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[2012] NSWSC 575
Supreme Court of NSW
2012-05-28
John P
Original judgment source is linked above.
The Claim 1HIS HONOUR: The proceedings before me were commenced by originating Summons filed on 10 November 2011, in which the Plaintiff, Edward Gary Gumbleton, relevantly, seeks the following final relief: "1. A declaration that the plaintiff and defendant entered into a partnership for the purchase and raising of a herd of cattle (Partnership) as and from June 2006. 2. An order pursuant to section 35(c) and/or section 35(d) and/or section 35(f) of the Partnership Act 1982 (NSW) that the Partnership be dissolved as and from 26 November 2010, or alternatively, upon the payment in accordance with accounts taken. 3. A declaration that the defendant is liable to repay the moneys borrowed by him from the partnership in the sum of $79,400.00. 4. An order that the proceedings be referred to an Associate Judge of the Equity Division of the Supreme Court for the taking of accounts of the Partnership in order to determine the net profit or loss of the Partnership and inquiry into the amount, if any, payable upon the taking of accounts. 5. An order that the defendant pay the costs of the referral of the proceedings to the Associate Judge with liberty to the defendant to apply to the Associate Judge for some other or different order depending on the outcome of the account. 6. An order that the proceedings be reserved for further consideration and, after the determination by the Associate Judge of the account, the parties cause the matter to be re-listed for orders as to the distribution of profits and losses and interest on any amount payable. 7. Interest pursuant to section 100 of the Civil Procedure Act 2005 (NSW)." 2The Defendant named in the Summons is John P Hewitt. He has, to date, taken no part in the proceedings. He has not appeared on any occasion when the matter has been listed before the Registrar and he did not appear when the matter was called before me today. He has not entered an Appearance. 3These reasons will not identify the exact address of any party in conformity with the Court's policy of reducing the risk of identity theft through the Court's published judgments. 4On 24 April 2012, Registrar Musgrave listed the matter, for hearing, on 28 May 2012 before me. 5On 23 May 2012, my Associate contacted the Plaintiff's solicitors to ascertain whether the matter was, in fact, proceeding, as previous directions made by the Registrar did not seem to have been complied with. There was also no evidence, on the court file, that the Defendant had been given any notice of the hearing date, by the court, or otherwise, as he had not appeared when the Registrar listed the matter for hearing. 6On 24 May 2012, the Plaintiff's solicitors delivered the Court Book to my Chambers. 7On 25 May 2012, the Plaintiff's counsel, Mr DJA Mackay informed my Associate, by email, that an application for an adjournment would be made as "the Plaintiff does not have sufficient evidence of the service of the notice of hearing upon the Defendant". 8On 28 May 2012, at about 10:10 a.m., the trial of this matter commenced. Mr Mackay appeared for the Plaintiff and made an application for the hearing date today to be vacated (or in terms of the rule, for the trial to be adjourned). The matter was called three times outside the court. The Defendant did not appear himself. No legal representative appeared on his behalf. 9Uniform Civil Procedure Rules rule 29.7, relevantly, provides: "29.7 Procedure to be followed if party is absent (1) This rule applies when a trial is called on. (2) If any party is absent, the court: (a) may proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or (b) may adjourn the trial. ..." 10It was not submitted that the matter should proceed upon the basis that the Defendant was in default of filing an Appearance (UCPR rule 6.10(1)(b)) or that no notice of the hearing date need be given to him because of his default. 11Mr Mackay, apparently, was aware of what I had written in French Consulting Pty Ltd v Lawson Stuart Donald [2011] NSWSC 584, at [16] - [17], namely that whilst the court may be satisfied that a party was "absent", that is, he, or she, was not physically present, at the trial, and was not represented, a party is "absent" within the meaning of the rule, when the trial is called on, only if it can be shown that he, or she, has knowledge, or notice, of the date of the trial, and is not physically present, or not represented. In other words, before the rule can be relied upon, there should be proof that the absent party has been given reasonable notice of, or has knowledge of, the date of the trial. Therefore, it is necessary for the party seeking to proceed to establish that notice of the date for the trial and that it was to then proceed has been brought to the Defendant's knowledge or notice. 12Counsel for the Plaintiff accepted that the onus of proving service of the Summons, affidavit in support, the order for substituted service, and any correspondence establishing notice of the date for hearing and that the matter was to proceed on that date, falls on the Plaintiff.
Procedural History 13It is necessary to refer, briefly, to some of the procedural history and to the evidence that was filed in the proceedings. 14On 13 February 2012, Registrar Musgrave made orders for substituted service of the Summons and the Plaintiff's affidavit in support. Service was permitted by leaving a copy of the documents in the mailbox at the property at Larnook, occupied by the Defendant, as well as by sending the documents, by express post, to an identified post office box, held in the name of the Defendant, at Nimbin. The orders made by the Registrar also provided that the documents were to "be taken to be served upon the Defendant upon the Plaintiff's compliance with" the order previously referred to. Finally, the Registrar adjourned the matter to his list on 27 March 2012. 15There is an affidavit of service, sworn, on 24 February 2012, by Stephen Geoffrey Colman, a licensed process server, filed in support of the Plaintiff's case. It evidences that a copy of the Summons, the Order made on 13 February 2012, the affidavit sworn 12 October 2011 by the Plaintiff, and a letter dated 20 February 2012, from the Plaintiff's solicitors, addressed to the Defendant, was delivered to the mailbox at the Larnook property on 21 February 2012. 16There is also an affidavit of service, affirmed 27 February 2012, by Elizabeth Anne Griffiths, a legal secretary employed by the Plaintiff's solicitors, evidences that she "arranged" for a letter dated 20 February 2012, the Summons, dated 10 November 2011, the affidavit of the Plaintiff and "Judgment/Order" to be sent, by registered post, to the Defendant's post office box at Nimbin. There is annexed to the affidavit, a copy of a Lodgement Receipt bearing a stamp dated 20 February 2012 "Retail Post Shop Ballina NSW 2478" addressed to the Defendant at the post office box at Nimbin. 17There was also annexed to that affidavit a copy of a Registered Post Delivery Confirmation - Advice Receipt, bearing a stamp dated 23 February 2012, "Licensed Post Office Nimbin NSW 2480". 18Ms Griffiths affirmed another affidavit on 26 March 2012, deposing that on 1 March 2012, an envelope addressed to the Defendant, at the address at Larnook, marked "Return to Sender P O Box 183 Ballina, was collected by the Plaintiff's solicitors from the local post office. Counsel for the Plaintiff confirmed that this is the Post Office Box of the Plaintiff's solicitors. 19There is also an affidavit, affirmed, on 22 May 2012, by Sarah Louise Cornwell, a solicitor employed by the Plaintiff's solicitors, deposing to a telephone conversation with a person who identified himself as the Defendant, in the following terms: "3. Mr Hewitt said to me "this thing tomorrow, I'm not going to make it". I said to Mr Hewitt "I am not able to advise you as I act for the Plaintiff but I urge you to obtain legal advice and/or legal representation". The remainder of the conversation concerned an offer to settle the proceedings. Subsequently I obtained instructions in relation to the offer and then the Plaintiff made a counter offer which was not accepted by the Defendant." 20There is an affidavit, affirmed 23 May 2012, of Lynette Jeffery, an administrative assistant employed by the Plaintiff's solicitors, in which she states: "3. Attached to this affidavit and marked "A" is the file copy of a letter which I recall typing for Michelle McCartney being a letter to the Defendant (Letter). 4. I put the Letter into an envelope addressed to the Defendant at PO Box xxxx, NIMBIN NSW 2480. 5. I then placed the envelope referred to in paragraph 4 into the tray which the solicitors for the Plaintiff use for mail articles. That tray is emptied at the end of the business day and the items are taken to Ballina Post Office and handed to the staff. Attached to this affidavit and marked "B" is a copy of the invoice from Australia Post for 24 April 2012 showing that in total 11 items were stamped and sent on that day." 21The copy letter dated 24 April 2012 referred to by Ms Jeffery is in the following terms: "As we earlier indicated this matter was before the Court this morning with no appearance by you or any representative for you. The matter has been set down for hearing for half a day on 28 May 2012 before Assistant Judge Hallen As.J with the usual Order for hearing and if you do not appear judgement may be given against you. We note that the enclosed Notice to Produce is returnable on 21 May 2012. We strongly suggest that you seek legal advice as to the consequences should you fail to comply with this Notice to Produce." 22Unfortunately, there is no specific evidence that the letter to which I have referred, was one of the "11 total items [that] were stamped and sent on that day". 23Nor does an affidavit sworn 23 May 2012, of Jaala Durheim, a junior secretary in the employ of the Plaintiff's solicitors, whose duties include taking the mail to the Post Office, and to whose affidavit is annexed a copy of a mailing statement and receipt from Australia Post dated 24 April 2012, establish that the letter referred to in Ms Jeffery's affidavit affirmed 23 May 2012, was one of the letters referred to in the mailing statement and receipt. 24Plaintiff's counsel accepted that there was insufficient evidence to enable the court to conclude that the letter dated 24 April 2012, was one of the 11 letters posted on that date. Furthermore, I note that the receipt from Australia Post reveals the time of payment as 16:55 p.m.. Even if I assume that the letter was typed on the date it bears (24 April 2012), it may have been typed and placed in the tray of mail after that time. 25I was informed by counsel for the Plaintiff that these matters could not be clarified by an additional affidavit from Ms Durheim as she was unable to recall whether the envelope containing the letter dated 24 April 2012 was one of the 11 letters posted on that date. Furthermore, I was informed that there is no postage book at the Plaintiff's solicitor's office that would provide assistance on this topic. 26Overall, as the Plaintiff's counsel accepted, the trial could not proceed in the absence of the Defendant today. Hence, the application to vacate the hearing date (or adjourn the hearing).
Determination 27Then, a question arises as to what should be done in the light of the Plaintiff's application to vacate the hearing date (or adjourn the hearing). 28Section 66 (1) of the Civil Procedure Act, provides that the court may, at any time, and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. This is a "wide and ample" power, the principal consideration being what is necessary to do justice between the parties: Sydney City Council v Ke-Su Investments Pty Ltd [1985] 1 NSWLR 246 at 252, per Kirby P; Hinckley & South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32 (at 39) Farwell J ("the court has an inherent power to direct that any matter which comes before it should stand over for a period if the court thinks that that is the proper way to deal with the matter"); City of Sydney Council v Satara [2007] NSWCA 148, per McColl JA, at [17]. 29In Singh v Deputy Commissioner of Taxation [2011] FCA 889, Collier J noted: "[31] The decision to adjourn a hearing constitutes an exercise of the court's discretion: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14; Goldberg v Morrow [2004] FCA 1490 at [36]. The exercise of the discretion miscarries where the refusal of an adjournment results in one of the parties being unable adequately to present its case: Thornberry v R (1995) 69 ALJR 777. Where there is a proper basis for an application for an adjournment, and refusal would seriously prejudice the party seeking the adjournment and not prejudice the other party, adjournment should ordinarily be granted: Jordan v Smart [1961] NSWR 735." 30However, as has been repeated (see, e.g. Hamod v New South Wales [2011] NSWCA 375 at [145], per Beazley JA and Traderight (NSW) Pty Ltd v Bank of Queensland Ltd (No 8) [2011] NSWSC 1514 at [32], per Ball J: "The operation of the Civil Procedure Act, ss 56-60 has brought about important changes to the conduct of civil litigation in this State. To a significant degree those provisions enshrined many of the developments in case management and the approach to litigation over the previous 20-30 years in this country. They now have statutory form. They are, however, a clear statutory watershed. That statutory form comprises the over-riding purpose: s 56, the fulfilment of which binds the Court (s 56(2)), the parties (s 56(3)) and legal advisers (s 56(4)). That over-riding purpose is the 'just, quick and cheap resolution of the real issues in the proceedings'." Per Allsop P in McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308 at [26]." 31It is incumbent on practitioners, in any case in which a hearing date has been appointed, whether for final or interlocutory relief, in circumstances where the other party was, or other parties were, not present when the hearing date was appointed, to properly inform the other party, or parties, of the date, time and place, of the hearing, within a reasonable time after the date for hearing has been appointed, and that he, she, or it, should appear, otherwise orders may be made in his, her, or its absence. Notice should be given to the party, or parties, against whom orders are sought. 32It is also incumbent on practitioners to inform the other party, or parties, of any directions made at the time of the hearing date being appointed. 33There should be evidence available, in admissible form, at the hearing, where a party against whom, or which, relief is sought does, or parties against whom, or which, relief is sought do, not appear, to demonstrate that notice of the hearing date and time, as well as of the applicant's intention to proceed for the relief stated, on that date, as well as the other matters referred to above, has, or have, been given. The mode of service, or of giving notice, should be sufficient to ensure that these matters are likely to have been brought to the attention of the party, or parties, who, or which, does, or do, not appear. 34Importantly, also, where notice is given, or service is effected, by post, or by D.X., the evidence of such posting, must be in admissible form. It is timely, once again, to repeat what I said in French Consulting Pty Ltd v Lawson Stuart Donald, I referred to what is necessary to establish service of documents by post. I wrote: "[28] ...In this regard, I refer to Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216, in which Brereton J set out the requirements of an affidavit of service by post: [12] ... Proof of service by post requires, at least: Proof that the envelope bore the correct name and address; Proof that the envelope contained the relevant document to be served; Proof that the envelope bore the correct cost of postage; and Proof that the envelope was placed in the post. [13] Precedents may be found in Neville & Ashe, Equity Proceedings with Precedents (NSW), Butterworths, 1981, precedent 19(2), Court Forms Precedents & Pleadings (NSW), "Service of Process", precedents 40.5, 40.15. [29] More recently, Barrett J in Brown v Bluestone Property Services Pty Ltd [2010] NSWSC 869, said: [12] The requirements for proof of service by post have been described in a number of recent cases to which Mr Hughes, counsel for the defendant, referred, specifically, Northumbrian Ice Cream Co Ltd v Breakaway Vending Pty Ltd [2006] NSWSC 1216; Dwyer v Canon Australia Pty Ltd [2007] SASC 100; Pearlburst Pty Ltd v Summers Resort Group Pty Ltd [2007] NSWSC 1126 and Grant Thornton (Qld) Pty Ltd v Green Global Technologies Ltd [2009] QSC 262. [13] In order to prove service by post, it is necessary that the evidence of one or more witnesses establish a number of core and indispensable matters: that the document said to have been served by posting of it to a given address was placed inside an envelope, that the envelope had that address written or typed on its face, that a postage stamp or franking of the necessary amount was affixed to the envelope and that the envelope so addressed and stamped or franked was physically deposited in the post either at a post office or by being dropped into a post box for the reception of mail articles. [30] Also see my decision in Smirski v Macander [2010] NSWSC 929 and Renegade Rigging Pty Ltd v Hanlon Nominees Pty Ltd [2010] VSC 385." 35That the written notice of the hearing has not been returned should also be the subject of evidence. 36The matters set out above are consistent with the obligation of the court to accord procedural fairness. 37In all the circumstances, in the exercise of my discretion I propose to grant the Plaintiff's application to vacate (or adjourn) the hearing date. It is clear that the Plaintiff cannot establish an important aspect of his case, namely proper service of notice of the hearing date upon the Defendant. No prejudice will be suffered by the Defendant who will not be aware of the hearing today. 38However, I grant the adjournment on terms that the solicitors for the Plaintiff do not charge the Plaintiff with any costs or disbursements to the Plaintiff incurred as a result of the vacation of the hearing today. In my view, the adjournment has been brought about by their failure to be able to satisfy the court that the matter should proceed today. (Very fairly, counsel for the Plaintiff accepted that this was appropriate in the circumstances.) 39The orders I make are: (a) Order, upon the application of the Plaintiff, that the hearing date be vacated on terms that the solicitors for the Plaintiff do not charge him with any costs or disbursements incurred in the matter as a result of the vacation of the hearing date of the proceedings. (b) Refer the matter to the Registrar at 9:00 a.m. on Wednesday, 6 June 2012. (c) Direct the Plaintiff to advise the Defendant, in writing, of the adjourned date, by letter sent no later than 4:00 p.m. on Wednesday 30 May 2012, or delivered to the Defendant no later than 4:00 p.m. on Friday 2 June 2012.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2012
Gumbleton
Hewitt
[2007] SASC 100
[2009] QSC 262
[2010] VSC 385
(2009) 258 ALR 14
(1995) 69 ALJR 777
[2009] HCA 27