Elders Finance Ltd v Invaway Pty Ltd [1990] QSC 333 [1991] 2 Qd R 398

/£+18t+ IN THE SUPREME COURT OF QUEENSLAND No. 1396 of 1990 and No. 1397 of 1990 BETWEEN: ELDERS FINANCE LIMITED Plaintiff INVAWAY PTY. LTD. Defendant AND BETWEEN: ELDERS FINANCE LIMITED Plaintiff INVAWAY PTY. LTD. First Defendant BERNARD WALTER TUCK, JOHN DAVID TAYLOR, LEIGH FRANCIS RATCLIFFE, ZEMAT PTY. LTD., SANDSKILL PTY. LTD., SEVENTY-EIGHTH TALJAN PTY. LTD. and FOURTH ALINE PTY. LTD. Second Defendants EXTEMPORE REASONS - SENIOR MASTER HORTON Q.C. Delivered the Nineteenth day of September, 1990 On the 12th September, 1990 the plaintiff entered judgment in default of appearance against the defendant in each of the abovementioned writs. It is common ground that in the vicinity of 4pm on the 4th September, 1990 an articled clerk employed by Gadens Ridgeway, solicitors, called upon Chambers McNab Tully and Wilson, solicitors, and therein delivered the two subject writs. On that particular day, Chambers McNab had informed Mr. David Cameron Shirley, solicitor of Gadens Ridgeway he had -- 1 of 5 -- instructions to act as the town agents for Melbourne solicitors, McKay Thwaites, principal solicitors for the defendants. The requirements of Order 90 rule 8 which reads :- " Service of pleadings, notices, summonses, orders, rules and other proceedings, shall be effected before 4 o'clock in the afternoon etc ..... service effected after 4 o'clock in the afternoon on any weekday except Saturday shall for the purposes of computing any period of time subsequent to such service be deemed to have been effected on the following day." were taken by a partner and an employed solicitor of Chambers McNab to extend to a writ. The question which arises then is, does a writ of summons come within the terms of Order 90 rule 8? I note that in Ryan Weld and Lee the Annotations therein in B.P. Australia Limited v. Brant 1981 Q.R. 164 the Court ruled that a specially endorsed writ does not come within the ambit of Order 90 rule 8 and the learned authors of the Annotations to the Rule observed that the rule is confined in its operation to pleadings which are delivered. All of the documents therein referred to in my view are documents which are delivered and it seems to me clear notwithstanding the words "and other proceedings" that the ambit of Order 90 rule 8 does not extend to writs of summons. It follows therefore that the plaintiff was in accordance with the Rules as of 10 a.m. on the 12th September, 1990 entitled to enter judgment by default. On 12th September, 1990 solicitors for the plaintiff attended before the Registrar and there was filed what was described as an affidavit of service of David Cameron Shirley. The affidavit of Mr. Shirley deposes to a conversation with one Sean Fitzgerald, a solicitor of Chambers McNab Tully & Wilson in which conversation it was intimated to Mr. Shirley that Chambers McNab Tully & Wilson had instructions to accept service on behalf of the defendant in each action. The affidavit further -- 2 of 5 -- goes on to depose to instructions given to Mr. Nielsen, a law clerk in the employ of the plaintiff's solicitors, to attend at the offices of Chambers McNab Tully & Wilson for the purposes of effecting service. Finally, in what could only be described as hearsay, in three paragraphs Mr. Shirley deposes to a conversation with Mr. Nielsen in which conversation he was informed and verily believed that service had been effected in accordance with the Rules of the Court and that the indication that Chambers McNab were prepared to accept service on behalf of the defendants. Order 15 rule 2 provides as follows:- "Where a defendant fails to appear to a writ of summons and the plaintiff is desirous of preceding upon default of appearance under any of the following rules of this order or under Order 19 he shall, before taking such proceedings upon default, file and affidavit of service of the writ, or notice in lieu of service, as the case may be." In my view the question of whether the entry of a judgment by default, i.e., interlocutory or final is to be decided in accordance with the tests set out by the High Court in Carr v. Finance Corporation of Australasia (1981) 147 C.L.R. at 246 wherein at p.255 the appropriate test is set out: "This order sought finally disposes of the rights of the parties." In my view the proceeding here of the entry of judgment by default on a specially endorsed writ was a proceeding for final relief and hence, it was not open to the plaintiff to rely upon a hearsay affidavit of service. The question then turns to a construction of Order 10 rule 2 which provides:- "Where a defendant's solicitor endorses on the writ or other originating proceeding a statement that he accepts service thereof on behalf of that defendant the writ or other originating proceeding shall be deemed to have been duly served on that defendant and to have been so served on the date on which the endorsement was made." -- 3 of 5 -- The question that falls for determination is whether or not a distinction is to be drawn between service being deemed to have been carried out and service (properly proven according to Order 15 rule 2) being deemed to have been duly carried out. The endorsement which the solicitor for the defendant places on the writ in my view is a matter of evidence only and as such, must in itself be properly proven. It is not sufficient for an applicant seeking judgment by default to point to the handwriting on a writ and invite the Registrar to, in the absence of sworn testimony, draw the conclusion that that writing in itself enjoys some elevated status over other writing contained on the writ, be it either typewritten or handwritten. In other words, what Order 10 rule 1 subrule 2 does is to provide that subject to proper proof thereof (in this case on affidavit by Mr. Nielsen that he saw the appropriate member or employee of Chambers McNab Tully & Wilson endorse on the writ a statement that he accepts service thereof on behalf of the defendant) then such service shall be deemed to have been duly served on the defendant and to have been so served on the date on which the endorsement was made. In my view therefore Order 10 rule 1 subrule 2 must be read in the light and in conjunction with Order 15 rule 2 and bearing in mind, the words of Master Lee Q. C. ( as he then was) in Eziframe Pty. Ltd. v. Alcote Australia Pty. Ltd. 1981 Qd.R. 602 at 611 :- "It is well settled that where judgment is entered upon default, the rules must be strictly complied with. This principle has been established in a long line of cases: Galli v. Mongruel (1865-6) ILRCP 46; and Anlaby v. Praetorius (1888) 20 QBD 764; Hamp-Adams v. Hall [1911] K.B. 942, at p.945 (where Buckley said that a party who desires to proceed on default must follow the rules strictly; it is a matter strictissimi juris); Vosmaer v. Spinks [ 1964] Q.W.N. 36; Pioneer Concrete (North Coast) Pty. Ltd. v. Bennett [1972] Qd.R. 544." -- 4 of 5 -- ~ Accordingly, in this case the defendant in each writ is entitled to have the judgment set aside ex debito justitiae and accordingly it is so set aside. The respondent plaintiff to pay the applicant defendants costs of and incidental to the application to be taxed. -- 5 of 5 --