The Issues on Appeal
15 Mr Bennett QC, who appeared with Mr M J Heath for Mr Wakim, challenged the primary judge's conclusion that the originating process was not served within the period for which UCPR, r 6.2(4) stated that it was valid for service. He did so on three bases to which I now refer.
16 First, Mr Bennett contended that the reference to "originating process" in r 6.2 was only to the Statement of Claim as originally filed and did not embrace an Amended Statement of Claim. He submitted that an Amended Statement of Claim had only to be served in accordance with such directions, if any, as were made by the Court in relation to its service and that the UCPR did not stipulate any particular time for service of such a document. This submission involved the proposition that the requirement to serve the original Statement of Claim disappeared once that document was amended.
17 I do not accept this submission. It would be curious indeed if the time limit for service of an originating process could be circumvented by the simple device of amending it, particularly when a Statement of Claim may be amended without leave within 28 days after the date on which it is filed (see r 19.1(1)).
18 The limitation of the period that an originating process is valid for service (r 6.2(4)) is an important protection for defendants that should only be regarded as eroded if the intent that that occur clearly appears from elsewhere in the UCPR. In my view an originating process such as a Statement of Claim remains an originating process even after it has been amended. Rule 6.2 thus applies equally to an Amended Statement of Claim and to a Statement of Claim in its original form. To satisfy r 6.2 the Statement of Claim in its then-current form must be served within the period specified in r 6.2(4) (that is, in such proceedings as those now under consideration, six months from when the originating process was filed in its original form). Thus service of the original Statement of Claim within that period will not suffice if the Statement of Claim has been amended by the time of service. Likewise, the fact that the Statement of Claim may have been amended after expiration of the period does not excuse any failure to serve the original form of Statement of Claim within the requisite period.
19 Secondly Mr Bennett submitted that if r 6.2 applies to an Amended Statement of Claim, the period of six months specified in r 6.2(4)(a) commences to run from the date of the filing of the Amended Statement of Claim. It follows from what I have said in relation to his first submission that this submission should also be rejected. If the Statement of Claim is amended after the expiration of the six months, the Statement of Claim in its original form will have had to have been served within six months of the commencement of proceedings for r 6.2 to have been satisfied. If the Statement of Claim is amended within the six month period, the period of validity for service still commences to run from the date of commencement of proceedings, that is when the originating process was first filed.
20 Thirdly Mr Bennett submitted, contrary to the conclusion of the primary judge, that the effect of the Deputy Registrar's first order of 31 October 2007 was to extend the period of validity for service of the originating process past the date upon which the Amended Statement of Claim was served on at least the first five defendants.
21 Mr Bennett submitted that although the Deputy Registrar's orders did not expressly state that the period of validity for service was extended, the grant of such an extension of time must be implied because a direction to perform an act (in this case, to serve the Amended Statement of Claim) must necessarily imply permission to do the act. In support of this submission he relied upon the decision of Barrett J in Chalmers v Redwood Anti-Ageing Pty Ltd [2007] NSWSC 1186; (2007) 215 FLR 8 and the authorities referred to in that decision at paragraph [13].
22 Where a court order is ambiguous, it is permissible to resort to extrinsic material to resolve the ambiguity (Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; (2003) 129 FCR 558 at [18] and the authorities to which reference is there made). Here there is in my view relevant ambiguity as it is not clear on the face of the order whether the Deputy Registrar intended to extend the period of validity of the Statement of Claim for service.
23 Once recourse is had to the circumstances in which the order of 31 October 2007 was made, it is plain that the Deputy Registrar did not so intend. First, Mr Mee Ling did not make any application for such an extension and admitted that he had in fact forgotten that there was a limited time under the UCPR during which originating process was valid for service. Secondly, there is no basis for thinking that the Deputy Registrar nevertheless turned his mind to the question of whether or not he should grant an extension. In these circumstances, I do not consider that the order of 31 October 2007 should be construed as granting such an extension. The same conclusion applies to the orders of 9 May and 1 August 2007 concerning the filing of an Amended Statement of Claim.
24 I note that in the decision upon which Mr Bennett principally relied, Chalmers v Redwood Anti-Ageing Pty Ltd, Barrett J had recourse to the circumstances in which the order there under consideration was made by the Deputy Registrar and considered it significant that an application had been made for the grant of the leave that his Honour in that case concluded was implicit in the Deputy Registrar's order. The decision is accordingly distinguishable from the present.
25 If, contrary to my view, these orders were properly to be construed as impliedly extending the time for service, the Court would in my view nevertheless have had to set them aside. The application to the primary judge included an application to set aside the Deputy Registrar's order. In circumstances where the Deputy Registrar had given no consideration to whether a ground had been made out to grant an extension of the time for service, the primary judge would have had to set the order aside, unless she herself was satisfied that such a ground had been made out. It may be concluded that, for the same reasons as she gave on the application for extension brought before her, she would not have been so satisfied.
26 Accordingly, each of Mr Bennett's submissions as to why Mr Wakim's originating process was served during the period for which it was valid for service should be rejected. The primary judge was correct in holding that it was not so served. As a result, it is necessary to consider the challenge made on behalf of Mr Wakim to the primary judge's refusal to extend retrospectively the period of validity for service.