New South Wales Supreme Court CITATION : JOHNSON v ALEXANDER [2002] NSWSC 824 FILE NUMBER(S) : SC 20340 OF 2002 HEARING DATE(S) : 5 September 2002 JUDGMENT DATE : 11 September 2002 NOEL PATRICK JOHNSON (Plaintiff) v COLIN J ALEXANDER PARTIES : (First Defendant) LIDOFORM PTY LTD (Second Defendant) VIEBELL PTY LTD (Third Defendant) JUDGMENT OF : Levine J C Robinson (Plaintiff) COUNSEL : K Rees (First Defendant) Powrie & Co (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (First Defendant) CATCHWORDS : Service of Statement of Claim - interstate (ACT) - Supreme Court Rules Pt 11 r 8(1)(c) - Service and Execution of Process Act (Cth) 1992 - declaration LEGISLATION CITED : Service and Execution of Process Act (Cth) 1992 Supreme Court Rules Pt 11 r 8(1)(c) CASES CITED : Highfield Woods Pty Ltd v Bayview Crane Hire Pty Ltd (1996) 14 ACLC 599 Roladuct Spiral Tubing Pty Ltd v C & P Trading Pty Ltd [1994] 2 Qd R 247 DECISION : See paragraph 23 DLJ:1 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION list JUSTICE DAVID LEVINE 11 SEPTEMBER 2002 20340 OF 2002 NOEL PATRICK JOHNSON (Plaintiff) v COLIN J ALEXANDER (First Defendant) LIDOFORM PTY LTD (Second Defendant) VIEBELL PTY LTD (Third Defendant) JUDGMENT (Service of Statement of Claim - interstate (ACT) – Supreme Court Rules Pt 11 r 8(1)(c) - Service and Execution of Process Act (Cth) 1992 - declaration) 1 By Notice of Motion filed on 2 August 2002 the first named defendant Colin J Alexander moves the Court for a declaration pursuant to SCR Pt 11 r 8(1)(c) that the originating process has not been duly served on him. SCR Pt 11 r 8(1)(c) states: 11.8. (1) The Court may, on application made by a defendant to any originating process on notice of motion filed within the time fixed by subrule (2), by order: (a) … (b) … (c) declare that the originating process has not been duly served on the defendant; … 2 It is convenient at this point to set out what is stated in SCR Pt 10 r 2B: 10.2B. (1) Subject to this Part, an originating process may be served outside the State in Australia. (2) An originating process for service outside the State in Australia shall bear a statement either that the plaintiff intends to proceed under the Service and Execution of Process Act 1901 or that the plaintiff intends to proceed under the Supreme Court Rules 1970. (3) The plaintiff may not proceed otherwise than in accordance with the intention stated under subrule (2) except with the leave of the Court. 3 In support of the Notice of Motion an affidavit of Ian Robert Angus sworn 9 August 2002 was read. He is the solicitor for the first named defendant in these proceedings. From that affidavit the following can be established. The Canberra firm of Mallesons Stephen Jaques had referred to it a Statement of Claim purportedly issued on 30 April 2001 out of the Sydney Registry of this Court. That Statement of Claim was handed to the person named as the first defendant at his office in Canberra on 18 July 2001. Service of the Statement of Claim on the first defendant at that place is confirmed by an affidavit of service sworn by Lauren Jamieson on 18 July 2001. 4 The Statement of Claim as issued indicates that the solicitors for the plaintiff are Powrie & Co, Barristers and Solicitors, of Griffith in the ACT. The purported pleading refers to the first defendant having an address at Unit 8, 27 Lakeview Gardens, Cove Island, Jerrabomberra, NSW 2619. The address of each of the second and third defendants is in the Australian Capital Territory. 5 By letter dated 6 August 2001 Mallesons (Canberra) wrote to Powrie & Co drawing attention to various aspects of the purported Statement of Claim. The first is that the plaintiff had not complied with SCR Pt 10 r 2(b)(2). The document, even though two of the named defendants are out of the jurisdiction on the face of the document, bears no statement as provided by the Rule nor any prescribed notice under s16 of the Service and Execution of Process Act 1992 (Cth). 6 It is next contended that insofar as the Statement of Claim purports to plead a case in defamation there has been non-compliance with this Court's Practice Note 114; no Notice of Motion for directions under the present Rules has been provided. The Mallesons (Canberra) letter also draws attention to the internal defects in relation to non-compliance with SCR Pt 67 and SCR Pt 9 r 6(2) relating to address for service. Attention is also drawn to the contents of paragraph 3 on page 3 of the Statement of Claim which appears to be claiming a liquidated sum from the defendants, namely $430,000, together with interest and a sum for costs (see SCR Pt 7 r 4(1)). 7 In response to the letter from Mallesons (Canberra) the solicitors faxed to Mr Angus (at Mallesons (Sydney)) the affidavit of service to which I have referred. 8 The Statement of Claim purports to institute an action for defamation. It was filed in the Registry of this Court on 27 April 2001. The date of the publication of which the plaintiff complains is 6 July 1995. 9 The affidavit filed by the respondent to the Motion was sworn by Alan Charles Powrie, solicitor, of Canberra on 3 September 2002 was read and in relation to the above matters as deposed to by Mr Angus raises no matter of contention. 10 The Statement of Claim bears no statement as required by the Rules and, it is submitted, is therefore ineffective. The failure to comply with the requirement of the Rules can be characterised as an "irregularity" that could have been waived by the first defendant. There is no evidence of waiver. It is clear on the evidence that the first defendant's Canberra solicitors advised the plaintiff's solicitors immediately after the purported service that that service was ineffective. The first defendant has taken no part in the substantive proceedings. 11 S16 of the Service and Execution of Process Act 1992 (Cth) states: 16 Service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served. 12 The Statement of Claim was not accompanied by a s16 notice. 13 For the applicant it was contended that by reason of this defect service was ineffective. My attention was drawn to a decision of Senior Master Mahony of the Supreme Court of Victoria in Highfield Woods Pty Ltd v Bayview Crane Hire Pty Ltd (1996) 14 ACLC 599 concerning an application to set aside a statutory demand served by a Victorian company on a Brisbane company without the required notice. Service was held by the learned Master to be ineffective. 14 A party may also waive compliance with s16 by appearing in a Court of issue and arguing the substance of an application: Roladuct Spiral Tubing Pty Ltd v C & P Trading Pty Ltd [1994] 2 Qd R 247. In that particular instance although no notice was attached to the service of a summons the point was not taken by the defendant. 15 In any event no waiver has occurred here. 16 It is to be noted that the present form of the Supreme Court Rules refer to the Service and Execution of Process Act 1901. That legislation has been repealed and replaced by the present statute. S8(4) of the present Commonwealth legislation makes it clear that the operation of the Commonwealth Act makes it apply to the exclusion of a State law with respect to the service or execution in another State of process of the relevant State. 17 The substantive point taken by the respondent to the application is one of stark simplicity: SCR Pt 10 r 2(b)(2) refers to "An originating process for service outside the State…" (emphasis added). 18 Consideration of the document issued by the Registry of this Court discloses that the first defendant had an address in New South Wales and therefore, it is submitted, on the face of the document it was an originating process not for service outside this State but rather upon a defendant within the jurisdiction. In this context no point was taken by the applicant that in other respects, namely vis-à-vis the second and third defendant, the process was for service outside the State and in the Australian Capital Territory. 19 The respondent also made submissions to the effect that s81 of the Supreme Court Act relating to "Irregularity" could permit the curing of the defects giving rise to ineffective service. The only observation I would make in that regard is that in the event that it was sought substantively to apply s81 of the Act, it may have some effect in relation to non-compliance with SCR Pt 10 r 2B, but I do not see it being available to apply to cure an irregularity arising with non-compliance with the Commonwealth legislation. 20 The argument as to the Statement of Claim being one for service within the jurisdiction is facile. An implication of it is that a plaintiff, as Ms Rees suggested, could confer jurisdiction on this Court in respect of an interstate defendant simply by noting in the originating process, the Statement of Claim, a New South Wales address for service. By so simple a measure a plaintiff could thereby get around the requirement of the Rules and of the Service and Execution of Process Act which are designed to give some protection to defendants who are not resident or who are not served within this State. Whilst the respondent argues that the first defendant may not in real terms need such "protection", it would turn out that it would be a question for the Court, in each case of service in the way that has in effect taken place here, to determine whether a particular defendant requires the protections conferred by the Rules and Commonwealth legislation. To say the least it would be inefficient. Further, of course, it would be an approach that would pay scant regard to the provisions of the Rules of Court and the Commonwealth legislation for the regime for interstate service and the protection it provides to recipients of Court process. 21 I reject the submission for the defendant. I am satisfied that a clear case has been made out for the single remedy that the applicant seeks and I propose to grant it. 22 Upon the making of the declaration, if the plaintiff is so advised to seek further relief with respect to the defective service and the clearly defective Statement of Claim he will have to formally move the Court in the appropriate way. 23 The formal orders are: 1. I declare, pursuant to Pt 11 r 8(1)(c) of the Supreme Court Rules, that the Statement of Claim issued out of the Registry of this Court on 30 April 2001 has not been duly served on the first defendant. 2. I order the plaintiff to pay the first defendant's costs of this motion. 3. I reserve the question of any further relief as to costs the first defendant may seek. 4. I stand the matter over to the Registrar's Defamation Directions List on 11 October 2002. ********** Last Modified: 09/12/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.