High Court of Australia Barwick C.J. Gibbs, Stephen, Mason and Jacobs JJ. Licul v Corney [1976] HCA 6 ORDER Objection to competency allowed. Appeal dismissed with costs as incompetent. Applications for special leave or leave to appeal refused. Cur. adv. vult. The following written judgments were delivered:— 1976, March 3 Barwick C.J. One of the three appellants, Rita Licul, has lodged an appeal to this Court as of right against an order of the Full Court of the Supreme Court of Victoria which allowed an appeal brought by the respondent against an order made by the County Court of that State. The respondent has objected to the competency of this appeal and all three appellants, Rita Licul and her two children Oriana and Elio, in the event of the success of that objection, have notified their intention to apply for leave or special leave. The basic ground of the objection to competency is that the order of the Full Court was not a final order. It is submitted that it did not of its own force terminate the action between the parties. A brief recital of a series of events is necessary to appreciate the matter in contest between the parties. On 26 July 1972, the appellants commenced proceedings in the County Court at Melbourne against the respondent for damages, for personal injuries which they had suffered. As appears in the papers before this Court, the appellants were passengers in a car driven by Ratko Licul which was involved in a road accident allegedly caused by the negligence of the respondent. The initiating summonses were for service in Victoria but on 2 February 1973, the original summonses not having been served, the appellants obtained from the County Court concurrent summonses. It was said that the appellants had experienced difficulty in attempting to serve the original processes on the respondent but no details of their endeavours to do so are in evidence. On 21 February 1973, copies of the concurrent summonses were delivered to the respondent at the R.A.A.F. Barracks in Penrith in the State of New South Wales. This delivery was apparently effected in purported pursuance of the provisions of the Service and Execution of Process Act 1901 Cth. However, it is quite clear that these summonses did not conform to the requirements of that Act and that the delivery of the concurrent summonses did not constitute service under that Act or at all. The respondent did not file in the County Court any notice of intention to defend. The appellants apparently became aware that, by reason of the defects in the concurrent summonses, there had been no effective service of the processes. They then applied again to the County Court for concurrent summonses. That Court on 8 February 1974, issued documents purporting to be concurrent summonses. It is plain enough that these documents were void as concurrent summonses. The original summonses were then stale and no longer in force. No application had been made to extend the time for service of the original summonses, either before or at the time of the issue of the so-called concurrent summonses. These "concurrent summonses" were not served. Applications for orders for substituted service of the original summonses which were limited, as I have said, to service within Victoria, were made to the County Court on 8 April 1974. The original summonses had then expired. Clearly, there was no basis upon which to make orders for substituted service of the original summonses. The orders in that behalf were, in my opinion, improperly made. It is also quite clear that the delivery of the concurrent summonses to the respondent in New South Wales did not constitute service under the Service and Execution of Process Act. To the deficiencies in these concurrent summonses for the purposes of that Act the Supreme Court properly called attention in its reasons for making the order under appeal. Upon the respondent's insurer, the State Motor Car Insurance Office, being served with the orders for substituted service, application was made by that office on 14 June 1974, in the name of the respondent to set aside those orders. Solicitors were instructed by the insurer to act in that behalf. The appellants on 24 July 1974, each made application to the County Court for the following orders: 1. That the service of the within proceedings effected on the 21st day of February, 1973, be deemed valid. 2. That the service of the within proceedings effected on the 23rd day of April, 1974, the 26th day of April, 1974 and/or the 30th day of April, 1974, be deemed valid. 1. That the Plaintiff be relieved from non-compliance with any rules of practice in the service of the within proceedings effected on the 21st day of February. 2. That the Plaintiff be relieved from non-compliance with any rules of practice in the service of the within proceedings effected on the 23rd day of April, 1974, the 26th day of April, 1974 and/or the 30th day of April, 1974. 3. That the Summons served on the 21st day of February, 1973 be amended by (a) adding thereto the date "the 26th day of July, 1972" and by (b) replacing the word "fourteen" with the word "twenty". 4. That the time for service of the within proceedings be enlarged to the 30th day of April, 1974. 5. That (a) the time for service of the within proceedings be enlarged to the 31st day of August, 1974, (b) service of the within proceedings be effected by delivery of a sealed copy of the original Summons herein dated the 26th day of July, 1972 to the State Motor Insurance Offfice, 480 Collins Street, Melbourne, on or before the 31st day of August, 1974, and that such service be deemed good and sufficient service. 6. That leave be granted to proceed with the within action. 7. Such further or other Order including an Order as to the costs of this Summons as to the Judge appears just. On the day on which the appellants' applications for the abovementioned orders were lodged, the appellants' solicitors asked the solicitors who had been instructed by the insurers to make the applications to set aside the orders for substituted service whether they would "consent to the enlargement of time in order that service of the Summonses in these actions would be validated or validly made"; but consent was refused. There are two rules of the County Court Rules 1964 (Vict.) relevant to the extension of time within which the original summonses might be served. Order 3, r. 1 provides: 1. (a) Every summons to appear to a plaint shall be served not later than twelve months from the day of the date thereof, including the day of such date, or within such further period as a Judge or the Registrar by order under this Rule may allow. (b) 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 a Judge or the Registrar to extend the time for service; and a Judge or the Registrar, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may extend the time for such further period not exceeding twelve months from the date of such order as it or he shall think fit. Order 50, r. 1 provides: 1. 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. Two important aspects of these rules which are both express and specific are, first, that an ex parte application for extension of the time within which an original summons can be served can only be made before the expiry of the time within which such a summons must be served, that is, within one year of its issue. Secondly, the power of a judge to enlarge that time after it has expired depends upon the inability of the applicant to obtain the consent of the other party to the enlargement of the time and upon the giving of notice to the non-consenting party. There is no general power expressed in the County Court Rules to enlarge or abridge the times fixed by the rules of court. In particular, there is no provision in the County Court Act 1958 Vic or the County Court Rules comparable to O. 64, r. 6 of the Rules of the Supreme Court (Vict.). On the hearing of the applications heard together, the County Court dismissed the applications to set aside the orders for substituted service and made the following orders on the appellants' applications: 1. That the service of the within proceedings effected on the 21st day of February, 1973 be deemed valid. 2. That the service of the within proceedings effected on the 23rd day of April, 1974, the 26th day of April, 1974, and/or the 30th day of April, 1974, be deemed valid. 1. That the Plaintiff be relieved from non-compliance with any rules of practice in the service of the within proceedings effected on the 23rd day of April, 1974, the 26th day of April, 1974 and/or the 30th day of April, 1974. 2. That leave be granted to proceed with the within action. It was from these orders that the present respondent successfully appealed to the Supreme Court. That Court set aside these orders and the order for substituted service. The first question arising from the objection to the competency of the appeal to this Court is whether the order of the Supreme Court was a final order within the meaning and operation of s. 35(1)(a) of the Judiciary Act 1903 Cth (as amended). To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action. Here, all the proceedings between the parties are interlocutory. The orders which the Supreme Court set aside were all interlocutory orders. The action between the parties could not proceed because the original summonses had not been served. The time for that service had expired but it remained capable of extension if, consent to such extension being refused, notice of an application to extend that time were given to the respondent. Whether or not such an extension was or is to be granted rests on the discretion of a judge of the County Court. But nothing appears in the record before this Court which would preclude a judge of that Court from granting the extension of time if he were persuaded in point of discretion to do so. In particular, no time limitation for the commencement of an action of the present kind would stand in the way of the grant of such an extension. The proceedings had been commenced in due time. Further, in point of discretion, the respondent had become aware in 1973 of the pendency of the proceedings. I am clearly of opinion that the order of the Supreme Court was not a final order disposing of the action between the parties and settling their substantive rights. Their actions remain on foot and are capable of being pursued if a judge of the County Court is minded upon an application duly made to extend the time for service of the original summonses. The appellants seek leave or special leave. In my opinion, they need special leave. The Supreme Court's order not being a final order, it does not directly or indirectly bear upon the appellants' claim to damages. Thus, the fact, if it be the fact, that the appellants each might fairly expect to recover $3,000 or more if successful in the actions, does not mean that the Supreme Court's order affects or involves that sum of money. I find no reason to grant special leave to appeal. In the first place, neither the argument of the appellants' counsel, competently and persuasively presented, nor my perusal of the matters contained in the appeal book has convinced me that there is any substantial doubt as to the correctness of the conclusion of the Supreme Court, or of its reasons therefor. Indeed, on the contrary, these are, in my opinion, correct. It was submitted that the Supreme Court misunderstood in part the nature of the appellants' applications of 24 July 1974, to the County Court. It was said that the Supreme Court overlooked the fact that, in so far as those applications sought an extension of the time within which to serve the original summonses, it was founded on notice to the respondent. But it is clear, in my opinion, that the Supreme Court was under no misapprehension. The reasons for judgment advert to the service of the applications upon the solicitors employed to apply to set aside the orders for substituted service. The Court was not prepared to consider such service as adequate to satisfy the terms of O. 50, r. 1 because of the circumstances in which such solicitors came to be retained by the respondent's insurers. I am not prepared to differ from the Supreme Court's view in that respect. I ought here to advert to the submission that the Supreme Court ought itself to have made orders extending the time for serving the original summonses. But, accepting that the Supreme Court was asked to do so, orders enlarging the time, or orders refusing to do so, would in either case be no more, in my opinion, than interlocutory orders. It is certainly, in my opinion, not an order which would warrant the grant of special leave or, in my opinion, leave. Further, and in any case, this is not a matter in which the Court's interference through the grant of its leave would be warranted. I would allow the objection to competency, refuse special leave and, if it were appropriate, leave. I would dismiss the appeal as incompetent. Gibbs J. On 12 April 1970, Mrs. Rita Licul and her two infant children, Oriana Licul and Elio Licul, were passengers in a motor vehicle driven by Mr. Ratko Licul when it was involved in a collision with another vehicle driven by Mr. Geoffrey Corney. It is alleged that the collision was caused by the negligence of Mr. Corney. All three passengers sustained injuries. According to material which is at present uncontradicted the collision occurred at an intersection and the car driven by Mr. Corney was at all material times on the left of the other vehicle, and if actions which have been brought against Mr. Corney proceed, Rita Licul is likely to recover damages amounting to at least $3,000 in respect of her personal injuries and Oriana Licul and Elio Licul are each likely to recover damages of less than $3,000. For convenience I shall refer to Rita Licul, Oriana Licul and Elio Licul as the applicants and to Geoffrey Corney as the respondent. On 26 January 1971, the solicitors for the applicants wrote to the State Motor Car Insurance Office (the Insurance Office), the respondent's insurer, stating that they were in the process of issuing proceedings and requesting the Insurance Office to nominate solicitors to accept service. A correspondence ensued; the Insurance Office requested particulars of damages, and was supplied with some information, but it did not nominate anyone to accept service. On 26 July 1972, separate actions were commenced in the County Court at Melbourne by Rita Licul, Oriana Licul (by her next friend Rita Licul) and Elio Licul (by his next friend Rita Licul), respectively, as plaintiffs, against the respondent as defendant, claiming damages for personal injuries sustained in the collision. The facts relating to the progress of each of these three actions are exactly the same, and it will therefore be convenient, for the most part, to speak in the singular, as though there were one action. The action was commenced by an ordinary summons, intended to be served within the jurisdiction upon the respondent, whose address was shown as "care of R.A.A.F. Base Laverton". However, the respondent could not be found within the jurisdiction — apparently he had been transferred — and on 2 February 1973, a concurrent summons was issued for service out of the State of Victoria and in the State of New South Wales. Such concurrent summons ("the first concurrent summons") was, on 21 February 1973, served on the respondent at the R.A.A.F. Barracks, Penrith. Unfortunately the first concurrent summons was irregular in a number of respects. It was not marked "concurrent" as required by s. 7 of the Service and Execution of Process Act 1901 Cth. It bore the date on which it was issued (2 February 1973) instead of the date of the original summons (26 July 1972). More importantly, it bore an indorsement notifying the respondent that if he intended to defend the claim he must, within fourteen days after service, return to the Registar and serve upon the plaintiff a copy of a notice of intention to defend. By s. 8 of the Service and Execution of Process Act, the period specified in a summons issued in one State and to be served in another as the period within which a defendant might enter to make an appearance to the summons was required to be not less than twenty days after service of the summons had been effected. No doubt the legal representatives of the applicants must take responsibility for any defects in the summons that they caused to be issued, but it is nevertheless true to say that the issue of the defective summons was an act of an officer of the County Court. The applicants' solicitors proceeded to prepare for trial, and on 30 November 1973, lodged with the County Court a certificate of readiness for trial and a request to set the action down for hearing. Later, the Registrar of the County Court was requested to advise what had been done pursuant to the request, and it was then discovered that the summons required the notice of intention to defend to be served within fourteen, rather than twenty, days. Thereupon the applicants' solicitors, on 8 February 1974, caused another concurrent summons ("the second concurrent summons") to be issued. The errors that had appeared on the first concurrent summons were not repeated in the second, and it has not been suggested that the second concurrent summons is in any way defective in point of form. However, at the time when the second concurrent summons was issued the original summons could no longer be served — the period of twelve months specified by O. 3, r. 1(a) of the County Court Rules 1964 (Vict.) had expired and the time for service had not been extended. The second concurrent summons was not served. A process server reported that he had made extensive inquiries in an attempt to locate the respondent and that he had been advised by the R.A.A.F. that the respondent had left the Air Force some twelve months previously and was now believed to have gone to somewhere in North Queensland but his whereabouts were not known. The applicants thereupon made application to a judge of the County Court for an order for the substituted service of the second concurrent summons. On 8 April 1974, Judge Stabey ordered that publication of an appropriate notice in The Age and the Townsville Daily Bulletin, together with delivery of a copy of the summons and the order to the Insurance Office should be deemed good and sufficient service of the summons on the respondent. Of course this order was irregular since the summons could not be effectively served unless the time for service was extended. However, in April 1974 the notices were published and the documents were delivered to the Insurance Office in accordance with the order. On 14 June 1974, there was filed in the County Court an application on behalf of the respondent to set aside the order of Judge Stabey and the service of the summons. The application was filed by the solicitors for the respondent who, as might have been expected, were also the solicitors for the Insurance Offfice. It appears that the respondent personally was not aware that this application was being made on his behalf, but nothing turns on that fact, no one has questioned that the Insurance Office has power to conduct the proceedings in the name of the respondent and on his behalf [2] . The solicitors for the applicants then filed, on 24 July 1974, a summons seeking a variety of relief validation of the service effected on 21 February 1973, and again under the order for substituted service, relief from non-compliance with any rules in respect of such service, amendment of the first concurrent summons, enlargement of the time for service, a further order for substituted service, and leave to proceed. On the same day the solicitors for the applicants requested the solicitors for the respondent to consent on behalf of the respondent to the enlargement of time in order that service of the summons could be validated or validly made, but such consent was refused. The cross-applications were heard by Judge Rapke on 1 August 1974. The learned judge dismissed the summons of 14 June 1974, and on the summons issued on 24 July 1974, ordered as follows: 1. That the service of the within proceedings effected on the 21st day of February, 1973 be deemed valid. 2. That the service of the within proceedings effected on the 23rd day of April, 1974, the 26th day of April, 1974 and/or the 30th day of April, 1974 be deemed valid. 1. That the Plaintiff be relieved from non compliance with any rules of practice in the service of the within proceedings effected on the 23rd day of April, 1974, the 26th day of April, 1974 and/or the 30th day of April, 1974. 2. That leave be granted to proceed with the within action. His Honour also ordered the applicants to pay the respondent's costs. 1. See s. 58 of the Motor Car Act 1958 Vic. The respondent appealed to the Full Court of the Supreme Court from the order made by Judge Rapke in each action and the three appeals were heard together. The Full Court allowed the appeals and set aside each order of Judge Rapke (except in so far as it dealt with costs) and also set aside the order of Judge Stabey. The applicants submitted to the Full Court that if the order made by Judge Rapke were set aside, the time for service of the summons should be enlarged either to 30 April 1974 (that is, a date after the orders for substituted service had been complied with) or to some future date; it was submitted that the matter should be remitted to Judge Rapke for this purpose, or that the Full Court should itself grant the extension. No notice of cross-appeal was necessary to enable these submissions to be made [1] . The Full Court rejected these submissions but made no formal order in relation to them. 1. O. 58, r. 10 of the Rules of the Supreme Court (Vict.). 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. 1. [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. 1. [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. 1. (1908) 10 W.A.L.R. 27. 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. Stephen and Jacobs JJ. 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. Mason J. 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.