Deveigne & Anor v Askar

39 It appears liability was in issue, as well as the extent of the respondent's injuries. According to the Costs Assessor to whom I shall shortly refer, "a large number of medical reports and investigation reports [were] obtained" by the "defendant". Senior Counsel was also briefed on behalf of the "defendant" early in the piece. However on 30 April 2001 the "defendant" filed a Notice of Motion seeking to have the proceedings dismissed. The Motion came before Garling DCJ on 30 May 2001. There is no indication that his Honour was advised the "defendant" had pre-deceased the commencement of the proceedings. He gave the respondent's solicitors leave to withdraw from the proceedings because of their inability to obtain instructions, ordered them to file a Notice of Ceasing to Act within seven days and, on the "defendant's" application dismissed the proceedings pursuant to then District Court Rules 1973, Pt 18 r 3 which conferred power on the Court to dismiss proceedings for want of prosecution. Significantly, for present purposes, his Honour ordered: "5. The plaintiff pay the defendant's costs of the proceedings." 40 The costs order was entered on 20 June 2001. Consequent upon that order the NRMA prepared a Bill of Costs and served it on the respondent by letter dated 2 November 2001. He instructed his present solicitor, Paul Marsh, who wrote to Abbott Tout on 15 November 2001 advising that their letter was the first time the respondent had become aware of Garling DCJ's order. The letter suggested various steps the respondent might take, depending upon instructions, including seeking to vacate Garling DCJ's order. That step was not taken. 41 Abbott Tout's response to the letter, if any, is not in evidence. The next step appears to be that on 28 November 2001 the firm filed an application for assessment of party/party costs pursuant to s 202 of the Legal Profession Act 1987 in the Common Law Division of the Supreme Court of New South Wales. The application was said to be "Re: District Court No 6817 of 2000". The applicant was identified as "Terry Deveigne". Mr Marsh's letter was annexed to the application. On 22 May 2002 a Supreme Court Costs Assessor, Mr O'Brien, issued a Certificate as to Determination of Costs in which he assessed the costs to be paid by the respondent to the applicant, Terry Deveigne, as $105,736.12. 42 Thereafter, it appears, the NRMA procured the issue of the Certificate of Judgment in the District Court presumably by filing the Certificate of Determination in the District Court Registry: s 208J (3), Legal Profession Act 1987; DCR Pt 31 r 16. On filing the Certificate of Determination it was taken to be a judgment of the District Court for the amount of unpaid costs: s 208FJ (3). The Certificate identified "Terry Deveigne" as the "judgment creditor" and the respondent as the "judgment debtor". It was entered in the District Court on 21 June 2002 in file number 5387 of 2002. The papers do not record why it was given a number that differed from that of the substantive proceedings. No party suggested it made any difference to the outcome, and I have proceeded on that basis. 43 At some time after the Certificate of Judgment was issued, as I have said, Abbott Tout became aware of Merkel J's decision in Budimir v McMahon that a bankruptcy notice filed on behalf of a deceased person is a nullity. The firm formed the opinion that in order to take any further proceedings to recover the costs of the defence paid by the NRMA exercising its right of subrogation pursuant to the CTP Policy, it would be necessary for the NRMA to be named as the defendant in the proceedings. 44 On 24 March 2004 Abbott Tout filed a notice of motion naming "Terry Deveigne" as the applicant in the District Court in proceedings numbered 5387 of 2002. It sought orders first, that "proceedings No 5387 of 2002 be relisted". Next it sought, in the alternative, either that Garling DCJ's costs order be amended by substituting "defendant's insurer's costs" for "defendant's costs" or that Garling DCJ's costs order be set aside and replaced with one ordering the plaintiff to pay NRMA's costs. Although the affidavit in support of the motion sworn by Ms Hornsby on 14 April 2004, referred to the fact that NRMA sought to be substituted as the defendant in order to recover the costs of the defence, the Notice of Motion did not seek that relief. 45 Gibson DCJ heard the Motion on 15 April 2004. Her Honour apparently said that the number of the proceedings was incorrect and amended it to "6817 of 2000", the plaint number of the Statement of Claim. The evidence before Gibson DCJ explained the history, including the fact that Terry Deveigne had died before the Statement of Claim was filed. It was common ground before her Honour that the decision in Budimir v McMahon meant the bankruptcy notice the NRMA was contemplating filing would be "hopelessly flawed" because of Mr Deveigne's death. After referring to s 47 of the MA Act and s 159 of the District Court Act 1973, her Honour said: "In practical terms, Mr Morris [Counsel for NRMA] wears two hats: he is the defendant and he is the insurer. The insurer conducted this case for the defendant and, if the plaintiff had won, the fact that the defendant was deceased would not have prevented or been any excuse for the plaintiff, [sic, it seems this should be 'the insurers'] not to 'shell out', so to speak. What the unsuccessful plaintiff in the Motor Accidents Act proceeding says is that there is no power under the rules to make any costs order unless the defendant's insurer is a party. In my view, this begs the question. The defendant is a party. What Mr Morris's client's orders seeks is the insertion of the words 'the defendant's insurer's costs' or, in the alternative, the setting aside of the order in favour of the defendant and the insertion of the name of the defendant's insurer in his place, the insurer being the person who footed the bill in accordance with s 47. … I am of the view that it is not necessary to join the insurance company as a party but that, if it were necessary, s 159 and Part 1, rule 5 would permit me either to do so or to waive requirement [sic, this should be 'compliance'] with that rule by reason of the fact that, although Mr Morris wears two hats, in a sense, bearing in mind that the insurance company has conducted this entire litigation, he is wearing two hats that he can basically turn into one. In circumstances where the insurance company has paid the costs and has conducted the whole of this litigation on behalf of the defendant, it seems to me appropriate that what I should do is make the orders sought." 46 Her Honour ordered that the costs order made by Garling DCJ of 30 May 2001 be set aside and replaced with an order that: "In place of the order of 30 May 2001 the plaintiff is to pay the costs of the defendant's insurer of the defence of these proceedings being Insurance Australia Ltd (trading as NRMA Insurance)." The respondent was also ordered to pay the costs of the defendant's insurer of the Notice of Motion. The orders as entered bore the proceedings number "6817 of 2000". 47 The respondent did not seek leave to appeal, or appeal, from Gibson DCJ's orders. 48 On 4 August 2004 Abbott Tout wrote to the Costs Assessment Section of the Supreme Court enclosing a copy of the costs order amended in accordance with Gibson DCJ's orders. The letter drew attention to the fact that Mr Deveigne was deceased (but not when he had died) and to Gibson DCJ's orders and asked that the Costs Determination issued on 25 May 2002 be amended to add "Insurance Australia Ltd t/as NRMA Insurance Ltd" as one of the applicants. 49 On 2 September 2004 the Manager of the Costs Assessment Section wrote to Abbott Tout advising that the amendment sought did not fall within s 208JB of the Legal Profession Act 1987 "as there was no inadvertent error" and that, therefore, "the Scheme cannot assist you in relation to this particular request." The Manager suggested that the most appropriate way to resolve the problem was to apply for a new assessment. She also pointed out that as there was an extant judgment based on the Certificate of Determination which had been issued and, as Abbott Tout was asking that a new Certificate of Determination be issued in relation to the same matter, it would have to provide evidence to the Manager that "the initial judgment has been set aside before the new assessment is commenced." 50 On 25 November 2004 Abbott Tout filed a Notice of Motion in the District Court, again in proceedings numbered 5387 of 2002, on this occasion said to be between "Terry Deveigne" as "the plaintiff" and Michael Askar as "the defendant", seeking an order pursuant to DCR Pt 31 r 12A that the "judgment in these proceedings be set aside" and that there be no order as to costs. The motion was supported by an affidavit which attached the correspondence with the Manager of the Costs Assessment Section. It came before Judicial Registrar McDonald on 6 December 2004. She concluded there was no evidence before her that the Certificate of Judgment was entered irregularly. She dismissed the Notice of Motion and ordered Mr Deveigne to pay the respondent's costs. 51 On 30 December 2004 Abbott Tout filed a "Long Notice of Motion" again in proceedings numbered 5387 of 2002, on this occasion naming "Terry Deveigne" as the "judgment creditor" and Michael Askar as the "judgment debtor", seeking orders that the whole of the judgment and orders of Judicial Registrar McDonald made on 6 December 2004 be set aside and that the judgment entered in proceedings No 5387 of 2002 in favour of the judgment creditor in the sum of $105,736.12 be set aside upon the grounds that the Judicial Registrar failed to exercise her power under DCR Pt 1 rr 5 and 5A. 52 The Long Notice of Motion first came before Bishop DCJ on 8 April 2005. On that day IAG Pty Ltd t/as NRMA Insurance was added as the second applicant to the Notice of Motion and the following orders were made: "1. Leave be granted to the applicant to amend the name of the applicant to the motion to IAG Limited t/as NRMA Insurance in the alternative. 2. Costs of today be reserved. 3. Leave be granted to either party so advised to file further order consolidating the two orders referred to above. 4. The Notice of Motion be adjourned part heard before Bishop DCJ on 24 June 2002 [sic, this should be 2005].

5. The order in No 6817 of 2000 on 30 May 2001 has been amended in part by an order on 15 April 2004 in the same matter." 53 On a date which appears from the faint impression of the Court stamp to have been 23 June 2005, Abbott Tout filed an "Amended Long Notice of Motion" pursuant to the leave granted in Order 1 of Bishop DCJ's April orders. Terry Deveigne was now identified as the "First Applicant" as well as the "Judgment Creditor". NRMA was added as the second applicant for the relief sought. 54 On 25 June 2005 an order was made in the District Court proceedings number 6817 of 2000 in the following terms: "25 June 2005 The Court this day directs that for the purpose of formalisation that the orders of Garling DCJ made 31 May 2001 and orders 1 and 2 of Gibson DCJ made 15 April 2004 be amalgamated as follows: 1. On the basis of an inability to obtain instructions the plaintiff's solicitor be granted leave to withdraw. 2. A Notice of Ceasing to Act be filed within seven days. 3. The defendant be granted leave to amend the Notice of Motion to 'dismiss' the Statement of Claim. 4. The proceedings be dismissed pursuant to Part 18 Rule 3. 5. The plaintiff is to pay the costs of the defendant's insurer being Insurance Australia Limited t/as NRMA Insurance of the defence of these proceedings. The Court further directs that for the purpose of formalisation of the orders of Gibson DCJ of 15 April 2004 as follows: 6. The plaintiff is to pay the costs of the defendant's insurer being Insurance Australia Limited t/as NRMA Insurance of this Notice of Motion." 55 Having made those orders, Bishop DCJ proceeded to hear the motions. The NRMA argued the Judicial Registrar misdirected herself in finding there was no irregularity. As recorded by the primary judge the NRMA appears to have argued the costs judgment was affected by irregularity because it had been subsequently amended by orders, presumably those made by Gibson DCJ. Accordingly it was contended the costs judgment could be "amended by being set aside" pursuant to DCR Pt 31 r 12A. Alternatively, NRMA submitted DCR Pt 1 r 5 conferred an inherent jurisdiction on the Court to make appropriate orders to resolve the dispute between the parties. The respondent argued that Budimir v McMahon and Marshall v D G Sundin & Co Pty Ltd (1989) 16 NSWLR 463 led to the conclusion that any action taken in the name of a deceased person without the grant of probate or letters of administration were a nullity. Although not recorded by the primary judge, this argument was presumably advanced to support the contention (also advanced in this Court) that the Certificate of Judgment was a nullity. 56 Bishop DCJ recited the history of the matter (which he fairly described as a "saga"). He observed that the powers DCR Pt 31 r 12A conferred to set aside a final judgment were restricted, "no doubt in accordance with the well-known policy of [the] desirability of finality in litigation". In his Honour's view the rule directed attention to the circumstances existing at the time the judgment was given or entered up or the order made. He concluded: "As the background material in this case indicates the Certificate of Judgment for the costs in question was applied for and entered up at the request of the applicant. Assuming that the material before the Judicial Registrar was similar to that before the Court on this Motion, the conclusion that there was no evidence of any irregularity at the time of the entry of the subject judgment, in my opinion, was the only one open." 57 The primary judge then referred to DCR Pt 1 rr 5 and 5A. It appears his Honour doubted whether those rules had been agitated before the Judicial Registrar. He noted they conferred a broad discretionary power to dispense with compliance with any of the requirements of the rules either before or after the occasion for compliance arose. Nevertheless, in his Honour's view, that dispensation power "should not be used lightly to rewrite [the rules]" and "the overriding principle of the finality of litigation is also of importance." He concluded (at [18]) that he would not exercise his discretion to dispense with compliance with the Rules saying: "My reasons would be the effect of the principle of finality of judgment and, in addition, the fact that the issue of whether the judgment sought to be removed was in fact a nullity, or indeed the proceedings as a whole were a nullity, have not been fully explored in argument." His Honour did not record which District Court Rules the NRMA was asking be dispensed with. 58 The primary judge declined to grant the relief sought in the amended Long Notice of Motion. He ordered "the applicant" (without discriminating between the first or second) to pay the respondent's costs with the exception of costs which had been reserved on 24 June 2005 as to which he made no order.

Submissions 59 Mr D Davies of Senior Counsel, who appeared with Mr J Morris for both Terry Deveigne and NRMA, acknowledged that his right to appear for the first claimant was bound up in the argument as to why the appeal should be allowed. Prima facie, however, he submitted that s 47 and s 53 of the MA Act gave the NRMA the right to act on behalf of any person sued, including a person who was deceased at the time the proceedings were commenced. He submitted the NRMA had been correctly added as an applicant before Bishop DCJ because its joinder was necessary to enable all issues to be decided. On the assumption that Bishop DCJ's order granting NRMA leave to amend the name of the parties to the Long Notice of Motion and thereby be added as an applicant was insufficient to make it a party to the proceedings, Mr Davies sought an order that NRMA be joined as a party pursuant to DCR Pt 7 r 8 (or its equivalent, UCPR 6.24) and that the joinder be effective from the time the Statement of Claim was served, 11 February 2000. The respondent opposed that application. The Court indicated it would rule on it when it gave judgment. 60 Mr Davies' written submissions identified three questions to be determined on appeal: whether the Certificate of Judgment was given up or entered irregularly within the meaning of DCR Pt 31 r 12A, whether DCR Pt 1 r 5 and r 5A enabled the Certificates of Judgment to be set aside and whether the original proceedings were a nullity. As the argument on the application developed, the last question assumed primary importance. 61 Mr Davies' essential argument was that the commencement of the proceedings against a dead person did not render them a nullity, but an irregularity, as too, were any subsequent steps, including entering the Certificate of Judgment. 62 Mr Davies argued that there was a fundamental difference between proceedings commenced in the name of a deceased person without legal authority and proceedings properly commenced by a living person against a deceased defendant. He suggested that a test for distinguishing between those irregularities which rendered proceedings void, or voidable only, was whether the irregularity was of such a character as might be waived by the other party. 63 Mr Davies submitted that once the proceedings were commenced NRMA had "no choice but to continue to act" in them by virtue of s 47 of the MA Act. The proceedings were not a nullity because it was open to NRMA, by virtue of s 47 and s 54 (which he argued gave NRMA a right to take over the proceedings if it chose), "to waive the irregularity though there was no service on the defendant and even that the defendant was no longer in existence." 64 Mr Davies sought to distinguish Tetlow v Orela Ltd [1920] 2 Ch 24 and Marshall v D G Sundin & Co Pty Ltd in which proceedings commenced in the name of a plaintiff who had predeceased their commencement were held to be a nullity. He submitted that where proceedings were commenced against a dead person, they could be stayed until appropriate arrangements could be made for a legal representative of the deceased to be appointed or, in the present case, for the insurer to seek to be joined either in substitution for, or in addition to, the dead defendant. He argued that, in any event, ss 47 and 54 overrode the common law so that, at worst, such proceedings would be an irregularity. He also relied upon s 53(3). 65 Mr Davies argued, in the alternative, that the effect of Gibson DCJ's order of 24 March 2000 was that the Certificate of Judgment ceased to be operative and ought to have been set aside in exercise of the Court's powers under DCR Pt 1 rr 5 and 5A. He contended those Rules enabled the Court to set aside the Certificate of Judgment as an order consequential upon that made by Gibson DCJ and that Bishop DCJ had erred in not applying the Rules for that purpose. 66 Mr Davies next submitted that the primary judge had misdirected himself by referring to the overriding principle of the finality of litigation. He argued that the application before his Honour had sought only to correct a procedural difficulty that resulted in the Certificate of Judgment issuing in favour of a deceased person when it ought, had the proceedings been regularly and properly brought, to have been a Certificate of Judgment in favour of NRMA. 67 Mr Davies also sought to distinguish Budimir v McMahon on the basis that it concerned the question whether a Bankruptcy Notice issued in the name of a deceased person was a nullity. He pointed to the fact that Merkel J who held that it was (at [6] and [7]) appeared to accept the argument that any step in the proceedings taken in a deceased's name or by any person without legal authority to act for that person was a nullity. In this case, however, the person who commenced the present proceedings (the respondent) was alive. He also argued that ss 47 and 54 of the MA Act overrode the principle upon which Merkel J relied. 68 Mr Davies argued that the situation was similar to one in which a statement of claim was issued against a defendant who had predeceased its issue, albeit unknown to the plaintiff, who then ascertained the defendant was dead and, once probate was obtained, served the statement of claim on the executor. In effect, he submitted, once probate was obtained, the executor could waive the fact that he was not named as the defendant and continue to conduct the proceedings and that the title of the proceedings could be amended to name the executor as the defendant.

69 Mr Davies submitted, relying upon Smith v Budandan Enterprises [2002] NSWCA 322; (2002) 55 NSWLR 367, that the irregular entry of the Certificate of Judgment could be cured as it was not necessary for "misconduct or dishonourable conduct" to have occurred to set aside a judgment on that basis. He submitted that Gibson DCJ had acted upon the irregularity that the NRMA ought to have been named as the party to the proceedings to enable it to get the benefit of the costs order. 70 Mr B L Jones, who appeared for the respondent, submitted that the appeal should be dismissed for three reasons: first because the motion appealed against, and consequently the appeal, was a nullity, secondly, because Gibson DCJ's orders were made when the Court was functus officio and thirdly, because the Certificate of Judgment was not entered irregularly. 71 Mr Jones submitted that at common law, a person ceases to exist as a legal entity upon death. Hence, causes of action in tort did not survive the tortfeasor: see Nominal Defendant v Mabury [1962] HCA 12; (1962) 108 CLR 598 at 603. The common law rule was overcome by s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), which, relevantly provides that on the death of any person all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person's estate. 72 Consequently, he argued, it was Mr Deveigne's executor alone who had representative capacity for his estate or, if probate or administration had not been granted, the Public Trustee had that capacity: s 61, WPA. Therefore, proceedings brought directly against the deceased, rather than his estate, were a nullity. 73 Mr Jones contended there was a fundamental distinction between an irregularity and a nullity and that if a proceeding was a nullity, it was incurable and it could not be validated by any subsequent act of the parties, such as waiver. He submitted that irregularities were limited to defects in procedure, not defects so fundamental as to render the proceedings themselves a nullity. 74 Mr Jones argued that the principles underlying both Tetlow v Orela and Marshall v D G Sundin applied with equal force to the present case. If proceedings could not be commenced in the name of a dead person by parity of reasoning, a motion or appeal in the name of a dead person was equally void. Therefore, the NRMA did not have, and had never had, any power or authority to take a step in the proceedings in the name of the deceased. 75 Mr Jones argued the provisions of the MA Act did not overcome the NRMA's difficulty. Section 47(1)(b) presupposed the proceedings were valid because the "person" referred to therein was a legal entity; it did not permit substitution of the insurer as the party if the proceedings themselves were a nullity. 76 As to s 54 of the MA Act, Mr Jones argued that it enured to the benefit of the injured party, enabling that person to take proceedings against the insurer if the putative defendant was dead, or could not be served. He submitted that s 54 did not displace the common law rule that an action naming a deceased is a nullity as no cause of action lies against such a "person". 77 Mr Jones submitted that the NRMA had had a choice as to whether to act in the proceedings. It knew before the proceedings were commenced that Mr Deveigne had died. It should have been obvious to it that the proceedings were a nullity. It could not, therefore, purport to waive the defect as an irregularity. It should have moved to have the proceedings struck out at the earliest moment, thereby avoiding the substantial costs it had incurred. 78 Mr Jones next submitted that the consequence of the costs orders made by Garling DCJ on 30 May 2001 having been entered on 20 June 2001 was that the Court became functus officio. He contended that once the cost judgment of the Court had been passed and entered, the Court lacked power to make an order which altered or set aside that judgment: Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 234. Accordingly the orders of Gibson DCJ of 15 April 2004, upon which the NRMA sought to rely in its claim for costs, were void. It does not appear that this argument was advanced before her Honour. 79 Finally Mr Jones contended there was no irregularity for the purposes of DCR Pt 31 r 12A. He disputed NRMA's argument that the judgment was irregular because it was entered in the name of the deceased. Rather, relying on his basic premise, he argued that, the entire proceedings having been a nullity, there was no room for the operation of the District Court Act or Rules. 80 Mr Jones submitted that if the appeal was allowed, there should be no order as to costs as the NRMA's problem arose by reason of its failure to recognise at the outset that the proceedings were a nullity. 81 In essence, the competing contentions were, for NRMA, that the proceedings were irregularly commenced and everything which thereafter occurred was an irregularity which could be cured under the Rules. For the respondent, that the proceedings were a nullity from the outset and everything which took place thereafter was similarly a nullity. The irony of the respondent's position is readily apparent.

Consideration 82 To describe a document or a court proceeding as a "nullity" states a conclusion, rather than the reason for reaching that conclusion: Adams v Lambert [2006] HCA 10; (2006) 80 ALJR 679 at [25]; see also Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380 at [10]; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [154] per Hayne J. Such statements of conclusion, it has been said, "are not necessarily helpful in resolving the rights of parties", both in the context of administrative decisions and "in the context of proceedings in, and acts and orders of, courts": Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214 at [10] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); see also Minister for Immigration and Multicultural Affairs v Bhardwaj (at [46]). 83 The joint judgment in Berowra contained the following observations (at [13]): "[13] There also is a very real difficulty in characterising proceedings as 'invalid'. The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules. [14] Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court. [15] In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is, in law, no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it. [16] None of the above denies the possibility of a defendant denying the plaintiff's right to invoke the jurisdiction of the court, for example where the plaintiff's right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it. Accordingly, the defendant may challenge at an interlocutory level the strength of the plaintiff's alleged case by seeking to have a plaintiff's action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. Alternatively, the defendant may have recourse to judicial review by a superior court, challenging the right of an inferior court to adjudicate the plaintiff's claim and seeking orders to prevent the inferior court continuing to hear the claim. However, the invocation of jurisdiction ordinarily enlivens the authority of the court in question at least in the first instance to decide whether it has jurisdiction [Re Macks; Ex p Saint (2000) 204 CLR 158]." (emphasis added) 84 In Berowra, the majority concluded (at [36]) that proceedings commenced by a worker in contravention of s 151C of the Workers Compensation Act 1987 (which required a six months delay before the commencement of court proceedings against an employer for damages) engaged the jurisdiction and procedural rules of the court in question. While the proceedings were vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, they were not a nullity.

Nullity and irregularity 85 Before turning to consider the particular consequences of commencing proceedings against a deceased defendant, it is useful to examine decisions in which the courts have considered whether proceedings, or a step in them, constituted a nullity. 86 In Plowman v Palmer [1914] HCA 41; (1914) 18 CLR 339 (at 347 - 349), Isaacs J (with whom Rich J agreed) said "a proceeding taken, where such proceeding is entirely forbidden or excluded by the rules … or is not permitted at all at the time it is taken is a nullity or an irregularity … [but] it is sometimes difficult to say on which side of the line a given matter lies, and the line is very thin". After observing that "[t]he power to waive the objection is rather an accompaniment of mere irregularity than a standard of discrimination", his Honour said: "… the test is: Is there jurisdiction at the time to do the act impeached, even though prior precautions for the protection of a party, or other formalities, are directed; or is the act complained of, in the circumstances entirely unprovided for or prohibited at the time it is done? " (emphasis added) 87 In MacFoy v United Africa Co Ltd [1962] AC 152 (at 160), Lord Denning (who delivered the judgment of the Privy Council) observed that no Court had ever attempted to lay down a decisive test for distinguishing between nullities and irregularities, but that a useful one was whether, if "the other side waived the flaw in the proceedings or took some fresh step after knowledge of it… [c]ould he afterwards in justice complain of the flaw?" If the other side could complain despite the subsequent step, the "flaw" was a nullity. 88 In Re Pritchard (decd) [1963] Ch 502 (at 520) Upjohn LJ (with whom Danckwerts LJ agreed) accepted that no precise definition of irregularities or "true nullities" was possible. He concluded (at 523), after a review of the authorities, that a defect which was fundamental to the proceedings would make them a nullity. He described the waiver test formulated in MacFoy as "useful … as a good commonsense test", but agreed with counsel "that it cannot be a completely legal test, for until you have decided whether a proceeding is a nullity, you cannot decide whether it is capable of waiver." He added that the Court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of RSC O 70, r 1, (an irregularity provision) when "justice can be done as a matter of discretion …" 89 His Lordship added (at 523-524): "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 … (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 the statutory requirement." 90 Upjohn LJ held (at 526) that an originating summons which was accepted and sealed in a Local District Registry in Pontypridd, but which, under the terms of RSC O 54 r 4B was required to be sealed in the Central Office in London was a nullity. This was because the writ was not issued in accordance with the only relevant Supreme Court Rule, and, accordingly, the proceedings had not been commenced for the purposes of s 225 of the Supreme Court of Judicature (Consolidation) Act 1925 (UK). Lord Danckwerts, while agreeing with Upjohn LJ, described the originating summons (at 527) as "a nullity [which] has no operation [and]… no more application to the matter to be decided than a dog licence". 91 Lord Denning MR strongly dissented, describing the majority decision (at 518) as a "blot" on the "copybook". He said (at 517): "The only true cases of nullity that I have found are when a sole plaintiff or a sole defendant is dead: see Tetlow v Orela Ltd , or non-existence: see Lazar Bros. v Midland Bank ; and I would like to see the word 'nullity' confined to those cases in future." 92 In Lord Denning's view, RSC O 70 r 1 could be deployed to remove the originating summons from the Pontypridd registry to London, thus enabling the matter to be heard. 93 It is important to understand Upjohn LJ's first class of nullity on the context of his critique of Lord Greene's statement in Craig v Kanssen [1943] 1 KB 256 (at 262) 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." As Upjohn LJ's discussion (at 519 - 523) reveals, Lord Greene's description of such proceedings as a "nullity" was not apt to describe proceedings where, because they had not been served, the defendant was entitled to have either the originating process or any consequential order set aside as of right, unless the failure to serve had been waived or the defendant was otherwise estopped. Fundamental to this proposition is the rule of natural justice that a person against whom a claim is to be made must be given a reasonable opportunity to appear and present a case in response: see Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571; Hoskins v Van Den-Braak (1998) 43 NSWLR 290 (at 293 -294) per Mason P (Priestley and Beazley JJA agreeing).

94 Notwithstanding Upjohn LJ's reservations in Re Pritchard concerning the utility of the waiver test, it was endorsed by the Privy Council in Strachan v Gleaner Co Ltd & Anor [2005] UKPC 33; [2005] 1 WLR 3204, a decision referred to with apparent approval in Berowra (at [11]). Gleaner concerned two questions. First, whether there was jurisdiction to set aside a default judgment after damages had been assessed and, secondly whether an order setting aside a default judgment made without jurisdiction was a nullity which could, in turn, be set aside. The Privy Council answered the first question in the affirmative, holding (at [21]) that "[t]he Courts have jealously guarded their power to set aside judgments where there has been no determination on the merits, even to the extent of refusing to lay down any rigid rules to govern the exercise of their discretion". Although, therefore, the second question did not arise, the Privy Council considered it, saying: "25 The distinction between orders which are often (though in their Lordships' view somewhat inaccurately) described as nullities and those which are merely irregular is usually made to distinguish between those defects in procedure which the parties can waive and which the Court has a discretion to correct and those defects which the parties cannot waive and which give rise to proceedings which the defendant is entitled to have set aside ex debito justitiae . The leading example is Craig v Kanssen [1943] 1 KB 256, where the proceedings were not served on the defendant at all. The Court of Appeal held that the proceedings were a nullity which the defendant was entitled as of right to have set aside. Unfortunately Lord Greene MR expressed the view that the court of first instance had an inherent jurisdiction to set aside an order made in such proceedings and that it was not necessary to appeal from it. But this was expressed in cautious terms, was obiter, and has since been doubted. Moreover, Lord Greene left open the question, on which there was clear authority and which would seem to be highly relevant, whether the order had sufficient existence to found an appeal. Their Lordships respectfully think that he was mistaken.

26 In Re Pritchard [1963] 1 Ch 502, 520 Upjohn LJ observed that 'part of the difficulty is that the phrase ' ex debito justiciae ' had been taken as equivalent to a nullity, but, with all respect to Lord Greene's judgment in Craig v Kanssen , it is not. The phrase means that the [defendant] is entitled as a matter of right to have it set aside'." Their Lordships then cited, with apparent approval, Upjohn LJ's categories of fundamental defects which rendered proceedings a nullity and continued: " These are all examples of orders of the court made in proceedings which are nullities because they have not been properly begun or served. None of them is an example of a case where an order has been made in proceedings which have been properly begun and continued. In re Pritchard itself was an example of the second class; the proceedings had never been started at all. According to Danckwerts LJ, the originating process had no more effect to commence proceedings than a dog licence." (emphasis added) 95 Their Lordships then considered (at [27] - [33]) the effect of an order made without jurisdiction by a superior court in otherwise valid proceedings, concluding that such an order had to be "obeyed unless and until it is set aside" and provided a sufficient basis for a Court of Appeal to set it aside. However, they observed (at [28]), "… since the defect goes to jurisdiction, it cannot be waived; the parties cannot by consent confer a jurisdiction on the court which it does not possess." They approved Hip Hing Timber Co Ltd v Tang Man Kit (2004) 7 HKCFAR 212; [2005] 1 HKLRD 572 in which the Hong Kong Court of Final Appeal held that once an appellate court concluded that an order by the court from which an appeal was brought was a nullity, it could not determine the appeal on the merits, but was bound "to confirm the position by setting aside the order below as a nullity."

96 The "waiver" test was also approved in Hubbard Association of Scientologists International v Anderson & Just (No 2) [1972] VR 577 (at 579-580) by the Full Court of the Supreme Court of Victoria (Adam, Little and Gowans JJ). Their Honours described Lord Denning's test in MacFoy as a "practical test … for distinguishing between those irregularities in proceedings which render the same void or voidable only [as being] whether the irregularity was of such a character as might be waived by the other party". The requirement of service 97 The first class of nullity Upjohn LJ regarded as established by the authorities was proceedings which ought to have been served "but which have never come to the notice of the defendant at all."

98 An action in tort is an action in personam. In order that the Court have jurisdiction in such an action, it is essential that the originating process be served on the defendant. Where a writ cannot legally be served upon a defendant the court can exercise no jurisdiction over that person: see Laurie v Carroll [1958] HCA 4; (1958) 98 CLR 310 at 323 per Dixon CJ, Williams and Webb JJ.

99 Lord Greene's absolute use of the word "nullity" in the non-service category of case was also examined in Cameron v Cole, a decision which is also important for the distinction drawn between the concept of nullity as it applies in superior as opposed to inferior courts. In that case the Federal Court of Bankruptcy made a sequestration order at the adjourned hearing of a creditor's petition in the absence of the debtor. Through inadvertence, the debtor had not had notice of the date of the adjourned hearing. On this ground, the Court subsequently annulled the sequestration order. The order of annulment directed that the petition be reheard and on the rehearing a second sequestration order was made. The High Court held (Latham CJ, Rich, Starke and McTiernan JJ, Williams J dissenting), that the Court had jurisdiction to make the second sequestration order. Rich J (at 589), applying Craig v Kanssen, held that it was a fundamental principle of natural justice that "a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case [and] [i]f 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". His Honour drew a distinction, however, as to the validity of an order made without notice, a distinction which depended upon the nature of the Court which made it. He said (at 590-591): "It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside … I am unable to feel any doubt that the Federal Court of Bankruptcy is a superior court. The language of Lord Greene M.R., in Craig v. Kanssen … where he says 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,' 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 orders which are nullities and those in respect of which there has been nothing worse than an irregularity' 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 ( In re the Affairs of Hart ); but in the case of a superior court the distinction is between irregularities so fundamental as to create an unconditional right, ex debito justitiae , to have the judgment set aside, and non-fundamental irregularities as to which the court has a discretion. Since the case before the Master of the Rolls was one of the former type, although no exception can be taken to his Lordship's actual conclusion, his criterion was, with all deference, somewhat inaptly expressed. If the decision is void (as it may be in the case of an inferior court), the court may proceed to a real trial without any formal setting aside of the void decision …" 100 McTiernan J held (at 598) that where a court was a superior court of record having general jurisdiction, it was impossible to treat any of its orders as a nullity and it might determine conclusively its own jurisdiction. He was also of the view (at 598-599) that the Federal Court of Bankruptcy although not a superior court of record having general jurisdiction, but "created by statute and vested by statute with jurisdiction in bankruptcy" had "substantially all the powers of a superior court of record as to the subject matter of its jurisdiction and its incidents [so that] [t]hough a court of limited jurisdiction, it [was] a superior court". Accordingly (at 599-600), the first sequestration order could not be treated as a nullity, but having been made without the debtor having an opportunity to be heard, was liable to be annulled without the bankruptcy petition being spent. 101 Latham CJ (at 584) held, applying Craig v Kanssen, that the first sequestration order was a nullity because it was made without any notice to the appellant of the adjourned date of hearing and such notice was a condition of jurisdiction. While he agreed (at 585) with the distinction Rich J drew between judgments and orders of a superior court and those of an inferior court, in his Honour's view the Federal Court of Bankruptcy was not a superior court. Accordingly, applying Craig v Kanssen and In re the Affairs of Hart (1943) 169 LT 60, he held that the first sequestration order was null and void ab initio and there was no need to have recourse to s 124 of the Bankruptcy Act 1924 (Cth) (which dealt with the annulment of sequestration orders) as the first hearing, too, was a nullity. There was no need to order a rehearing when there had been no true and legal hearing. 102 Williams J (at 604 - 605) also held that the first sequestration order made in the debtor's absence was fundamentally defective, however, he did not consider it a nullity. In his view (at 605-607) the Federal Court of Bankruptcy, even though a court of limited jurisdiction, was a superior court, so that even if irregularly obtained, the first sequestration order operated until set aside and caused the debtor to become a bankrupt and his property to vest in the Official Receiver. His Honour departed from the majority in that, while he concluded (at 608, 610) in the circumstances it was open to the primary judge to annul the first sequestration order, in his view a second sequestration order to cover the same period as the first could only be made on a second petition. He accepted, however, (at 604 - 605) applying Craig v. Kanssen and In re the Affairs of Hart, that where service of a particular nature was required to give an inferior court jurisdiction, failure to effect such service would make all subsequent proceedings null and void. 103 These authorities, prima facie, support the respondent's argument that as the Statement of Claim was never served on the deceased, the District Court proceedings were a nullity in the sense that the defendant, or someone acting in the interests of his estate, or possibly the NRMA as I shall discuss, was entitled to have them set aside for non-service. The status of proceedings brought by or against a non-existent person or company 104 Lord Denning said in Re Pritchard that the only true cases of nullity he had found were where "a sole plaintiff or a sole defendant is dead", an observation Yeldham J quoted with approval in Marshall v DG Sundin to which I will come shortly. 105 The appellant sought to challenge Lord Denning's statement, at least insofar as it concerned cases involving a sole defendant, as being unsupported by authority. As to this I would say first, that it is self-evident that the "person named as the defendant to a writ must be an existing person" and that "a writ cannot be valid, whether served or not, if there is no existing defendant to which the writ can relate and against whom the claim can be enforced": Kilkenny Engineering Pty Ltd (in liq), Re; Monti v Kilkenny Engineering Pty Ltd (in liq) (1976) 13 SASR 258 at 267 per Wells J. Secondly, as will become apparent, there is authority supporting that proposition in the case of a sole personal, albeit deceased, defendant, as well as a sole, albeit non-existent, corporation defendant.

106 The general principle was stated by Jordan CJ (with whom Halse Rogers and Street JJ agreed) in United Insurance Co Ltd (in liq) v Lang (1935) 35 SR (NSW) 487 at 495, a case concerning whether a company which had been dissolved could bring proceedings to recover allotment moneys and calls which had become due prior to its dissolution. Jordan CJ said (at 495): "[A] non-existent person cannot sue. In the case of a natural person, the English Courts would decline to entertain an action in his name…" 107 Jordan CJ considered (at 496 - 497) what a Court hearing an appeal should do when it was found "that in what purports to be an appeal by a plaintiff in an action, the plaintiff has no existence". He said: "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 the defence, as the case may be…this is not a matter for 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 verdict for the defendant and the order for costs given by the learned District Court Judge are, of course, nullities, but in the absence of a plaintiff we have no more power to deal with them in the appeal than he had to make them in the action." 108 Marshall v DG Sundin concerned the characterisation of proceedings commenced on 3 June 1988 in the name of Mr Marshall by his solicitors who were unaware that he had died less than an hour before the statement of claim was filed. The cause of action was in negligence alleged to have caused the deceased to develop right-sided pleural mesothelioma. In due course a summons was issued seeking an order under s 58 of the Limitation Act 1969 and ancillary orders. On the return of the summons on 2 August 1988 Master Sharpe gave "liberty to file [the] amended summons and statement of claim in court". The amended summons stated it was brought by Anne Margaret Marshall (as executrix of the estate of the late Donald Raymond Marshall) as, too, did an amended statement of claim which alleged Mrs Marshall was the "legal personal representative" of her late husband's estate and brought the action for the benefit of the estate under the Law Reform (Miscellaneous Provisions) Act 1944. On 23 September 1988 Mrs Marshall obtained a grant of probate in respect of the Will of her late husband, under which she was named as executrix. 109 Yeldham J concluded that the proceedings were a nullity from the outset applying (at 471) Lord Denning MR's statement in Re Pritchard (at 517) that "… the only true cases of nullity … are when a sole plaintiff or a sole defendant is dead … or non-existent." He found (at 471) that the fact the executrix had subsequently obtained probate did not assist because, pending the grant of probate, the deceased's estate was vested in the Public Trustee in accordance with s 61 of the WPA Act and (at 473) that the doctrine of relation back embodied in s 44 and s 61 of the WPA Act, in the case of both executors and administrators in New South Wales, did not "validate as competent an action which was incompetent when it was instituted."

110 Having reached that conclusion, his Honour also concluded that the position could not be rectified either by recourse to s 81 of the Supreme Court Act (the irregularity provision substantially equivalent to s 159 of the District Court Act) or the Rules. As to the initial statement of claim, Yeldham J (at 473-474) observed that s 81 could not operate to validate the statement of claim when the named plaintiff had pre-deceased its filing nor could the proceedings be cured by the operation of SCR Pt 8 rr 10 and 11. Those rules could have rectified the position if the deceased had died after the issue of the statement of claim in his name but not in the present circumstances. As his Honour observed, (at 474) the application of those provisions "assumes that the proceedings, up until that time, remain in existence and were valid, an assumption which is erroneous". In addition "any such order can only be made 'on the application of any party' ", a requirement which, although his Honour did not expressly so state, could not be satisfied having regard to the purported constitution of the proceedings. Yeldham J also concluded (at 474-475) that the general power of amendment in SCR Pt 20 rr 1 and 4 could not be prayed in aid of the amended summons and statement of claim; the proceedings were a nullity because, at the time they were filed, the widow had not obtained a grant of probate. Accordingly they suffered from a fundamental defect. 111 Young J (as he then was) followed Marshall v DG Sundin in Darrington v Caldbeck (1990) 20 NSWLR 212. His Honour observed (at (219)) that Yeldham J's decision appeared to him to be "undoubtedly correct". Having concluded that s 66G Conveyancing Act 1919 proceedings were a nullity, because they were commenced by executors by representation of an estate to which probate had not been granted at the date of their commencement, his Honour also concluded (at 220) that "it is not possible, the action being a nullity, to amend … ". 112 Marshall v DG Sundin was also applied in Budimir v McMahon. That was a case with an apparent factual similarity to the present. The Victorian Transport Accident Commission sought to enforce in bankruptcy proceedings a judgment obtained in the County Court. As Merkel J described the situation, "in obtaining the judgment the Transport Accident Commission ("the TAC") was exercising its rights of subrogation by standing in the shoes of Mr McMahon in contesting the proceedings." The judgment was obtained on 6 June 1997 for costs to be taxed. Mr McMahon died on 18 August 1997, a fact unknown both to the TAC and the judgment debtor. The costs were taxed and a Certificate of Costs issued. A Bankruptcy Notice was issued in Mr McMahon's name on 27 October 1999 claiming the amount of the judgment for the costs to be taxed as well as interest from 10 June 1997. The Registrar of the Federal Court refused an application to set aside the Notice and the matter came before Merkel J. His Honour held (at [6]-[7]), apparently applying Marshall v DG Sundin, that a Bankruptcy Notice issued in the name of a deceased person is a nullity, and … is liable to be set aside as invalid". His Honour observed, in passing (at [6]), that "death does not bring to an end the rights of subrogation of the TAC" but that was not a question he was required to determine.

113 The principle that proceedings brought by a non-existent person, or a person in whom no cause of action is vested, are a nullity has been applied in respect of actions brought by non-existent companies. In International Bulk Shipping & Services Ltd v Minerals & Metals Trading Corporation of India [1996] 2 Ll R 474, proceedings were held to be a nullity where the plaintiff companies had been dissolved prior to their commencement. Evans LJ (with whom Gibson LJ and Sir Iain Glidewell agreed) said (at 478): "The general rule is that an action commenced in the name of a non-existent person, or company, is a nullity: see The Supreme Court Practice 1995 vol 1, para 15/6/1, p 201, citing Lazard Bros & Co Midland Bank Ltd [1933] AC 289 at 296, [1932] All ER Rep 571 at 576 per Lord Wright, Dubai Bank Ltd v Galadari (No 4) (1990) Times, 23 February (Morritt J) and Fielding v Rigby [1993] 4 All ER 294 at 297-298, [1993] 1 WLR 1355 at 1359." 114 His Lordship concluded (at 479-480) that the rule concerning the addition of a party where there had been a misjoinder or non-joinder of parties contemplated that there was an existing action in which the addition or substitution may be made. Where the proceedings were a nullity there was no existing action, and the rule could not apply. He also upheld (at 479) the primary judge's rejection of an argument that the objection (that there was no existing action) disappeared if it was recognised that an order made under the joinder rule would "relate back" to the date of the writ, so that the action would continue as if the substituted party was the plaintiff named from the outset. He observed that before s 35 of the Limitation Act 1980 (UK) took effect, although as a general proposition an amendment of a writ or pleading "related back" to the original date of the document amended, this did not apply where the amendment involved either adding a new party or a new cause of action, applying Liff v Peasley [1980] 1 WLR 781 at pp. 803C and 840D (per Lord Justice Brandon) and Ketteman v Hansel Properties Ltd [1987] AC 189. 115 Neither counsel's researches yielded direct authority for the proposition that proceedings commenced against a dead person are a nullity. The obvious explanation for that dearth of learning is that properly advised plaintiffs do not commence such proceedings or, if they do, rapidly realise their error when they are unable to serve the initiating process and commence proceedings against the deceased's legal personal representatives. However there are several cases to which reference should be made. 116 In Simmons v Liberal Opinion Ltd, re Dunn [1911] 1 KB 966 the Court of Appeal (Cozens-Hardy MR, Fletcher Moulton and Buckley LJJ) held that a solicitor who purported to act for a defendant company (which did not exist) warranted his authority, and was personally liable to the opposing party for costs. Fletcher Moulton LJ (at 972) described the proceedings as "entirely abortive". 117 In Dawson (Bradford) Ltd v Dove [1971] 1 QB 330 writs claiming damages in negligence or nuisance were issued in the names of each of two plaintiffs on December 17, 1968 claiming damages against D, their landlord. Unknown to the plaintiffs, D had died on July 28, 1967, appointing the defendants as his executors. By the time the plaintiffs heard of D's death, the limitation period for suing executors in tort had expired. The plaintiffs applied to the registrar ex parte for leave to amend the writs by substituting the defendants for D, relying on the provisions of RSC O 15, r 6, (which provided that "an action shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party", and that "at any stage of the proceedings…the court may on such terms as it thinks just…order any person who ought to have been joined as a party…be added as a party") O 2, r 1 (in substance in terms of s 159 of the District Court Act 1973), and O 20, r 5 (which provided that "the court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading"). The registrar gave the plaintiffs leave to amend. After the defendants had entered appearances they were given leave to appeal out of time against the registrar's order. Mackenna J held, allowing the appeal, none of the rules relied upon could remedy the situation. As this case is the clearest case concerning the status of proceedings commenced against a deceased person and also deals thoroughly with the two English cases in which proceedings commenced in the name of dead plaintiffs were held to be an incurable nullity, it is worth setting out a large portion of his Honour's reasons (at 333-336): "Two authorities have been cited on the meaning of Ord. 15, r. 6: Clay v. Oxford (1866) L.R. 2 Exch. 54 and Tetlow v. Orela Ltd . [1920] 2 Ch. 24. The first of those cases was a decision of the Court of Exchequer holding that, where an action had been commenced in the name of a dead man, there was no power under the Common Law Procedure Act 1852 to substitute his representatives as plaintiffs. Section 34 of that Act provided that the court might, at any time before the trial of any cause, order that any person not joined as plaintiff should be so joined, or that any person originally joined as plaintiff should be struck out from the cause. Section 222 provided that it should be lawful for the courts at all times to amend all defects and errors in any proceeding or civil cause, and that all such amendments should be made as might be necessary for the purpose of determining in the existing suit the question in controversy between the parties. It was said by Kelly C.B., L.R. 2 Exch. 54, 55, that the Act contained no provisions in any part of it for substituting a plaintiff suing in a representative capacity for a deceased man who never had been a party. Bramwell B., at p. 55, thought that the powers of amendment conferred by the statute did not apply to a case where there was no plaintiff, and, therefore, no existing suit, and no question in controversy between 'parties.' The other judges agreed. The Supreme Court Rules 1883 took the place of the Common Law Procedure Act 1852, and in 1920, in Tetlow v. Orela Ltd. [1920] 2 Ch. 24, the question was raised once again whether, if an action had been commenced in the name of a dead man, his representative could be substituted as a plaintiff. It was held by Russell J. that there could be no substitution. The judgment referred to the decision in Clay's case, and continued, at p. 26: 'Thus under the Common Law Procedure Act , 1852, there was no power to substitute as plaintiffs the representatives of a man who was dead when an action was commenced in his name, either under the special provisions of the Act or under the general words of section 222. In that condition of things the present rules were framed, and the question is whether they allow that which the Act of 1852 did not allow. I do not think they do, and it would be straining the rules to hold otherwise.' The R.S.C. of 1883 relied on by the plaintiff in Tetlow's case were Ord. 16, rr. 2 and 11. Ord. 16, r. 2, provided that, where an action had been commenced in the name of a wrong plaintiff, the court might, if satisfied that it had been so commenced through bona fide mistake and that it was necessary for the determination of the real matter in dispute so to do, order any other person to be substituted. Ord. 16, r. 11, provided that no cause or matter should be defeated by reason of the misjoinder or nonjoinder of parties and that the court might in any cause or matter deal with the matter in controversy so far as regarded the rights and interests of the parties actually before it, and also that the court might at any stage of the proceedings order that the names of any persons improperly joined as plaintiffs or defendants be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined be added. Russell J. [1920] 2 Ch. 24, 26, thought that rule 2 meant that, where an action had been commenced between two living parties by a living plaintiff and that plaintiff turned out afterwards to be the wrong person, the court could substitute another for him. 'But it does not justify the court,' he said, 'in creating a plaintiff in an action for the first time.' In the same way, he thought that the 'parties' referred to in rule 11 were living persons, and that that rule did not carry the plaintiff any further. He held, for those reasons, that the Rules of 1883 had made no change in the position, which was still as it had been under the Act of 1852. If Ord. 16, r. 11, of the Rules of 1883 did not, as Russell J. held, enable an action commenced in the name of a dead man to be continued in the names of the executors, it must follow, I think, that an action commenced against a dead man could not have been continued against his executors. The language of the rule made no distinction between the power of striking out and adding plaintiffs and that of striking out and adding defendants. If there were no power under the rule to put matters right where there had been no living plaintiff, the rule must have been equally ineffective where there had been no living defendant. If the 'parties' referred to in the rule were only living persons, the rule must have excluded the case of dead defendants as well as that of dead plaintiffs.

Ord. 15, r. 6, of the Rules of 1965 combines the provisions of the old Ord. 16, rr. 2 and 11, with each other and with those of the old Ord. 16, rr. 5, 8 and 39, which are for my purpose immaterial. It adds nothing to rules 2 and 11 which could make the new rule apply to dead plaintiffs or defendants if the old rules did not. If I am to hold that the new rule covers the case of dead defendants, I must, I think, refuse to follow the decision in Tetlow's case [1920] 2 Ch. 24 and also that in Clay's case (1866) L.R. 2 Exch. 54, which I am not prepared to do. I conceive it to be my duty to follow those old cases unless convinced that they were wrongly decided, which I am not. I turn to the provisions of R.S.C., Ord. 20, r. 5, paras. (1) to (3). These give power to correct the name of a party if the court is satisfied that the mistake was not such as to cause any reasonable doubt as to the identity of the person intended to be sued. The question is whether the relief sought by the plaintiffs in the present case is merely the correction of a misnomer. I do not think that it is. When the writs were issued, the intention was to sue Mr. Dawson and nobody else. The plaintiffs made no mistake about his name. Their mistake was of a different kind. They believed him to be living when he was in fact dead. To substitute the defendants for Mr. Dawson would not be correcting a mistake about that gentleman's name. It would be doing something quite different. Ord. 2, r. 1, as I read its provisions, does not help the plaintiffs here. To commence an action against a dead person can hardly be described as 'a failure to comply with the requirements of these rules,' which is the case dealt with by Ord. 2, r. 1. Even if it could be so described, the rule does not give any power to add new parties in substitution for dead men. It only provides that the powers of amending or making orders conferred by the other rules shall be exercisable in the cases with which it is dealing. If the relief required is the addition of new parties, the power to give such relief must be sought in the provisions of Ord. 15, r. 6, or in those of Ord. 20, r. 5. If the power is not given by these rules, it is not exercisable under Ord. 2, r. 1.

Since the argument in this case, Master Jacob has referred me to the Law Commission's White Paper, (1969) Cmnd. 4010, entitled Proceedings against Estates and to the Proceedings against Estates Act 1970, passed on May 15, 1970, to implement the commission's recommendations. Section (2) (b) of that Act provides that rules of court may be made for enabling proceedings purporting to have been commenced against a person who is dead to be treated as having been commenced against his estate. So far as I am aware, no rule has yet been made. The White Paper contains this passage, at p. 6: 'It appears that a writ issued against a deceased person (naming him as a defendant) is a nullity as it is a general principle of High Court jurisdiction (other than in actions in rem in the Admiralty Division) that the court is able to exercise its jurisdiction over the person of the defendant. There is, however, no judicial authority directly supporting this proposition but if it be correct the writ could not be re-issued in an amended form or validly served and a fresh writ would have to be obtained.' A footnote to the last sentence reads as follows: 'Under R.S.C., Ord. 20, r. 5 (1965 revision), if the writ were valid, the court may give leave to amend it by correcting the name of a party notwithstanding that the application is made after the relevant period of limitation has expired. In addition, Ord. 15, r. 6, provides that no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party and the court is empowered to order any person who ought to have been joined as a party to be added as a party to the proceedings. In Tetlow v. Orela Ltd . [1920] 2 Ch. 24, Russell J. held that he had no power to substitute the name of a new plaintiff where a writ was issued on behalf of a plaintiff who had died before the issue of the writ, and it is likely that the same principle would be held to apply where a writ had been issued naming a deceased person as defendant. ' I am happy to use the Law Commission's reasoning from general principles to support a conclusion which I had reached on other and narrower grounds." (emphasis added) 118 In Foster v Turnbull, (Times L Rep 389, 22 May 1990) the plaintiff commenced motor vehicle accident proceedings against deceased defendants. RSC O 15 r 6A(3) provided: "(3) An action purporting to have been commenced against a person, shall be treated, if he was dead at the commencement, as having been commenced against his estate." 119 Rule 6A(4)(a) required a plaintiff who commenced proceedings which fell within this rule to apply to the Court during the period of validity for service of the writ for an order appointing a person to represent the deceased's estate for the purpose of the proceedings. The Court had a discretion as to whether to accede to such an application: O 15 r 6A(4)(b). No application was made to appoint a person to represent the deceaseds' estates for the purpose of the proceedings during the period of validity for service of the writ. The writ was, by consent, served on the insurer of the relevant vehicle, however subsequently the insurer's solicitors took the point that there had been no O 15 r 6A(4) order. The plaintiff then sought such an order, as well as one extending the validity of the writ. She was unsuccessful. Lord Justice Leggatt (with whom Slade and Russell LJJ agreed) observed (at 390): "Even if an order could properly have been made under paragraph (4)(b) of the rule, despite the fact the plaintiff had not complied with sub-paragraph (a), that could not have had the necessary retrospective effect because, apart from the absence of any express words, the writ was never validly served…There was, therefore, no relevant step, albeit a nullity to be validated, even if that were feasible…the estates were never more than 'abstractions' or legal devices to save from invalidity the issue of the writs against the first and second defendants…service was not at large; it had to be upon a legal person. Neither of the available candidates to accept service could have been validly served because none of them were party to the action except the defendants, and they were dead …the steps taken in the proceedings after the issue of the writ were all nullities…The action had therefore died through the incompetence of the plaintiff's own solicitors…" 120 Piggott v Aulton [2003] EWCA Civ 24; [2003] RTR 540 also concerned a motor vehicle action commenced against a deceased defendant. The facts can conveniently be taken from the judgment of Lady Justice Arden (with whom Simon Brown and Sedley LJJ relevantly agreed): "2 The appellant is the defendant in this action, which is brought by the claimant, Stephanie Piggott, against the estate of David Aulton (deceased) represented by David Murray. In this action the respondent claims damages for injuries and consequential loss sustained in a serious road accident on 14 June 1997. As a result of injuries received in the accident, the deceased died shortly thereafter. No personal representatives were appointed to administer his estate. The respondent first sought legal advice about four weeks after the accident. She gave instructions to her solicitors around April 1998. The claim was first intimated on her behalf to the deceased's insurers by letter dated 19 July 1999. On 13 June 2000, proceedings were issued against 'the personal representatives of the estate of David Aulton (deceased)'. The claim form, particulars of claim, medical reports and schedule of special damage were sent to the insurers on 13 June 2000. The insurers' solicitors responded referring, among other things, to CPR Part 19.8(2)(ii) and indicating that they were trying to identify whether personal representatives of the estate of the deceased had been appointed and suggesting a discussion on that point. No steps were taken to secure the appointment of a representative for the estate despite a number of prompting letters and messages from the insurers' solicitors. On 21 September 2000, the respondent's solicitors again sent the claim form, particulars of claim and a respondent's pack to the insurers' solicitors 'by way of service upon you'. However, the proceedings could not be effectively served in that way until a person had been appointed to represent the deceased's estate. Nothing was done to regularise the position before the period for service of the claim form expired.

3 In May 2001, following advice from counsel, these proceedings were discontinued and new proceedings were issued on 4 June 2001. On 7 August 2001, an order was made by consent for David Murray, a representative underwriter, to be appointed to represent the estate of the deceased and the proceedings were then served on the insurers' solicitors.

4 The defendants then took the point that the service of the new proceedings was an abuse of process under the principle established in Walkley v Precision Forgings Ltd [1979] 1 WLR 606…[in which] [5]… the House of Lords held that once the plaintiff had started an action within the primary limitation period it was only in the most exceptional circumstances that he would be able to bring himself within [s 33 of the Limitation Act 1980] in respect of a second action to enforce the same cause of action." 121 The appellant in Piggott (the defendant below) appealed from the decision at first instance to allow the second proceedings to proceed under s 33. The only question was whether the primary judge was correct in concluding that the court had jurisdiction under that section. The appellant sought to bring the case within the Walkely principle on the basis that the first proceedings were properly constituted and the second proceedings were "between the same parties" (see [10]). The respondent argued (see [14]) the first action was ineffective because no appointment of a personal representative had been obtained. 122 Arden LJ held (at [6] - [7]) that the effect of the first proceedings having been brought against the personal representatives of David Aulton (deceased) was that they were deemed to have been brought against the estate of the deceased in accordance with CPR 19.8(2). This rule permitted "proceedings [to] be commenced against the estate of a deceased person but the proceedings so brought [could not] be prosecuted until a person has been appointed to represent the estate of the deceased". Her Ladyship said, in dismissing the appeal: "19 In my judgment, although the original proceedings were duly commenced, they were never properly constituted. For that purpose, all the components of a valid set of proceedings had to be present and one of those components in this kind of case, in my judgment, is that the parties between whom proceedings were started exist. The analogy which Mr Moat seeks to draw between an order under CPR 19.8(2) and an order for alternative service is not a good one because the former goes to the essence of the action, whereas the latter does not. There had to be an effective party against whom a dispute could be determined. The estate of a deceased person is not such a party . In these circumstances, it is not enough that the action was properly commenced and accordingly this case falls within the exception to the Walkley principle established in White v Glass where the original proceedings were brought against an unincorporated person. Like the estate of a deceased person such a body has no legal persona. Another analogous case would be that of a registered company which has been dissolved or struck off the companies register and in respect of which the time for applying to set aside the dissolution or restore the company to the register, under sections 652 and 653 of the Companies Act 1985 respectively, has expired. Such a company has no legal personality and cannot be sued. (If the application was made in time, an order for restoration of the company's name to the register would retrospectively validate proceedings taken after the striking off, but an order for the avoidance of a dissolution would not: see Buckley on the Companies Acts, 15 ed. [651.26], [653.28], [653.44]). 20 The claim in the present case is not a claim in rem (see Re Amirteymour, above). By contrast, admiralty proceedings can be brought in rem against a ship and judgments can be enforced against the ship, which has no legal personality, but the present action is not in rem but in personam. Here, a defendant having legal personality is required… There is no parallel in the case of proceedings against a deceased person's estate. A real defendant, having legal personality and capable of identification, is required. There was no such defendant in the first action. 21 … The natural personality of the deceased came to an end on his death. His legal persona, that is the right to take possession of his property and the obligation to discharge his liabilities, could have passed to his personal representatives, as between whom and the deceased there would have been an identity of persona. But the deceased in this case had no personal representatives. Accordingly, the first action was brought against a person without legal personality ." (emphasis added) 123 The proposition that proceedings against a deceased defendant are a nullity, finds expression too in actions brought against non-existent companies. 124 In Re Pritchard Lord Denning referred to Lazard Bros & Co v Midland Bank Ltd [1933] AC 289 as one of the true cases of nullity. In Lazard, the plaintiff sought to recover monies owed to it by the Russian Bank before the Russian Revolution of October 1917. Between October, 1917, and August 3, 1921, numerous decrees of the Government of Russia and orders of various Departments thereof were made and published purporting to nationalise or liquidate all banking corporations in Russia, including the Russian Bank. In October, 1930, L. Brothers, having filed an affidavit stating that the Russian Bank was a company registered and domiciled in Russia, obtained leave under Order IX, r 2 of the Rules of the Supreme Court, to issue a writ against the Russian Bank and to serve notice of the writ by sending it by registered post to the former address of the Bank in Moscow. Having signed judgment in default of appearance against the Russian Bank, L. Brothers obtained a garnishee order nisi against the M. Bank attaching all debts due from the M. Bank to the Russian Bank. An issue was subsequently directed to be tried whether the M. Bank was indebted to the Russian Bank to any and what extent. On the evidence of Russian lawyers who had practised in Russia since the Revolution that the Russian Bank had ceased to exist in and before October, 1930, the House of Lords held that the writ, the judgment and the garnishee proceedings were null and void and must be set aside. 125 Lord Wright (with whose speech all other Law Lords agreed) said (at 296-297): "… 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… if the defendants cannot be before the Court, because there is in law no such person, … the Court must refuse to treat these proceedings as other than a nullity ." (emphasis added) 126 In CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534 the Court of Appeal of the Northern Territory (Asche Q, Gallop and Martin JJ) described CTG Pty Ltd, a deregistered company, which was the first defendant in the proceedings, as "a litigant with no standing'" to pursue orders. The trial judge had not been informed of the deregistration of the company (which had taken place after the proceedings were commenced) and had entertained an application "by it" for summary judgment against the plaintiff on the ground that the plaintiff's action was statute-barred. He had also granted the first defendant leave to amend its defence. The fact of the first defendant's deregistration was revealed in the Court of Appeal which held (at 535) that the order granting leave to amend the defence be set aside on the ground that the deregistered company was not competent to make the application for leave to amend. The Court also ordered that CTG Pty Ltd be removed as a party to the proceedings as from 27 February 1992, the date of deregistration.

Consequences of a conclusion of nullity 127 The consequence of proceedings, or a step therein, being a nullity may be profound. Lord Denning explained the general principle in MacFoy (at 160): "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 …" 128 In Cameron v Cole, Latham CJ said (at 584) "if an 'order' is null and void ab initio [t]here is then no real order of the court". Accordingly, if proceedings are a nullity, there is no jurisdiction to amend them because "[i]n effect, no proceeding was ever issued, and there is nothing to amend": Prior v Hannaford [1970] VR 772 (at 778). 129 The consequence will differ, however, depending upon the jurisdiction of the Court in which a procedural step is challenged as a nullity, as was explained in the joint judgment in Berowra (at [11], footnotes omitted): "[11] … [T]he introduction into s 151C [of the Workers Compensation Act 1987 (NSW)] of concepts of 'nullity' and 'invalidity' is misleading because they tend to obscure the distinction between superior courts of record of general jurisdiction and courts of limited jurisdiction. … In the case of the superior courts, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal, whereas that is not necessarily true of the latter. Thus, in the majority judgment of Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (NSW), it was decided that, because an order made by an inferior court (in that case the New South Wales District Court) without power to do so was a 'nullity', it could not found a proceeding for contempt. This situation was contrasted to that arising where an order was made within power but improperly, in which case, until set aside by a superior court, the order had to be obeyed." 130 In Pelechowski v The Registrar Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435, to which the joint judgment in Berowra referred, Gaudron, Gummow and Callinan JJ said "[27] In United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 at 335, Samuels A-P (with whom Clarke and Meagher JJA agreed), in giving the judgment of the Court of Appeal, applied to the District Court the principle which, in Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 357, McHugh JA had explained as follows: 'If an inferior tribunal exercising judicial power has no authority to make an order of the kind in question, the failure to obey it cannot be a contempt. Such an order is a nullity. Any person may disregard it. Different considerations arise, however, if the order is of a kind within the tribunal's power but which was improperly made. In that class of case, the order is good until it is set aside by a superior tribunal. While it exists it must be obeyed'." 131 The significance of the District Court's status was considered in KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott [2001] NSWCA 116; (2001) 51 NSWLR 516. Sheller JA (Ipp and Grove AJJA agreeing) at [22] described the Court as "an inferior court of record created by statute [which] can have no powers, jurisdictions or authorities other than those authorised by the Act". He referred (at 523) to John Fairfax & Sons Limited v Police Tribunal of New South Wales (1986) 5 NSWLR 465 (at 476) where McHugh JA (as he then was) said: "Nonetheless as Lord Morris of Borth-y-Gest pointed out in Connelly v Director of Public Prosecutions [1964] AC 1254 at 1301 there 'can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction'. His Lordship said that he would regard such powers as inherent powers: see also R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7; Taylor v Attorney-General [1975] 2 NZLR 675 at 680, 682, 689; Taylor v Taylor (1979) 143 CLR 1 at 5-6. The source of this inherent jurisdiction is the implied authority conferred on the judiciary to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner: Jacob, 'The Inherent Jurisdiction of the Court', Current Legal Problems (1970) 23 at 27-28." 132 Sheller JA next considered Rawlinson v Oliver [1995] 3 NZLR 62 in which the New Zealand Court of Appeal held that where a matter which was of a statutorily recognised character had been brought before the Family Court, it was a "proceeding" within s 14 of the Defamation Act 1992 (NZ) whether or not the Court ultimately ruled that it lacked jurisdiction in the circumstances of the particular case. 133 McKay J (at 69-70) said that even though the Family Court had had no jurisdiction to make certain orders which were set aside as having been void ab initio, "…the proceedings themselves cannot be treated as a nullity. The orders made in those proceedings were set aside, but the proceedings themselves were proceedings in the District Court and within the words of s14 of the Defamation Act 1992." 134 Sheller JA then said (at [30]): "30 Although it is now accepted that the District Court had no jurisdiction to hear and dispose of the respondent's action, inevitably any application by the appellant to have the action struck out or dismissed would have been in the District Court and can only have been in the proceedings themselves. It would be fanciful to suggest that separate proceedings should have been begun. Clearly enough, the District Court has the implied authority to ensure that justice is administered by striking out or dismissing the action. If a court has no jurisdiction to hear and dispose of a claim brought before it, any order the court makes which proceeds on the basis that the court does have jurisdiction is null, but an order that proceeds on the basis that the court does not have jurisdiction, such as an order striking out or dismissing the claim for want of jurisdiction, is effective. " (emphasis added) 135 In KBRV Resort Operations Pty Ltd the plaintiff began proceedings in the District Court in August 1998 against the appellant, a corporation incorporated in Queensland, to recover damages for injuries she had suffered in Queensland while a passenger in a vehicle owned by the appellant. However, as both parties later accepted, in the form of the District Court Act 1973 then in force, the District Court had no jurisdiction to hear the action since neither the cause of action, nor any material part of it, arose within New South Wales and the defendant was not resident in New South Wales at the time the initiating process was served: see judgment (at [3]). In September 1998, the limitation period under the Limitation of Actions Act 1974 (Qld), which applied to the claim, expired. In November 1998, the plaintiff filed a notice of discontinuance in the District Court, although this notice was technically defective. In December 1998 she began proceedings in the Supreme Court. The defendant filed a statement of defence pleading that the plaintiff was statute barred under the Queensland Act. The plaintiff then filed a notice of motion in the Supreme Court for a declaration that the notice of discontinuance was a nullity, that the District Court proceedings be transferred to the Supreme Court pursuant to s 145 of the District Court Act 1973 (which provided relevantly that "proceedings may…be removed into the Supreme Court by order of the Supreme Court") and that the defence to the Supreme Court proceedings be struck out. Newman J granted the plaintiff's motion. Sheller JA held (at [32]) that although the District Court had no jurisdiction to hear and dispose of the plaintiff's action, the word "proceedings" in s 145 was not confined to proceedings within that Court's jurisdiction. Accordingly the s 145 discretion could be exercised to determine whether to remove the "proceedings" into the Supreme Court. 136 Sheller JA also held (at [40]) that although the notice of discontinuance "was effective to terminate the whole action [that did] not mean that thereafter there were no proceedings between the parties which could be removed into the Supreme Court". He said:

"The discontinuance could be rescinded … not in separate proceedings but in the proceedings in which the notice was filed. The proceedings did not cease to exist but remained. Further steps could be taken by the parties in the proceedings such as rescission of the notice of discontinuance or removal into the Supreme Court. Whether such order should be made was of course another question. In the present case the discontinuance can be rescinded in the Supreme Court."

Irregularity provisions 137 The severe consequences which flowed from the conclusion that the originating process in Re Pritchard was a nullity led to the introduction in England of a new RSC O 2 rr 1 and 2, the substance of which, as Master Allen explained in Rust v Barnes [1980] 2 NSWLR 726 (at 730) was adopted in New South Wales by s 81 of the Supreme Court Act 1970, which is in substantially similar terms to s 159 of the District Court Act. 138 At the time the proceedings were commenced, and up to and including the hearing before Bishop DCJ, s 159 of the District Court Act 1973 relevantly provided: " 159 (1) Where, in the purported commencement of any proceedings, or at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with any requirements of this Act or the rules whether in respect of time, place, manner, form or content or in any other respect: (a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings …. (b) subject to subsections (2) and (3), the Court may on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its powers under the rules to allow amendments and to make orders dealing with the proceedings generally. … (3) The Court shall not set aside any proceedings or any step taken in any proceedings or any document, judgment or order in the proceedings on the ground of a failure to which subsection (1) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity."

Section 159 was repealed on the coming into force of the Civil Procedure Act 2005, s 63 of which deals with "Directions with respect to procedural irregularities" in similar terms. 139 The new English RSC O 2 r 1 was considered in Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 (at 735), where Lord Denning MR (with whom Diplock and Russell LJJ agreed) said: "This rule should be construed widely and generously to give effect to its manifest intentions. I think that any application to the court, however informal, is a 'proceeding' . There were 'proceedings' in being at the very moment that the plaintiff made his affidavit and his solicitor lodged it with the registrar … This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice." 140 The operation of s 81 of the Supreme Court Act, in particular, the expression "in the purported commencement of any proceedings" was considered in Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 (at 752-753) by Priestley JA (with whom Samuels JA agreed). His Honour inferred from the speed with which the new rule emerged after Re Pritchard that "one of the objects of the words 'purporting to begin' was Upjohn LJ's class (ii) nullity". He then referred, with apparent approval to the passage I have cited from Harkness v Bell's Asbestos and Engineering Ltd and said: "The incorporation of the new English rule into the Supreme Court Act 1970 as s 81 should be taken, in my opinion, to have been done with the intention that it should be construed by New South Wales judges in the wide and generous way laid down in Harkness in 1966." 141 Subsequent cases have adopted the "wide and generous" approach to irregularity provisions: see Italiano v Carbone & Ors [2005] NSWCA 177 at [17] per Spigelman CJ. It should be noted, however, that they are intended to deal with procedural irregularities, not jurisdictional errors of a fundamental kind, such as an ultimate decision made by a decision-maker who did not have the capacity to exercise the statutory power: Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 at [97] per Spigelman CJ (Tobias JA agreeing).

Power to set aside judgments 142 At all relevant times Pt 31 r 12A of the District Court Rules provided: "Setting aside of judgment or order 12A (1) A judgment or order of the Court in any proceedings may, on sufficient cause being shown, be set aside, on terms, by order of the Court, if the judgment was given or entered up, or the order was made, irregularly, illegally or against good faith.

(2) A judgment or order of the Court in any proceedings may, on terms, be set aside by order of the Court if the parties to the proceedings consent." This provision is in substantially the same terms as UCPR 36.15, save that the words "on terms" have been omitted from each sub-paragraph. 143 In Coles v Burke (1987) 10 NSWLR 429 Kirby P (with whom Samuels and McHugh JJA agreed) held that DCR Pt 31 r 12A exhausted the power of the District Court to set aside final judgments, other than default judgments. 144 The appellant relies upon Smith v Budandan Enterprises for the proposition that a judgment may be set aside pursuant to DCR Pt 31 r 12A without the necessity to establish "misconduct or dishonourable conduct". In Kendell v Carnegie & Ors [2006] NSWCA 302 Bryson JA (with whom Hodgson and McColl JJA agreed) reviewed the authorities on DCR Pt 31 r 12A including Smith v Budandan Enterprises which, he suggested, was decided per incuriam as the Court of Appeal was not referred to Shirriff v The Nominal Defendant [1999] NSWCA 152. Kendell v Carnegie turned on the meaning of the expression "against good faith" in r 12A, not whether a judgment could be set aside on the basis of irregularity (or illegality): see [42]. I do not understand Kendell v Carnegie to militate against the proposition that the word "irregularly" in DCR Pt 31 r 12A can be understood to mean a judgment obtained, inter alia, because of a procedural defect if as, the appellant contends, that is the appropriate characterisation of the Certificate of Judgment entered in the name of a non-existent person.

Joinder of the NRMA 145 This review of authority suggests there are at least two compelling reasons to conclude the proceedings are a nullity, and any order made in them "incurably bad": MacFoy (at 160). They suffer from the two defects recognised as fundamental by all members of the Court in Re Pritchard. They were never served on the deceased in the sense Upjohn LJ used that expression, and they were commenced against a dead person (Lord Denning MR). 146 However, NRMA seeks to argue that notwithstanding these apparent problems, the proceedings did not suffer from a fundamental defect, but were merely irregular because any defect attaching to their commencement could, and should, have been cured by it being joined as a party and that it could, and did, waive any defect. It relies upon the combination of ss 47, 53 and 54 of the MA Act to demonstrate its right to take over the proceedings if it chose and so waive the defect attached to their commencement. 147 Before setting out those provisions, it is of some significance first to note parts of s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 as follows: 2 Effect of death on certain causes of action

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person's estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under Division 2 of Part 3 of the Property (Relationships) Act 1984. … (6) The rights conferred by this Part for the benefit of the estates of deceased persons and the obligations continued or created by this Part against the estates of deceased persons shall be in addition to and not in derogation of any rights conferred or obligations created by or under the Motor Vehicles (Third Party Insurance) Act 1942, or the Transport Accidents Compensation Act 1987 or the Motor Accidents Act 1988. 148 Sub-section (6) was introduced to overcome the difficulties which followed the decision in Genders v Government Insurance Office of New South Wales [1959] HCA 30; (1959) 102 CLR 363 in which it was held that the enactment of the Law Reform (Miscellaneous Provisions) Act 1944 "removed 'the hypothesis upon which a right of direct recourse to the insurer is based' with the consequence that 'so far as it concerns the consequence of the death of the insured the provision is spent' ": see Nominal Defendant v Mabury at 601. As shall become apparent in the following discussion, "the right of direct recourse" plays an important function in assessing NRMA's contentions. 149 The appellant relied upon the following provisions of the MA Act: 47 Power of insurer to act for insured (1) When a claim is made against a person, the person's insurer may: (a) conduct and control negotiations in respect of the claim, and (b) conduct, or take over the conduct of, any legal proceedings in respect of the claim and may conduct those proceedings in the name and on behalf of the person, and (c) at any stage of those negotiations or proceedings, compromise or settle the claim, and (d) exercise any function conferred by this Part on the person in respect of the claim. (2) The person against whom the claim is made shall sign all such warrants, authorities and other documents as may be necessary to give effect to this section. (3) If the person fails to do so or is absent or cannot be found, the insurer may sign the warrants, authorities or other documents on behalf of the person. (4) Nothing said or done by an insurer under this section in connection with the settlement of a claim or the conduct of proceedings in respect of a claim shall be regarded as an admission of liability in respect of or in any way prejudice any other claim, action or proceeding arising out of the same occurrence."

53 Presumption of agency (1) For the purposes of: (a) any proceedings against the owner of a motor vehicle, whether severally or jointly with the driver of the vehicle, for the recovery of damages for liability in respect of the death of or injury to a person caused by the fault of the driver of the vehicle in the use or operation of the vehicle, and (b) the third-party policy, if the vehicle concerned is an insured motor vehicle,

any person (other than the owner) who was, at the time of the occurrence out of which the proceedings arose, the driver of the vehicle (whether with or without the authority of the owner) shall be taken to be the agent of the owner acting within the scope of the agent's authority in relation to the vehicle. ….. (3) The presumption of agency under this section is applicable not only with respect to proceedings taken against the owner of the motor vehicle, whether severally or jointly with the driver, but also: (a) where the owner or driver is dead, with respect to proceedings against the owner or driver's estate pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1944 , and (b) where the owner or driver is dead or cannot be served with process, with respect to: (i) proceedings against the person's insurer under section 54 or the Nominal Defendant, and (ii) proceedings in which the owner or driver, the owner or driver's estate, the insurer or the Nominal Defendant, as the case may be, is involved as alternative defendant or as a person on whom notice in writing has been served pursuant to Part 2 of the Law Reform (Miscellaneous Provisions) Act 1946 , or as a party to proceedings for recovery of contribution by or against a joint tort-feasor pursuant to Part 3 of that Act." 54 Proceedings against insurer if insured dead or unable to be served (1) If a person against whom a claim can be made is dead or cannot be served with process, the claimant and a person claiming contribution or indemnity between joint tortfeasors may: (a) take proceedings in respect of the claim against the person's insurer, and (b) recover in those proceedings an amount for which the claimant or the person claiming contribution or indemnity could have obtained a judgement against the insured person. (2) The fact that a person cannot be served with process shall not be regarded as having been proved unless it is established that all reasonable inquiries have been made in an effort to effect service." 150 Section 54 is in substantially the same terms as s 15(2) of the Motor Vehicles (Third Party Insurance) Act 1942 (the "1942 Act". In Genders v Government Insurance Office of New South Wales (at 383), Dixon CJ, McTiernan, Taylor and Windeyer JJ described s 15(2) as "[fixing] upon an insurer a direct liability where the death of the insured makes recovery from him impossible"; it operated on the hypothesis of "a right of direct recourse to the insurer". 151 In addition to the provisions relied upon by NRMA the following provisions of the MA Act in force at the time of the accident should be noted: "17 Indemnification of insured persons

A licensed insurer is, despite any other law, liable to indemnify the insured persons under a third-party policy of the insurer in respect of any liability which the policy purports to cover. … 25 Entry of judgment against licensed insurer (1) If a judgment obtained in any court relating to liability in respect of the death of or injury to a person caused by the fault of the owner or driver of an insured motor vehicle in the use or operation of the vehicle is not satisfied in full within 30 days after the judgment is entered, the court shall, on the application of the judgment creditor, direct that the judgment be entered against the licensed insurer of the vehicle. … (4) If the court directs that the judgment be entered against the licensed insurer, the judgment may be enforced as a judgment against the licensed insurer to the extent to which it was not satisfied at the time it was so entered." 152 Those provisions were repealed by the Motor Accidents Compensation Act 1999 (s 229; Schedule 3[6]), Chapter 2 of which deals with Third-Party Insurance. Sections 17 and 25 continue to operate in respect of the respondent's claim in accordance with s 30 of the Interpretation Act 1987.

153 Section 66A of the MA Act enables the insurer to apply to the court to be joined as a party to proceedings where the defendant's insurer has given the plaintiff particulars alleging the claim has not been made in good faith. If joined, the insurer may call witnesses and examine and cross-examine them. 154 At the time the Statement of Claim was filed, DCR Pt 5 r 2 required a statement of claim to contain, where there was a defendant, the full name of the defendant. "Defendant" was defined in DCR Pt 1 r 4 to include "any person against whom a claim for relief is made". 155 DCR Pt 24C, "Motor Accidents List", made provision for actions commenced under the MA Act. Part 24C r 3 provided: " Service of statement of claim (by post or otherwise) (1) The statement of claim in an action under the Act shall be served on the defendant and the defendant's insurer. … (3) The requirement in subrule (1) for service on the defendant's insurer is satisfied by service: … (b) where the defendant is an insured person for the purpose of the Act - on the defendant's third party insurer." 156 DCR Pt 24C r 8 provided that a defendant could not move the Court to strike out or dismiss an action under the MA Act on the ground of non-compliance with s 42 (the requirement to report an accident to the police within 28 days) or s 52 (which prevented court proceedings being commenced until six months after notice of the claim was given to the other person and his or her insurer) unless that motion was filed within two months after service of the statement of claim on the defendant's insurer. 157 These provisions lend support to the proposition that the legislature has recognised the importance of the insurer's role in motor vehicle accident proceedings. There is, moreover, considerable authority for the proposition that a motor vehicle insurer in the NRMA's position as a result of legislation in substantially the same terms as the MA Act is the "real defendant" in the proceedings, and the insured, the named defendant, is but a nominal party. 158 In McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418 the High Court considered an application for a new trial on the basis of the discovery of fresh evidence. The application was made in the name of the insured by the Government Insurance Office, which had issued a third-party policy in respect of McCann's motor car pursuant to the Motor Vehicle (Third Party Insurance) Act 1942 (NSW) (the "1942 Act"), the legislative precursor of the MA Act. The application was based on the premise that the insured had lied when he said that he was driving the vehicle which crashed, leading to the plaintiff's injuries. At a jury trial the plaintiff recovered a verdict of £20,000. After the trial a boy came forward to say it had been the plaintiff, not the insured, who had been driving the vehicle at the time of the accident. The defendant on the factual premise underlying the application, which was established to the Court's satisfaction, at all times knew the true position. In considering the application Dixon CJ, Fullagar, Kitto and Taylor JJ (at 428) said the "most difficult question" was that it was "the Government Insurance Office, not the defendant, that was misled, if the plaintiff was the driver of the car; and it was Office, not the defendant who discovered the fresh evidence". Their Honours referred to s 10 (7) of the 1942 Act (in like terms to s 17 of the MA Act) which they described as "an overriding provision that an authorized insurer issuing such a third party policy shall, in respect of any liability which it thus purports to cover for the death or bodily injury of third parties, be liable to indemnify the owner or such other person as may drive the car". They also referred to s 15 (1), which, like s 25 of the MA Act, enabled judgment to be entered against the licensed insurer of a vehicle if the judgment was not satisfied within 30 days. They concluded (at 430) that the effect of these provisions was that the insured "[was] not and has never been under any risk of any personal liability falling upon him as a result of the plaintiff recovering a judgment in these proceedings for damages … unless the authorised insurer were able to obtain relief in equity against the judgment on the ground of fraud. Their Honours continued: "Recognising the unreality of the position of the defendant sued for damages for bodily injuries caused to a plaintiff by the management of a motor vehicle the legislature placed the authorised insurer in such a case in the position of dominus litis. The authorised insurer who has issued a third party policy may take over during such period as he considers proper the conduct on behalf of such person of any proceeding taken or had to enforce a claim against any person in respect of a liability against which he is insured under the third party policy and he may defend such proceedings in a name and on behalf of such person: s 18(1)(b) and (c)". *Subsections 18(1)(b) and (c) were in substantially the same terms as s 47 of the MA Act. 159 Their Honours then said (at 430-431): "In the present case it is unnecessary to say that from the beginning the defence to the action was entirely conducted by the Government Insurance Office. It will be seen that McCann occupies a position of a mere nominal defendant. But for most purposes a party on the record is the only person whom the courts will regard as a responsible party in an action … [having referred to the fact that the jurisdiction to grant a new trial was 'governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suites to a final end', their Honours continued] In principle it is not easy to see why the Court, in getting at the justice of the case on the question whether the verdict should stand, may not look to the true legal effect of the verdict and of the judgment which would ensue therefrom and to the reality of the proceedings, more especially when they are the intended consequences of statute. Once the Court takes into account the legal truth that the verdict results in an enforceable liability upon the authorised insured and that, as of statutory right, he defends in the name of the party on the record who is reduced to the situation of the nominal defendant, then for the purpose of considering whether the trial has miscarried or the verdict should be set aside and the action retried, logic and justice alike seem to require that the question should be whether the insurer, not the nominal defendant, discovered fresh evidence … the power of the Court to order a new trial is based on the substantial requirements of justice and no court would exercise the power in favour of an insurer unless it were satisfied that notwithstanding due diligence on its part a situation had arisen in which, weighing the interests of the plaintiff against those of the real defendant, justice demanded that there be a retrial or a further investigation." (emphasis added) 160 Other cases reflect the proposition that in cases involving compulsory third party motor vehicle insurance, the insurer is the "real defendant". In King v Wilkinson (1957) SR (NSW) 444 (at 448), the Full Court (Street CJ, Owen J and Roper CJ in Eq) held that it was the right of a motor vehicle insurer having conduct of the defence of proceedings arising out of a motor vehicle accident, to draw to the court's attention the fact that the defendant (the insured) had "no real interest in the proceedings" and to call evidence to contradict his admissions. The Court observed (at 445), applying McCann v Parsons, that: "Counsel who appeared for the defendant, although of necessity appearing for the defendant on the record, was in fact briefed by the solicitor for the insurer who was in the position of dominus litis ." 161 In Treiguts v Tweedley [1959] VR 544, the plaintiff brought an action for damages for injuries he sustained in a collision between himself and a motor car driven by the defendant. The plaintiff had no recollection of the circumstances of the accident, nor did he know of anyone, other than the defendant, who had any knowledge thereof. By the time of the application with which the judgment was concerned the whereabouts of the defendant were unknown, although it appears that the originating process had been served upon him. The insurance company that had issued the third party policy in respect of the vehicle the defendant had been driving undertook the defence of the action. It had unsigned statements relating to the accident obtained from the defendant by a loss assessor. The plaintiff delivered interrogatories which the defendant failed to answer. The plaintiff sought an order that the defence be struck out and interlocutory judgment be entered for damages to be assessed. After noting that the discretion to dismiss an action or strike out a defence for non-compliance with an order for discovery was to be exercised in such manner as seemed to the court best calculated to do justice in the particular case, Smith J said (at 546): "…it does not appear to me to be possible to maintain that in a case such as the present the court must disregard the real status and interests of the persons concerned. The facts that the party on the record has no real interest in the proceedings and that his insurer is conducting the case under statutory authority and is bound by statute to bear the financial burden of failure must, as it seems to me, be material circumstances to be taken into account, along with others, in determining how justice may best be attained: compare McCann v Parsons (1954) 93 CLR 419, at pp. 430-431; Willis and Co v Baddeley , [1892] 2 QB 324; Windsor v Chalcraft, [1939] 1 KB 279;[1938] 2 All ER 751. 162 In Bourke v Kecskes [1967] VR 894 (at 900) Lush J treated the motor vehicle insurer as "the persons really interested" in whether an action should be dismissed for want of prosecution.

163 The respondent argues that the MA Act does not support any implied right of joinder on NRMA's part. The only explicit power to sue the insurer when the person against whom the claim can be made is dead is conferred on a potential claimant (s 54) and, I would add, the only explicit power enabling the insurer to apply to be joined in proceedings is s 66A. 164 However, there is authority for the proposition that the obligation to satisfy the judgment (s 25) gives a motor vehicle insurer a sufficient interest in certain circumstances to be joined as a party in motor vehicle accident proceedings. 165 In Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186 the plaintiff, who was a resident of New South Wales, was injured when he was travelling in a prime mover registered in Queensland, being driven by the defendant when it collided with a tree. The accident occurred in Queensland. Relying on the court's jurisdiction in matters "between residents of different States" under s 75(iv) of the Constitution, the plaintiff commenced proceedings against the defendant in 1983 by writ and statement of claim issued out of the Sydney registry of the High Court. The documents were not served within 12 months, but subsequently Mason J (as he then was) made orders for their renewal and service on the manager of the State Government Insurance Office of Queensland (the "SGIO"). The SGIO then sought orders pursuant to either O 16 r 7 or O 16 r 4(2) of the High Court Rules 1958 (Cth) that it be joined as a defendant, and that the action be struck out or the order for substituted service be vacated. 166 The proceedings against the defendant were properly brought. It was common ground that as the third party insurer of the defendant under the Motor Vehicles Insurance Act 1936 (Qld) (the "Qld Act") the SGIO was the entity to which the plaintiff would ultimately look to satisfy any judgment he might obtain against the defendant pursuant to reg 12 of the Motor Vehicles Insurance Regulations 1968 (Qld) (the "QLD Regulations"), which was in substantially the same terms as s 25 of the MA Act.

167 The SGIO's right to elect to be joined in a proceeding and to conduct the proceeding on behalf of a defendant under regs 10 and 11 of the Motor Vehicle Insurance Regulations was limited to a proceeding in a court in Queensland. The contract of insurance did not confer on the insurer a right to conduct the proceedings brought against the insured. Mason J rejected the SGIO's first argument, that it ought be joined pursuant to O 16 r 7 which provided that "where a right to relief is alleged to exist against one or more persons whether jointly, severally or in the alternative they may be joined as defendants and judgment may be given against such one or more of them as are found liable, according to their respective liabilities, without amendment". He said (at 187): "Even if the SGIO were a person against whom a right to relief could be alleged to exist within the meaning of the rule, I am unable to see its relevance. In general, a plaintiff who conceives that he has a cause of action against a defendant is entitled to pursue his remedy against that defendant alone ( Dollfus Mieg et Compagnie SA v Bank of England [1951] Ch 33). There is nothing in the terms of the rule or in authority to suggest that O 16, r 7, is concerned to abrogate or detract from that general entitlement." 168 The SGIO's second argument was based on O 16 r 4(2), which was in substantially the same terms as DCR Pt 7 r 8 (which corresponds with UCPR 6.24) which provided: " 8 Addition of parties (1) Where a person who is not a party to an action: (a) ought to have been joined as a party, or (b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the action may be effectually and completely determined and adjudicated upon, the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the action." 169 Mason J said (at 187) that SGIO is "clearly not a person 'who ought to have been joined' as a party… [the] action [having been] properly brought against the defendant alone", but concluded that, having regard to the limitation on the SGIO's statutory and contractual right to conduct the proceedings in the High Court, it was "a person "whose presence before the Court … may be necessary in order to enable the Court … effectually and completely to adjudicate upon and settle all the questions arising". His Honour was not necessarily convinced that the SGIO had a sufficient interest to raise the questions of jurisdiction and substituted service and renewal of the writ it sought to agitate. He assumed, however, that the SGIO, by virtue of its position as insurer against whom the plaintiff may ultimately have a right to proceed, had a sufficient interest "to be joined as a defendant … to enable it to contest …matters which the original defendant could contest if he were represented". Having joined the SGIO, his Honour then considered (at 188) its argument that his order for substituted service should be set aside. He noted that one of the tests for an order for substituted service was that the method of substituted service requested was one which was likely to cause the writ to come to the knowledge of the defendant. He said: "However, in a number of cases substituted service of a writ has been ordered on a third party motor vehicle insurer against whom a judgment obtained may ultimately be enforced even though there was apparently little likelihood of the writ thereby coming to the knowledge of the defendant (eg Kevin v Schmeisze [1964] QWN 51 and Lawford v Hosth (1974) 5 ALR 57). In Lawford v Hosth Forster J (at pp 58-9) identified the principles underlying these cases as being: '… first, that the real defendant in motor accident cases is the third party insurer of the defendant ( McCann v Parsons (1954) 93 CLR 418; [1955] ALR 14) and, second, that if a judgment obtained against the defendant may ultimately be enforced against the defendant's insurer then, provided all proper inquiries to find the defendant have been unsuccessful, an order for substituted service upon the insurer may be made whether or not the policy was entered into interstate'." 170 Gurtner v Circuit [1968] 2 QB 587 (to which Mason J referred in Foxe v Brown) is also authority for the proposition that a motor vehicle insurer exposed to a liability to satisfy any damages awarded to the plaintiff is a person whose presence before the court may be necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated. In Gurtner, the originating process had not been, and was never likely to be, served upon the defendant, who had emigrated to Canada after a motor vehicle accident and whose whereabouts could not be discovered. Although he had given his insurance details to the police after the accident, they had merely noted the certificate number and the fact that the policy was issued by Lloyds Motor Policies. The police did not record the name of the syndicate which had issued the certificate and it could not be identified. Under an agreement with the Minister of Transport, the Motor Insurers' Bureau had promised to pay any judgment against a motorist if it was not satisfied by his insurers within seven days. An order for substituted service on the defendant had been obtained, but it was common ground that it would never have been effective to bring the proceedings to his notice. Both Lord Denning MR (at 596-597) and Diplock LJ (at 605) were of the view the order for substituted service was not properly made. The Bureau sought to be joined to investigate the claim and defend the proceedings as appropriate. The Court of Appeal held the Bureau should be joined. Lord Denning MR said (at 595 - 596): "If the Motor Insurers' Bureau are not allowed to come in as a defendant, what will happen? The order for substituted service will go unchallenged. The service on the defendant will be good, even though he knows nothing of the proceedings. He will not enter an appearance. The plaintiff will sign judgment in default of appearance. The judgment will be for damages to be assessed. The master will assess the damages with no-one to oppose. The judgment will be completed for the ascertained sum. The defendant will not pay it. Then the plaintiff will be able to come down on the Motor Insurers' Bureau and call on them to pay because they have made a solemn agreement that they will pay. … the Motor Insurers' Bureau are vitally concerned in the outcome of the action. They are directly affected, not only in their legal rights, but also in their pocket. They ought to be allowed to come in as defendants. It would be most unjust if they were bound to stand idly by watching the plaintiff get judgment against the defendant without saying a word when they are the people who have to foot the bill." 171 Lord Diplock said (at 602-603): "Clearly the rules of natural justice require that a person who is to be bound by a judgment in an action brought against another party and directly liable to the plaintiff on the judgment should be entitled to be heard in the proceedings in which the judgment is sought to be obtained. A matter in dispute is not, in my view, effectually and completely 'adjudicated upon' … unless the rules of natural justice are observed, and all those who will be liable to satisfy the judgment are given an opportunity to be heard."

Conclusion 172 NRMA did not contest the proposition that proceedings commenced in the name of a non-existent person were a true nullity, suffering from the fundamental defect referred to in Re Pritchard; and see too Attorney General of New South Wales v World Best Holdings Ltd. In my view despite NRMA's submission that the proceedings should only be characterised as irregularly commenced, a submission which as the following discussion reveals I conclude has some force, the orders made in the proceedings on Mr Deveigne's application, were true nullities in this sense.

173 This conclusion is an unsatisfactory one. It means that many "steps" have been taken in the District Court which are nullities because taken in the name of a deceased person. The application for the proceedings to be dismissed for want of prosecution, and the costs order made by Garling DCJ were nullities because made in the name of a deceased person. A Certificate of Judgment has been entered which is as much use as the "dog licence" to which Danckwerts LJ referred in Re Pritchard. The order Gibson DCJ purported to make displacing the costs order in favour of Mr Deveigne and replacing it with one in favour of NRMA was also a nullity because the application was made in the deceased's name. It is not to point, therefore, that the respondent did not appeal from Gibson DCJ's order. It had no effect: Pelechowski v The Registrar Court of Appeal (NSW); MacFoy.

174 Further contrary to her Honour's view, it was necessary for NRMA to be a party to obtain the benefit of the costs order; but even if her Honour had been disposed to join NRMA pursuant to DCR Pt 7 r 8, that joinder would only have taken effect on 15 April 2004, the date of the hearing before her Honour. 175 The dismissal order was, in my view, effective however, as it was an order the court could make of its own motion: DCR Pt 18 r 3. 176 This does not have the consequence, however, that the proceedings themselves were a nullity. It is appropriate to consider the position had NRMA realised at the outset the significance of the Statement of Claim naming the deceased as the defendant. 177 The authorities concerning proceedings against deceased persons being a nullity all related to proceedings where the deceased was the sole defendant. In this case, the deceased was the nominal defendant, the real defendant was NRMA: McCann, Lawford v Hosth (1974) 5 ALR 57. That fact was implicitly recognised by the requirement that the statement of claim be served both on the defendant and the defendant's insurer: DCR Pt 24C r 3(1). 178 The statement of claim did not, as it was obliged to do (DCR Pt 5 r 2) contain the name of the defendant; Mr Deveigne was deceased; he had no legal personality: Piggott. Failure to serve the proceedings on him constituted partial non-compliance with DCR Pt 24C r 3(1); the proceedings were properly served on NRMA in accordance with that rule. There was, in the circumstances, a failure to comply with the rules which, by virtue of s 159, was to be treated as an irregularity, not a nullity. This conclusion is consistent with the contemporary approach against treating irregularities as anything more than that, and against treating proceedings as void or as a nullity because of a defect or irregularity: Griffiths v ANZ Banking Group Ltd [2002] SASC 250; (2002) 83 SASR 491 per Doyle CJ (at [51]); see also Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; [2004] 1 Qd R 173 (at [7]) per McPherson JA, (at [21]) per McMurdo J (with whom McPherson JA and Holmes J agreed); Smart v Stewart (1992) 107 FLR 119 (at 124) per Angel J. 179 Thus, unlike Dawson, Foster and Piggott, there was a "real" defendant in existence, the NRMA, which was served, although not named as a party. 180 The commencement of the proceedings, therefore, at least engaged the jurisdiction of the District Court to determine whether it had jurisdiction to make any order having regard to their constitution: KBRV. In my view, the District Court could have entertained a motion brought by NRMA to be joined as a party. It was the real defendant, and its entitlement to be joined could be inferred from the combination of provisions of the MA Act to which I have referred. That construction is consistent with the legislative scheme and the conclusion in the Foxe v Brown line of authority. It is not, in my view, precluded by there being only one express joinder provision, s 66A.

181 It was open to the District Court join NRMA as a party pursuant to the DCR Pt 7 r 8 as a party whose joinder was necessary to ensure that all matters in dispute in the action to be effectually and completely determined and adjudicated upon, at least to determine whether the proceedings should be re-constituted, for example to join the Public Trustee or to continue against the NRMA. 182 If the Court had joined NRMA pursuant to DCR Pt 7 r 8, its joinder would have dated from the filing of the originating process amended so as to add it as a party: DCR Pt 7 r 11 r (3) (UCPR 6.28). 183 In the present case Mr Davies appeared to accept that in order for the NRMA to gain the benefit of the original costs order, its joinder had to date from the service of the Statement of Claim. The Rules preclude the addition of the NRMA as a party having that effect as the motion to add NRMA as a party was only filed in this Court. I should add, that the Court cannot look to s 159 to override the operation of DCR Pt 7 r 11(3): Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 723 per Gleeson CJ (with whom Clarke JA agreed). 184 The position would be different if it was possible to substitute NRMA as a party pursuant to DCR Pt 11(1)(d). However that rule depends on a party being substituted for "another party or former party", which cannot apply here. 185 However it may be questionable whether it was necessary for NRMA's joinder to date from the service of the Statement of Claim. There are authorities which permit costs orders to be made in favour of non-parties: see Re Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129; (2004) 48 ACSR 681; Knight v F P Special Assets Ltd (1992) 174 CLR 178; further the indemnity costs rule does not preclude an assessment of cost where the party seeking the assessment is only a nominal party: Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203. 186 These cases support the proposition that despite the fact a "real" party is joined as in this case on appeal, it would still be open to give it the benefit of a costs order, albeit not the one which was a nullity. 187 The question is whether this Court should exercise its discretion to make such an order. In my view it should not. 188 The proceedings were commenced in February 2000. NRMA allowed them to continue without drawing the court's attention to their defective constitution. In May 2001 it had them dismissed and obtained a costs order - an order I would note without further comment, was obtained in the absence of the respondent, his solicitors having been given leave to withdraw. 189 It obtained the Certificate of Judgment in June 2002. It was not until March 2004 that it took any steps to try to rectify the position its earlier omission had created and first informed the court of Mr Deveigne's death. It has, in my view, been the author of its own misfortune. As Giles JA has observed, had it moved at the outset of the proceedings, it is possible it would not have incurred costs in the order of those assessed by this Court. 190 In my view it would not be in the interests of justice to restore NRMA to the position it might have been in had it moved promptly in 2000. The position it is in can only be laid at the respondent's feet in the most nominal sense. His solicitors commenced defective proceedings. It was within NRMA's power to rectify the situation early in the peace and not incur substantial costs. 191 The consequence is that the appeal should be dismissed. However NRMA should be joined as a party, the appellant, to the appeal in order that the appeal be properly constituted

(1) Application for leave to appeal purportedly on behalf of Terry Deveigne dismissed as incompetent.

(5) Appellant to file Notice of Appeal within seven (7) days of this order.

(7) Appellant to pay the respondent's costs of the appeal.

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