Licul v Corney

High Court of Australia|1972-07-26|Before: Jacobs JJ

The applicant Rita Licul has brought an appeal as of right against the order made by the Full Court in her case and has also made application for leave, or alternatively special leave, to appeal. The two infant applicants accepting that in their cases the judgment could not be said to involve any question respecting any civil right of the value of $3,000, made application for special leave to appeal.

The respondent has objected to the competency of the appeal of Rita Licul and in my opinion the objection must be sustained. An appeal will only lie without leave if the judgment of the Full Court was a final judgment which involved directly or indirectly a claim, demand or question respecting a civil right of the value of $3,000 within s. 35(1)(a) of the Judiciary Act 1903 Cth. The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex & Co. v Ghosh [2] - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant [3] , should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open - at least in theory - to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be. If it were right to test the matter by looking at the application rather than at the order the same result would follow even more clearly, since the application was not of such a character that whatever order was made on it would finally have disposed of the matters in dispute; in fact of course the order made by Judge Rapke did not do so. Rita Licul therefore needs leave to appeal or, if the judgment does not involve a question respecting a civil right of the value of $3,000, special leave. I need not decide the rather difficult question whether $3,000 is involved within the meaning of s. 35(1) of the Judiciary Act since, for the reasons I shall give, I consider that special leave is warranted in all three cases.

[1971] 2 Q.B. 597. 2. (1966) 117 C.L.R. 423.

The Full Court had to decide what was the proper course to be taken by Judge Rapke on 1 August 1974. It is clear that the order made by Judge Stabey had to be set aside unless it were possible in some way to validate it. The period of twelve months mentioned in O. 3, r. 1(a) of the County Court Rules had expired before the application was made to Judge Stabey. It followed that the summons was no longer in force for the purposes of service, although it had not become a nullity [4] . Without first renewing the summons Judge Stabey could not make an effective order for substituted service because unless renewed the summons was not capable of service. However, when the application came before Judge Stabey no one adverted to this matter and Judge Stabey was not asked to renew the summons. In any case, it appears that he did not have power to do so on that application. Although O. 3, r. 1(b) of the County Court Rules provides that if any defendant named in the summons shall not be served therewith, the plaintiff, may "before the expiration of twelve months from the day of the date thereof", apply to extend the time of service, it is clear that the presence of those words, which appear to be designed to restrict the time within which an application for extension may be made, does not have that effect if there is to be found, elsewhere in the rules, a power to order an enlargement of time even if the application for the same is not made until after the expiration of the time appointed or allowed. The combined effect of the two rules is that the summons (or writ) can be renewed on an application made after the twelve months have expired [5] , and other authorities mentioned below. Although O. 64, r. 6 of the Rules of the Supreme Court gives a general power of enlargement of time, the power of enlargement conferred by the County Court Rules is subject to a somewhat unusual restriction. Order 50, r. 1 of those rules provides as follows:

Parties may by consent enlarge or abridge any of the times fixed by the rules for taking any step, or filing any document, or giving any notice in any action or matter. Where such consent cannot be obtained, either party may apply to the Court or a Judge, on notice to the non-consenting party, for an order to effect the object sought to have been obtained with the consent of the other party, and such order may be made although the application for the Order is not made until after the expiration of the time allowed or appointed. 1. In re Kerly, Son & Verden , [1901] 1 Ch. 467, at p. 478; Sheldon v Brown Bayley's Steel Works Ltd. and Dawnays Ltd. , [1953] 2 Q.B. 393, at pp. 398, 400, 401-402. 2. See Sheldon v Brown Bayley's Steel Works Ltd. and Dawnays Ltd. , [1953] 2 Q.B., at pp. 398, 401-402.

That rule enables the time for service of a summons to be extended on an application made after the twelve months have expired but it has the result - inconvenient perhaps in some cases - that an application for enlargement can only be made on notice to the nonconsenting party. Of course, the application made to Judge Stabey was not made on notice to the respondent.

The position was, however, different at the time when the application was heard by Judge Rapke. The respondent's solicitors had been given notice of the application; they had been asked to consent to an extension of time and had refused. The conditions stated in O. 50, r. 1 were satisfied, and Judge Rapke had power to extend time for service of the summons and, having done so, to make an order for its substituted service. He did not do so because he thought it sufficient to make an order deeming valid the service already effected. The Full Court considered that Judge Rapke intended to exercise the power given by O. 3, r. 18 of the County Court Rules but held that that rule had no application to the circumstances of the case. Assuming (without deciding) that this view is correct, and that the order made by Judge Rapke should be set aside, the question then arises whether an order should be made extending time for service of the summons, either to a date after substituted service was effected under Judge Stabey's order, or to a future date. The learned judges who constituted the Full Court considered that it would not be a proper exercise of discretion to grant an extension of time, for a reason which they expressed as follows:

The defendant has not given notice of intention to defend or otherwise entered an appearance. All he has done is to issue summonses to set aside service. But he has done so only because orders for substituted service have been wrongly made. If those orders had never been made (and they should in fact not have been made) the defendant would not have had to make an application and no opportunity would have existed for the plaintiffs to serve chamber summonses on the defendant's solicitors. This being so, it would, we think, be a wrongful exercise of discretion to order an extension of time on an application made on notice where the application could never have been made on notice but for the making ex parte of orders which should not have been made.

With the greatest respect, I cannot think it right to treat the proceedings as a gentlemanly game in which it would be unsportsmanlike to take advantage of a slip made by an opponent or by the umpire. Order 50, r. 1 makes it a condition precedent to the making of an order for a renewal of a summons, after the time for service has expired, that application be made on notice to the other party, who has first been asked for his consent and has not given it, and that condition has been fulfilled. If the substantial objects of the rule are to ensure that the parties first endeavour to agree on the making of an order so that the time of the Court may be saved, and that no application be made except on notice, those objects have been achieved. It is immaterial that notice could not have been given if the respondent had not chosen to seek to set aside an irregular order. The case is in no way analogous to that of a defendant who enters a conditional appearance and seeks to set aside proceedings on the ground that the Court lacks jurisdiction. Here the Court was incontestably seized of jurisdiction but the proceedings had been irregular.

However, by the time when Judge Rapke heard the matter the limitation period, within which an action arising out of the accident might be brought, had expired. In Sheldon v Brown Bayley's Steel Works Ltd. and Dawnays Ltd. [6] , Singleton L.J. said: "The court will not normally exercise its discretion in favour of the renewal of a writ after the period of service has expired if the effect of doing so will be to deprive a defendant of the benefit of a limitation which has accrued." Denning L.J., [7] , made a similar statement. In Jones v Jebras & Hill [8] , I had occasion to discuss the authorities, in some of which the view has been expressed that the Court will not exercise its discretion in favour of renewal in such a case. That view is too extreme, and it should now be accepted that the balance of authority is against it, and that the rule is correctly stated by Singleton L.J. - in other words there is a general rule that the Court will not exercise its discretion in favour of renewal, but that rule is subject to exceptions. The English cases in which this is recognized are conveniently collected in In re Chittenden (decd.) [9] . I have referred to some of the Australian cases in Jones v Jebras & Hill [10] , and would add a reference to Pino v Prosser [11] . It is sometimes said that the general rule will be departed from only in exceptional circumstances; others would express the matter by saying that the Court will order a renewal only if there is sufficient cause, or good reason. I need not choose between these forms of expression. The circumstances of the present case are exceptional, and they provide sufficient cause or good reason to extend time for service. The Insurance Office which might in the ordinary course of events be expected to meet any judgment obtained by the applicants, had been informed of the claim in January 1971, and had sought and obtained some further information as to damages. The respondent had been personally served with a summons - albeit a defective one - on 2 February 1973. This therefore is not a case in which the respondent had been left in ignorance of the fact that proceedings had been taken against him; on the contrary, he had become aware of that fact before the limitation period had expired. An obvious reason why no application for an extension was made during the limitation period was that it was believed that service had been effected and that no extension was necessary. That belief was supported by the fact that an officer of the Court had issued the concurrent summons of which service was effected and that the respondent had chosen simply to ignore it rather than to seek to have it set aside. There is not the slightest suggestion that the delay has in any way been detrimental to the respondent. On the other hand, the applicants will lose rights which are prima facie valuable if an extension is refused. In all these circumstances the interests of justice seem to me to require that the time for service of the summons be extended. In my opinion an appropriate course would be to enlarge the time for service to a specified date and to order that service be effected by delivering a sealed copy of the original summons to the respondent's solicitors before that date. Since such service would be effected within the jurisdiction no leave to proceed would be necessary.

[1953] 2 Q.B., at p. 398. 2. ibid., at p. 401. 3. [1968] Qd R. 13. 4. [1970] 1 W.L.R. 1618, at pp. 1622-1626; [1970] 3 All E.R. 562, at pp. 566-570. 5. [1968] Qd R., at p. 19. 6. [1967] V.R. 835.

If what I have so far said were thought to be incorrect, that would not conclude the matter in favour of the respondent, for it would then be necessary to consider the position in relation to the first concurrent summons which was served on 21 February 1973. That summons was defective in three respects. Notwithstanding that s. 7 of the Service and Execution of Process Act requires that a summons issued as a concurrent summons with one for service within a State should be marked as "concurrent" it is impossible to suppose that the omission of that one word would nullify the summons. The erroneous date on the summons was no more than an irregularity, and could not have misled the respondent because the summons was served within twelve months from the date that should have appeared upon it. It was submitted that the most serious defect was the statement that fourteen days were allowed for service of the notice of intention to defend. I shall assume that this was an error, although the provisions of s. 8 of the Service and Execution of Process Act speak of the period specified "as the period within which a defendant may enter or make an appearance to the writ of summons". In fact no entry of appearance is required under the County Court Rules. Although "writ of summons" is defined in s. 3 of the Service and Execution of Process Act widely enough to include a summons of the kind issued in the present case, the word "appearance" is not defined. Section 5(a) of the Service and Execution of Process Act indicates that not every writ of summons within the meaning of the Act will be a writ "to which, by the law of" the relevant State "an appearance is required to be entered". There is therefore a question whether a notice of intention to defend given in accordance with the County Court Rules is an appearance within the meaning of the Service and Execution of Process Act, and whether s. 8 of the latter Act has any application to a County Court summons. Since this question was not discussed in argument I shall not deal with it further. Assuming that the respondent should have been allowed twenty days in which to serve the notice of intention to defend, the fact that he was allowed only fourteen days was no more than an irregularity. The view taken in Cadd & Co. Ltd. v Ludsei [12] , that the provisions of s. 8 relate to a matter of procedure and do not lay down a condition precedent to the exercise of jurisdiction, has not, so far as I am aware, ever been challenged, and it is in my opinion correct. It is usual to order amendment and reservice of a writ that when served was irregularly endorsed, but that course need not necessarily be followed in every case. However, as I have already indicated, on the view that I have taken it is unnecessary to consider whether Judge Rapke had power to treat the service effected on 21 February 1973, as valid, or to validate it. There may have been more than one way in which Judge Rapke could have enabled the actions to proceed, as he obviously wished to do.

The Court is no doubt reluctant to grant special leave to appeal in cases where only matters of procedure fall for decision. However, the present case raises questions of some general importance as to the effect of the provisions of the Service and Execution of Process Act and of the County Court Rules and in all the circumstances of the case, which I have already related, l regard the case as one in which special leave ought to be granted.

I would grant special leave to appeal in each case, and would allow each appeal. In lieu of the order made by the Full Court I would dismiss the appeal from the orders made by Judge Rapke, but would vary those orders in the manner indicated by these reasons.

We would allow the objections to competency upon the ground that leave to appeal was required. That the order appealed from is interlocutory is made clear by the fact that the summons issued out of the Melbourne County Court on 26 July 1972, properly commenced proceedings for the damages claimed; that summons, although it was not served within the twelve months allowed by O. 3, r. 1(a) of the County Court Rules 1964 is still on foot even though it cannot now be served; the time for service cannot be extended under O. 3, r. 1(b) because application for extension of the time was not made before the expiration of that period of twelve months; but the parties under O. 50, r. 1 may by consent enlarge that time and, if the consent of a party cannot be obtained, the plaintiff may apply on notice to the non-consenting party for an order to effect the object sought to have been obtained by consent, namely, the extension of the time within which the summons may be served. By O. 50, r. 1 such an order may be made although the application for that order will not have been made until after the expiration of the twelve months allowed by O. 3, r. 1(b).

Thus the proceedings commenced on 26 July 1972, have not come to an end. Whether or not a County Court judge will exercise his power under O. 50, r. 1 if appropriate steps are taken by the plaintiff is a matter of discretion. We agree with the Chief Justice that nothing appears in the record before this Court which would preclude a County Court judge from granting the extension of time if he be persuaded in point of discretion to do so.

We would not in the circumstances grant leave to appeal. We are not convinced that the conclusion of the Supreme Court on the effect of the events which have occurred up to this time was wrong. We agree with the reasons which the Chief Justice has expressed for this conclusion.

Whether the questions of law raised by these cases are of sufficient general importance to warrant the grant of special leave is itself a question that I have not found easy to decide. However, having had the advantage of considering the reasons for judgment prepared by Gibbs J., I have come to the conclusion that these questions, so far as they relate to the effect of the Service and Execution of Process Act 1901 Cth and to the County Court Rules 1964 (Vict.) (which are partly in common form), are of sufficient importance to justify the grant of special leave.

I agree, for the reasons given by Gibbs J., that each appeal to the Full Court of the Supreme Court from the orders made by Judge Rapke should be dismissed, subject to the variations in those orders which Gibbs J. now proposes.

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Jacobs JJ. Licul v Corney [1976] HCA 6

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