Smith v Shilkin

ttle Robinson Solicitors [2014] EWCA Civ 898 R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472; [2014] EWCA Civ 1633 Re Anderson Owen Ltd, Merrygold v Bates [2010] BPIR 37; [2009] EWHC 2837 (Ch) Rich v Long [2008] NSWSC 487 Smith v Pacific Trading Enterprises [1999] NSWSC 333 Smith v Shilkin [2018] NSWSC 1582 The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 QdR 148 Tseitline v Mikhelson and others [2015] All ER (D) 252 (Oct); [2015] EWHC 3065 (Comm) Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; [1981] HCA 11 Victa Ltd v Johnson (1975) 10 SASR 496 Wakim v Coleman [2010] NSWCA 221 Wakim v Coleman [2011] HCASL 38 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liquidation) v Publishing and Broadcasting Ltd [2012] NSWCA 79 Weston v Publishing and Broadcasting Limited [2009] NSWSC 321 Woodward & Anor v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 Young v Waterways Authority of New South Wales [2002] NSWSC 612 Category: Procedural and other rulings Parties: Alexander Noel Smith (first Plaintiff) Adam Poche (second Plaintiff) Melissa Poche (third Plaintiff) Aidan Conrecode (fourth Plaintiff) Catherine Walsh (fifth Plaintiff) Steven Andrew Shilkin (first Defendant) Ashley Shilkin (second Defendant) Representation: Counsel: C E Bannan (Plaintiffs) R W Douglas (Defendants)

Solicitors: Horton Rhodes (Plaintiffs) Katja Levy, Sole Practitioner (Defendants) File Number(s): 2018/00071614

Introduction

1. HIS HONOUR: As is, or should be, well known, s 56 of the Civil Procedure Act 2005 (NSW) imposes upon parties to civil proceedings, a duty to assist the court to further the overriding purpose of the Act and of rules of court, in their application to proceedings, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Similarly, solicitors and barristers representing the party in the proceedings, by their conduct, must not cause a party to civil proceedings to be put in breach of the duty identified.
2. Section 57 of the Civil Procedure Act provides that for the purpose of furthering the overriding purpose referred to in s 56(1), proceedings in any court are to be managed having regard to (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, and (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
3. Section 58 of the Civil Procedure Act, relevantly, provides that in deciding (a) whether to make any order or direction for the management of proceedings, including, any order of a procedural nature, the court must seek to act in accordance with the dictates of justice.
4. Section 59 of the Civil Procedure Act provides that in any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. As has recently been written, "the implementation of the practice and procedure of the court is as much the obligation of members of the profession as officers of the court as it is the obligation of the courts themselves": Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188, per Bell P, at [19].
5. In respect of the proceedings to which these reasons relate, the parties, and their legal representatives, appear to have failed to remember, and act in accordance with these sections, despite the fact that regard to each is statutorily compulsory: s 58(2)(a); Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230, per Allsop ACJ (as his Honour then was), at [38].

The Present Interlocutory Proceedings

1. Before the Court on 11 June 2019, listed for two days, were two notices of motion. The first notice of motion, in time, was one filed on 23 October 2018, by the Plaintiffs. (There are five Plaintiffs named in the proceedings and in the notice of motion.) In that notice of motion, the Plaintiffs sought the following relief: "1. A declaration that personal service of the Statement of Claim was effected upon the First Defendant on 22 October 2018 or such date as the Court determines in accordance with Rule 20.21 of the Uniform Civil Procedure Rules 2005 (NSW) and sections 15(2) and 16 of the Service and Execution of Process Act 1992 (Cth). 2. A declaration that personal service of the Statement of Claim was effected upon the Second Defendant on 23 October 2018, or such date as the Court determines in accordance with Rule 11.8AC of the Uniform Civil Procedure Rules 2005 (NSW). 3. In the alternative to order 1, pursuant to Rule 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW), that service of the Statement of Claim on the First Defendant be taken to have been effected on 17 June 2018 or such date as the Court determines. 4. In the alternative to order 2, pursuant to Rule 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW), that service of the Statement of Claim on the Second Defendant be taken to have been effected on 13 August 2018 or such date as the Court determines. 5. In the alternative to orders 1 and 3, pursuant to section 14 of the Civil Procedure Act 2005 (NSW), that the requirement to personally serve the First Defendant be dispensed with and service of the Statement of Claim on the First Defendant be taken to have been effected on 17 June 2018 or such date as the Court determines. 6. In the alternative to orders 2 and 4, pursuant to section 14 of the Civil Procedure Act 2005 (NSW), that the requirement to personally serve the Second Defendant be dispensed with and service of the Statement of Claim on the Second Defendant be taken to have been effected on 13 August 2018 or such date as the Court determines. 7. In the alternative to orders 1, 3 and 5, pursuant to Rule 10.14(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the service of the statement of claim on the First Defendant be effected by service upon the solicitor, Katja Levy via: a. Email to her email addresses katja@xx.com and and b. Registered post to her professional address at Level xx, Allendale Square,xx St Georges Terrace, Perth WA 6000. 8. In the alternative to orders 2, 4 and 6, pursuant to Rule 10.14(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the service of the statement of claim on the Second Defendant be effected by service upon the solicitor, Katja Levy via: a. Email to her email addresses and and b. Registered post to her professional address at Level xx, Allendale Square, xx St Georges Terrace, Perth WA 6000. 9. In the alternative to orders 1, 3, 5 and 7, a declaration that the First Defendant has submitted to the Court's jurisdiction. 9A. Further, or in the alternative, an order nunc pro tunc pursuant to Rule 1.12 of the Uniform Civil procedure Rules 2005 (NSW), the time for service of the Statement of Claim on each of the First Defendant and the Second Defendant be extended to 30 October 2018. 10. Costs be reserved. 11. Such further or other orders as the Court considers appropriate."

Procedural and events chronology

1. It is convenient, next, to set out the fairly intricate procedural, and events, chronology, which has prompted the filing of the notices of motion. The substantive proceedings were, as stated, initially, commenced over two years ago. What follows should be regarded as a summary. It is not possible to detail the minutiae of topics covered by the correspondence to which reference will be made. Facts traverse the period between April 2017 and the end of October 2018. Some of the critical events, however, occurred in September and October 2018.
2. On 21 April 2017, the five Plaintiffs commenced the 2017 proceedings by filing a Statement of Claim in which only the first Defendant was named as a party/Defendant. In circumstances to which I shall come, the Plaintiffs filed an amended Statement of Claim, on 17 November 2017, in which the second Defendant was added as a party/Defendant.
3. Speaking very broadly, the Plaintiffs, in the underlying claim, alleged that between 2008 and 2016, they advanced amounts, totalling in excess of $1.8 million, to the Defendants, or one of them, in order to acquire shares in, or to invest in the business undertaken by, Inosite Ltd ("Inosite"), a company principally engaged in the provision of residential accommodation for mining workers in Western Australia. They contended that the amounts were advanced as a result of a series of misleading or deceptive representations, and other misleading or deceptive conduct, by the Defendants, or one of them. The alleged representations were to the effect that Inosite had secured, or would secure, mining tenements; that those tenements had substantial ore deposits, or were otherwise valuable; and that Inosite would generate substantial profits from its ownership of those tenements. On 24 February 2017, a liquidator was appointed to Inosite. The Plaintiffs claimed the amounts that had been paid, interest, and costs.
4. In the amended Statement of Claim, the first Defendant was said to have been a director of Inosite from May 2008 until about November 2014. He was also described as "the Executive Chairman". The second Defendant was described as having held himself out as "an Executive Director, Executive, Chief Financial Officer and/or Company Secretary", of Inosite.
5. What was asserted by the Plaintiffs in the Statement of Claim must be regarded as merely a summary of the material facts on which they relied to establish what was said to be their causes of action against the Defendants. The truth, or otherwise, of the assertions of fact pleaded, has not been, and in light of subsequent events to which reference will be made, will not need to be, determined.

The application before Rein J

1. I propose next, to set out, briefly, what occurred in the proceedings with which Rein J dealt on 26 September 2018. I shall return to aspects of the matter by reference to the transcript, a copy of which formed part of the evidence before me, because the Defendants submitted that one of the reasons why an order should now be made under UCPR r 12.11 is that there were material non-disclosures made by counsel to his Honour at the time his Honour made the orders.
2. His Honour, having read the evidence, including the Statement of Claim, and having heard the submissions of counsel, concluded that "given [the Defendants'] assertion that there has been no effective service … the Plaintiffs should be given an opportunity to effect service".
3. In a short, ex tempore judgment, his Honour concluded: "HIS HONOUR: …Now, I will say this, that in support of the application for an extension of time I have received the affidavit of Ms Otavski of 13 September, and I note that there are number of letters attached to that affidavit from the solicitor who is acting for the named first and second defendants, but only in relation to a conditional appearance filed asking the solicitors for the plaintiff to bring to the Court's attention correspondence from her, and that correspondence is annexed to the affidavit of Ms Otavski, and I have read it. I will just say … , that essentially there are issues about whether or not service of these current proceedings and earlier proceedings has been effective, and the matter has been fixed before Slattery J on 19 October this year for determination. The plaintiffs are seeking a way to avoid the need for those matters to be ruled upon and to effect service afresh without any of the problems that have been identified previously, and in my view, it is appropriate that time be extended for the service of the statement of claim in these current 2018 proceedings. In particular, I have regard to the fact that on the defendant's case there has been no effective service to date on their part, and their only appearance to date has been to contest the effectiveness of earlier service. In those circumstances, I think it is appropriate that, given their assertion that there has been no effective service, that the plaintiffs be given an opportunity to effect service without any of those issues, and I extend the time. I make an order in accordance with the short minutes of order, initialled by me and dated with today's date and placed with the papers, initialled in the top right hand corner of that document."

The application before Slattery J

1. I shall next set out what occurred in the proceedings with which Slattery J dealt on 19 October 2018. I do so by reference to the transcript, a copy of which formed part of the evidence before this Court and his Honour's reasons for judgment.
2. Slattery J, unsurprisingly, described what had occurred as "a disgrace", as "really appalling" and as "a public scandal". His Honour noted that the Defendants' notice of motion raised three issues for the Court's consideration: whether there should be a stay or dismissal of the 2017 proceedings; whether a declaration should be made to the effect that legal process in the 2018 proceedings had not been validly served on the first Defendant; and whether the Court had jurisdiction to entertain any application under UCPR, r 12.11 before the Defendants had been served with legal process. (Some of these issues were resolved by the time the notice of motion came to be heard.)
3. Following discussions between Bench and Bar, the transcript of which covers 38 pages, Slattery J delivered an ex tempore judgment which bears the medium neutral citation Smith v Shilkin [2018] NSWSC 1582.
4. In the reasons for judgment, his Honour stated, at [12]- [29]: "Stay or Dismissal? The defendants contend that the 2018 proceedings are an abuse of process because they duplicate the allegations made against them in the 2017 proceedings. It is not in contest that the allegations in both proceedings are substantially the same. It is trite law that a party cannot bring proceedings making the same allegations or substantially the same allegations against another party in two jurisdictions: see Mason J's judgment in Moore & Ors v Inglis (1976) 50 ALJR 589 ('Inglis') and Henry v Henry (1996) 185 CLR 571; [1996] HCA 51, at 591. Neither the allegations nor the parties need to correspond exactly in both proceedings for the principle to apply, provided there is a substantial overlap. But in response to this, in their written submissions and again in Court, the plaintiffs said that they would consent to a permanent stay of the 2017 proceedings and only wished to maintain the 2018 proceedings in future. That would solve any problem of vexation or oppression, which would otherwise arise from the bringing of two sets of proceedings. The defendants' initial response to the plaintiffs taking this position was that the plaintiffs had previously taken an inconsistent position, in which they had undertaken not to pursue the 2018 proceedings and only to pursue the 2017 proceedings. But it is certainly not clear from the correspondence that the plaintiffs had given any such undertaking. Moreover, even if it had been given, it could have been withdrawn with leave. But, subject to an issue to which I will shortly come, there is now no opposition by the defendants to the course the plaintiffs foreshadow of agreeing to a permanent stay of the 2017 proceedings. So, the Court will issue a permanent stay in the 2017 proceedings. But a subsidiary issue arises as to the timing of this stay. This issue has been the subject of short argument today. A number of procedural issues in the 2017 proceedings were listed for two days' hearing before Hallen J on 31 October and 1 November 2018. One of these was whether or not Mr Ashley Shilkin was indeed a party to the 2017 proceedings as a result of the amendment sought to the originating process in those proceedings. Mr Douglas, on behalf of the defendants, the applicants on the motion, has pressed upon the Court today that this question should be allowed to be determined before a permanent stay is imposed in the 2017 proceedings. Mr Douglas submits that Mr Ashley Shilkin is a director with public responsibilities, who will have to disclose that he is arguably a party to the 2017 proceedings and that he is entitled to know whether or not he is such a party before this permanent stay is imposed. Mr Douglas submits that this question should therefore be determined before the stay is put in place. I disagree. Any analysis of the past 18 months' conduct of these proceedings enables the view to be quickly drawn that there have been far too many interlocutory applications, all dealing with procedural questions relating to whether or not legal process has been served. The substantive issues in the proceedings are still a long way from determination. Given this history, it cannot be realistically contemplated that the Court will invite yet another interlocutory hearing to be conducted in proceedings which are about to be permanently stayed in the orders I am to make today. Moreover, there is very little public interest in determining the question of Mr Ashley Shilkin's position as a party to the 2017 proceedings. Once the proceedings are permanently stayed, there is little difference from Mr Ashley Shilkin's point of view in him having to disclose that he is arguably a party to proceedings which have been permanently stayed compared with his not having to make any disclosure at all. Should a Declaration Be Made? The second issue is whether or not, it having been conceded that service has not taken place on Mr Steven Shilkin, that a declaration to that effect should now be made. At first, the applicants on the motion wanted a declaration made. But after a clear admission was placed on the record by the plaintiffs that service on Mr Steven Shilkin had not been effected, that issue has gone away. And the defendants no longer pressing for a declaration to be made. The position of both parties is now consistent with established principle that courts should not make declarations unless the parties have a real interest in a matter being determined between them: Ainsworth v Criminal Justice Commission (1992) 174 CLR 564; [1992] HCA 10. It seems to me that the issue of service on Mr Steven Shilkin has resolved and the declaration is not needed. The Defendants' Locus Standi at this Stage The third issue is whether, on the July 2018 motion, the defendants had standing to seek orders that the originating process in the 2018 proceedings was an abuse of process or to seek any other relief under UCPR, r 12.11, prior to service on either defendant of the 2018 proceedings. Once the plaintiffs conceded that they had not as yet validly served the 2018 proceedings on Mr Steven Shilkin, they were therefore not contending that they had served either defendant with process in these proceedings. So the question of their locus standi arose. The Court handed down to the parties a copy of Barrett J's decision in Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320 ('Onefone'), which was considered with approval in Weston in Capacity as Special Purpose Liquidator of One. Tel Ltd (In Liquidation) v Publishing and Broadcasting Limited (2012) 88 ACSR 80; [2012] NSWCA 79. According to Onefone, applications for extension of time to serve process are normally undertaken in the absence of the defendant. It follows that some other applications that are akin to applications for extension of time can all be undertaken in the absence of the defendants. Based on the principles stated by Barrett J in Onefone, there is no obligation in such cases for the Court to give the defendants a hearing when, after service, they will have an entitlement to be heard to challenge the decision. After considering Onefone, the defendants did not contend they had standing to appear to pursue the July 2018 motion. Although the issue of standing had become academic so far as the July 2018 motion was concerned (given the parties' agreement to a permanent stay of the 2017 proceedings and the plaintiffs' admission that the 2018 proceedings had not been served on Steven Andrew Shilkin), the issue will not be entirely academic in what is left of the service issues in the 2018 proceedings. The plaintiffs foreshadowed that they wished to bring another motion, for substituted service and related orders, which they contended either fell within the principles of Onefone, or upon or which the defendants had no right to appear. Prior to the parties agreeing to a permanent stay of the 2017 proceedings they had been listed for two days before Hallen J on 31 October 2018 and 1 November 2018. Those hearing dates can now be vacated, as there is now no present need to argue any matter in the 2017 proceedings. But after consulting with Hallen J, I have given leave to the plaintiffs to make returnable any proposed motion in the 2018 proceedings before his Honour at 10.00am on 31 October 2018. For the reasons stated here, it is anticipated that any such motion will be unopposed and should take little time. Argument then proceeded to deal with issues of costs. But before that, a subsidiary issue was raised. The Court adverted to the fate of another motion filed on 17 September 2018 in the 2018 proceedings to extend time for the service of the statement of claim on the first and second defendants up to 5 December this year. That motion was heard before Rein J on 26 September 2018. Rein J made orders on 26 September extending the time for service of process in the 2018 proceedings until 5 December 2018. But past disputes had arisen about whether Rein J's 26 September 2018 orders were validly made in the absence of the defendants. The parties did not refer Rein J to Onefone, which entirely justified the orders which Rein J made in the absence of the defendants. I have now referred the parties to Onefone and it seems to me that Rein J's extension of time order is not liable to be set aside on the grounds that the defendants were not present when the orders were made. After reading Onefone, the defendants did not seek to advance on this occasion any contentions challenging Rein J's 26 September 2018 orders. The Court will proceed on the basis that they are not challenged."

The issues currently before this Court for determination

1. In accordance with directions made by this Court, the parties' lawyers provided a Joint Memorandum dealing with various matters required to be dealt with by agreement. Relevantly, the lawyers identified "The Precise Issues to be determined by the Court at the Hearing" as follows: "Issues for determination (identified by the Plaintiffs) 1. Whether the plaintiffs are entitled to a declaration that personal service of the Statement of Claim was effected, or is to be taken to have been effected, upon the defendants (paragraphs 1 to 4 of the plaintiffs' notice of motion filed on 23 October 2018). 2. Alternatively, whether the plaintiffs are entitled to an order that the requirement of personal service of the Statement of Claim on the defendants be dispensed with, or that service upon the defendants be effected by service upon the solicitor for the defendants (paragraphs 5 to 8 of the plaintiffs' notice of motion filed on 23 October 2018). 3. Whether the first defendant has submitted to the Court's jurisdiction (paragraph 9 of the plaintiffs' notice of motion filed on 23 October 2018). 4. It will also be necessary for the Court to determine questions of costs. Issues for determination (identified by the named Defendants) 1. Is Rein J's order ex parte order extending time to serve the originating process made 26 September 2018 (Order) subject to reconsideration de novo, inter partes? 2. Should the Order be set aside for any of inadequate foundation, misdisclosure and nondisclosure (Defendants' Motion 1): (a) Was the application for extension of time made after the period within which to serve the originating process had expired? (b) Were plaintiffs required to provide a candid account of the reasons for their failure to serve the originating process within time? (c) Did the plaintiffs offer any explanation for their delay beyond the alleged playing of "ducks and drakes" by named defendants? (d) Was the insinuation that named defendants were evasive or non-responsive to proper service made out? (i) Did plaintiffs in the First Proceedings and the Second Proceedings seek overlapping or identical relief at the same time? (ii) Were named defendants legitimately entitled to object to the Second Proceedings as a duplicative abuse of process? (iii) Did any defendant offer to accept delivery of the originating process in the First Proceedings and, once the First Proceedings was permanently stayed, of the Second Proceedings? (iv) Were named defendants' objections to the service of the First Proceedings valid, and proper? (v) Was there any proper foundation to allege that named defendants were evading service of the First Proceedings or the Second Proceedings? (vi) Did any named defendant articulate his complaints in correspondence, making request for abatement of abuse before filing any UCPR 12.11 application? (e) Would an extension of time to serve an expired originating process cause material (and undisclosed) prejudice to the named defendants? (i) Are half of the plaintiffs' claims by value (and number) statute barred as at 23 October 2018 (the date of the application to extend time)? (ii) Do half of the representations alleged by the plaintiffs concern statute-barred claims? (iii) Are material claims asserted against the second defendant without any pleaded foundation? (f) Does the extension of time to serve those claims prejudice the defendants and imperil the just, quick and cheap resolution of the dispute by unnecessarily permitting the pursuit and causing the hearing of meritless causes? (g) Is there likely to be material prejudice to any named defendant by reason of the significant delay in bringing claims which go directly to his probity, honesty and fitness for his main occupation as a professional director, in circumstances where the creditors of that company the subject of the complaint (but not named as a defendant) have resolved to destroy its books and records? 3. Should the Order be set aside for non-compliance with the Court's direction, the Civil Procedure Act 2005 (NSW) (CPA) and the UCPR (Defendants' Motion 1)? (a) Did the failure to give notice of the application to the named defendants contravene the direction of Registrar Walton? (b) Did the application before Rein J: (i) duplicate an application on the same motion (without seeking to set aside the ruling of Registrar Walton), in contravention of the CPA 12 to 13 & direction of Bathurst CJ as to powers of Registrars made 26 November 2012 as to UCPR 1.12, without new evidence, or a change in circumstances, and on identical grounds, comprise an abuse of process? (ii) contravene CPA 56 to 60 in that it did not afford the Court an opportunity consider the points in opposition to the ex parte motion, and thereby necessitate subsequent hearings? (iii) contravene CPA 56 to 60 in that plaintiffs were simultaneously maintaining: (I) to named defendants that they had been served (and therefore giving rise to the UCPR 12.11 hearing in the First Proceedings); and (II) to the Court that named defendants had not been served (being the only ground justifying the application for extension of time to serve ex parte, or at all); and (iv) contravene UCPR 18.2(1)? 4. Should the Court declare that the originating process in these proceedings has not been duly served on the defendants, alternatively set aside any service of the originating process (Defendants' Motion 3): (a) Did effective service on either the first or the second defendant take place prior to the [sic] 5 September 2018; and (b) In circumstances where the First Proceedings were not permanently stayed until 19 October 2018, would service of the Second Proceedings prior to that comprise an abuse of process? 5. Should the Court grant the relief sought in the plaintiffs [sic] 23 October 2018 Motion, having regard to the conduct of the parties and any relevant prejudice. 6. What consequential orders should be made as to costs of the First Proceedings and the Second Proceedings?"

The Submissions

1. In broad summary, counsel for the Defendants submitted, in writing: "62. [The] Plaintiffs moved ex parte for the extension of time to serve process. The named defendants have an unconditional right to a rehearing of the motion de novo, and inter partes. 63. The plaintiffs, as ex parte movants, have an affirmative uberrima fidei duty to search out and disclose all information which could bear on the relief sought, particularly if it is adverse. 64. Where service had not occurred, an ex parte hearing was mandatory (since the named defendants were not before the Court). However, at that time, plaintiffs maintained that they had served named defendants. 65. Further, the plaintiffs had been ordered to give notice to the defendants. They did not comply. 66. The defendants say, on this rehearing, the answers to the 2 questions under the preceding 2 headings are sufficient to set aside the ex parte order and refuse any new application. 67. Further, on making the ex parte application before Rein J, the plaintiffs withheld from the Court: (a) the order that they give notice and their non-compliance with that order; (b) any of their reasoning for choosing to delay the service of the second proceedings; (c) the fact that they maintained to the defendants that they were prosecuting two claims for the same alleged loss on the same alleged facts to the defendants, which defendants; (d) the defendant's repeated objection to service of a second proceedings as an abuse of process; (e) the fact that the duplicative prosecution (attempting to serve the defendants with the second proceedings while maintaining the first proceedings) was an abuse of process ; (f) the fact that every attempt to serve the second named defendant was made to addresses then known by the plaintiffs not to be his actual address; and (g) that the named defendants had offered to accept service of the proceedings, but plaintiffs (for reasons that remain unexposed) refused that offer; (h) the fact that claims were made against named defendants without any pleaded connection to them; (i) the fact that the limitations status of the majority of claims, had been repeatedly explained by the defendants; (j) the limitations status of the majority of the claims, by value and number; and (k) the fact that service was attempted on the first named defendant at his home when the plaintiffs knew he was in hospital. 68. Instead, [the] plaintiffs merely insisted that "they were prepared to take the risk" on whether the claims were statute-barred. However, the plaintiffs were obliged to identify the risk, not merely state their indifference to it, when it would be defendants (and the Court), who would "take the risk" on the statute-barred claims. 69. As well, on making that application, [the] plaintiffs: (a) stated that there would be no prejudice to the named defendants, when this is not the case; (b) insinuate[d] that there had been evasion by the named defendants, where no evidence exists to support the allegation; and (c) state[d] that there was a risk of evasion of service, where no foundation for such risk was identified, nor could one have been. 70. The questions for resolution are (in this circumstance where the defendants entitled to a de novo, inter partes hearing on ex parte relief ordered against them): (a) was there incomplete disclosure of material and adverse matters in plaintiffs ex parte application for extension of time; and (b) if so, was that non-disclosure or mis-disclosure sufficient to refuse the relief sought by plaintiffs in the rehearing? such that the order of the Hon. Justice Rein should be set aside. Plaintiffs' remedial relief 71. Plaintiffs seek orders back-dating deemed service prior to the expiry of the writ. Presumably, this relief is alternative to the extension of time (since it would not otherwise be necessary). 72. The foundation for the remedial relief appears to be the "ducks and drakes" allegation, the fact that defendants had knowledge of the existence of the claims in the second proceedings (which is admitted) and the contention that, therefore, named defendants should be deemed to have accepted service. 73. However, the plaintiffs' argument ignores that throughout the 6 months life of the originating process: (a) the election between the first proceedings and the second proceedings was the unilateral choice of the plaintiffs, and did not depend on the consent of any court or of the defendants; (b) the decision to prosecute the second proceeding was with the benefit of legal advice, and deliberate; (c) the plaintiffs at all times maintained that they were prosecuting the first proceedings; (d) the plaintiffs specifically stated that they would not serve the second process, because to do so would be an abuse of process whilst they were prosecuting the first proceedings; (e) defendants acted in reasonable reliance upon plaintiffs' undertaking, and refrained from seeking to strike out the second proceedings as an abuse of process until the plaintiffs started to allege service of the second proceedings (an allegation they subsequently withdrew before this Court on 19 October 2018), upon the premise that it was service, not filing, that gave rise to an abuse of process; and (f) consequently, any contemporaneous attempt to serve the second proceedings would have comprised an abuse of process (bringing two duplicative claims simultaneously). 74. There is nothing evasive or improper in the defendants' conduct. Not engaging with the second proceedings was a course specifically encouraged by the plaintiffs. The defendants relied upon plaintiffs' assurances, to their detriment, in that they responded to the first proceedings (as they were encouraged to do by plaintiffs). 75. There is a contradiction in seeking to retroactively deem service which plaintiffs contemporaneously disclaimed. 76. Orders made nunc pro tunc should not permit relief which was unavailable to the movant if he had timely filed his claim."

The allegation of non-disclosure

1. Because it founded part of the sub-stratum of the Defendants' submissions for the discharging of the order made by Rein J, I shall deal with those submissions by reference to the matters alleged not to have been disclosed by counsel for the Plaintiffs to Rein J: "(a) the order that they give notice and their non-compliance with that order."
2. I have earlier stated that the Registrar had in mind that notice should be given to the Defendants if the Plaintiffs wished to continue to make the application for the extension of time to serve the Statement of Claim in the 2018 proceedings, and it should be listed before Slattery J on 19 October 2018.
3. It is clear, however, that the learned Registrar was not referred to the decision of Barrett J to which Slattery J later referred in his reasons for judgment.
4. In any event, Rein J was well apprised of the fact that the Plaintiffs wished to proceed without notice having been given to the Defendants. Indeed, his Honour noted that "it might very well result in contest about you having obtained these orders without notification…": Tcpt, 26 September 2018, p 9(33-41).
5. In Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320, Barrett J wrote, at [9]-[12]: "There is, in any event, a strong indication in the rules of the court themselves that a person named as a defendant in unserved originating process is not intended to be heard on an application for extension of the time for which the process remains valid for service. Rule 12.11(1)(e) of the Uniform Civil Procedure Rules 2005 is in these terms: 'In any proceedings, the court may make any of the following orders on the application of a defendant: ... (e) an order discharging any order extending the validity for service of the originating process." This, it seems to me, recognizes the obvious point that there will be cases in which filed but unserved process is never served. Unless and until a filed process is served, the defendant has not been drawn into the proceeding. The rule works on the basis that the named defendant is a non-participant in the process by which the court decides whether the time for service should be extended and that a defendant's interest in that question, if there is any, is something that is to be aired and dealt with after the event - that is, when the plaintiff has, by service, shown that it does in truth draw the defendant into the proceeding. To put this another way, a defendant who has been served and who is thereby given a definitive status in relation to proceedings which it is by then clear will be pursued should be heard only retrospectively on the question of extension of time for service, assuming he or she wishes to be heard at all. This is, to my mind, an example of a situation in which the rules of court expressly put to one side the general expectation that affected persons should be heard before any order affecting them is made. The expectation evidenced by the rules in this area is one of being heard after the event, not before the event, in much the same way as one might expect in relation to, for example, a subpoena. Much time and effort could be wasted if an unserved defendant were heard on a question that would become entirely academic if the plaintiff eventually decided not to serve at all."

The Legal Framework

1. Although the parties suggested that the Defendants' amended notice of motion be dealt with first, I shall set out the relevant part of the Civil Procedure Act and the UCPR in a convenient order. The relevant sections and rules relied upon, raise similar issues, and reliance was placed by the parties on factual matters to which reference has been made above. Of course, emphasis was placed by one party, or the other, in relation to those factual matters.
2. Section 3 of the Civil Procedure Act defines the term "plaintiff" relevantly to mean "a person by whom proceedings are commenced…". The term "defendant" is defined to mean "a person against whom proceedings are commenced…".
3. Section 14 of the Civil Procedure Act provides that the Court, in relation to particular civil proceedings, may, by order, dispense with any requirement of rules of court, if satisfied that it is appropriate to do so in the circumstances of the case.
4. Section 63 of the Civil Procedure Act provides as follows: "63 Directions with respect to procedural irregularities (1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect. (2) Such a failure: (a) is to be treated as an irregularity, and (b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings. (3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1): (a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part, (b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally. (4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure."
5. It can be seen that s 63 makes provision for the legal consequences of the failure to comply with any requirement of the Civil Procedure Act, or of rules of court, whether in respect of time, place, manner, form, or content, or in any other respect. The effect of s 63(2) is that the non-compliance is an irregularity, and is of no consequence unless s 63(3) applies. That subsection empowers the court to make an order which, unlike the non-compliance, will have immediate and direct consequences for the parties.

Determination

1. I have considered, de novo, the ex parte order made by Rein J on 26 September 2018, extending the time to serve the Statement of Claim. I have, in doing so, naturally, considered all of the evidence read on the application: Issue 1.
2. The following matters lead me to conclude that the decision made by Rein J was unexceptionable, and that an order in the terms that he made it ought to have been made. In all the circumstances, I do not propose to discharge his Honour's order.
3. Relevantly, the time for service of the Statement of Claim expired on 5 September 2018. The application to extend the time was made by notice of motion filed within 2 weeks of that date, and Rein J dealt with the matter within 3 weeks of that date. There is no dispute that the application for the extension of time was made after the period within which to serve the Statement of Claim in the 2018 period had expired: Issue 2(a).
4. In my view, the length of the delay was relatively short and unintended by the Plaintiffs. It is clear from all that I have read, that this is also not a case in which the Plaintiffs were delaying service upon each of the Defendants deliberately or intentionally (other than, for a short period of time, because of the fact that the 2017 proceedings were listed before me at the end of October 2018).
5. The Statement of Claim in the 2018 proceedings was not filed and then left to lie dormant for a long period. Within a few days of the 2018 proceedings having been commenced, a copy of the Statement of Claim was provided to the Defendants' solicitor "as a matter of courtesy". I am satisfied that this was an obvious step taken for the purposes of bringing the Statement of Claim to the notice of the Defendants. (A party may be aware of proceedings being on foot without the claim having been formally served: Agricultural & Rural Finance Pty Ltd v Kirk, at [123].)
6. It was then a matter of a few weeks during which time discussions of a stay of the proceedings occurred, following which period, the Plaintiffs' solicitors attempted to serve the Statement of Claim but continued to have difficulties serving the Defendants. From mid-June 2018, attempts were made to serve the Statement of Claim.
7. I accept that some of the difficulties were caused by service of a Statement of Claim on the first Defendant without ensuring that the proper notice under the Service and Execution of Process Act was attached, and attempting to serve the second Defendant, in Western Australia when, to the knowledge of at least the Plaintiffs' former solicitors, he was in Los Angeles, California.

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