(b) affects the power of a court to authorize service of a document otherwise than as provided in that subsection."
It will be noted that, unlike s.109X(1) of the Law, a company is not excluded from the operation of this provision.
The question then arises as to the relationship, if any, between this provision and ss.109X and 220 of the Law.
In Montarello v Berkman Capital, Supreme Court of Western Australia, 18 June 1996, unreported, Bredmeyer M. has helpfully analysed the relationship between these three provisions. There, a writ purportedly served upon a company's manager in Perth, when the registered office of the company was a Sydney address, was held to be bad service.
The plaintiff relied upon O.72 r.3 of the Supreme Court Rules (W.A.) which provides:
"Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any Act, (my emphasis) be effected by serving it on the mayor, president or other head officer of the body, or on the town clerk, clerk, treasurer, manager, secretary or other similar officer thereof."
The learned Master said (BC9602629 at 4):
"S220 is not a complete code for service on a company because of the words of subs(7). I very much doubt if O72 r3, in relation to a company, comes within the scope of subs(7) because I consider subs(7)(a) allows for a court to order substituted service and the like, and subs(7)(b) relates to service provided for under Commonwealth and State Acts, and not under rules. The phrase, 'Australian law', is defined in s9 as meaning, 'a law of the Commonwealth or of a State or Territory'. The word 'law' is defined in s9 as meaning, in effect, an Act of Parliament or regulations under an Act.
If I am wrong in that view and O72 r3 does come within the ambit of subs(7), I still do not consider it applies because r3 does not simply state:
'Personal service of a document on a body corporate may be effected by serving it on the mayor, president...'.
Instead it states:
'Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any Act, be effected by serving it on the mayor, president...' (emphasis mine)
That is the rule itself defers to any contrary statutory provision. I consider that s220(1) to s220(6) of the Corporations Law is a clear contrary statutory provision. S109X is, I think, helpful in understanding s220. The former allows service on a body corporate other than a company by leaving the document at, or sending it by post to, the head office, a registered office, or the principal office of the body corporate. Thus it permits several wider means of service upon a body corporate other than a company. The clear intention of s109X and s220(1) to s220(6) is that service upon a company must be in accordance with s220(1) to s220(6) as expanded by the limited exceptions under subs(7). I consider that O72 r3 allows service in those ways specified on bodies corporate which are not companies under the meaning of the Corporations Law. Thus, for example, it clearly allows service by those wider methods upon a municipality."
Bredmeyer M. went on to say (BC9602629 at 5):
"My view is supported by a note in the Supreme Court Practice at 65/3/1. I note that the English rule is identical to ours but for one word. It uses the word 'enactment' whereas ours uses the word 'Act'. I quote from that note:
'Effect of rule - The rule applies to all documents requiring personal service, including, of course, a writ of summons.
This rule draws an emphatic distinction between the case in which provision for service on a body corporate is made by statute, eg service on a limited company under s725 of the Companies Act 1985 (see (n) 'Companies,' para65/3/8) and the cases in which there is no such provision. In the former cases, service must be effected in accordance with the relevant statutory provision, but in the latter cases, service may be effected by one or other of the modes provided in this rule. In this way, all statutory modes of service on bodies corporate are preserved.'
I consider that s76 of the Interpretation Act 1984 [W.A.] and s28A of the Acts Interpretation Act 1901 (Cwth) do not apply to justify the service effected in this case. Both of those sections allow for wider means of service upon a corporation but both state that those provisions only apply, in effect, where there is no contrary provision in an Act directing service in a particular way. As I have said above, s220 of the Corporations Law is a contrary provision."
I agree, with respect, that s.28A of the Acts Interpretation Act does not apply to service on a company; and I further agree that, although having regard to the provision of s.220(7), s.220 of the Law is not, to that extent, a complete code. Nonetheless, the provisions of s.220(1) to (6) generally govern service on a company.
It should be noted here that the scheme of the Federal Court Rules in this area is different from the position in the United Kingdom and Western Australia. Mention has already been made of some of this Court's Rules, but reference should now be made to the following provisions:
"ORDER 7 - SERVICE
RULE 1 ORIGINATING PROCESS
1(1)Subject to the provisions of this order, originating process shall be served personally on each respondent.
1(2)...
1(3)...
RULE 2 PERSONAL SERVICE: HOW EFFECTED
2(1)Personal service of a document is effected on:
(a) an individual - by leaving a copy of the document with him;
(b) a corporation - by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of sixteen years:
(i) at the registered office of the corporation; or
(ii)if there is no registered office, at the principal place of business or the principal office of the corporation (my emphasis); and
(c) an unincorporated association - by leaving a copy of the document at the principal place of business or the principal office of the association with some person apparently an officer of or in the service of the association and apparently of or above the age of sixteen years; and
(d) an organisation - by leaving a copy of the document with some person apparently an officer of or in the service of the organisation and apparently of or above the age of 16 years at the office of the organisation shown in the copy records of the organisation lodged in the Industrial Registry pursuant to section 268 of the Industrial Relations Act 1988.
or as the Court or a Judge may direct."
(By O.1, r.4, the Interpretation Rule, "corporation" is defined so as to "include[ ] any artificial person, other than an organization").
"2(2) ...
2(3)...
2(4)[Personal service on company, etc.] In spite of subrule 2(1), for the purposes of Order 71, personal service may be effected:
(a) on a company, as defined in section 9 of the Corporations Act 1989 of the Commonwealth or corresponding legislation of a State or Territory ('the Corporations Law'), in any manner permitted by section 220 of the Corporations Law (my emphasis); and
(b) ...
(c) ...."
The present position in this area in England is summarised in the Supreme Court Practice (1995) Vol.1 (at 1180; para.65/3/7) as follows:
"[Service of documents] Companies - Registered company - Every company having a registered office may be served with any document by leaving it at or sending it by post to the registered office of the company (Companies Act 1985, s.725, see Addis Ltd. v. Berkeley Supplies Ltd. [1964] 1 W.L.R. 943; [1964] 2 All E.R. 753)....
The service of a writ on a company other than at its registered office as provided for by the Companies Act 1985, s.725, does not render the proceedings a nullity, even on the basis that the provisions are mandatory, but constitutes an irregularity for the purpose of O.2, r.1, and having regard to the width of this rule such service may be allowed to stand (Singh v. Atombrook Ltd. [1989] 1 W.L.R. 810; [1989] 1 All E.R. 385, C.A.)
It was held under the corresponding section of the Companies Act 1862 (s.62) that the section applies to a writ of summons (White v. Land and Water Co. [1883] W.N. 174) and must be strictly followed. Service at any office of the company other than the registered office is bad (Wood v. Anderston, etc., Co. (1888) 36 W.R. 918; Vignes v. Stephen Smith & Co. Ltd. (1909) 53 S.J. 716)..."
In order to understand how the position in England has been developed, it is necessary to look closely at the particular context in which the issue of "proper" service has arisen.
In Newby v. Von Oppen (1872) LR 7 Q.B. 293, Blackburn J. (with the agreement of Cockburn CJ., Blackburn, Mellor and Quain JJ.) stated the rule at common law as follows (at 296):
"At common law the service of a writ on a corporation aggregate, which from the nature of the body could not be personal, was by serving it on a proper officer, so as to secure that it came to the knowledge of the corporation, and then proceeding by distress: see 1 Tidd's Practice, p.121, ed. of 1828. The 2 Wm.4, c.39, s.13, and 15 & 16 Vict. c.76, s.16, in fact only re-enact the old law as to what should be service on a corporation. The clerk or officer must be in the nature of a head officer, whose knowledge would be that of the corporation."
It is still the position in Scotland that personal service is possible only in the case of natural persons. Thus, in Rae v. Calor Gas Ltd (1995) SCLR 261 Lord President Hope said (at 267) that:
"It [i.e. personal service] is a method of service which can be effected only in the case of an individual and then only by placing the writ into the hands of the defender or arrestee personally. The writ cannot be said to have been served on him personally if it is put into the hands of someone else, such as an employee, even though this is done at his place of business or at his dwelling place."
In Watson v. Sheather, Sons & Co (Limited) (1886) 2 TLR 473, a clerk to the plaintiff's solicitor handed a writ to a director of the defendant company whom he happened to find at their head office. It was held by the Queen's Bench Division (Day and Wills JJ.) that the writ had been properly served. The report of the case is extremely brief. It reports that, at first instance, Field J. held that the writ had not been properly served. Reference is then made to the provisions of s.62 of the Companies Act 1862 (U.K.) (one of the precursors of s.220(1) of the Law), that a writ may be served on a limited company by "leaving it, or sending it through the post in a pre-paid letter addressed to the company at their registered office". It is stated that Field J. held that for the writ to be properly received it ought to have been "left" at their office by a postman. On the appeal, it is reported, counsel for the plaintiff submitted that this was not necessary. The report stated (at 474):
"The court allowed the appeal, giving the plaintiff leave to sign judgment, on the ground that the writ had been properly served under Order IX, Rule 8." (My emphasis).
(Order IX r.8, the precursor of the present U.K. and Western Australian rule, was as follows:
"8. In the absence of any statutory provision regulating service of process, every writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation; ...and where by any statute, provision is made for service of any writ of summons, bill, petition, summons, or other process upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or unincorporated, every writ of summons may be served in the manner so provided.")
But the true ratio of Watson v. Sheather was explained in Wood v. Anderston Foundry Co., above. There, a writ was left with a director of the defendant company at one of its branch works in York, who appeared to be the manager of the company's business at that place. The company's registered office was in Glasgow. Stirling J. held that the purported service was bad.
Stirling J. referred (at 918) to the passage in the reasons of Blackburn J. in Newby cited above, and to the provisions of s.16 of the Common Law Procedure Act (i.e. "15 & 16 Vict. c.76, s.16") mentioned by Blackburn J. Stirling J. then alluded to O.9 r.8 and said (at 918-9):
"So that the words, which in the Common Law Procedure Act, s.16, stood unqualified and absolute, are now governed by these words - 'In the absence of any statutory provision regulating service of process.' It seems to me that these two clauses provide for different cases, and that the mode of service provided by the last clause is not cumulative or additional to that by the first clause."
Stirling J. concluded (at 919) that "the writ of summons in this case must be served in manner provided by [s.62 of the Companies Act 1862] and no choice is given to the plaintiff." Significantly, Stirling J. went on to say (at 919):
"I have now to consider the authorities to see if there is anything to conflict with that view. I was referred to the cases of Lhoneux, Limon, & Co. v. Hong Kong Bank and Baillie v. Goodwin & Co., but in my opinion neither of those cases conflict with the view I have expressed. The language of the report, however, in the case of Watson v. Sheather gives some colour to the view that the rule allows an alternative mode of service. However, I have had the opportunity of consulting Wills, J., who was a member of the court, and he has informed me that they simply held that there had been good service under the Act of 1862, and that they never indicated that a limited company could be served otherwise than as directed by that Act. It appears to me, therefore, that the service at Middlesborough was bad, and that the proceedings must be set aside as irregular." (Emphasis added).
In Vignes v. Stephen Smith, above, a writ was issued against a limited company which had a registered office in one part of London, and had works with an office in another part of London. The writ was left at the works. The defendants, citing Wood and other decisions, contended that this was not sufficient service. Eve J., after referring to O.9 r.8 and s.116 of the Companies Consolidation Act 1908 (another precursor of s.220 of the Law), said at (716):
"Now counsel for the plaintiff points out that the words in the section and in the rule are 'may be served' and not 'must be served,' and he says that the court may look at the surrounding circumstances and say whether the fact that the writ has been issued has been brought home to the company, and whether the company have not done all that is necessary for that purpose, and he cited cases where the writ was not set aside, though the rule had not been strictly adhered to. Those cases were mostly cases of foreign companies, and are not really germane to the present case. Here the question is whether it is competent to serve a company with a writ except in the prescribed form. I am precluded by the decisions cited by the defendants' counsel from holding that the writ has been properly served. The rule and the section clearly indicate that the only way in which a writ can be served on a company is by leaving it at or sending it by post to the registered office. There will therefore be an order setting aside the writ."
In Addis Ltd v. Berkeley Supplies Ltd, above, Wilberforce J. (as he then was) held that, notwithstanding changes in the Rules of Court, a writ could still be validly served on a company by posting it to the registered office. Wilberforce J. said (All E.R. 753-4):
"It is quite clear, in my view, that it has been possible for many years to serve a company incorporated under the Companies Acts by sending a writ through the post to the secretary at the registered office. That at any rate seems to have been the case since 1883 by virtue of s.62 of the Companies Act, 1862, and R.S.C. Ord. 9, r.8, of the former Rules of the Supreme Court. On that, I refer to White v. Land and Water Co. I am naturally reluctant to assume that that well-established practice has been changed by the new rules, but there is a certain difficulty on account of the language which the new rules employ.
Order 9, r.8, of the former rules has been replaced by Ord. 67, r.3, of the new rules, and that new rule is in a considerably briefer form. It omits the provision in the old rule, that was in the last six lines, which clearly enabled a writ of summons against a company to be served as provided in s.437 (1) of the Companies Act, 1948: that is to say, by leaving it at or sending it by post to the registered office of the company. The words in the new R.S.C., Ord. 67, r.3, are:
'Personal service of a document on a body corporate may, in cases for which provision is not otherwise made by any enactment, be effected...'
by serving it, in the case of a company, on an officer of the company. So that the question is: what is the effect of the words 'in cases for which provision is not otherwise made by any enactment'. Those words are close to but not identical with the initial words in R.S.C., Ord. 9, r.8 of the former rules 'In the absence of any statutory provision regulating service...' It seems to me that I should read the words of the new Ord. 67, r.3, as extending not only to cover what was dealt with by the initial words of the former R.S.C., Ord. 9, r.8, but also as including what was provided by the last six lines of the old rule, to which I have referred.
It seems to me most unlikely that the superseding of the old rule was intended to cut out the normal and long established method of serving a writ on a company by sending it by post to the company's registered office, and, although the words of the new rule could have been more explicit, I think that I am entitled to hold that, in effect, it enables personal service of a document of which personal service is required (which includes a writ of summons) to be effected in the same manner as was authorised under the old rules, that is to say, in the case of a registered company in the manner provided by s.437(1) of the Companies Act, 1948."
(It will be recalled that the last six lines of O.9 r.8 were:
"and where by any statute, provision is made for service of any writ of summons, bill, petition, summons, or other process upon any corporation, or upon any society or fellowship or any body or number of persons, whether corporate or unincorporated, every writ of summons may be served in the manner so provided.")
I respectfully agree, and am further of the view, as, in essence, Sheppard J. held here, that this reasoning should be applied, as a proper analogy, in the present context. That is, although Form 509H provides for the nomination of an address for service, it should not be assumed that this provision was intended to displace the existing, and well established, statutory facility of service at the registered office as an alternative. In my opinion, in the absence of any specific provision on the point in Part 5.4 of the Law, it should be assumed that service at the nominated address for service or at the registered office was both sufficient and necessary, but that delivery to another address was insufficient.
Vignes v. Stephen Smith, above, was considered by Kerr L.J. in an interlocutory appeal, after a default judgment had been irregularly obtained, in Singh v. Atombrook Ltd, above, in which there emerges a number of procedural difficulties, including the fact that the writ had not been served at the defendant company's registered office. In short, there was confusion about the identity and name of the true defendant. After considering authorities on the use of the word "may" in the context of service under other legislation, Kerr L.J. said (at 818-9):
"It is true, of course, that that was an entirely different provision from s 725 of the Companies Act 1985 and it may well be... the decision of Eve J. in Vignes....
But even if that is so, and I must say that I have some doubts as to why 'may' must be construed as 'must' in that provision - it appears to me quite clear that even if there were an irregularity under the Companies Act 1985 to that extent, and therefore also under the rules which contain provisions to the same effect, it would nevertheless be insufficient to render the proceedings a nullity so as to entitle the defendant to have them set aside ex debito justitiae. Any other view would produce an extraordinary result in the face of Ord. 2, r.1 and note 2/1/1 in The Supreme Court Practice 1988, p.9, which I have read. Accordingly I would reject that submission.
I should add that among other cases we were referred to the decision of this court in White v. Weston [1968] 2 Q.B. 647. Russell and Sachs L.JJ. held that a judgment should be set aside unconditionally ex debito justitiae without referring to the new rule because it was a plain case of the defendant being totally unaware of the proceedings from the beginning to the end of the history. Both Russell and Sachs L.JJ. thought that one did not get much assistance from considering whether a judgment is to be described as having been obtained irregularly or whether it was a nullity. In a passage, with which Sachs L.J. agreed, at p.662, Russell L.J. said, at p.659:
'I do not myself attach importance to the question whether it is proper to label a judgment obtained in circumstances such as this as 'irregular' or 'a nullity'. The defect is in my judgment so fundamental as to entitle the defendant as of right ex debito justitiae to have the judgment avoided and set aside.'
In my view there can be no question of the present case involving any defect of a fundamental nature, let alone one as fundamental as in White v. Weston."
Kerr L.J. went on to hold (at 821) that the Judge at first instance in fact had a discretion to set aside the default judgment, so that conditions could be imposed upon the defendant in setting it aside. In other words, because the failure to serve amounted to an "irregularity" rather than a "nullity", the defendant could not claim to be entitled to set the judgment aside as of right, i.e. without conditions.
Megaw L.J., agreeing with Kerr L.J. (at 821) added (at 822):
"This document [i.e. the writ], for reasons which are apparent and which really cannot be put as being in any serious way the fault of the plaintiff, was not addressed to Atombrook Ltd.'s registered office, but in my view that does not, in the circumstances, by itself result in invalidity; it is merely an irregularity. How serious an irregularity a failure to state a company's address accurately may be will of course depend upon the circumstances. It may well be that it would in some cases be an irregularity that would justify the court, without more, in setting aside unconditionally any judgment that had been entered. But it would be absurd to suggest that any failure to send the writ to the correct address, as for example some minor error in the address which caused no conceivable prejudice to the defendant could result in the whole of the proceedings being invalid; and in this case I see no basis whatever for suggesting that there was a failure to comply with the statutory requirement such as to invalidate the proceedings."
Although not concerned with the present question, there have been instances in our Courts also of defective service being treated as a mere irregularity rather than a nullity and, where there was no substantial injustice to the defendant, the service was not set aside. An example is Davies v. Alliance Acceptance Co. Ltd. (1993) 110 FLR 153, a decision of Gallop J., which was much relied on by Rochester. There, the writ, which was otherwise properly served, bore a superfluous endorsement. The case is clearly distinguishable for present purposes.
Reliance was also placed for Rochester upon the decision of the Full Federal Court (Bowen C.J., Northrop and Morling JJ.) in Moore v. Tooheys Limited (1981) 56 FLR 345. It was there held (at 348) that under the Rules of this Court, when a notice of appeal was duly filed within time, even if there was a failure to serve the notice within time, this did not mean that the appeal was incompetent. Again, for our purposes, the case is clearly distinguishable.