Khanna v Gunesekera & Ors

District Court of NSW|2018-05-21|Before: Bryson J

Table of Contents Introduction [1] - [2] Notice of motion filed by the first and second defendants on 28 June 2017 [3] - [4] Notice of motion filed by plaintiffs on 12 February 2018 [5] - [7] Evidence on the motions [8] - [13] Factual background to the substantive proceedings [14] - [20] Facts relevant to the notices of motion [21] - [43] Legislative provisions and legal principles [44] - [53] Should the purported service be set aside? [54] - [59] Should the proceedings be struck out as against the first and second defendants? [60] - [65] Disposition [66] Costs [67] Orders [68]

Introduction

These reasons deal with the disposition of two notices of motion. The first notice of motion was filed by the first and second defendants on 28 June 2017. The second notice of motion was filed by the plaintiffs on 12 February 2018 and amended on 23 March 2018.

Notice of motion filed by the first and second defendants on 28 June 2017

Shortly stated, the notice of motion filed by the first and second defendants on 28 June 2017 seeks orders pursuant to UCPR r 12.11(1)(a) that the purported service of the plaintiffs' statement of claim filed on 27 March 2017, and the plaintiffs' amended statement of claim dated 24 April 2017, be set aside on the ground that the first and second defendants have not been duly served with those documents, and therefore, the Court lacks jurisdiction to deal with matters affecting those defendants. The context of that position is that the first and second defendants reside in Sri Lanka. Consequently, they appear by their legal representatives, conditionally, to argue that there has been no compliance with the Court's procedural requirements for valid service.
Alternatively, the first and second defendants seek orders pursuant to UCPR r 14.28, that the respective iterations of the plaintiffs' statements of claim be struck out as disclosing no reasonable cause of action, and because the claim has a tendency to cause prejudice, embarrassment or delay in the proceedings, and because the proceedings should be seen to otherwise amount to an abuse of the process of the Court. Ancillary orders for costs are also sought against the plaintiffs by the first and second defendants.

Notice of motion filed by plaintiffs on 12 February 2018

Shortly stated, the various versions of the plaintiffs' notice of motion, respectively filed on 12 February 2018, and 23 March 2018, seek orders, first, procedural declaratory orders, secondly, confirmatory orders of an evidentiary nature, and thirdly, leave to file an amended statement of claim. From a procedural perspective, some of the orders sought by the plaintiffs are self-evidently problematic.
The plaintiffs' notice of motion filed on 12 February 2018, seeks, as I understand it, compliance orders against the first and second defendants in respect of previous interlocutory listings, the correction of the record of previous orders made by another Judge of the Court, and orders seeking declaratory confirmation of purported email service of legal process on the first and second defendants, by service on their legal representatives.
A further notice of motion, filed by the plaintiffs on 23 March 2018, seeks an order pursuant to s 64(1)(b) of the Civil Procedure Act 2005, for leave to serve a further amended statement of claim on the first and second defendants, and ancillary orders.

Evidence on the motions

The first and second defendants relied upon four affidavits prepared by their solicitors. The first two of those affidavits were respectively affirmed by Ms Katie Binstock, solicitor, on 8 September 2017 and 19 December 2017. The second two affidavits were respectively affirmed by Mr John Buxton, solicitor, on 16 June 2017 and 19 December 2017.
On 13 April 2018, Mr Khanna cross-examined Ms Binstock and Mr Buxton on their respective affidavits. No material concessions detrimental to the position of the first and second defendants were achieved by Mr Khanna in that process.
The plaintiffs relied upon the affidavit of the first plaintiff, Mr Sanjeev Khanna, affirmed on 6 November 2017, and a joint affidavit affirmed by Mr Khanna and his wife, the second plaintiff, Mrs Geeta Khanna, on 22 March 2018.
The first and second defendants have made numerous objections as to the form and content of these affidavits, but ultimately took the expedient course of accepting that the plaintiffs' affidavits and evidence should be read for the purpose of discerning whether there was any material within those affidavits, and within the exhibited materials, that would reasonably support the relief the plaintiffs were seeking. Mr Khanna was cross-examined on the content of his pleadings and affidavits.
In addition to Mr Khanna's identified affidavits, Mr Khanna also provided a Court Book containing Tabs A to D and Tabs 1 - 26, comprising the documents he relied upon, including copies of his written submissions. These were respectively marked as Exhibits "1" and "2" in these proceedings.
The first and second defendants have also provided written submissions. The parties supplemented their written submissions with oral submissions on 21 May 2018. On 23 May 2018, after the decision on the motions had already been reserved, without leave, the plaintiffs forwarded further written submissions which largely reiterated matters already covered in prior submissions.

Factual background to the substantive proceedings

Mr and Mrs Khanna have a limited understanding of the applicable legal principles and the rules of practice and procedure for litigation in this Court. That said, it is plain that they each have sufficient grasp and command of the English language to converse and to communicate, as has been evident in the course of the various interlocutory listings of the proceedings. The court file contains numerous print-outs of emails and submissions from the plaintiffs. Most of those communications have been unsolicited.
Mr Khanna has coronary heart disease and other health conditions. He is awaiting heart surgery. However, there is no persuasive evidence to suggest that he was unable to appear and to conduct the proceedings according to his understanding of the basis for his claims, and his understanding of the nature and content of the position of the defendants in the proceedings. As was remarked upon on the last day of the hearing, Mr Khanna ultimately made focussed and cogent submissions on the matters at issue. By leave, he also represented his wife in the proceedings.
The first and second defendants, Mr Gerard Gunesekera and Mrs Shalini Gunesekera are the plaintiffs' former landlords in respect of suburban residential premises located in Sydney where the plaintiffs previously resided pursuant to a residential tenancy agreement entered into between the parties.
Mr and Mrs Gunesekera presently reside in Sri Lanka. It appears that between June 2010 and June 2013, Mr and Mrs Gunesekera rented those suburban domestic premises to the plaintiffs. The third defendant, Bond Realty Pty Ltd, is a Real Estate agency that was involved in those arrangements. The third defendant has been served with the plaintiffs' originating process in accordance with the Rules but has not felt the need to participate in these interlocutory proceedings.
The plaintiffs have brought the present proceedings seeking damages from the first and second defendants in respect of claims based upon multiple causes of action.
The effect of a combined beneficial reading of the original statement of claim and the proposed amended statement of claim is that the plaintiffs' claims against the first and second defendants, are sought to be pleaded in tort, and in contract, alleging negligence, false, misleading and deceptive conduct, breaches of the Residential Tenancies Act 2010, and claims for damages for personal injury allegedly occasioned to both plaintiffs in early 2010, allegedly caused by breaches of duties owed by the first and second defendants as occupiers of residential premises, and where the provisions of the Civil Liability Act 2002 apply.
For present purposes it is not relevant to further identify or analyse the details of those claims. The plaintiffs' pleadings recognise that with regard to some of their claims, a possible issue arises concerning limitation of actions and the discoverability of their causes of action.

Facts relevant to the notices of motion

There is common ground between the parties that the first and second defendants have not been personally served with the plaintiff's originating process, which was filed on 27 March 2017.
On 14 July 2016, the first and second defendants moved to Sri Lanka, where they continue to reside.
It is for that reason that the first and second defendants appear, conditionally through their legal representatives, to challenge the Court's jurisdiction for entertaining the claims brought by the plaintiffs. Accordingly, the first and second defendants seek to set aside the purported service of the plaintiffs' originating process, or alternatively, to strike out, the plaintiffs' proceedings.
The third defendant, which has a trading presence in the State of NSW, appears to have taken the view that it has been validly served with the plaintiffs' originating process. It has therefore taken no active part in these particular interlocutory proceedings.
At this point it is relevant to identify some relevant historical background circumstances that have given rise to the plaintiffs' proceedings.
In the course of the plaintiffs' tenancy of the premises rented to them in NSW by the first and second defendants, multi-faceted disputes arose between the parties.
Of those matters, for present purposes, it is sufficient to say those disputes arose from matters to do with rent, the condition of the premises, the state of regulatory approval for the rental of domestic premises, matters to do with the safety of the premises for occupation, occupier's liability for injury to the plaintiffs, and related claims by the plaintiffs for damages from the defendants. For present purposes, it is not necessary to further describe or analyse those matters, except as follows.
Consequent upon the plaintiffs' grievances against the defendants, as summarised in the preceding paragraph, the plaintiffs considered it necessary to seek to lodge a caveat in the ACT to assert and maintain an equitable interest in real property owned by the first and second defendants in the ACT. The stated interest of the plaintiffs which formed the basis of that claim of an entitlement to a caveat was: "EQUITABLE INTEREST AND ESTATE by virtue of the instrument to commence by 'Statement of Claim' in the district court of NSW. GEETA KHANNA Vs GERARD SUMITHRA ABEYWARDNE GUNESEKERA and SHALINI NIRMALI LOURDES GUNESEKERA" [Exhibit "1", Tab 16]
In the ensuing caveat removal proceedings brought by the first and second defendants in the Supreme Court of the ACT, on 29 March 2017, Mossop J determined those proceedings in favour of the first and second defendants.
The solicitors who act for the first and second defendants in the present proceedings also acted for the first and second defendants in those ACT proceedings.
In my view, that fact has given rise to a significant basis for misunderstanding on the part of the plaintiffs, which has in turn led them to believe that they could effectively serve originating process for the present NSW District Court proceedings on the first and second defendants by serving the solicitors acting for the first and second defendants with that originating process in the ACT.
In accordance with that belief, in the course of awaiting reasons for judgment in those ACT proceedings, on 29 March 2017, Mr Khanna purported to serve the originating process for the present proceedings by handing a copy of the statement of claim to Mr Buxton, the solicitor for the first and second defendants. That purported service occurred whilst Mr Khanna and Mr Buxton were seated at the Bar table, in the Supreme Court of the ACT. That occasion, or shortly afterwards, was the first occasion on which the plaintiffs' proceedings were likely to come to the notice of the first and second defendants.
The plaintiffs maintained the belief that providing Mr Buxton with a copy of the statement of claim constituted valid service, a matter that has always been disputed by the first and second defendants through their solicitors.
The statement of claim in the present proceedings was filed in NSW, online, in the Gosford Registry of the District Court, at 8.38pm on 27 March 2017. At that time the plaintiffs were in Canberra, apparently for the proceedings relating to the removal of the caveat. At that time, the first and second defendants had a property in Canberra, although it appears from the evidence that they have continued to reside in Sri Lanka at all relevant times.
Contrary to that view, Mr Khanna claims that after he had filed the statement of claim online, he printed a copy of the filed statement of claim at an unspecified location, and then, at about 9.00pm on 27 March 2017, he went to the premises owned by the first and second defendants in the ACT. He believed those premises were occupied by the first and second defendants. At that time, Mr Khanna said that he then sought to personally serve the defendants with the originating process.
The first and second defendants have produced uncontradicted and convincing evidence to show that at that time, they had leased those premises in Canberra to Ms Sharon McTavish and a Mr Darin Ferguson: Pages 17 - 37 of the Exhibit to the affidavit of Ms Katie Binstock, solicitor, affirmed on 19 December 2017.
Mr Khanna said that at the time he had attended those Canberra premises on the evening of 27 March 2017, he found the building to be secured, so that he could not gain entry. He stated that he then spoke, apparently through an intercom, to a female person whom he claims, identified herself as "Shalini". Mr Khanna said that when he told that person that he had legal process to serve on her, she then told him to place the document in the mail box.
The first and second defendants dispute the factual accuracy of Mr Khanna's evidence in that regard, arguing that the plaintiff could not have spoken to the second defendant, Mrs Shalini Gunesekera, because she did not reside at those premises at the time, and because she was in Sri Lanka at that time.
The first and second defendants also argued it was improbable that Mr Khanna would have been in a position, after 8.38pm on 27 March 2017, to have printed the statement of claim he had filed online and then travel to the premises and to then leave the document there at 9.00pm that evening in the manner he described. Although there are some doubts about that matter, on balance, and without more, I do not consider that the explanation proffered by Mr Khanna was so improbable on its face that it should be rejected.
In any event, the first and second defendants claim that either way, the described circumstances of purported service, did not amount to valid service, hence the notice of motion filed by the first and second defendants.
The first and second defendants have provided persuasive travel itinerary and passport evidence to show that they were in Sri Lanka on the date that Mr Khanna claims to have attended the premises, as described above.
In those circumstances, I do not discount the possibility that Mr Khanna may have in conversation mistaken the name "Sharon" for "Shalini", but it is not necessary to make an affirmative finding on that matter in light of the evidence which I accept, namely that the first and second defendants were in Sri Lanka at the relevant time, and were therefore for the purposes of UCPR r 10.26, not keeping house at the place the plaintiff claims to have effected service, and were therefore not personally or properly served with the plaintiffs' originating process.
In light of those findings, it is procedurally convenient to first give consideration to the motion filed by the first and second defendants. This is because, if the first and second defendants are successful in their motion, most of the matters arising from the plaintiffs' motion, would not require further consideration as against the first and second defendants.

Legislative provisions and legal principles

The first and second defendants maintain the position that they have not been duly served with the plaintiffs' originating process. In support of that position, they rely upon the requirements of the jurisdictional provisions of s 47(1) and (4) of the District Court Act 1973, which provide as follows: "47 Cause of action or defendant outside the State (1) If a defendant has been duly served with the document commencing an action: (a) the Court has jurisdiction in accordance with this Act to hear and dispose of the action, and (b) a registrar has and may exercise: (i) if the action involves proceedings to which the Civil Procedure Act 2005 applies, the functions conferred on the registrar pursuant to section 12 or 13 of that Act, or (ii) in any other case, the functions prescribed by the civil procedure rules, regardless of whether the cause of action to which the action relates arose wholly or partly outside New South Wales. … (4) In this section, defendant includes, if there are two or more defendants, any one of those defendants."
The effect of s 47(1) of the District Court Act 1973 is that this Court's jurisdiction becomes engaged only if and when the originating process has been duly served. This is because the jurisdiction of this Court is limited to that which is conferred upon it by statute: Falls Creek Ski Lifts Pty Ltd v Yee (1995) 37 NSWLR 344, at 345 - 349. In that context, it is therefore necessary to examine the question of what constitutes due service of originating process.
To engage this Court's jurisdiction, the territorial connection of due service under s 47 of the District Court Act 1973 is a fundamental requirement: Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268, at [19], [24], [25].
Since the advent of the Uniform Civil Procedure Rules 2005, the service of District Court process is regulated by Pt 10 of the UCPR: Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268, at [23].
Accordingly, in order to ascertain whether the originating process has been duly served, in this case, reference must be made to the scheme and to provisions of Pt 10 of the Uniform Civil Procedure Rules 2005, and to the provisions of s 15 and s 16 of the Service and Execution of Process Act 1992 (Cwth), as well as to reg 4 of the Service and Execution of Process Regulations 1993 (Cwth). The terms of UCPR r 11 relating to service of process overseas only applies to Supreme Court proceedings.
The terms of Pt 10 of the UCPR relevantly provides for a scheme of alternatives as to what constitutes an effective means of service of originating process, as follows: 1. Effecting personal service: UCPR r 10.5(1)(a). Personal service may be effected by leaving a copy of the served document with the person to be served, or putting the copy down in the presence of that person and telling the person of the nature of the document: UCPR r 21(1). Proof of the identity of the person served may be in the form of a statement of identity attributed to that person: UCPR r 10.27; 2. Effecting service by post: UCPR r 10.5(1)(b); 3. Effecting service by leaving a copy at an address for service, where the person to be served keeps house, with specific requirements: UCPR r 10.5(1)(c); UCPR r 10.26; 4. Effecting service on a solicitor, if the solicitor's office is stated to be an address for service, including by DX, facsimile or email: UCPR r 10.5(2). If service is to be effected upon a solicitor, acceptance of service must be noted by the solicitor on a copy of the originating process served on that solicitor, noting the fact of acceptance of service: UCPR r 10.13(a); 5. Effecting service by agreement, or in accordance with a form of binding acknowledgment or an undertaking to that effect: UCPR r 10.6(2); 6. Effecting service in accordance with an order of a Court enabling substituted service: UCPR r 10.14 and r 10.15.
Section 15(1) and s 15(2) of the Service and Execution of Process Act 1992 (Cwth) provides that initiating process, which must be taken to include originating process in the form of the statement of claim filed by the plaintiffs in these proceedings, may be served in another State, and in the case of service on an individual, namely personal service, must be effected in the same way in which service is achieved in the State of issue of the originating process.
Section 16 of the Service and Execution of Process Act 1992 (Cwth) provides that service is effective only, if at the time of service, copies of certain prescribed notices are attached to the served process or to the copy of the served process.
Regulation 4 of the Service and Execution of Process Regulations 1993 (Cwth) provides for certain prescribed forms of notice to be attached to originating process to be served in accordance with s 15 and s 16 of the Service and Execution of Process Act 1992.
It is common ground that at the time Mr Khanna purported to serve the statement of claim on the solicitor for the defendant on 29 March 2017, and at the earlier time when he purported to serve a copy of that document at the premises of the first and second defendants in the ACT on 27 March 2017, there were no such notices complying with reg 4 attached to those documents. That said, it is accepted by the first and second defendants that such notices were attached to the plaintiffs' proposed amended statement of claim.

Should the purported service be set aside?

It is clear from the evidence that the plaintiffs have not understood, and have therefore not complied with, the requirements of due service of originating process.
At one level, the plaintiffs seem to have assumed that because the solicitors for the first and second defendants acted for those defendants in the ACT proceedings, those solicitors had a retainer to act for the same defendants in the present proceedings. That was an unwarranted assumption in the circumstances having regard to the legislative provisions to which I have referred. Service of NSW District Court proceedings on a solicitor at the Bar table in the Supreme Court of the ACT, without prior consent or prior arrangement, and without an appropriate notation, cannot constitute adequate or due service.
I find that none of the forms of service relied upon by the plaintiffs have complied with the legal requirements for service.
In that regard, accepting as I do that the first and second defendants were in Sri Lanka at the time of the purported service, I find first, that the plaintiffs have not established that the first and second defendants have been personally served with the originating process, and secondly, I find that the plaintiffs have not complied with the requirements of the identified legislative provisions for service by means other than personal service.
This then leaves the question of the status of the plaintiffs' amended statement of claim. The solicitors for the first and second defendants have never taken the position that they would accept service of any pleadings from the plaintiffs. Absent an order for substituted service, the purported service of the plaintiffs' amended statement of claim in the course of these proceedings must be similarly seen as being "service" of a kind that is non-compliant with the identified rules governing due service.
It follows that in the circumstances of this case as they presently stand, the District Court lacks jurisdiction to enable the plaintiffs to proceed with their case against the first and second defendants. Accordingly, the purported service as relied upon by the plaintiffs must be set aside.

Should the proceedings be struck out as against the first and second defendants?

The remaining question is whether the first and second defendants have established an entitlement, pursuant to UCPR r 14.28, to have the plaintiffs' pleadings struck out. The argued basis for such an outcome was that purported service was an abuse of the Court's process, and because of the matters referred to at paragraph [4] above.
I do not accept that the plaintiffs' pleadings disclose no reasonable cause of action: UCPR r 14.28(1)(a).
I do not accept that the plaintiffs' pleading is so unintelligible, ambiguous, vague or too general so as to embarrass the opposing side to the extent of not knowing what is alleged: McGuirk v University of NSW [2009] NSWSC 1424, at [30] - [35], following Meckliff v Simpson [1968] VR 62, at 70.
In reaching that conclusion I am mindful that in certain circumstances, even though a pleading contains allegations of material facts sufficient to constitute a cause of action, it may nevertheless be capable of being seen as embarrassing because it is in need of a process of "piecing together" a coherent narrative: Northam v Favelle Favco Holdings Pty Ltd, Bryson J, unreported, 7 March 1995, BC 9504276, at 5 - 6.
Although the state of the plaintiffs' pleadings, both in the original form as filed, and in the form of the proposed amendment, is not entirely as would be expected if drafted by a lawyer versed in the requirements of what should be set out in a pleading, elements of arguable causes of action are evident on the face of the documents.
In view of that conclusion, without more, in the case of self-represented litigants who have identified threshold and arguable causes of action which could have been better pleaded, I consider that it would be contrary to the dictates of justice as between the parties to strike out the proceedings at this stage without making an allowance that would give the plaintiffs an opportunity to improve upon their pleadings, hopefully with professional assistance: s 58(2) of the Civil Procedure Act 2005. I am reinforced in that view in light of the fact that the proceedings against the third defendant remain on foot.

Disposition

The purported service of the plaintiffs' proceedings on the solicitor for the first and second defendants and at the defendants' premises in the ACT must be set aside. At present, there is an insufficient basis upon which to conclude that the proceedings must be struck out pursuant to UCPR r 14.28.

Costs

As the first and second defendants have succeeded in obtaining the orders they seek against the plaintiffs, they should have an order that the plaintiffs should pay their costs of the motion filed on 28 June 2017 on the ordinary basis unless a party can show an entitlement to some other costs order, for which there should be liberty to apply.

Orders

I make the following orders: 1. Pursuant to UCPR r 10, the notice of motion filed by the first and second defendants on 28 June 2017 is upheld to the extent that the purported service of the plaintiffs' originating process on the first and second defendants is set aside; 2. The request by the first and second defendants that the plaintiffs' proceedings be struck out pursuant to UCPR r 14.28 is declined; 3. The plaintiffs are to pay the costs of the first and second defendants in respect of their motion filed on 28 June 2017 on the ordinary basis unless a party can show an entitlement to some other order for costs; 4. Pursuant to s 64(1)(b) of the Civil Procedure Act 2005, leave is granted to the plaintiffs to file and serve an amended statement of claim; 5. The plaintiffs and the first and second defendants are to pay their own costs in relation to the plaintiffs' motions filed on 12 February 2018 and 23 March 2018, apart from Order (4) above, are otherwise dismissed; 6. The exhibits may be returned; 7. Liberty to apply on 7 days' notice if further or other orders are required.

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: 25 May 2018

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