ltd v Ventura Motors Pty Ltd [1964] VicRp 32; [1964] VR 229 at 235-6, where Gillard J made the point that, while a directory provision may be waived, a mandatory direction may not. The Applicant Defendants say the relevant requirements were mandatory and rely on s 146 of the Legislation Act 2001 (ACT).
193. Of course, the use of the terms "directory" and "mandatory" are no longer in common use, following the comments made by the High Court about their lack of utility in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 374; [38].
194. In any event, for the reasons set out earlier, none of the challenged defects are fundamental. The Applicant Defendants could not identify for me any prejudice that they have suffered, such as a failure to know the case they were required to meet or to have had a proper chance to meet it and to make out their case.
195. In any event, so far as O 69 r 2 of the Supreme Court Rules amounts to a waiver, I have considered that, given the circumstances, the Applicant Defendants did waive the irregularities.
196. The Applicant Defendants further asserted that, so far as a cause of action in the indorsement on the Originating Application was not included in the Sixth Further Amended Statement of Claim, it was abandoned. Reliance was placed on what was said in Renowden v McMullin at 609.
197. Indeed, as was held in that decision, the Statement of Claim relevantly supersedes the writ. See also Dallas Development Corporation Pty Ltd v Western Australia Land Authority (Unreported, Supreme Court of Western Australia Full Court, Anderson and Wheeler JJ, 7 May 1998) at p 5.
198. The Applicant Defendants, however, in neither their written submissions nor their oral submissions, identified any cause of action so abandoned or, indeed, re-introduced. For myself, I find that, as conceded by the Commonwealth, there was originally a claim in contract in this indorsement which was not included in the Sixth Further Amended Statement of Claim or any other amended Statement of Claim. Thus, it appears to have been abandoned, but it was not sought to be re-introduced, thus not meeting any requirement asserted. There was no substance in this challenge.
199. The Applicant Defendants submit that, in the event that I find that there is an irregularity, it is now too late to make an order under O 69 r 1 of the Supreme Court Rules to rectify it or, indeed, under s 68 of the Court Procedures Act.
200. I am, of course, not asked to take any step to amend or vary the actual judgment that has now been entered. There is, of course, limited power to do that. See Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 539.
201. The Appellant Defendants relied on Rideout v Glaxo Group Ltd [1996] 1 Qd R 200, as authority for the proposition that proceedings cannot be regularised after judgment. The reference to the passage at 206-7 is not relevant to this issue; it relates solely to issue of service of process out of the jurisdiction and has nothing to say about the issues in this case.
202. The Applicant Defendants also relied on Lyons v Labathas [2010] ACTSC 93; 244 FLR 37 as authority that, after judgment, a court cannot regularise an irregularity. In fact, his Honour had nothing to say about that. That decision related solely to the question of whether a party joined by a Court order of which the party had no notice as required under rr 223 and 6008(3), was an irregularity or a nullity. The Court held it to be an irregularity not a nullity. Judgment had not been entered in that case and so the issue of regularising the joinder after judgment simply did not arise and nothing in the decision expresses any opinion about it.
203. It may be accepted that his Honour referred in Lyons v Labathas at 42; [24], to judgments being set aside but it was clear he was referring to those which were nullities and not deciding the issue of whether a judgment based on proceedings that were irregular could be regularised or, indeed, whether they could be set aside.
204. The same applies to the other decision to which the Applicant Defendant referred, namely Hoskins v Van Den-Braak. That decision again referred to the obligation of a court to set aside a decision that was a nullity. It said nothing about whether a judgment based on proceedings that were irregular could be regularised after judgment. That question simply did not arise in the proceedings. It may be inferred from that case, however, that the Court appeared to accept that the legislation there, not dissimilar to s 68 of the Court Procedures Act, would have prevented the judgment from being set aside were the errors there made irregularities instead of the nullity that the Court found. That case seems to support the proposition that an irregularity would not nullify a judgment and, it might be inferred, a court could even then take steps to regularise the irregularity.
205. Instead, I note that in Singh v Atombrook [1989] 1 All ER 385, the UK Court of Appeal held that an amendment of proceedings could be made under the UK equivalent to O 69 r 1 of the Supreme Court Rules after judgment to regularise proceedings that were otherwise an irregularity.
206. In my view, there is no occasion here to set aside the proceedings or require an amendment. The Applicant Defendants knew exactly the case they were facing and participated fully, including to the extent of filing and prosecuting a counter-claim which would have been also an irregularity were the Sixth Further Amended Statement of Claim to have been set aside.
207. Were it necessary to make an order to regularise the proceedings, I would do so. No prejudice was identified by the Applicant Defendants; indeed they expressly conceded at the oral hearing of the Application before me that they did not assert any prejudice to them. I do not consider that there is any matter of fairness or justice that requires me to refrain from making any order were one required to regularise the proceedings.
208. There is uncertainty in the authorities about the effect of provisions such as s 68 of the Court Procedures Act which is the currently operative provision. It provides:
68. Formal defects to be amended
(1) No proceedings in the court are to be invalidated by any formal defect or by any irregularity, unless the court is of opinion that substantial injustice has been caused and that the injustice cannot be remedied by an order of the court.
[subs (1) am Act 3 of 2011 s 5 and Sch 3, opn 1 Mar 2011]
(2) The court may make an order declaring that any proceeding is valid despite any formal defect or any irregularity.
209. In Metroinvest Anstalt v Commercial Union Assurance Co plc [1985] 2 All ER 318 at 323, Cumming-Bruce LJ, with whom Slade LJ agreed, said of the equivalent UK rule, O 2 r 1 of the Rules of the Supreme Court (UK), though not in identical terms to s 68 of the Court Procedures Act:
As I construe Ord 2, r 1, from the moment a step in proceedings is tainted by irregularity through failure to comply with the rules the irregular step or document remains irregular inter partes until the matter has been brought before the court and the court has decided in which way to exercise the jurisdiction conferred by Ord 2, r 1(2). Order s, r 2 does not restrict the power of the court in the sense of restricting its jurisdiction and it does not have the effect of suspending the irregularity until the application under Ord 2, r 2 is made. The purpose and effect of Ord 2, r 2 is to prescribe the procedure if and when an opposite party decides to apply so that the court on recognising the irregularity may exercise its powers under r 1(2) by taking the action of killing or curing the irregular proceeding.
210. That approach has been followed in Australia. See, for example, Brealey v Board of Management of Royal Perth Hospital [1999] WASCA 158; 21 WAR 79.
211. That approach has, however, not generally been followed in Australia, where it has been held in a number of cases that the effect is what a first reading of the provision might suggest, namely that by operation of the provision and without any order of the court, an irregularity shall not nullify the proceedings or any step taken in the proceedings. Thus, the irregularity, if waived by operation of the section, no longer infects the proceedings. See, for example, Kanyilmaz v Nominal Defendant (Qld) (Unreported, Supreme Court of Queensland, Muir J, 12 January 2000).
212. The difference of approach has not been resolved. See the discussion in Pilbara Infrastructure Pty Ltd v BGC Constructing Pty Ltd at 426-7; [47]-[52].
213. As I did not hear argument, it did not seem to me necessary to resolve the issue, though my strong inclination is that the clear words of the section seem to be to favour the Australian approach, namely that the irregularity has no nullifying effect on the proceedings unless the Court otherwise orders.
214. In my view, the application should simply be dismissed. For more abundant caution, however, I will order that the irregularities be validated which I am perfectly satisfied I have the power to do.
215. Winton Oil NL (Winton) is the 16th defendant and was joined to the proceedings on 19 February 1999. On 24 February 1999, it filed an unconditional appearance. I have described the company and its role in Commonwealth v Davis Samuel Pty Ltd (No 7) at 272; [74]-[76].
216. The evidence shows that, on 14 March 2004, it was deregistered. Under s 601AD of the Corporations Act 2001 (Cth), a company, on deregistration, ceases to exist.
217. This, however, is not quite equivalent to the death of an individual for, under s 601AH of the Corporations Act, a deregistered company may be re-instated and, in so ordering, a court may validate anything done between the deregistration of the company and its re-instatement. The re-instatement takes effect as from the date of deregistration, providing there is no gap in existence in that event: s 601AH(5). As at the date of these reasons, Winton has not, so far as I am aware, been re-instated.
218. Thus, the process of deregistration is, unlike the death of an individual, more akin to the description given by Lord Blanesburgh in Morris v Harris [1927] AC 252 at 269, as follows:
[When the former dissolution of a company is declared void, the] company is restored to life as from the moment of dissolution but, continuing a convenient metaphor, it remains buried, unconscious, asleep and powerless until the order is made which declares the dissolution to have been void, then, and only then, is the company restored to activity.
219. In Stergiou v Citibank Savings Ltd [2005] ACTCA 15, Crispin P described proceedings for or against a deregistered company a nullity (at [20]). His Honour relied on the decision of International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 1 All ER 1017.
220. While his Honour's description encompassed proceedings both by and against the company, the facts of that case were that the company was the plaintiff and judgment had not been entered.
221. Here, of course, Winton was a defendant and counter-claimant. It was also represented. While, as in Stergiou v Citibank Savings Ltd at [22] where the deregistered company had been represented by solicitors for the nine years of the proceedings, Winton was represented by Mr Cain, it is at least odd that he did not know of the deregistration. Certainly, all its directors were parties to these proceedings. Indeed, each of them has been banned from being directors of a company by orders made in Australian Securities and Investments Commission v Forge [2007] NSWSC 1489.
222. The Applicant Defendants submit that, in the circumstances, the judgment entered against Winton should be set aside. I am not convinced that the Applicant Defendants have the appropriate standing to make that application.
223. In any event, the proceedings against Winton were valid when commenced. See Immer v Girotto Precast Pty Ltd [2009] NSWSC 1019 at [6] and the cases there cited.
224. Since then, judgment has been entered. A question arises as to what action I should take. In Lazard Bros and Co v Midland Bank Ltd [1933] AC 289, the Court had entered judgment for Lazard Bros & Co against a Russian Bank. The Russian bank was owed money by the Midland Bank Ltd and Lazard Bros & Co sought to have a garnishee order made directing the Midland Bank to pay any money owing to the Russian Bank to it in discharge of both debts.
225. By the time the writ had been issued at the request of Lazard Bros & Co, the Russian Bank, a victim of the Russian Revolution, had ceased to exist as a juristic person. Lord Wright, with whom the other Lords agreed, said at 296:
it is clear law, scarcely needing any express authority, that a judgment must be set aside and declared a nullity by the Court in the exercise of its inherent jurisdiction if and as soon as it appears to the Court that the person named as the judgment debtor was at all material times at the date of writ and subsequently non-existent...
226. In Deutsche Bank und Disconto Gesellschaft v Banque des Marchands de Moscou (1938) 158 LT 364, the plaintiff bank commenced the proceedings on 27 June 1930. An appearance was entered for the defendant, though it subsequently became clear that this may not have been on instructions from the defendant. The action proceeded and, on 17 June 1931, judgment was entered for the plaintiff. The defendant appealed and it became clear at the hearing that the Russian Consulate-General in London had informed the plaintiff's solicitors by letter dated 25 August 1930 that the defendant bank no longer existed. There was, however, on the appeal no such evidence before the Court.
227. The Court of Appeal directed the Official Solicitor to investigate and prepare evidence as to the status of the defendant. That evidence having been adduced later to the effect that the defendant bank had been non-existent since at least 1924, the Court of Appeal held the judgment a nullity and, in its inherent jurisdiction, struck out the action.
228. This situation is slightly different here because, at the time the Originating Application was issued, Winton was an existing person. In addition, there did not seem to be any equivalent to s 601AH of the Corporations Act in the relevant legislation in that case.
229. Further, in more recent times, proceedings that have not concluded by judgment have, it seems, been simply adjourned where there may be a realistic prospect of
re-instatement as in Alyssa Treasury Services Ltd v Deputy Commissioner of Taxation [2009] FCA 1520; 77 ATR 917 and Care Park Pty Ltd v Universal One Communication Pty Ltd [2009] NSWSC 1405.
230. This is not an unreasonable response when, were the company to be re-instated, the proceedings could then continue and be properly conducted because of the effect of re-instatement: Kingston Futures Pty Ltd v Waterhouse [2012] QSC 212; 1 Qd R 507.
231. Alternatively, courts have simply made no order. Thus, in Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2) [2010] NSWSC 239; 77 ACSR 550, Slattery J, after a careful analysis of the relevant authorities, held that it was appropriate in that case to make no order. This was based on what Jordan CJ said in United Service Insurance Co Ltd (in liq) v Lang [1935] NSWStRp 51; (1935) 35 SR (NSW) 487 where, at 496-7, his Honour said (omitting citations to cases, many of which also dealt with the consequences of the Russian Revolution):
The remaining question is, what course should be taken by this Court when it is found that in what purports to be an appeal by a plaintiff in an action the plaintiff has no existence. If in an action it is sought to contend that the plaintiff ... or the defendant ... does not exist or is incapable of authorising the action or defence, as the case may be ... this is not a matter of defence to be disposed of at the trial. The proper way of raising it is for the party aggrieved, as soon as he becomes aware of the matter, to apply to have proceedings stayed, and in such an application he may obtain indemnification for his costs and expenses from the solicitor who has acted without authority ... If, however, the Court in the course of an action becomes aware that the plaintiff is incapable of giving any retainer at all, it ought not to allow the action to proceed ... and this applies a fortiori when it appears that the supposed party is non-existent ... The view has been recently expressed that there is always inherent jurisdiction to decline to go any further with a proceeding, if it clearly appears in that proceeding that it has not been authorized [sic] by the moving party.
232. Thus, Jordan CJ, finding nevertheless that the judgment of the District Court was a nullity, simply took no action. His Honour did not set aside the District Court judgment.
233. As a result, Slattery J, in Amcus Pty Ltd v Hurst Rentals Pty Ltd (No 2), simply made no order. That decision was followed in Mossimo Systems International Pty Ltd v Deputy Commissioner of Taxation [2010] NSWSC 1409.
234. Both of those decisions, however, involved proceedings where no judgment had been entered.
235. In this case, I was urged to take no action or, if I were minded to take any action, to adjourn for a period so that the Commonwealth, clearly being an aggrieved person within the meaning of s 601AH(2)(a)(i) of the Corporations Act, could apply, if advised, for re-instatement of Winton.
236. In these circumstances, it seems to me that the trend of current authority is that I should make no order as to the setting aside of the judgment at this stage but protect the position by ordering that no step should be taken to enforce any judgment against Winton or otherwise to rely on that judgment without leave of the Court.
237. Were any action sought to be taken, the Commonwealth should be given the opportunity to apply for the re-instatement of Winton.
238. Finally, the Applicant Defendants submitted that the first, third, 10th, 11th, 13th, 15th and 17th defendants were not "indorsed acting in their representative capacities as trustees". I shall, for ease of reference, refer to these defendants as the "Trustee Defendants".
239. The Trustee Defendants were all companies but none of them were among the Applicant Defendants. As was made plain in Commonwealth v Davis Samuel Pty Ltd (No 7) at 267; [15], [19], 270; [53], 272; [73], [78], all, except the 13th defendant, were trustees of various trusts. It did not appear at 271; [67], that the 13th defendant was a trustee, but it may have been.
240. That the Trustee Defendants were trustees seemed to me to be irrelevant to the causes of action in these proceedings.
241. The Applicant Defendants, however, relied on what had been said in Bride as Trustee of the Pinwernying Family Trust v The Australian Bank Ltd (Unreported, Full Court of the Supreme Court of Western Australia, Wallwork, Franklyn and Heenan JJ, 25 September 1996) (Bride), where Heenan J, with whom Wallwork and Franklyn JJ agreed, said at 6:
There is a difference between the personal capacity of a party and the capacity of that party as trustee. Judgment against a party in one capacity does not bar any claim by that party in the other capacity (see Bride v Peat Marwick Mitchell [1989] WAR 383 per Malcolm CJ at 389). If a party sues in a representative capacity a statement to that effect should appear on the record, if only to show what estates or interests are affected by the proceedings. As a matter of practice the statement usually appears in the title, not because it signifies a different party but because it would be of less use if it were 'buried somewhere in the statement of claim' (per North J in In re Tottenham, Tottenham v Tottenham [1896] 1 Ch 628 at 629).
242. It was not clear what point was being made by the Applicant Defendants. The oral argument made it no clearer.
243. If it was a matter of form, for example, being a complaint that the Trustee Defendants were not described as such in the title to the proceedings, then that cannot be to a fundamental defect.
244. Indeed, as was pointed out in Bride in the passage immediately following that cited by the Applicant Defendants (at 6-7):
As it happens, in the Chancery Division the capacity in which a party sues or is sued is not mentioned in the title but is stated only in the body of the pleading (Practice Note [1959] 2 All ER 629). The difference between a party and the capacity in which a party sues is illustrated in the following remarks of Lawrence LJ in Hardie and Lane Ltd v Chiltern [1928] 1 KB 663 at 700-1:
This action is unusually constituted in that the three defendants are named as parties twice over, first, without any statement as to the capacity in which they are sued, and secondly, with a statement that they are sued on their own behalf and on behalf of all other members of the Association. Two separate sets of counsel have been briefed for the three defendants, one set to represent them in their personal capacity and another set to represent them in their representative capacity. In my opinion, this double naming on the record and double representation by counsel is altogether irregular. There is no objection to combining in the same action claims against defendants who are sued in a representative capacity with claims against them personally, if such claims can be conveniently tried or disposed of together (see OXVIII. of the Rules of the Supreme Court), and it is usual in such cases, in compliance with the requirements of OIII, r4, to state in the indorsement of claim on the writ that the defendants are sued in their personal capacity as well as in their representative capacity, but I know of no case in which the Court has permitted the same parties to be named twice over on the record or to be represented by two sets of counsel in court. If the personal interests of the defendants conflict with the interests of the persons on whose behalf they are sued, they are obviously not the proper parties to represent such persons whereas if their personal interests do not so conflict, there is no valid reason why they should be named twice over or why they should be represented by two sets of counsel. As, however, this objection is purely technical and could readily be dealt with by a formal amendment of the record it does not affect the substance of the matter.
245. In any event, Master Sanderson made the relevant point in Ashwin v Minara Resources Ltd [2006] WASC 75; 200 FLR 80 at 85-6; [26], as follows:
It was also submitted that the proceedings were defective because the representative capacity of the parties should be stated in the title to the action. Reliance was placed on the old English case of Re Tottenham v Tottenham [1896] 1 Ch 628 at 629. Once again, this is an arid point. The statement of claim makes it plain that the plaintiffs are engaged in representative proceedings. A reading of the Tottenham decision (supra) makes it plain that North J was not dealing with any point of principle. Rather, he was offering a view as to what he thought should be done to bring the nature of the proceedings - that is to say the representative nature of the proceedings - to the attention of the parties ... where there is a statement of claim and where the representative nature of the proceedings is entirely apparent from the statement of claim, there is, in my view, no need in the title to the proceedings to mention the representative capacity in which they were brought. There is no such requirement in the rules.
246. There is no suggestion in any of these authorities that the failure to identify in the title to proceedings the representative capacity in which a party sues or is sued is a fundamental defect. Indeed, were it a defect at all, it would be no more than a curable irregularity.
247. The only Australian decision directly to follow In re Tottenham; Tottenham v Tottenham [1896] 1 Ch 628 is Re Moat; Land v Moat (1896) 7 QLJ (NC) 38, and even there, though the brevity of the Report makes it difficult to be sure, while there was held to be a requirement for the representative capacity of the plaintiff to be specified in the title, there was no suggestion that it was a fundamental defect not to do so nor that it could not be cured.
248. The Canadian situation seems to be different. See Walsh v Smith [1944] OWN 82. In the UK, In re Tottenham; Tottenham v Tottenham still seems to be followed.
249. In my view, where there is a genuine issue of a party suing or being sued in a representative capacity, this should be made clear. That may be in the title to the proceedings, but need not necessarily be so. Indeed, despite the comments of North J, there seems much to be said for setting it out as a relevant fact in any Statement of Claim or, at least, in the indorsement of the originating process.
250. Where it is not done, then there may be occasion for amendment, but it is not a fundamental defect and certainly not an incurable one.
251. The problem for the Applicant Defendants, however, is a deeper one. That a company, or, indeed, an individual, is a trustee does not mean that, in the relevant sense, they are being sued in a representative capacity such that this expression of what is desirable would apply.
252. In a real sense, it did not matter that any of the Trustee Defendants was a trustee. They were sued because as legal persons they engaged in transactions for which the Commonwealth alleged they were liable to it. Whether they engaged in the transactions as trustees or in their own right was in that sense beside the point. They may be able to recover any judgment given against them as an indemnity from the assets of the trust of which they were trustee, but, at law, they were the legal owner of the assets they held.
253. In that sense, that they were trustees was the whole point for they were the legal persons which could engage in the transactions as the trust itself could not.
254. Black J dealt comprehensively with this issue in ALYK (HK) Ltd v Caprock Commodities Trading Pty Ltd [2015] NSWSC 1006 at [21]- [26].
255. His Honour was dealing with a submission that the defendant was not a proper party because it was a trustee and had only ever conducted itself as such and never in its own capacity. It is, as his Honour pointed out, fundamental that a trust is not a separate legal entity under Australian law and the trustee is a party to any contract entered into in respect of that trust as the relevant legal person to do so.
256. His Honour referred to what the plurality of the High Court said in Octavo Investments Pty Ltd v Knight [1979] HCA 61; (1979) 144 CLR 360 at 367, as follows:
It is common ground that a trustee who in discharge of his trust enters into business transactions is personally liable for any debts that are incurred in the course of those transactions: Vacuum Oil Co Pty Ltd v Wiltshire [1945] HCA 37; (1945) 72 CLR 319. However, he is entitled to be indemnified against those liabilities from the trust assets held by him and for the purpose of enforcing the indemnity the trustee possesses a charge or right of lien over those assets: Vacuum Oil Co Pty Ltd v Wiltshire.
257. His Honour further referred to the recent decision of the NSW Court of Appeal in ACES Sogutlu Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [2014] NSWCA 402 at [13]- [18], where Leeming JA, with whom Beazley P and Macfarlan JA agreed, said:
14 [The appellant] put it as follows in oral submissions in the appeal:
So what his Honour did was all, with great respect to his Honour, his Honour understood that Ceyser Pty Ltd, in its own capacity, was the trust. It's not. The trust is totally different, which is under Ceyser Hybrid Unit Trust. Ceyser Hybrid Unit Trust was not a party to the loan or the guarantee. His Honour found that all the documentation were executed in the name of Ceyser as trustee for Ceyser Hybrid Unit Trust.
258. His Honour then concluded at [26] in terms applicable to these proceedings:
Accordingly, the proper defendant in the proceedings is Caprock, and nothing turns on whether it is expressly described as acting as trustee for the Fund. Any judgment is properly made against Caprock, albeit that it may be entitled to rely on the terms of limitation of liability in the trust deed in that respect, and it may then exercise any right of exoneration or indemnity against the assets of the Fund in order to meet the judgment against it.
Disposition
259. Accordingly, there is no substance in the complaint of the Applicant Defendants that any of them were not properly parties to the proceedings because they had not been properly served. While personal service may not have been effected on some of them, they were, under the Supreme Court Rules, properly parties for all purposes.
260. The Applicant Defendants have not succeeded in any of their challenges to the judgment I entered. Their application must be dismissed. They should pay the Commonwealth's costs.
261. Unless there is a basis for a special order for costs, I will make these orders.
I certify that the preceding two hundred and sixty-one [261] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge
Commonwealth of Australia
Davis Samuel Pty Limited and Ors
(1971) 125 CLR 529
(2008) 238 CLR 218
(1944) 68 CLR 571
(1993) 114 ALR 245
(2007) 69 NSWLR 327
(2005) 223 CLR 1
(1998) 43 NSWLR 290
(1959) 101 CLR 298
(1957) 96 CLR 261
(1979) 144 CLR 360
(1970) 123 CLR 584
(1979) 143 CLR 1
(1940) 63 CLR 382
(1995) 182 CLR 544
(1943) 68 CLR 571
(2000) 204 CLR 158
(1945) 72 CLR 319
Order 19 Parties
Division 19.1 Generally
...
12 Amendment on misjoinder or nonjoinder of parties
No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court or Judge may, at any stage of the proceedings, either upon or without the application of any party, and on such terms as appear to the Court or Judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court is necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. A person shall not be added as a plaintiff suing without a next friend, or as next friend of a plaintiff under any disability, without his consent in writing thereto. Every party whose name is so added as defendant shall be served with an originating application in the manner mentioned in this Order, or in such manner as is prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such application.
13 Application as to parties
Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by motion or summons, or at the trial of the action in a summary manner.
14 Change of parties - amendment of application and service etc
Where a defendant is added or substituted the plaintiff shall, unless otherwise ordered by the Court or Judge, file an amended copy of, and sue out the originating application and serve the new defendant with the application.
...
Order 23 Pleading Generally
...
[26] It is then difficult to regard proceedings as a nullity in the sense that they are void whilst recognising that they can be the subject of a judgment which is valid unless and until set aside. To the extent that the expression is useful, it can only refer to a proceeding which is defective in a way which the court with its various powers, including those conferred by its particular rules of procedure, cannot cure. If there is an apparent remedial power under the procedural rules, the defect is curable and the proceeding should not be described as a nullity. It is the extent of the remedial power which defines what can be remedied, rather than the remedial powers being qualified by a characterisation of something as a nullity, according to what was said in other contexts and under different procedural rules. In the course of argument, Mr Bain QC, who led Mr Pyle for the respondent, submitted that Wigan v Edwards was itself an example of a proceeding which would be a nullity, but for the operation of r 375(2). That is to demonstrate that the categories of case fitting the description are affected by the content of the procedural rules. So, where the rules of court permit a defectively endorsed writ to be cured by an appropriate statement of claim, the writ is not a nullity, and it is effective as the commencement of proceedings for the purposes of the operation of a limitation period: Hill v Luton Corporation [1951] 2 KB 387; Pontin v Wood [1962] 1 QB 594.