Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Commencement of proceedings - Service - Service out of time - Inapplicability of the Supreme Court Rules 2000, r51.

Judgment Number: [2004] TASSC 107

1 By a writ issued on 18 July 2003, the plaintiff instituted proceedings against three defendants, one of whom is David Porter. I will refer to Mr Porter as the defendant. The writ was served on the defendant on Monday 19 July 2004. The defendant's solicitors filed and served on the plaintiff's solicitors an appearance and an interlocutory application, the relevant portions of which are as follows:

TAKE NOTICE that this conditional appearance has been filed by or on behalf of DAVID PORTER, the Firstnamed Defendant, who disputes the validity of the originating process and reserves the right to apply to the Court or a judge to set aside that process.

The Firstnamed Defendant's address for service of documents is c/- Messrs Ogilvie Jennings, 8 Brooke Street, Hobart in Tasmania.

PURSUANT TO RULE 168 RULES OF THE SUPREME COURT

The Firstnamed Defendant applies for the following orders:

1 The originating process be set aside as a nullity.

2 Such further and other orders as the Court deems fit.

2 Applications that have been filed on behalf of the defendant raise the following issues for my determination:

* was the writ in force when served on the defendant;

* if not, has the defendant waived any irregularities in relation to the service of the writ on him;

* if not, should leave be granted to the defendant to amend his appearance.

3 The Supreme Court Rules 2000, r107(1), provides:

"107 - (1) An original writ is in force for 12 months commencing on, and including, the date of issue."

4 The writ having been filed on 18 July 2003, it was in force until Saturday 17 July 2004. As to the correctness of this calculation, see Trow v Ind Coope (West Midlands), Ltd and Another [1967] 2 All ER 900 and Woodcock v State of Tasmania [2003] TASSC 81. The writ was not served until Monday 19 July 2004 and accordingly it was out of force at the time of service unless the plaintiff could claim in aid a saving provision. To that end, the plaintiff relies on r51, which provides:

"51 - If the period for doing any act or taking any proceeding expires on a Saturday, Sunday or Court holiday, the act or proceeding may be done or taken on the next day which is not a Saturday, Sunday or Court holiday."

5 This rule is the successor of O79, r3 of the now repealed Rules of the Supreme Court 1965 which provided:

"3 - When the time for doing any act or taking any proceeding expires on a Saturday, Sunday, or Court holiday, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the next day which is not a Saturday, Sunday, or Court holiday."

6 It is to be noted that the revised rule, r51, does not carry forward two phrases contained in O79, r3 which are to the effect that:

* by reason of the expiration of the time on a specified day the act "cannot be done or taken on that day"; and

* the act will "be held to be duly done or taken if done or taken on the next day" which is not a specified day.

7 It is obvious that the purpose of the former rule, O79, r3, was to enable that which could not be done on the last day of a period because it was not possible to do it on that day, to be done on the next day when it could be done. Counsel for the plaintiff submits that the drafting differences between the revised rule and the former rule show that the revised rule is no longer intended to have this purpose and accordingly the plaintiff is entitled to the benefit of the rule, even though it had been open to the plaintiff to serve the defendant on Saturday 17 July 2004. Service on a Saturday is not proscribed by r49, which provides:

"49 - A writ, pleading, notice, application, order or other document must not be served on a Sunday, Good Friday or Christmas Day."

8 I doubt that the drafting changes that resulted in the differences between the former rule and the revised rule reflect a change in the purpose of the revised rule. I am inclined to the view that the revised rule should be construed on the basis that it is only intended to extend the time for the doing of an act which cannot be done on the last day of a period because it was not possible to do the act on that day. Many of the apparent differences between rules in the Supreme Court Rules 2000 and the predecessors to those rules in the Rules of the Supreme Court 1965, flow from the implementation of a drafting vogue to remove anything in a provision that is thought to go without saying, on the basis that it is superfluous. It may be that the differences between O79, r3 and r51 result from the over-zealous implementation of that vogue. It is not necessary for me to reach a final conclusion on this aspect of the meaning of r51 as for other reasons I am of the view that the plaintiff cannot rely on this rule. It only applies where "the period for doing any act or taking any proceeding expires on" a day there specified. Rule 107 does not provide that the time for the service of a writ expires on any particular occasion. Subject to r49, it was open to the plaintiff to serve the writ at any time, whether before or after Saturday 17 July 2004. Rule 107 does not contain any direction in relation to the service of a writ. The rule deals with the duration of the force of a writ and is more appropriately equated with provisions that deal with status than a provision that imposes a limitation period, see Re Tavella (1953) 16 ABC 166 and Zangzinchai v Millanta [1993] FCA 356; (1993) 116 ALR 357. Whilst by reason of r107 the writ ceased to be in force after 17 July 2004, it was not a nullity. It could still be served and that service would be effective unless challenged on the basis of irregularity. Irregularity can be waived. Instances of wavier in relation to the service of an out of force writ are the entry of an unconditional appearance, Sheldon v Brown Bayley's Steel Works Ld and Dawnays Ld [1953] 2 QB 393, and a solicitor's acceptance of service on behalf of a client, coupled with an undertaking to enter an appearance, Simpson v Brereton and Alexopoulos [1964] VicRp 46; [1964] VR 332.

9 I am accordingly not satisfied that the plaintiff could call in aid r51 to extend the force of the writ beyond 17 July 2004.

10 The service of the writ on the defendant having been irregular, it was open to him to challenge it. To cater for situations such as this, r168 provides:

"168 - (1) A defendant or respondent in any originating proceeding may file and serve a notice of conditional appearance by which the defendant or respondent -

(b) reserves the right to apply for an order setting aside the originating process or its service, on the ground of any informality or irregularity which renders the originating process or its service invalid.

(2) A conditional appearance is to be in accordance with the prescribed form.

(3) A defendant or respondent does not submit to the jurisdiction of the Court by a conditional appearance, except as to the costs occasioned by -

(a) the filing and service of the notice of conditional appearance; or

(4) On filing a conditional appearance, a defendant or respondent may apply to the Court or a judge for an order to set aside the originating process or its service."

11 The prescribed form for a conditional appearance for the purposes of r168(2) is as follows:

Take notice that this conditional appearance has been filed by or on behalf of [name of party or person filing appearance], the defendant [or respondent or third party] who denies the jurisdiction of the Court (or disputes the validity of the originating process or its service) and reserves the right to apply to the Court or a judge to set aside that process or its alleged service on the following grounds: [specify grounds].

The defendant's [or respondent's or third party's] address for service of documents is [specify address with particularity].

To [plaintiff or applicant or the practitioner for such party and address]"

12 The course taken by the defendant's solicitor following the service of the plaintiff's writ was to contemporaneously file and serve the appearance and interlocutory application set out in par1 of these reasons. The appearance filed does not strictly accord with Form 15 and, in particular, it does not specify that the defendant denies the validity of the service of the writ and his grounds for so doing. Counsel for the plaintiff contends that, in consequence, the defendant is barred from challenging the validity of the service of the writ.

13 As already adverted to, the filing of an unconditional appearance to an out of force writ may waive the irregularity of its service. It has long been the general rule, that taking a step in a proceeding with knowledge of a previous irregularity, operates as a waiver. See the 1857 decision of Bayne v Slack 3 CB (NS) 364. That general rule is picked up by subr(3) of r14 which is as follows:

"14 - (1) The Court or a judge may order that any proceedings that do not comply with these rules -

(b) be amended or otherwise dealt with in any manner and on any terms the Court or judge considers fit.

(2) An application to set aside any proceedings on the ground that they do not comply with these rules is to state each irregularity complained of in detail.

(3) On an application, the Court or judge must not make an order setting aside the proceedings unless -

(a) the application was made within a reasonable time; and

(b) the applicant has taken no fresh step in the proceedings after becoming aware of an irregularity complained of."

14 The requirement in r14(3)(b) that before a party loses the advantage of an irregularity by taking a fresh step in the proceeding, the party must be "aware" of the irregularity, accords with the notion that the party is barred by reason of waiver. In Sheldon v Brown Bayley's Steel Works Ld and Dawnays Ld (supra), Singleton LJ said of O8, r1 of the Rules of the Supreme Court in that jurisdiction, which was in broadly similar terms to r107(1) that:

"The position under Ord 8, r 1, is that the writ is not in force for the purpose of service after the 12 months period has run; it is still a writ. The unconditional appearance by Dawnays Ld is a step in the action; it amounts to a waiver with regard to service; it prevents Dawnays Ld from being able to contend successfully that the service on them is bad."

15 In Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215, Smith J, at 219 - 220, dealt with a submission that a magistrate had been bound to hold that the defendant had waived the right to contend that the absence of an endorsement on a summons rendered its service ineffective. It was put that such a waiver necessarily followed from the defendant's consent to an adjournment and from the fact that counsel for the defendant had not raised any objection until after he had announced his appearance. Smith J said, at 219 - 220:

"I consider that the reasoning in the judgment of Hodges J in Atlas Company of Engineers v York (1903), 29 VLR 92, involves the conclusion that the defect in service in the present case was one capable of being waived by the defendant; and I think that I ought to follow that decision in this case. It does not appear to me, however, that the magistrate, when he gave his decision on the preliminary objection, was bound to hold that the defendant had waived the defect. Indeed, it does not appear to me that it would have been open to the Magistrate to make such a finding upon the material then before him.

Although it is not easy to reconcile all the relevant decisions, the weight of authority appears to me to support the view that, in order to constitute a waiver in a case such as this, there must at least be words or conduct of such a nature that an inference can properly be drawn therefrom that the party alleged to have waived the objection does not intend to rely upon it: compare Ray v The Justices of Melbourne [1891] VicLawRp 45; (1891), 17 VLR 186; Brokenshire v Bacon (1895), 1 VLR 273; In re the Melbourne Democratic Club (1901), 27 VLR 88; Craine v Colonial Mutual Fire Insurance Company Ltd [1920] HCA 64; (1920), 28 CLR 305, at p 326; see also Hampden v Wallis (1884), 26 Ch D 746; Rein v Stein (1892), 66 LT 469, per Cave J, at pp 471-2."

16 In this case the actions of the defendant's solicitors provide no basis for an assertion that the defendant waived the irregularity which flows from the service of a writ that was out of force. On the contrary, they provide clear notice that the defendant challenged what had occurred. The conditional appearance, whilst inappropriately drawn, clearly states that the defendant "disputes the validity of the originating process and reserves the right to apply to the Court or a judge to set aside that process". The interlocutory application seeks an order that the "originating process be set aside as a nullity". The defendant has not waived the irregularity of the plaintiff's service of an out of force writ and that service should be set aside.

17 The defendant has applied to amend his appearance to accord with Form 15. This application can be allowed pursuant to r427(1), see also Glassford, Cook and Company Proprietary Limited v William Higson & Co (1899) 25 VLR 177. I will allow the application. I will hear the parties as to the further orders I should make.