Smith v Shilkin (No 2) [2019] NSWSC 969 (1 August 2019)

Last Updated: 1 August 2019

Supreme Court New South Wales

Case Name:	Smith v Shilkin (No 2)
Medium Neutral Citation:	[2019] NSWSC 969
Hearing Date(s):	11 and 12 June 2019
Date of Orders:	1 August 2019
Decision Date:	1 August 2019
Jurisdiction:	Equity
Before:	Hallen J
Decision:	Counsel are invited to agree upon a form of orders to give effect to these reasons and are directed to provide to the Court, within 14 days, in hard and soft copy, short minutes of order, for consideration. When these reasons are delivered, the matter of the costs of the two notices of motion will be listed for hearing and for the determination of any dispute as to the form of orders.
Catchwords:	CIVIL PROCEDURE – Commencement of proceedings – Statement of claim – Extension of validity of statement of claim for service – Uniform Civil Procedure Rules – Order extending validity made ex parte by Judge of the Court – Whether ex parte order should be discharged under UCPR r 12.11(1)(e) – Whether service of the Statement of Claim should be taken to have been effected upon each of the Defendants.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Limitation Act 1969 (NSW) Service and Execution of Process Act 1992 (Cth) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Abela v Baadarani [2013] 1 WLR 2043; [2013] UKSC 44 Agricultural & Rural Finance Pty Limited v Kirk & Anor (2011) 82 ACSR 390; [2011] NSWCA 67 Amadeaus Investment Ltd v Dr Lin Kao Kun [2019] HKCFI 797; [2019] HKCU 1186 Aristocrat Technologies Australia Pty Limited & Ors v Re Allam & Ors (2016) 327 ALR 595; [2016] HCA 3 Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 Bagshaw v RTS Super Pty Ltd [2019] WASCA 85 Bank of Swaziland v Hahn [1989] 1 WLR 506 Barclays Bank of Swaziland v Hahn [1989] 1 WLR 506 Barton v Wright Hassall LLP [2018] UKSC 12; [2018] 1 WLR 1119 Battersby v Anglo American Oil Co Limited [1945] KB 23 Bobolas v Waverley Council [2016] [2016] NSWCA 139; (2016) 92 NSWLR 406; NSWCA 139 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79; [1999] WASCA 158 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Choy v Tiaro Coal Ltd (in liq) (2018) 364 ALR 554; [2018] NSWCA 205 Clack v Murray [2017] WASCA 88 Combe v Ziade [2000] NSWSC 848 Dagnell v J L Freedman & Co [1993] 1 WLR 388 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46 Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257 Hunter v Hanson [2014] NSWCA 263 In the matter of Salfa Pty Limited (in liquidation) (ACN 082 308 101) [2014] NSWSC 1493 Kaki v National Private Air Transport Co [2015] EWCA Civ 731 Kleinwort Bensen Ltd v Barbrak Ltd [1987] AC 597 Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188 Nata Lee Ltd v Abid and another [2014] EWCA Civ 1652 Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320 Power v Meloy Whittle 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 [2006] QCA 407; [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] HCA 55; (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

JUDGMENT

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].
6. That this is not an unfair criticism will be demonstrated by the fact that proceedings involving the Plaintiffs and, at least the first Defendant, commenced in April 2017 (“the 2017 proceedings”); that those proceedings were amended, in November 2017, adding, amongst other things, the second Defendant; that a copy of the Statement of Claim, and the amended Statement of Claim, was in the possession of at least their legal adviser, and each of the Defendants, in December 2017; and that fresh proceedings were commenced in March 2018 (“the 2018 proceedings”), the Statement of Claim in respect of which was in the possession of the Defendants’ legal representative and both of the Defendants, shortly thereafter.
7. Even now, over one year having passed since the 2018 proceedings were commenced, no defence has been filed, by either Defendant, to the Statement of Claim in the 2018 proceedings. Furthermore, despite it having been accepted that “delivery” of that Statement of Claim was properly effected upon each of the Defendants, in late October 2018 (subject to discharging an order made by Rein J to which reference will be made), the Defendants have continued to argue about service of the initiating process.
8. In addition, there have been no less than four different occasions that the Court has had to deal with one, or other, aspect of the proceedings, extensively, without, it seems, the proceedings being able to be progressed in any meaningful way. On each such occasion, a significant amount of time has had to be spent, by the Court, dealing with the multitude of repeated issues that the parties’ legal representatives, have raised.
9. In the submissions, each party, at least in part, attributes the blame for the events that have occurred upon the other party. In my view, having considered all of the evidence that has been read in these proceedings, each of the parties, and their legal representatives, bear some of the responsibility for what has occurred and neither can escape censure.
10. The litigation has a long and unsatisfactory history. To date, it has been “another example of wasteful satellite litigation unconcerned with the merits of the underlying claim”: Power v Meloy Whittle Robinson Solicitors [2014] EWCA Civ 898.

The Present Interlocutory Proceedings

11. 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 [e-mail] and [e-mail] 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 [e-mail] and [e-mail] 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.”

12. In support of the Plaintiffs’ notice of motion, the Plaintiffs read four affidavits of Ms Victoria-Jane Otavski, a solicitor in the employ of Horton Rhodes Legal Pty Ltd, the firm of solicitors representing them. Ms Otavski has had the day to day conduct of the matter on their behalf.
13. The affidavits of Ms Otavski were sworn, respectively, on 26 June 2018 (comprising 36 pages, including annexures); on 13 September 2018 (comprising 42 pages, including annexures); on 23 October 2018 (comprising 97 pages, including a bundle of documents accompanying the affidavit marked “VJO-1”); and on 13 May 2019 (comprising 47 pages, including a bundle of documents accompanying the affidavit marked “VJO-2”).
14. (An attempt was also made by counsel for the Plaintiffs to read a number of affidavits of purported service but these were rejected. This would have simply added more paper to the vast amount already required to be read without advancing the issues for determination.)
15. The second notice of motion was one filed by the first Defendant named in the Statement of Claim, Steven Shilkin, initially, on 10 July 2018. An amended notice of motion was filed on 14 November 2018, in which Ashley Shilkin, the second Defendant, was shown as an additional applicant for relief. There were other amendments to the relief sought that were also made.
16. Prior to the hearing, the Court was informed that only Paragraphs 1, 3, and 7 of the Defendants’ notice of motion would need to be determined. Those paragraphs are in the following terms:

“1. Pursuant [to] CPA 63(3) and UCPR 12.11(1)(e) & 36.15, an order discharging that Order made by the Honourable Justice Rein on 26 September 2018 extending the validity for service of the originating process for irregularity, being sought against good faith and for non-disclosure and mis-disclosure on ex parte application, and without adequate foundation.
...
3. Pursuant to UCPR 12.11(1)(c), a declaration that the originating process in these proceedings has not been duly served on the First Named Defendant or the Second Named Defendant, alternatively, pursuant to UCPR 12.11(1)(b) setting aside any service of the originating process.
...
7. Pursuant to Civil Procedure Act 2005 (NSW) Part 7, Division 2 and UCPR 42.5(b), 42.6, 42.8, 42.9 and 42.10 and 12.11(i),4 the Plaintiffs (or, if thought fit the Plaintiffs’ Australian Legal Practitioners of record) do pay forthwith the costs of the First Named Defendant and the Second Named Defendant of and incidental to:
(a) this Application; and
(b) the First Named Defendant’s application to inspect the Court file, including all reserved costs of this proceedings, and all reserved costs of that proceedings Smith & Ors v Shilkin & Ors 2017/119572 which were reserved to this proceeding by the order of Slattery J made 19 October 2018, on an indemnity basis.”

17. (I should mention that it is no great accolade that the legal representatives reduced the amount of relief sought. Much of what was referred to in the evidence relied upon had been previously been raised in one, or other, of the earlier proceedings.)
18. In support of the amended notice of motion, the Defendants read five affidavits of Katja Jane Levy, who described herself as an “Australian Legal Practitioner within the meaning of s 6 of the Legal Profession Uniform Law”. She practices as such, holding a current practice certificate issued by the Legal Practice Board of Western Australia.
19. The five affidavits were respectively sworn on 6 July 2018, 4 September 2018, 11 September 2018, 14 October 2018, and 20 May 2019. These affidavits, including annexures, in total, comprised 215 pages. (They were included, compendiously, in a folder of documents which was used at the hearing for convenience.)
20. In addition, an affidavit of the second Defendant, Ashley Shilkin, sworn 25 October 2018, was also read. That affidavit, with annexures, comprised 16 pages. There were also two exhibits to this affidavit (tendered and marked Ex. NM1) each comprising 99 pages. He stated that he had sworn the affidavit in support of the notice of motion filed on 10 July 2018 “without otherwise submitting to jurisdiction” (at par 2).
21. A reason for identifying the notices of motion, the number, the length, and the dates of the affidavits, is to depict the amount of time that has been spent by the parties in preparing the notices of motion, to provide a reference to the costs they must have already incurred, as well as to demonstrate the time that has been devoted, by the Court, to reach this point in the proceedings. As stated earlier, even now, the substantive proceedings have not progressed in any material way, despite the fact that the events giving rise to the Plaintiffs’ claims are said to have occurred between 2008 and 2016.
22. Even though counsel for Steven Shilkin and Ashley Shilkin did not wish the Court to address them as “the Defendants”, I shall refer to them as the first Defendant and the second Defendant, respectively, and where necessary, to them jointly, as “the Defendants”. Counsel also maintained that the receipt by each of the Defendants, in late October 2018, should not be described as “service” upon the Defendants. Perhaps, this, too, demonstrates, the pedantic approach adopted by, or on behalf of, the Defendants, when it is abundantly clear that each of them has been served, personally, with the Statement of Claim in the 2018 proceedings. Even now, 8 months later, neither of the Defendants has filed an Appearance.
23. Finally, before moving on, it is necessary to note that it is not possible for the Court to determine the question of costs of the notices of motion in these reasons, as counsel for the Defendants said that there may be “without prejudice communications” that are relevant to the issue of costs: Tcpt, 12 June 2019, p 104(27-45). Of course, the argument on costs is likely to involve further costs, and further court time, but, regrettably, the Court has no alternative but to allow any argument on costs to be properly ventilated at a later time.

Procedural and events chronology

24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
29. (In the affidavit of the second named Defendant that was read in the present applications, to the extent that it is relevant to the 2017 proceedings, he denied any liability to the Plaintiffs. I shall treat his assertions, also, as assertions that have not been tested or determined.)
30. At the relevant times, in 2017, the Plaintiffs were resident in New South Wales, the first Defendant was a resident of Western Australia, and the second Defendant, was a resident of Los Angeles, California.
31. On 19 October 2017, the then solicitors for the Plaintiffs filed a notice of motion seeking an extension of the time for service of the Statement of Claim in the 2017 proceedings.
32. On 26 October 2017, Registrar Walton made an ex parte order, nunc pro tunc, extending the time for service of the Statement of Claim, or of an amended Statement of Claim, from 21 October 2017 until 22 December 2017.
33. At the hearing of the Plaintiffs’ notice of motion, the Registrar was informed, by then counsel for the Plaintiffs, that new solicitors, acting for the Plaintiffs, had “decided that the proceedings in fact need to be amended to include ... two new parties, one of which [sic] is the son of the current defendant. So...the current pleading[s] are now with senior counsel in the process of amending the claim”: Exhibit “B” accompanying the Affidavit of Ashley Shilkin, 25 October 2018, exhibiting Tcpt, 26 October 2017, p 2(25-36).
34. In explaining the delay in serving the Statement of Claim, counsel also informed the Registrar, that there were “problems with obtaining the file, the problems with the new solicitor, the problems with amending the matter, and the problems with actually determining what had actually happened with the file and whether the proceedings had been served that’s caused the delay...”: Exhibit “B” accompanying the Affidavit of Ashley Shilkin, sworn 25 October 2018, exhibiting Tcpt, 26 October 2017, p 2(41-45).
35. On 17 November 2017, the Plaintiffs filed an amended Statement of Claim.
36. On 27 November 2017, Ms Levy, the solicitor acting for the second Defendant, sent a letter to the Plaintiffs’ solicitors (Ex. NM1/1) stating:

“I act for Mr Ashley Shilkin and have to hand a copy of the Amended Statement of Claim filed by your clients. I have instructions to accept service of the Originating Process in the [2017 Proceedings] and trust that you will timely provide me with a copy of all documents and correspondence you have had with the court.”

37. On 28 November 2017, the Plaintiff’s solicitors responded (Ex. NM1/4) as follows:

“I confirm we will cease any personal service on Ashley Shilkin noting your office has accepted service on his behalf...”

38. In email correspondence of 6 December 2017, the second Defendant’s solicitor confirmed that she had a copy of “an amended statement of claim, but not the original statement of claim”: Ex. NM1/6.
39. On 6 December 2017, there followed a chain of email correspondence between the legal representatives for the parties which I shall not repeat (Ex. NMB/13). In broad terms, the Defendants’ solicitor required the Plaintiffs’ solicitor to provide a copy of the Statement of Claim as well as the amended Statement of Claim. For her part, the Plaintiffs’ solicitor tried to clarify whether the Defendants’ solicitors had instructions to accept service.
40. Furthermore, on 6 December 2017, the Defendants’ solicitor wrote to the Plaintiffs’ solicitor setting out, in detail, the basis for the contention of absent, defective, and ineffective, purported service, and, further, inviting the Plaintiffs to withdraw threats made of default, or summary judgment and freezing orders, without notice. This letter (Ex. NMB/14) went on to state:

“We are also in receipt of instructions to act for Mr Steven Shilkin in respect of the defects of your client’s originating process, the absence of any service thereof, and the defects in the purported amendments thereof, and your foreshadowed summary of default judgement [sic] application.”

41. On 7 December 2017, there was another chain of email correspondence passing between the solicitors (Ex. NMB15-16) that is not necessary to repeat. Remarkably, in a letter of this date, the Defendants’ solicitor stated that “you have not, and will not, provide us with any (purportedly) amended statement of claim”.
42. In a letter dated 13 December 2017, from Ms Levy to the Plaintiffs’ former solicitors, it was acknowledged that “[W]e have obtained an unauthenticated and evidently incomplete copy of a document purporting to be an ‘Amended Statement of Claim’.”
43. According to the evidence of the second Defendant, read in these proceedings, Ms Levy, his solicitor, on about 14 December 2017, sent to him, a copy of the Statement of Claim, filed in the 2017 proceedings, “which appeared to bear a stamp of the Supreme Court of NSW and the date 21 April 2017 and the Court number ...” even though he was not a named party, and no relief had been sought against him, in the 2017 Statement of Claim. The second Defendant, in his affidavit, does not suggest that the document he had received was an incomplete copy of the amended Statement of Claim. (This statement clearly demonstrates that, by that date, Ms Levy must have had a copy of the Statement of Claim filed in the 2017 proceedings.)
44. Although the second Defendant, in his affidavit, does not expressly state that he was provided with a copy of the amended Statement of Claim filed in the 2017 proceedings, I am satisfied that he must have been provided with a copy of that document, as he refers to it in his affidavit. I am also satisfied that he must have received a copy of the amended Statement of Claim by on, or about, 22 December 2017, as he says that he gave instructions to his solicitor, on or about that date, to file and serve an application pursuant to UCPR r 12.11, which was to include seeking “a declaration that a document titled ‘Amended Statement of Claim’ was not an amended Statement of Claim in the 2017 Proceedings...”.
45. Although there was no affidavit of the first Defendant dealing with when he received a copy of the Statement of Claim and the amended Statement of Claim in the 2017 proceedings, and Ms Levy says nothing about it, I consider it more likely than not that he had been provided with a copy of both the Statement of Claim and the amended Statement of Claim, in the 2017 proceedings, earlier than 22 December 2017. In any event, during the course of the hearing, it was accepted that the second Defendant had been provided with the amended Statement of Claim, in the 2017 proceedings, as had the first Defendant, in December 2017: Tcpt, 12 June 2019, p 99(11-23). (The reference to “the Plaintiffs” at p 99(19) should be a reference to “the Defendants”.)
46. Pausing there, the provision of the Statement of Claim and the amended Statement of Claim in the 2017 proceedings is relevant, in my view, as there was no dispute that the contents of the amended Statement of Claim filed in the 2017 proceedings were effectively, in the same terms as the Statement of Claim in the 2018 proceedings. However, as will be made even clearer, this Court is now concerned with the 2018 proceedings and not the 2017 proceedings.
47. At no time, has either Defendant filed an Appearance in relation to the 2017 proceedings.
48. On 14 December 2017, the Plaintiffs filed a notice of motion for deemed service, or substituted service, of the amended Statement of Claim on the Defendants: Tcpt, 12 June 2019, p 99(25-41).
49. Correspondence between the solicitors for each of the parties followed, and then, on 22 December 2017, the Defendants named in the amended Statement of Claim, filed a notice of motion seeking declarations pursuant to Uniform Civil Procedure Rules (“UCPR”) r 12.11 (which permits a party served with process outside the jurisdiction to apply to the Court for a range of orders, including an order setting aside the originating process and a stay, or dismissal, of the proceedings).
50. Importantly, UCPR r 12.11(3) permitted such an application to be made without the defendant party being required to enter an appearance, so long as the notice of motion seeking the relevant relief was filed within the time that would otherwise apply in relation to the entry of an appearance. UCPR r 12.11(4) provided that the making of an application for an order under r 12.11(1) does not constitute submission to the jurisdiction of the court. Of course, both of the Defendants were outside the jurisdiction.
51. On 30 January 2018, Registrar Walton listed Paragraphs 1 and 2 of the Plaintiffs’ notice of motion, filed 14 December 2017, and the Defendants’ notice of motion, filed on 22 December 2017 (said to have been filed on 18 December 2017), before me on 26 April 2018, with an estimated duration of 1 day. The Registrar also made directions for the exchange of affidavits, written submissions, and the delivery of a Court Book.
52. In addition, the Registrar made an order granting leave to the Defendants “to inspect the Court file until further order, including by his [sic] solicitor, Ms K Levy, including by accessing the Court’s electronic portal, in all respects as if the First Named Defendant and the Second Named Defendant were [sic] each a party to these proceedings”.
53. On 5 March 2018, the Plaintiffs commenced the 2018 proceedings by filing a Statement of Claim, in which they made similar, if not identical, claims against both Defendants. I shall not repeat the allegations made in the Statement of Claim filed in the 2018 proceedings, since the broad assertions have been set out above (in relation to the 2017 proceedings), and, as earlier pointed out, they have not been tested or determined.
54. At this point, it suffices to say that there is a real likelihood that, at least, many of the material facts asserted by the Plaintiffs in the 2018 proceedings will be disputed, and that some of the causes of action pleaded are said to be statute-barred. There are other matters, relating to the form of the Statement of Claim, that were raised, in argument, by the Defendants which need not be referred to.
55. Counsel for the Defendants persisted, during submissions, with the proposition that the form, and content, of the Statement of Claim in the 2018 proceedings, was relevant to the determination of the Defendants’ notice of motion to which I have referred. This was despite the Court informing him, more than once, that it was not possible, at the hearing, to form any concluded view about the merits of the Plaintiffs’ claims, or about the denials that had been made, or that might be made, by the second Defendant.
56. As in respect of the 2017 proceedings, the assertions in the 2018 Statement of Claim, are to be treated as merely assertions of material facts, in respect of which no defence has yet been filed by either Defendant, and in respect of which no hearing has yet occurred. Similarly, I shall treat the denials in the affidavit of the second named Defendant that was read in the present applications, as assertions of fact that have not been tested or determined. (How the first Defendant might respond to the 2018 Statement of Claim is not known.)
57. (The Defendants, by counsel, contended, initially, that 40.8 per cent (equating to $770,000) of the Plaintiffs’ claims are statute barred. Later, on 23 October 2018, they contended that that 47.5 per cent (equating to $896,000) was statute barred. That, of course, even if proved to be correct, would still leave about $900,000, or thereabouts, in dispute: Tcpt, 12 June 2019, p 101(45) – p 102(7). On 10 June 2019, they contended that 56 per cent ($1,057,000) of the Plaintiffs’ claims, by value, was statute barred: Ex. NMB/90. That, of course, even if proved to be correct, would still leave about $750,000, or thereabouts, in dispute.)
58. In an email sent on 8 March 2018, the Plaintiffs’ solicitors informed Ms Levy, “by way of courtesy”, that the Plaintiffs had “filed a fresh Statement of Claim... in identical terms as the amended Statement of Claim” in the 2017 proceedings. A copy of the Statement of Claim that had been filed in the 2018 proceedings was attached to this email: Ex. NMB/25.
59. In the email (which was sent by the Plaintiffs’ former solicitors), it was said that “[W]e do not propose serving the fresh 2018 Statement of Claim upon the Defendants at this stage.” The reason stated for not doing so was “in order to preserve any limitation periods in our client’s favour, to any extent necessary, in case our clients’ notice of motion [in the 2017 proceedings] is unsuccessful, and/or your clients’ notice of motion [in the 2017 proceedings] is successful...”. It was pointed out that the matter was listed before the Registrar on 9 April 2018, at which time, the Court would be asked “to stand the matter over until after the determination of the parties’ respective notices of motion [in the 2017 proceedings] (listed for hearing on 26 April 2018)”.
60. Following the receipt of a copy of the Statement of Claim filed in the 2018 proceedings, the Defendants’ solicitor wrote to the Plaintiffs’ solicitor stating:

“We do not have instructions to accept service of the 2018 Proceedings and do not accept that your communicating with us constitutes service...The institution of contemporaneous proceedings for identical relief, or relief on the same grounds is abusive. Your clients are squarely, on their own admissions, in that circumstance. The proper response to an abusive proceeding is, at least, a stay. The [2018] Proceeding plaintiffs do not offer a stay and, indeed the use to which the [2018] Proceedings may be put is carefully reserved."

61. Ms Levy also maintained that “...we have a limited retainer with respect to [the 2017 proceedings]. To say as you do that we ‘act for Steve Shilkin and Ashley Shilkin in the 2017 case’ is false.”
62. On 5 April 2018, the Plaintiffs’ solicitor sent an email to the Defendants’ solicitor stating:

“The plaintiffs agree that the 2018 proceeding should be stayed pending determination of the parties’ respective notices of motion in the 2017 proceeding.”

63. The Plaintiffs’ solicitor pointed out that as “the Defendants have not been served, we do not need their consent for any orders in the 2018 proceedings”. However, the orders to be sought were provided “by way of courtesy”.
64. On 6 April 2018, an email was sent to the Court addressed to the Equity Registrar (with a copy sent to Ms Levy) in the following terms:

“Dear Registrar
We act for the Plaintiffs in this matter.
This matter is listed for directions on Monday 9 April 2018.
The Statement of Claim has not been served on the Defendants, but has been sent to their solicitor by way of courtesy. We have copied in their solicitor, by way of courtesy.
This 2018 proceeding makes the same claims as made in case number 2017/00119572 (2017 case), and without admissions, was filed to protect the plaintiffs from any limitations act [sic] arguments.
The parties agree that the appropriate course is for this 2018 proceeding to be stayed until the parties’ notices of motion in the 2017 case have been determined by Hallen J.
Accordingly please see attached short minutes of order which stay this 2018 matter until 25 May 2018.
Please let us know if the Orders are suitable to the Court.”

65. Shortly thereafter, also on 6 April 2018, Senior Deputy Registrar Hedge responded (with a copy sent to Ms Levy) in the following terms:

“Dear parties
Not prepared to ‘stay’ on an email and with no consent orders (which if not yet served, not possible).
However will note that not served and will grant one adjournment until Thurs 24 May 2018 (do not sit on a Friday) - (and noting that advised claims also in pending matter 17/119572)
It may well be that there will need to be an appearance and motion/affidavit if actual stay order is to be sought etc.
Matter is still in the list on 9 April but NO appearance will be required and will be adjourned to 24 May.”

66. (A copy of the two emails of 6 April 2018, were tendered, without objection, as Ex. NMA. However, they also formed part of Ex. NM1, being the exhibit to the second Defendant’s affidavit.)
67. (It is to be noted that in Battersby v Anglo American Oil Co Limited [1945] KB 23, at 32, Lord Goddard wrote that it was for the Court, and not for one of the litigants, to decide whether there should be a stay. The statement was made in the passage that was cited, with approval, in Kleinwort Bensen Ltd v Barbrak Ltd [1987] AC 597; by Lord Browne-Wilkinson in Dagnell v J L Freedman & Co [1993] 1 WLR 388; and by Ipp JA in Arthur Anderson Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104, at [81].)
68. At the recent hearing before me, it was accepted that the first Defendant had been provided with a copy of the Statement of Claim filed in the 2018 proceedings in late March 2018: Tcpt, 12 June 2019, p 101(15-16). The second Defendant, in his affidavit, did not refer to having been provided with a copy of the Statement of Claim filed in the 2018 proceedings in late March 2018, or at all. However, I consider it more probable than not, that having provided a copy to the first Defendant, Ms Levy would also have provided the second Defendant with a copy of that document in March 2018.
69. Despite the 2018 proceedings having been commenced, the Defendants’ notice of motion, which, of course, had been filed in respect of the 2017 proceedings, came on for hearing, before me, on 26 April 2018. The Court Book relied upon comprised some 244 pages: Tcpt, 26 April 2018, p 4(26-29). The transcript of the hearing on that day spanned 68 pages.
70. At the hearing on 26 April 2018, all parties appeared by lawyers (the Plaintiffs, then, by different counsel). Part way through the hearing, it became clear that the matter would not be completed within the time allotted, so various interlocutory directions, and notations, were made, in relation to the 2017 proceedings. The interlocutory proceedings filed in the 2017 proceedings were then listed, for hearing, before me, on 31 October 2018, with an estimated duration of 2 further days.
71. The fact that the 2018 proceedings had been commenced was raised by the Court, during the hearing on 26 April 2018. Without demur from counsel for the Defendants, counsel then appearing for the Plaintiffs stated, at Tcpt, 26 April 2018, p 16(25-33), that:

“They've been stayed by consent, as I understand it, your Honour, pending a determination as to the fate of these proceedings. But can I just confirm that. My solicitor nods and tells me that's what's happened. So they were filed I think March, and a precautionary measure against obviously the outcome of this suit. But we couldn't press both. We couldn't press both, your Honour.”

72. It was clear from what was said by counsel for the Plaintiffs, then, that the Plaintiffs appreciated that they could not continue with the two proceedings concurrently.
73. During the course of the hearing, I said, at Tcpt, 26 April 2018, p 12(27-34):

“...I have to say that the amount of paper in these two cases on both sides really defies belief. It seems clear that the defendants are well aware of the proceedings and you'd both be aware of the Court's power in s 14 to dispense with the rules. I have to say that a year has passed; you haven't got anywhere on both sides. You're both making arguments which really, at the end of the day, are not of great benefit to everyone because I doubt very much that from the plaintiffs' point of view, if you win these arguments, it's just going to continue and start all over again.”

74. And, at Tcpt, 26 April 2018, p 17(42-45):

“...as of today, does your side have instructions to accept service of any documents?
DOUGLAS: I don't have those instructions today.”

75. The solicitors who filed the Statement of Claim in the 2018 proceedings were the Plaintiffs’ former solicitors, Yates Beaggi Lawyers. On 16 May 2018, the current solicitors filed a Notice of Change of Solicitor in the proceedings. (The Notice of Change of Solicitor, itself, was not read in the proceedings.) A copy of the Notice was provided to Ms Levy and receipt thereof was acknowledged by her in an email dated 7 May 2018: Ex. NM1/40. The Plaintiffs’ current solicitors replaced their previous solicitors, Yates Beaggi.
76. Notwithstanding what had been told to the Court on 26 April 2018, regarding the consensual stay of the 2018 proceedings, the Plaintiffs, on 17 June 2018, purported to personally serve the Statement of Claim in the 2018 proceedings on the first Defendant in Western Australia. (A copy of the affidavit of service, which, itself, was not, separately, read in these proceedings, is annexed to Ms Otavski’s affidavit sworn 26 June 2018.)
77. On 14 June 2018, the Plaintiffs’ solicitor wrote to the Defendants’ solicitor noting that a copy of the Statement of Claim in the 2018 proceedings had been provided to her; advising that the 2018 proceedings were listed for a directions hearing on 20 June 2018; and asking whether the solicitor was authorised to accept service of the 2018 Statement of Claim on behalf of each of the Defendants. The letter also included the terms upon which the Plaintiffs proposed that the 2018 proceedings could continue “in the event that you are authorised to accept service of the Statement of Claim on behalf of each of the [D]efendants”. In the event that the solicitor was not authorised to accept service, an application for substituted service was threatened.
78. On 18 June 2018, Ms Otavksi wrote to Ms Levy confirming that the first Defendant had been personally served with the Statement of Claim in the 2018 proceedings and again asked whether Ms Levy had instructions to accept service on behalf of the second Defendant.
79. By a 5-page letter, dated 18 June 2018, to the Plaintiffs’ solicitor, Ms Levy referred to the status of the 2018 proceedings, stating that these proceedings were “an abuse of process and should be immediately dismissed or stayed”. The letter went on to note that “we do not hold instructions to accept service for, nor otherwise act for, Mr S Shilkin, in the [2018] proceedings”... we do not hold instructions to accept service for, or otherwise act for, Mr A Shilkin in the [2018] proceedings”. Despite this, Ms Levy noted that she had “not been provided with a copy of any notice of change of solicitors” in the 2018 proceedings, and that she was “unable to inspect the Court file without leave”.
80. On 20 June 2018, there was also an attempt to serve the second Defendant, in Western Australia. (It was not disputed that notice had been given to the Plaintiffs’ former solicitors that the second Defendant then resided in the United States of America. Counsel for the Plaintiffs acknowledged this to be so: Tcpt, 12 June 2019, p 112(25-30).)
81. Between 19 and 22 June 2018, there were various attempts made to serve the Statement of Claim in the 2018 proceedings on the second Defendant in Western Australia, despite the fact that the Plaintiffs ought to have been aware, since at least mid-March 2018, that he resided in California.
82. (It was accepted by the Plaintiffs that their former solicitors had learned that the second Defendant may be living in Los Angeles, California and that attempts had been made to serve the 2017 amended Statement of Claim there. Indeed, on 13 March 2018, Ms Levy had provided “a new address for” the second Defendant: Affidavit, Katja Jane Levy, 14 October 2018, which annexed Affidavit of Danielle Gleeson, 5 April 2018 at par 21, in the 2017 proceedings (which affidavit, itself, was not separately read in these proceedings).)
83. However, what had been stated appeared to the Plaintiffs to be inconsistent with a copy of an ASIC Organisation Extract for a company identified as Change Financial Limited, extracted on 19 June 2018, which revealed that the second Defendant was a director and that his address was “xx Nicholson Road, Subiaco WA”: Affidavit, Victoria-Jane Otavski, 26 June 2018 at par 22.
84. By letter dated 22 June 2018, Ms Levy, again, confirmed that she continued to act for the first and second Defendants as applicants under UCPR r 12.11 in relation to the 2017 proceedings. She then confirmed that she “now hold[s] limited instructions to act for the first [D]efendant” in the 2018 proceedings “as a UCPR r 12.11 applicant”. Ms Levy confirmed that she did “not hold instructions to accept service of any process” in the 2018 proceedings “on behalf of the second Defendant”. Ms Levy also stated that the grounds of the r 12.11 application “will include (i) that the proceedings is an abuse of process...and (ii) a failure to comply with mandatory s 16 of the Service and Execution of Process Act 1992 ... in purportedly serving a person in Western Australia with an initiating process originating in New South Wales”. The letter went on to state “We do not hold instructions to accept service of any process in the [2018] Proceedings on behalf of the second [D]efendant”. She also noted “evident defects in the purported SEPA notice [which] substantially mirror those in notices relied upon by the plaintiffs” in the 2017 proceedings.
85. Also on 22 June 2018, the Defendants’ solicitor provided the Plaintiffs’ solicitor with case authority to the effect that it was an abuse to commence, or maintain, two, or more, proceedings which raise the same issues: Combe v Ziade [2000] NSWSC 848, a decision of Simpson J (as her Honour then was). (Exhibit NMB/33 incorrectly states the date on which the email was sent as 11 June 2018.)
86. On 26 June 2018, the Plaintiffs filed, in the 2018 proceedings, a notice of motion for substituted service of the Statement of Claim. (The notice of motion, itself, was not read in the matters before me on 11 and 12 June 2019, but is annexed to Affidavit of Katja Jane Levy, 14 October 2018, at p 146 – 149).)
87. On 27 June 2018, by letter, the Defendants’ solicitor requested the Plaintiffs to stay the 2018 proceedings. The Plaintiffs, in response, it appears, continued their attempts, as set out above, to serve each of the Defendants.
88. At the hearing before me, the Defendants’ counsel maintained that there was an abuse of process and that this matter should be considered as important in the determination of the notices of motion. However, he did not point to any correspondence in which the Plaintiffs’ solicitor had actually stated that they wished to prosecute both proceedings at the same time.
89. Earlier, I have referred to the Plaintiffs’ ex parte application for substituted service of the Statement of Claim in the 2018 proceedings upon the named Defendants, without notice to either. On 3 July 2018, Registrar Chetty dismissed the Plaintiffs’ notice of motion for substituted service. The learned Registrar noted:

“The application for substituted service has been refused.
If the person is neither within Australia, nor otherwise able to be served in accordance with Part 11 of the UCPR, at the time the proceedings are commenced, an order may not be made for substituted service.”

90. (Although counsel for the Plaintiffs submitted at this hearing that the Registrar’s decision was wrong, no review of that decision had been sought.)
91. On 10 July 2018, the first Defendant, in the 2018 proceedings, prompted by the events to which reference has been made, filed a notice of motion in which he sought a declaration under UCPR, r 12.11(1)(c) that the Statement of Claim, filed in the 2018 proceedings, “has [not] been duly served on the First Named Defendant” (that the word “not” was not included was, presumably, a typographical error) an order that the Statement of Claim in the 2018 proceedings be set aside as an abuse of process, or that the 2018 proceedings be permanently stayed, an order that leave be granted for the first Defendant to inspect the Court file, and an order that the costs of and relating to the motion be paid by the Plaintiff, or their legal practitioner. (Again, the notice of motion filed 10 July 2018 was not formally read, but a copy of it appears as an annexure to the Affidavit of Victoria-Jane Otavski, 23 October 2018 at p 35 – 38).
92. The basis of the first Defendant’s application was that the substance of the allegations in the 2018 proceedings had substantially replicated the substance of the allegations in the 2017 proceedings and that for the Plaintiffs to pursue both proceedings, against the same named Defendants, would be an abuse of process.
93. (At the time of the filing of the notice of motion of July 2018, service of the initiating process in the 2018 proceedings had not been effected on the second Defendant. However, it appears that the Plaintiffs were asserting that he had been served. This is a matter to which reference will later be made.)
94. The Plaintiffs contended that, on 13 August 2018, the second Defendant had been personally served with the Statement of Claim in the 2018 proceedings at xx Bronson Avenue, Los Angeles, in California. Leaving aside whether that occurred or not (there being a real dispute about it), the cover sheet used was as required by the Service and Execution of Process Act rather than as required for service outside of Australia by Form 161 of the UCPR.
95. As the Statement of Claim in the 2018 proceedings had been filed on 5 March 2018, it was required to be served upon each of the Defendants by 5 September 2018. There was no dispute that proper service of the Statement of Claim had not been effected prior to that date.
96. The first Defendant’s notice of motion, in relation to the 2018 proceedings, was listed, for directions, before Parker J on 21 August 2018, in the Applications List. Both lawyers, who appeared by telephone link, estimated the duration of the hearing as “2 hours or less”. On any view, this was a gross underestimate.
97. Mr Douglas informed the Court (Parker J) that:

“It is an application brought by the putative defendant under UCPR r 12.11 on two grounds. The first one is that the proceeding is entirely duplicative or alternatively overwhelmingly duplicative with an existing proceeding that has been brought in this Court. At the same time there is a dispute between the parties as to an amendment made or not made that would make it identical. There is no dispute that if it is identical it is an abuse of process.
The second issue is that service was effected without notice and therefore it is invalid.”

98. His Honour listed the notice of motion, for hearing, on 19 October 2018.
99. On 14 September 2018, four days before written submissions in the 2017 proceedings were due, in relation to the hearing listed before me in October 2018, the Plaintiffs’ solicitor proposed that the Plaintiffs would consent to the dismissal of the 2017 proceedings on the condition that both Defendants instructed Ms Levy, their solicitor, to accept service of the 2018 proceedings, with no order as to costs.
100. On 17 September 2018, the Defendants’ solicitor wrote a 6-page letter to the Plaintiffs’ solicitor, inter alia, advising that the proper course was to unbundle the costs question and for the Plaintiffs to consent to the Defendants’ application for relief under UCPR 12.11 and once done, move to discontinue the 2017 proceedings, at their leisure, without troubling the Defendants.
101. On 20 September 2018, Ms Otavski appeared before Registrar Walton in respect of a notice of motion, filed on 17 September 2018, on behalf of the Plaintiffs, in which orders for the extension of time within which to serve the Statement of Claim in the 2018 proceedings were sought.
102. At the date of the hearing before Registrar Walton, the Plaintiffs were about two weeks late in serving the Statement of Claim (which should have been served by 5 September 2018). This was the first, and the only, application for such relief that was made by the Plaintiffs in relation to the 2018 proceedings (although, of course, a similar application had been made in the 2017 proceedings.)
103. Registrar Walton made the following note and orders (as it is recorded in the Court's computerised court record system):

“THE COURT ORDERS:
1. NOTE: Motion not served on the defendant.
2. I (Registrar Walton) am of the view that in light of the listing before Justice Slattery, the motion should be served. I therefore refuse to deal with the Motion.
3. Plaintiff to [notify] the Defendant of the listing.”

104. The transcript reveals, that several times during the hearing before her, the Registrar referred to the possibility of the Plaintiffs approaching the Duty Judge if they were dissatisfied with what she proposed to do.
105. In fact, as will be read, about one week later, counsel for the Plaintiffs appeared before Rein J in the Duty Judge List. It will be necessary to return to the hearing before Rein J and his Honour’s order as this is the subject of the Defendants’ application.
106. The application before Rein J was the only occasion on which the Plaintiffs sought an order under UCPR r 1.12 on an ex parte basis for an extension of time for the service of the Statement of Claim in the 2018 proceedings.
107. (Although there was some debate, during submissions before me, about what was to be notified to the Defendants, having read the transcript of the proceedings before her, I am satisfied that the Registrar was referring to the Plaintiffs’ application for an extension of time to serve the Statement of Claim in the 2018 proceedings. Since the Registrar had stood it over to the hearing, on 19 October 2018, before Slattery J, she obviously wished the Defendants’ solicitor to be informed that this is what had occurred (unless the Plaintiffs approached the Duty Judge).)
108. Even if the learned Registrar meant that the Defendants’ solicitor should be informed when the notice of motion was to be heard, on the basis of Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320, the Defendants were not entitled to appear on the hearing of the Plaintiffs’ notice of motion for the extension of the time for service of the Statement of Claim in the 2018 proceedings.
109. On 10 October 2018, on 12 October 2018, and again, on 15 October 2018, service of the Statement of Claim in the 2018 proceedings was attempted on the first Defendant in Western Australia. (The first Defendant contended that at this time he was in hospital.)
110. The Defendants’ notice of motion, referred to earlier, which had been listed by Parker J, came on for hearing, on 19 October 2018, before Slattery J, in the Applications List. I shall return to what occurred before his Honour later in these reasons.
111. On 22 October 2018, the first Defendant received, by delivery to him, a copy of the Notice of Change of Solicitor filed 16 May 2018 in the 2018 proceedings, a copy of the Statement of Claim, filed in the 2018 proceedings, and a Notice to first Defendant under the Service and Execution of Process Act 1992. At this time, he accepted “delivery” of the Statement of Claim in the 2018 proceedings in Western Australia.
112. On 24 October 2018, the second Defendant received, by delivery to him, a copy of the Notice of Change of Solicitor filed 16 May 2018 in the 2018 proceedings; a copy of the Statement of Claim, filed in the 2018 proceedings; a Notice to second Defendant in the form of Form 161 headed “Service outside the Jurisdiction”. The delivery of these documents, in the 2018 proceedings, to him was achieved because he had agreed to make himself available at a time, and place, in Los Angeles, that he agreed to attend for that purpose.
113. In his affidavit, the second Defendant stated:

“...I told my solicitors that they should tell the plaintiffs that I accept that the Statement of Claim in the 2018 Proceedings had now, for the first time, been delivered to me together with the required notice...”

114. Despite all of the above, at the hearing of their notice of motion, before me, counsel for the Defendants, continued to maintain that “proper service” had not been effected on either of the Defendants. As I understood what was submitted, this was because “such delivery will not be service if the Order [sic] of Rein J, to extend the time for service is [discharged], because the claim will be out of time...”: see affidavit of Ashley Shilkin, 25 October 2018 at par 32(a).
115. (The same point had been made in a letter dated 24 October 2018 from the Defendants’ solicitor to the Plaintiffs’ solicitor in the following terms:

“...
7. The foregoing is subject to this qualification: the originating process in the [2018] Proceedings was served pursuant to an ex parte extension of time.
8. Each named defendant retains his right to apply to set aside an ex parte order by way of inter partes hearing de novo pursuant to UCPR 12.11...
...
10. Each named defendant is concerned that the 23 October Motion seeks:

(a) unnecessary and inconsistent declarations and deeming orders without foundation in law or fact...;
(b) to re-open a point which was directly before Slattery J on 19 October 2018 as to whether Mr S Shilkin was ever served. That question was resolved by an admission in open Court, in lieu of the otherwise inevitable declaration sought;
(c) to assert, for the first time, an alleged service or delivery of the originating process to Mr A Shilkin on 13 August 2018, in the face of repeated admissions by your clients that Mr A Shilkin had not been served...
(d) declarations and orders which, necessarily, call into question each of their honesty and candour, and which may therefore bear on their credibility on contested issues in the [2018] Proceedings...;
(e) prematurely and impermissibly, interlocutory and ex parte declarations, contrary to law.
(f) to re-open whether the [2017] and [2018] Proceedings were duplicative and abusive, a matter which was resolved, conclusively, by the hearing giving rise to Slattery J’s order.

11. Each named defendant observes that, in light of the personal delivery of the originating process in the [2018 Proceedings] for the first time (a matter which each recognises), the [plaintiffs’ motion of 23 October 2018 seeking a declaration of valid service] is unnecessary.
12. They are therefore concerned that the 23 October Motion, inadvertently or advertently serves some collateral purpose, including an unwarranted, ex parte attack on credibility under the guise of (unnecessary) service orders...
13. If the named defendants have been validly served, the relief sought is unnecessary. If they have not been validly served, the relief sought is ex parte, the declarations are unavailable and the balance of the relief sought is interim, and reviewable de novo and inter partes. This will just multiply interlocutory hearings...” (The footnotes and italics used in original document have been omitted.)

116. In accordance with the orders made by Slattery J, and as has been referred to earlier, the Plaintiffs served a notice of motion on 23 October 2018, seeking orders for substituted, or informal, service, with the notice of motion to be listed, before me, for hearing on 31 October 2018.
117. In an email dated 26 October 2018, from Ms Levy, notice was given that Ms Levy “now hold[s] instructions to apply to set aside Rein J’s order. I attach an amended Notice of Motion which effects those instructions”.
118. On 31 October 2018, as anticipated by Slattery J, the matter came before me. Due to other Court commitments, and as I had earlier been informed that it would not be necessary to deal with the notice of motion relating to the 2017 proceedings that had been listed in April 2018, I was unable to deal with the Plaintiffs’ then recently filed notice of motion.
119. I referred the proceedings to the Registrar, noting that “there are continuing disputes relating to service of the Statement of Claim”.
120. On 9 November 2018, Registrar Walton listed the two notices of motion, to which I have referred, before me for two days. The Registrar made the following orders and directions (as recorded in the Court's computerised court record system):

“ 1. The UCPR 12.11 applicants (being the persons named as defendants in this proceedings) have leave to amend and file their motion originally dated 10 July 2018, in the terms attached hereto.
2. The relief sought by paragraphs 1, 3 and 7 only of that amended motion referred to in paragraph 1 above and whole of the plaintiff’s notice of motion filed 23 October 2018 (together, Motions) be listed for hearing together on with an estimate of 2 days.
3. Not later than 28 days prior to the hearing, each litigant file and serve any further evidence in relation to any of the Motions, including any evidence by any litigant as to whether on rehearing any new order should be made to extend time to serve the originating process.”
4. Not later than 21 days prior to the hearing, each litigant to file and serve any evidence in reply.
5. Not later than 14 days prior to the hearing, each litigant to file and serve any written submissions in support of any Motion.
6. Not later than 7 days prior to the hearing, each litigant to file and serve any written submissions in concession or opposition to any Motion.
7. The motions are listed for hearing on 11 & 12 June 2019 before Justice Hallen for 2 days.
8. The Court makes the usual order for hearing.
9. The Court makes the usual time directions.
10. Costs reserved.”

121. On 14 November 2018, the named Defendants filed an amended notice of motion to which reference has been made and which the Court has now had to deal.
122. Upon being informed that the matter was before me, my Associate, at my request, listed the matter for a pre-trial directions hearing, on 6 May 2019, on which date I made additional directions for the preparation of the hearing. The directions made were complied with.
123. At no time has either Defendant filed an Appearance in relation to the 2018 proceedings.

The application before Rein J

124. 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.
125. 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”.
126. 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.”

127. His Honour then made the following orders (as recorded in the Court's computerised court record system):

“VERDICT ORDER OR DIRECTION:
1. Orders made in accordance with the Short Minutes of Order initialled by his Honour, dated with today’s date and placed with the papers (ex tempore reasons given):
(1) 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 5 December 2018.
(2) Costs reserved.”

128. No submission has been made that Rein J failed to give adequate reasons for making the orders that his Honour did.

The application before Slattery J

129. 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.
130. 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.)
131. 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.
132. 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.”

133. His Honour then made the following orders, at [36]:

“1. Order that proceedings 2017/119572 (‘the 2017 proceedings’) be permanently stayed.
2. Note the plaintiffs in the 2018 proceedings admit that service of process in those proceedings has not taken place on Steven Andrew Shilkin.
3. The plaintiffs are to file by 4pm on 23 October 2018 any notice of motion (‘the proposed motion’) seeking orders for substituted or informal service and related orders in proceedings 2018/71614 (‘the 2018 proceedings’) together with any evidence upon which they wish to rely in support of the proposed motion.
4. Order that any application for costs in the 2017 proceedings for matters and events occurring up to the date of this stay order, will be determined in accordance with order 10 below.
5. The Court notes that the counsel and solicitors who appeared for Steven Andrew Shilkin and Ashley Shilkin (‘the Shilkins’) on other applications before the Court today were asked whether it might be useful to serve the proposed motion upon their solicitor Katja Jane Levy, in order to provide advance notice of that motion to the Shilkins; and the Court was informed in response that the Shilkins, who are likely to be the respondents to the proposed motion, have given no present instructions to counsel or solicitors on the issue of accepting service but they said that they would attempt to communicate with the Shilkins and if they obtained instructions they said they would communicate those instructions to the plaintiffs.
6. Direct that by 4pm on 23 October 2018 that the plaintiffs serve the proposed motion on the offices of Katja Jane Levy, solicitor, care of her professional address in Perth but service in accordance with this order will not bind the defendants to any form of service of the said process and should be effected only for the better administration of justice.
7. If the defendants wish to appear at the hearing before Hallen J on 31 October 2018, having received documents from the plaintiffs in accordance with the above orders by 23 October 2018, the Court expects that they will file and serve any evidence upon which they wish to rely to support their appearance by no later than 4pm on 26 October 2018.
8. Direct that by 4pm on Monday, 29 October 2018 that the plaintiffs file and serve any submissions upon which they wish to rely in support of their applications before Hallen J on 31 October 2018 upon Katja Jane Levy care of her professional address in Perth. Service in accordance with this order may be effected for the convenient administration of justice and without thereby binding the defendants to any form of service of the process.
9. The hearing of the eight questions listed for determination by Hallen J on 31 October and 1 November 2018 is vacated and instead any proposed motion filed in accordance with Order 3 may be made returnable for hearing before Hallen J on 31 October 2018.
10. Costs of the Shilkins’ July 2018 motion and of today’s application are reserved for determination by the trial judge after the hearing of the 2018 proceedings (together with the determination of all issues of the costs of the 2017 proceedings before they were stayed today).”

134. Relevantly, before Slattery J, in written submissions sent to his Honour, counsel for the Plaintiffs accepted the Plaintiffs only wished to continue with the 2018 proceedings and that a permanent stay of the 2017 proceedings should be granted.
135. For his part, despite what had been written in his written submissions (and I might say what was advanced orally before me), counsel for the Defendants, accepted that, because the Defendants had not been served, they did not have the right to appear before Rein J on the application to extend time for service of the Statement of Claim in the 2018 proceedings, and that, an admission having been made that the first Defendant had not been served, it was unnecessary for declarations to be made that service of the Statement of Claim in the 2018 proceedings had not occurred. Counsel also maintained that he was not appearing for the second Defendant as he had not been served.

The issues currently before this Court for determination

136. 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?”

137. (The above outline of issues, perhaps, demonstrates the exhaustive attention, given by the legal representatives, to the factual and legal issues that they wished the Court to determine.)
138. In the Plaintiffs’ Outline of written Submissions, dated 3 June 2019, counsel submitted to this Court:

“Logically it makes sense to deal with the Defendants’ notice of motion first.
That is because the question of whether the time for service was validly extended on 26 September 2018 may affect whether the plaintiffs are entitled to declarations to the effect that service has been validly effected. Of course, even if the defendants’ motion were to succeed, the plaintiffs submit that the Court should nevertheless make an order for deemed service, or dispense with the requirement of personal service for the reasons set out below.”

139. At the hearing, the parties agreed that the amended notice of motion, filed by the Defendants, should proceed first. As none of the deponents was to be cross-examined, the submissions were heard in that order.
140. It was the Defendants’ application to discharge the order made by Rein J that took the most significant amount of time at the hearing. It was agreed that it was only if his Honour’s order was discharged, that the Court would turn to the issues raised by the Plaintiffs’ notice of motion.

The Submissions

141. 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.”

142. In broad summary, counsel for the Plaintiffs submitted in writing that:

“24. First, the defendants object on the basis that the orders extending the time for service were obtained in the absence of the defendants.
25. However, that objection is misconceived. The very existence of UCPR Rule 12.11(1)(e) presupposes that any challenge to an extension of time ordered under UCPR 1.12 is to be made after the defendant is served. Accordingly, until a defendant is served, they are not part of the proceedings and do not even enjoy a right to be heard on such an application: Onefone Australia Pty Ltd v One.Tel Limited; Weston v Publishing and Broadcasting Limited [2007] NSWSC 1320 at [9]- [12] per Barrett J.
26. As Barrett J noted (at [12]), an application for an extension pursuant to UCPR Rule 1.12 is “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”.
28. There is also a contention by the defendants that there was something that ought to have been disclosed to the Court on 26 September 2018, and the orders should not have been made on that basis. It is not clear to what extent the contention will be maintained in light of the matters set out in paragraphs 25 to 27 above.
29. If the objection is to be pressed, however, it should be squarely rejected:
a. the Court was advised that the Registrar had previously refused to make an order extending service on the basis that the application for that order should be dealt with on 19 October 2018 in the presence of the defendants ;
b. the plaintiffs read the affidavit of Victoria-Jane Otavski which included the relevant correspondence with the defendants ;
c. having reviewed that affidavit, the Court expressed concern about an assertion by the defendants that the plaintiffs had undertaken not to pursue the 2018 Proceedings, and asked to be provided with the document said to constitute that undertaking, and the Court was subsequently provided with that document ;
d. the Court was specifically alerted to the fact that the application was being made without notice to the defendants, and the submission was advanced that notice was not necessary because the defendant only appeared conditionally for the purpose of contesting service previously effected ;
e. the Court adverted to the fact that there may be a challenge to service on the basis that notice of the application had not been given to the defendants, and the plaintiffs indicated that they accepted (correctly as it turns out) that there was a risk that the defendants might make such an application;
...”

143. In their submissions, the Plaintiffs referred to the part of the reasons given by Rein J, quoted above. Then, they submitted that the Defendants had attacked the exercise of the discretion on other grounds, quoting Sackville AJA in Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liquidation) v Publishing and Broadcasting Ltd [2012] NSWCA 79 (to which reference is made later in these reasons): They also submitted:

“32. ... Rein J was plainly correct to grant the extension sought by the plaintiffs. The evidence demonstrates that from the commencement of the 2018 Proceedings on 5 March 2018, the plaintiffs had been taking steps to effect personal service on individual defendants resident interstate and overseas (in circumstances where the defendants’ solicitor refused to accept service on behalf of the defendants).
...
36. Further, the short delay in the present case occasioned by the extension of the time for service for a period of 6 months is simply immaterial when compared to the delay occasioned by the various debates as to the validity of service on the defendants.
37. Finally, there is no prejudice to the defendants. Indeed, as noted elsewhere, they are well aware of the proceedings and the pleaded allegations; and the only reason the proceedings did not progress was the technical objections taken to service.
38. It follows in the plaintiffs’ submission that the defendants are not entitled to the relief sought.”

The allegation of non-disclosure

144. 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.”

145. 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.
146. 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.
147. 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).
148. 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."

149. This practice is founded on a rule which gives to a defendant a right to be heard retrospectively in all cases where renewal is granted.
150. Because it was the subject of argument by counsel for the Defendants, reference should be made to Rich v Long [2008] NSWSC 487, in which Young CJ in Eq, whilst accepting that, according to precedent, an application for an extension of time for service may proceed ex parte, expressed some disquiet about the proposition. At [27], his Honour referred to:

“three classes of case where an extension of time for service is sought. The first case is where the limitation period is yet to expire, the second is where the limitation period is expired, but the initiating process is still valid for service, the third is where the limitation period has expired, but the initiating process is no longer valid for service.”

151. His Honour then wrote, at [31]:

“Where the application is in the second or third classes of case, unless the extension of time is for no more than a month or there is some suggestion that the defendants may seek to avoid service, the order, if it is to be made, may be made on an ex parte application, but the defendants must be notified of the order within seven days and also notified that they have up until the expiration of 28 days after service of the process to set aside the order.”

152. Importantly, Young CJ in Eq did not suggest that failure to give notice would be a determinative factor in acceding to a set aside application.
153. Barrett J referred to Rich v Long in Weston v Publishing and Broadcasting Limited [2009] NSWSC 321, but in the context of UCPR r 12.11, stating at [21]-[23]:

“Two points may be made. First, there does not appear to be in England any equivalent of our r 12(11)(1)(e) which gives a clear and express right to a defendant to seek an order setting aside an order extending time for service. In England, it appears, a defendant wishing to make such an application must proceed under a rule concerning setting aside of orders made without notice or a rule under which jurisdiction may be disputed: see Mason v First Leisure Corporation Plc [2003] EWHC 1814 (QB) at [11]. The Hoddinott case to which Young CJ in Eq referred was an appeal in a case in which application under the latter rule had been made.
Second, it is not clear, with respect, what purpose a direction of the kind favoured by his Honour would serve. A defendant who has suffered prejudice because of an extension of time for service is assured by r 12.11(1)(e) of an opportunity to assert that prejudice as a ground for an order that any service ultimately effected on him or her should be set aside. Under r 12.11(2), such an order may not be made unless a notice of motion to apply for it has been filed ‘within the time limited for the defendant to enter an appearance in the proceedings’ – that is, in a case where the proceedings are commenced by statement of claim, within ‘28 days after service on the defendant of the statement of claim’ (or such other time as the court directs for the filing of a defence). In such a case, therefore, an application under rule 12.11(1)(e) cannot be made until after service has been effected and the defendant has actually been drawn into the proceedings. And, of course, service may never be effected.
It is difficult to discern what is to be gained by notifying an unserved defendant of a right that is not exercisable at the time of notification and may never become exercisable.”

154. There has been no amendment of the UCPR in this regard.
155. (In any event, the Defendants were well aware that they would have an opportunity, after they had been served with the Statement of Claim in the 2018 proceedings, to apply to discharge the order extending the time for service. That is what they have done. They would also have known, as has occurred, that any application by them would be determined by way of a contested hearing at which they would be entitled to be heard. In these proceedings, they have adduced evidence and advanced arguments in regard to the reasons why the extension of time should not have been granted by Rein J. There is nothing in the present case which suggests that departure from the approach of enabling a plaintiff to proceed ex parte should have occurred.)
156. I am not persuaded that the submission made by the Defendants on this point has any merit.

“(b) any of their reasoning for choosing to delay the service of the second proceedings”

157. The suggestion that the Plaintiffs chose to delay service of the Statement of Claim in the 2018 proceedings seems inconsistent with the attempts at service and the many requests made to the Defendants’ solicitor to accept service. Whilst the attempts at service were unsuccessful, it is clear on the evidence that I have read, that, at various times from at least about mid-June 2018, the Plaintiffs’ solicitors were attempting to serve the originating process upon each of the Defendants. In any event, whilst the delay was regrettable, it was hardly egregious.
158. Any delay between when the Statement of Claim was filed on 5 March 2018 and about mid-June 2018, appears to have related to the Defendants’ assertion that there was an abuse of process, and the decision to have the 2018 proceedings not continue until I had dealt with the 2017 proceedings: Tcpt, 26 September 2018, p 12(27) – p 13(15). The matter was brought back before Slattery J to deal with the Defendants’ notice of motion.
159. I do not accept the submission that the Plaintiffs chose to delay service of the Statement of Claim in the 2018 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”

160. The abuse of process argument was raised by counsel for the Plaintiffs before Rein J. Indeed, the proceedings number of the 2017 proceedings was specifically identified to Rein J at Tcpt, 26 September 2018, p 1(49) – p2(2).
161. There are various parts of the Transcript in which reference to the 2017 proceedings is made: Tcpt, 26 September 2018, p 2(37-44), p 3(15-21), p 5(16-25), p 10(47-49).
162. Counsel properly raised the 2017 proceedings before Rein J. In any event, subsequently, it was dealt with by Slattery J granting a permanent stay of the 2017 proceedings.

“(d) the defendants’ repeated objection to service of a second proceedings as an abuse of process”

163. This is covered by the references to the transcript before Rein J to which reference has already been made. The issue has also been determined by Slattery J and the grant of a permanent stay of the 2017 proceedings.

“(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”

164. This is covered by the references to the transcript before Rein J already adverted to and the grant of a permanent stay of the 2017 proceedings.

“(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”

165. This was not specifically adverted to in the transcript before Rein J. However, this was accepted, at the hearing before me, as being a matter in respect of which there had been mistakes on the part of the Plaintiffs’ solicitors.
166. In my view, the mistakes made are not of major significance, particularly when taken with the occasions when the Plaintiffs’ solicitor had requested the Defendants’ solicitor to accept service of the Statement of Claim in the 2018 matter, and when it is clear that a copy of that Statement of Claim had been provided to the Plaintiffs’ solicitor “as a matter of courtesy” in March 2018, shortly after it was filed, and then was provided to each of the Defendants by his solicitor.

“(g) that the named defendants had offered to accept service of the proceedings, but plaintiffs (for reasons that remain unexposed) refused that offer”

167. This was not specifically adverted to in the transcript before Rein J. Whilst it is true that in relation to the 2017 proceedings, a statement was made, on behalf of the second Defendant, in a letter dated 27 November 2017, from his solicitor to the Plaintiffs’ solicitor, there was other correspondence from the Defendants’ solicitor making it perfectly clear that she did not have instructions to accept service of the 2017 proceedings: Ex. NMB/13; Ex. NMB/14. In relation to the 2018 proceedings, see Ex. NMB/26; Ex. NMB/36; Ex. NMB/41. Some of the occasions when this was repeated by Ms Levy have been set out above.

“(h) the fact that claims were made against named defendants without any pleaded connection to them”

168. Rein J clearly had the Statement of Claim filed in the 2018 proceedings before him and stated explicitly that he had read it: Tcpt, 26 September 2018, p 17(39) – p18(18).
169. In my view, that would be a matter that would not have been particularly relevant in his Honour’s consideration of the question whether to extend the time for service of the Statement of Claim in the 2018 proceedings.

“(i) the fact that the limitations status of the majority of claims, had been repeatedly explained by the defendants”

170. The issue of the limitation period was clearly raised before Rein J: Tcpt, 26 September 2018, p 5(27-33), p 7(5-13), p 16(7-38). Even if it had not been, this would not determine whether an extension of time to serve the Statement of Claim should have been granted, since the Defendants could plead the expiration of the limitation period in respect of claims made in the 2018 proceedings if they wished to do so, and if they could sustain that defence.

“(j) the limitations status of the majority of the claims, by value and number”

171. This is covered by the references to the transcript before Rein J already adverted to.

“(k) the fact that service was attempted on the first named defendant at his home when the plaintiffs knew he was in hospital.”

172. There was no specific evidence that the Plaintiffs’ solicitor had known that the first Defendant was in hospital at the time that service was attempted in October 2018. In the agreed chronology, at Ex. NMB/66, it was stated “The defendants contend that this was at a time when Mr Shilkin was in hospital”: (italics added for emphasis).

The Legal Framework

173. 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.
174. 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...”.
175. 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.
176. 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.”

177. 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.
178. In speaking of s 63, in Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139, McColl JA (with whom Simpson JA and Sackville AJA agreed) wrote, at [108] - [109]:

“Section 63 gives a court power to deal with irregularities. It requires a court to treat a failure to comply with any requirement of the CPA or of rules of court, whether in respect of time, place, manner, form or content or in any other respect, as an irregularity which, subject to s 63(3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.
Provisions such as s 63 do away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is now regarded as an irregularity which the court can and should rectify so long as it can do so without injustice. Thus, in Australian Coastal Shipping Commission, the Court applied s 81 of the Supreme Court Act 1970 (NSW) (the legislative ancestor of s 63) to permit proceedings to continue although the statement of claim was neither filed nor served within the limitation period.” (Omitting citations)

179. Section 67 of the Civil Procedure Act provides that the Court, subject to rules of court, may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
180. Ordinarily, civil proceedings are commenced by filing an originating process. UCPR r 6.2(1), relevantly, provides that “a person may commence proceedings in the court by filing a statement of claim or a summons”. Important words going to when proceedings are commenced are “by filing”.
181. UCPR r 6.2(3) provides that the originating process must be served on each defendant. Thus, whilst “service is a requirement of the rules, ... as the terms of those rules (as well as the power to make orders dispensing with service or for substituted service) make clear, proceedings are commenced even though service has not been effected”: Choy v Tiaro Coal Ltd (in liq) (2018) 364 ALR 554; [2018] NSWCA 205, per Leeming JA (with whom Gleeson and Payne JJA agreed), at [23].
182. UCPR r 6.2(4) provides, relevantly, that an “originating process is valid for service ... in the case of proceedings in the Supreme Court ... for six months after the date on which it is filed”. This rule is said to be “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”: Wakim v Coleman [2010] NSWCA 221, at [18].
183. (That service of originating process outside the period limited by UCPR r 6.2(4) is an irregularity that does not invalidate subsequent proceedings is an important matter in dealing with the argument of the Defendants that they were not properly served in October 2018 as set out above: In the matter of Salfa Pty Limited (in liquidation) (ACN 082 308 101) [2014] NSWSC 1493, per Brereton J (as his Honour then was), at [13].)
184. No reference was made to UCPR r 6.2(5), which provides:

“Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.”

185. Nor was specific reference made to Wakim v Coleman [2008] NSWSC 1377, in which McCallum J (as her Honour then was), at [34], noted:

“It is clear that the original statement of claim was not served within the six months for which it was valid for service: UCPR 6.2(4). The failure to serve originating process within that time does not prevent a plaintiff from commencing fresh proceedings by filing another originating process: UCPR 6.2(5). However, the proceedings first commenced cannot continue unless the Court grants an extension of the time during which the statement of claim is valid for service under UCPR 1.12.”

186. (McCallum J dismissed the applicant's proceedings on the application of the respondents. Her Honour did not accept that the effect of the Deputy Registrar's orders was to extend the period for which the originating process was valid and noted that the applicant's solicitor had not sought an extension at that time.)
187. The application for leave to appeal from her Honour’s decision was dismissed with costs: Wakim v Coleman [2010] NSWCA 221 and the application for special leave to appeal to the High Court was refused: Wakim v Coleman [2011] HCASL 38.
188. UCPR r 10.1 provides that unless the court orders otherwise, a party that files a document must, as soon as practicable, serve copies of the document on each other active party.
189. UCPR r 10.3 deals with service of originating process anywhere in Australia, whether in New South Wales or elsewhere (in relation to proceedings in the Supreme Court). An originating process for service in Australia, but outside New South Wales, must bear a statement either that the plaintiff intends to proceed under the Service and Execution of Process Act 1992 (Cth) or that the plaintiff intends to proceed under the UCPR. To proceed otherwise, requires the leave of the court. Various methods of service are dealt with in UCPR r 10.5. UCPR r 10.13 deals with acceptance of service by a solicitor.
190. UCPR r 10.14(3) provides that if steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order. An application for such an order must be supported by an affidavit by the applicant that includes a statement as to the applicant's knowledge of the whereabouts of the person to be served and a statement as to any communications that have occurred between the applicant and the person to be served since the cause of action in the proceedings arose, including any communications by telephone, fax or email.
191. UCPR r 10.20(2)(a) requires that originating process in proceedings in this Court be personally served. Rule 10.21 prescribes two modes of personal service.
192. UCPR r 11 deals with service of originating process outside Australia. Pursuant to UCPR r 11.4, an originating process may be served outside Australia, without leave, in the circumstances referred to in Schedule 6 of the Rules. Under UCPR r 11.8AC, a document to be served outside Australia need not be personally served so long as it is served on the person in accordance with the law of the country in which service is effected.
193. Service of the originating process is not a step in the commencement of the proceedings, but in the prosecution of those proceedings: Smith v Pacific Trading Enterprises [1999] NSWSC 333, per Rolfe J, at [41].
194. In the present case, it is to be remembered that by the time the Statement of Claim was filed in the 2018 proceedings, the Defendants had filed the notice of motion seeking to set aside Registrar Walton’s earlier order extending the time for service of the 2017 Statement of Claim, which notice of motion had been listed, for hearing, before me on 26 April 2018.
195. A court’s authority to decide a dispute depends upon the valid service of its process. However, service ordinarily occurs after the proceedings have been commenced. Thus, whilst service is mandatory, it need not be immediate (although it should be prompt). Of course, unless, and until, the initiating process is served, the defendants named in the originating process are not drawn into the proceeding.
196. A concise statement of the essential purpose of personal service is set out in Re Anderson Owen Ltd, Merrygold v Bates [2010] BPIR 37; [2009] EWHC 2837 (Ch), in which Norris J stated, at [24]:

"The essential purpose of rules as to service is to ensure that a party has proper notice of proceedings brought and a fair opportunity to deal with them."

197. Whilst there is a difference between the English and Australian law concerning a deemed service rule which permitted deemed service where there was a “good reason” to do so, important, in my view, in relation to service of initiating process, is what was written in Abela v Baadarani [2013] 1 WLR 2043; [2013] UKSC 44, by Lord Clarke (with whom Lord Neuberger, Lord Reed and Lord Carnwath agreed), at [37]-[38]:

“Service has a number of purposes but the most important is to my mind to ensure that the contents of the document served, here the claim form, is communicated to the defendant. In Olafsson v Gissurarson (No 2) [2008] EWCA Civ 152, [2008] 1 WLR 2016, para 55 I said, in a not dissimilar context, that

‘... the whole purpose of service is to inform the defendant of the contents of the claim form and the nature of the claimant's case: see eg Barclays Bank of Swaziland Ltd v Hahn [1989] 1 WLR 506, 509 per Lord Brightman, and the definition of 'service' in the glossary to the CPR, which describes it as 'steps required to bring documents used in court proceedings to a person's attention...'

I adhere to that view.
It is plain from paragraph 73 of his judgment quoted above that the judge took account of a series of factors. He said that, most importantly, it was clear that the respondent, through his advisers was fully apprised of the nature of the claim being brought. That was because, as the judge had made clear at para 60, the respondent must have been fully aware of the contents of the claim form as a result of it and the other documents having been delivered to his lawyers on 22 October in Beirut and communicated to his London solicitors and to him. As Lewison J said at para 4 of his judgment (quoted above):

‘The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games. There is no doubt on the evidence that the defendant is fully aware of the proceedings which are sought to be brought against him, of the nature of the claims made against him and of the seriousness of the allegations.’

I agree.”

198. Lord Brightman, in Barclays Bank of Swaziland v Hahn [1989] 1 WLR 506, at 511, noted:

“the purpose of serving a writ is to give the defendant knowledge of the existence of proceedings against him; that is exactly what a defendant acquires when a writ is served on him personally...”

199. The principle in Barclays Bank of Swaziland v Hahn, as set out above, has been repeated elsewhere. As was written by Phillips J in Tseitline v Mikhelson and others [2015] All ER (D) 252 (Oct); [2015] EWHC 3065 (Comm), at [34]:

“In my judgment it is plain from these authorities (and from the special nature and role of personal service discussed above) that the process of leaving a document with the intended recipient must result in them acquiring knowledge that it is a legal document which requires their attention in connection with proceedings. Whilst this is expressed as requiring that the intended recipient be ‘told’ the nature of the document, the focus is on the knowledge of the recipient, not the process by which it is acquired. Whilst in most cases knowledge of the nature of the document will be found to have been imparted by a simple explanation, it is clear that it can ... also readily be inferred from pre-existing knowledge, prior dealings or from conduct at the time of or after service, including conduct in evading service: see Barclays Bank of Swaziland v Hahn...”

200. Closer to home, and more recently, in Clack v Murray [2017] WASCA 88, at [10], Mitchell JA noted, albeit in the context of service of a notice of appeal:

“The purpose of requiring personal service of originating court process is to give notice of the proceedings to the relevant party. That is so that he or she may have an opportunity to resist the relief claimed in the proceedings. The ordinary meaning of the phrase 'personal service' is that the document in question must come to the notice of the person for whom it is intended. The means by which the person served obtains the document are usually immaterial. Where a notice of appeal is in fact received by a respondent, the document will have been 'left with' that respondent even if it is not handed to the respondent by a representative of the appellant seeking to effect personal service. Once the respondent receives the notice of appeal, the object of the requirement for personal service has been achieved. A person who the evidence establishes has actually received the document cannot validly complain that he or she has not been personally served.” (citations omitted)

201. The passage in Clack v Murray was cited, with apparent approval, by the Court of Appeal in Western Australia, in Bagshaw v RTS Super Pty Ltd [2019] WASCA 85, at [19].
202. (The other purposes of service include enabling the defendant to participate in the legal process, thereby contributing to the way in which the claim is determined, and to enable the court to control the litigation process. In other words, service enables the defendant to decide whether, and if so, how to respond in his, her, or its, own interest.)
203. There was, of course, power in UCPR r 1.12, to extend the time for service of an originating process which has been filed within time, even if a limitation period has expired, after the time for service has expired. (That is what the Registrar had done in the 2017 proceedings.)
204. UCPR r 1.12 provides:

“(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.
(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.”

205. The Plaintiffs sought an order, before Rein J, on 26 September 2018 based upon UCPR r 1.12 and, as set out above, it was pursuant to that rule, that his Honour made the order extending time.
206. Before proceeding to deal with the law relating to UCPR r 12.11, it is necessary to say something about UCPR r 1.12.
207. The discretion conferred by r 1.12 is unfettered but must be exercised judicially and consistently with the judicial process: CDJ v VAJ (1998) 197 CLR 172, at 185; [1998] HCA 67. The rule prescribes no criteria for its exercise or non-exercise. It does not expressly require “a good reason” for extension, as similar rules, in the past, had done. The grant of an extension of time under the rule is not automatic and an order is not made as a matter of course. The discretion, which is broad, should be exercised flexibly, with regard to the facts of the particular case.
208. Generally speaking, the object of a rule such as r 1.12, is to ensure that the Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VicRp 27; [1978] VR 257, at 262-263.
209. In Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; [1981] HCA 11, Stephen J identified a two part inquiry: whether reasonable efforts have been made to serve the defendant; if not, whether other good reasons exist for the extension of time to serve. His Honour, at 350, referred to the absence of notice to the defendant in that case, adding that the giving of notice “may sometimes mitigate the prejudice which a defendant may otherwise suffer through delay in actual service of process”.
210. Other factors include the length of the delay, whether the delay was caused by mistake and whether such mistake is excusable, the nature of attempts made at service, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it: Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79; [1999] WASCA 158, per Ipp J, at [52].
211. In Hoddinott v Persimmon Homes (Wessex) Ltd [2008] 1 WLR 806; [2007] EWCA Civ 1203, at [52], the position was put succinctly:

"Where there is doubt as to whether a claim has become time-barred since the date on which the claim form was issued, it is not appropriate to seek to resolve the issue on an application to extend the time for service or an application to set aside an extension of time for service. In such a case, the approach of the court should be to regard the fact that an extension of time might ‘disturb a defendant who is by now entitled to assume that his rights can no longer be disputed’ as a matter of ‘considerable importance’ when deciding whether or not to grant an extension of time for service."

212. In Agricultural & Rural Finance Pty Limited v Kirk & Anor (2011) 82 ACSR 390; [2011] NSWCA 67, Tobias JA (with whom Macfarlan JA and Sackville AJA agreed), at [94], approved Ipp JA's analysis in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) and adopted the following statement of Ipp JA, at [43], as the “governing principle”:

“...the Court should consider, when exercising a discretion such as that under UCPR r 1.12, the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it.”

213. Ipp JA, at [30], also had referred to the approach of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, and had approved the following statement of McHugh J, at 554:

“The object of the discretion, to use the words of Dixon CJ in [Klein v Domus Pty Limited [1963] HCA 54; (1963) 109 CLR 467 at 473]... ‘is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case’. In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.” (footnote omitted)

214. A similar view about the applicable principles relating to the power to extend the time for valid service was expressed in Gilles v Palmieri [2016] NSWCA 219, by Leeming JA (with whom Basten JA and Sackville AJA agreed), at [35]:

“The applicable principles are well established. Plainly the power to extend the time for valid service is to be exercised having regard to ss 56- 59 of the Civil Procedure Act 2005 (NSW). It is relevant to consider ‘the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally, and the hardship or prejudice caused to [the parties]’: Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 at [43]. The onus lies upon the applicants to show ‘good reason’ to extend time: see Wakim v Coleman [2010] NSWCA 221 at [38].”

215. I next turn to UCPR r 12.11, which, relevantly, provides:

“In any proceedings, the court may make any of the following orders on the application of a defendant:
(a) ...
(b) an order setting aside the service of the originating process served on the defendant;
(c) ...
(d) ...
(e) an order discharging any order extending the validity for service of the originating process...”

216. It is pursuant to UCPR r 12.11(1) that the Defendants bring their amended notice of motion to set aside the order made by Rein J on 26 September 2018.
217. In Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq), Ipp JA (with whom Tobias and McColl JJA agreed), at [14], noted that the application to discharge an order extending time for service, does not require the demonstration of error by the judicial officer who made the order. It is to be dealt with on the basis that all issues are de novo before the judicial officer hearing the application. In other words, the hearing of the application is determined afresh on the evidence presented at the hearing as to the state of affairs at the time the order extending the time was made. It is not necessary to put additional material before the Court, although that, clearly, has been done in the present case.
218. In Hunter v Hanson [2014] NSWCA 263, McColl JA wrote, at [57]:

“UCPR 12.11 confers a discretion which is to be exercised judicially and is not fettered by inflexible prescriptions. However, the discretion is not at large. It is to be exercised in the context of and by reference to the statute by which it is conferred (and any other statute that is relevant to the legislative context) and in accordance with principles developed by judicial decisions. The object of the discretion ‘"is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case' [and in that respect] ... the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.” (Omitting citations)

219. In Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61, Bell P, with whom Bathurst CJ and Leeming JA agreed, wrote, at [36], that UCPR r 12.11:

“allows a party served with process outside of the jurisdiction to apply to the Court for a range of orders, including a stay or dismissal of proceedings and the setting aside of service. Moreover, r 12.11(3) allows such an application to be made by a party served outside the jurisdiction without that party being required to enter an appearance so long as the notice of motion seeking the relevant relief is filed within the time that would otherwise apply in relation to the entry of an appearance.”

220. On such an application there is a hearing de novo, in which the court is asked to determine afresh, on evidence presented at the later hearing, of the state of affairs at the time the order extending time for service was made. The Court determines whether the period for service of the Statement of Claim should have been extended, that is, whether the application for extension of time that was granted should have been granted.
221. Any such application is determined at a contested hearing at which the named parties are entitled to be heard. The Defendants are thus entitled to adduce evidence and advance arguments that were not before the judicial officer, in this case, Rein J, who granted the extension.
222. The onus remains on the Plaintiffs to satisfy the Court that the extension of time was properly granted, and good cause must be shown: Berger Investments Group Pty Ltd v Coccoon Pty Ltd [2011] NSWSC 122, per Kirby J, at [28].
223. Nor is the Court hearing the application to set aside the order extending the time sitting as on an appeal from, or a review of, the decision of the judicial officer who extended the time. The hearing de novo is conducted as if the matter had not previously been determined and the Court exercises for itself any discretion previously exercised.
224. Thus, at this hearing, it is for the Plaintiffs to satisfy the Court that an order under UCPR r 1.12 should have been made at the time it was made, namely at the time Rein J made the order on 26 September 2018.
225. The principles applicable to the exercise of the discretion conferred by UCPR r 12.11(1)(e) were summarised by Sackville AJA (with whom Campbell and Young JJA agreed), in Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liquidation) v Publishing and Broadcasting Ltd, at [20], in the following terms:

"(1) The principles relevant to an application to extend time for service under r 1.12 also apply to a motion pursuant to r 12.11(1)(e) to discharge orders for extension.
(2) In exercising the discretion conferred by r 12.11(1)(e), the court should consider:

'the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally and the hardship or prejudice caused to the plaintiff by [discharging the orders] or to the defendant [by refusing to discharge the order].'

(3) The discretion is to be exercised in the context of, and by reference to, the statute by which it is conferred. Consequently, in New South Wales, ss 56-59 of the Civil Procedure Act 2005 ('CP Act') require a judge exercising the discretion to have regard to whether the relevant party has:
(a) diligently pursued the object of disposing of the proceedings in a timely way;
(b) used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and
(c) reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination: Buzzle, at [36].
(4) The court must take into account the policy considerations underlying the relevant limitations statute. Thus, defendants or potential defendants should be made aware of claims against them within a reasonable time and liquidators who do not commence proceedings until just before expiry of the limitation period should be especially diligent in pursuing prompt service: Buzzle, at [37] - [39]; cited with approval in Kirk, at 410 [98] - [99].
(5) It is for the court and not one of the litigants to determine whether there should effectively be a stay of proceedings. Accordingly, it is generally:

'Inappropriate to allow an extension of time for the service of a ... statement of claim where a significant cause of the delay has been the willingness of the plaintiff to do nothing about service while awaiting a decision from a litigation funder as to whether or not to provide the necessary funds. Were that to be regarded as a good reason to extend time, the Court would be allowing plaintiffs to arrogate to non-parties the right to decide the period by which the time for service of a writ should be extended. That would be fundamentally in conflict with the Court's duty to exercise, alone, the discretion conferred upon it.'

Buzzle, at [82] cited with approval in Kirk, at 411 [101].
(6) Ordinarily, it is not a good reason for delay that a plaintiff wishes to hold up proceedings while some other case is tried: Buzzle, at [90]. However, this is not an inflexible rule: Kirk, at 411 [102].
(7) If a defendant knows that claims have been made against him or her and understands the nature of the claims that have been made, that may mitigate the prejudice the defendant might otherwise suffer by reason of a delay in service: Kirk, at 415 [123].
...
[21] In Buzzle, Ipp JA referred (at [32]) with approval, to IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2006] QCA 407; [2007] 1 Qd R 148 ('IMB'). In IMB, Keane JA (with whom McMurdo P and Cullinane J agreed), observed (at 160 [54]) that no case had held that the Queensland rules or their equivalents authorise renewal of a claim in favour of a party who:

'chooses not to serve a claim where the facts of the case sufficient to enable the claim to be pleaded are known to the plaintiff.'

This observation was made having regard to the requirement in the Queensland rules that a party impliedly undertakes to the Court and to the other parties to proceed in an expeditious way. In Buzzle, Ipp JA pointed out that (at [35]) the provisions of the CP Act are 'akin to (and, in some aspects, go further than) the Queensland ... rules'. In Kirk, Tobias JA distinguished IMB on the facts, but cast no doubt on the applicability of the reasoning in that case in New South Wales."

226. Sackville AJA, referred to Rich v Long and stated, at [41]:

“In view of the criticisms made by Young CJ in Eq and the arguments advanced in the present case, there is much to be said for amending the UCPR to confer a discretion on the court to allow the unserved party to be heard in opposition to an application for an extension of time for service. Among other advantages, this might minimise delay and unnecessary expense, at least in the long run. It is also likely to avoid the risks to the perceived institutional integrity of the court that can flow from decisions that may be seen (particularly by those unversed in the nuances of ex parte applications) as difficult to reconcile.”

227. Because it is relevant to one of the matters raised by the Defendants, even though Slattery J already referred to it in his decision, I repeat what was said by Barrett J in Onefone Australia Pty Ltd v One Tel Limited [2007] NSWSC 1320, 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."

228. Thus, the rule gives, to a defendant, a right to be heard retrospectively in all cases where renewal is granted. Whilst the application by the plaintiff may be made ex parte, an order extending the time for service of a statement of claim made on an ex parte basis must be regarded as provisional pending any application made by the defendants to set aside the ex parte order.
229. In this case, one of the reasons why the Court is asked to discharge the order made by Rein J, is alleged “mis-disclosures”, or non-disclosure, of material matters.
230. In Aristocrat Technologies Australia Pty Limited & Ors v Re Allam & Ors (2016) 327 ALR 595; [2016] HCA 3, a decision of Gageler J, his Honour wrote, at [15]:

“It is an elementary principle of our ordinarily adversarial system of justice that full and fair disclosure must be made by any person who seeks an order from a court ex parte, with the result that failure to make such disclosure is ordinarily sufficient to warrant discharge of such order as might be made. The principle is not confined to particular types of interlocutory orders. Its rationale lies in the importance to the administration of justice of the courts and the public being able to have confidence that an order will not be made in the absence of a person whose rights are immediately to be affected by that order unless the court making the order has first been informed by the applicant of all facts known to the applicant which that absent person could be expected to have sought to place before the court had the application for the order been contested.” (Omitting citations)

231. It is difficult to provide a general definition of the extent of the disclosure required on an ex parte application because each case depends so much on its own facts.
232. However, the principles were discussed by Ward J (as her Honour then was) in Weston v Publishing and Broadcasting Ltd [2011] 83 ACSR 206; [2011] NSWSC 433, at [165]-[167]:

“The relevance of non-disclosure on an application of this kind was considered in Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639, [2005] VSCA 213, where Gillard AJA noted the existence of the court's inherent jurisdiction (unless displaced by statute), in circumstances where an order is made ex parte without notice, to re-hear the application and contrasted the position where an application is made to set aside an ex parte order based on non-disclosure.
There, Gillard AJA noted (at [21] - [22]):

... The Rules of Court also give the right to a party to apply to the court for an order to set aside an order made without notice. See r 46.08(b). If an application is made to the court pursuant to the inherent power or the Rule, the court re-hears the original application. In those circumstances, the general practice is to refer the matter back to the judicial officer who made the order but it is not fatal if that is not done. It is a re-hearing of the whole application. However, at the re-hearing the judicial officer has the benefit of submissions and any material the opposing party wishes to place before the court. I do not accept the statement made by the Full Court of Western Australia in Bellgroup NV (in liq) v Aspinall where the Court seemed to be of the view that an application to set aside in those circumstances could only proceed if new material evidence was placed before the court. In my opinion, the jurisdiction is much wider and gives the right to the party affected by the order to appear before the court and put submissions as to why the order should not be made on the materials which were before the judge who made the first order. It is a re-hearing and the court may reach a different decision after hearing submissions. Sir John Donaldson MR in WEA Records Ltd v Visions Channel 4 Ltd wrote concerning ex parte orders:

He (the judge) expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order.

See also observations of Sir Leo Cussen in Zinc Corporation Ltd v Hirsch, to the same effect. In my opinion, this jurisdiction is different to the situation when an order made ex parte is set aside because there was a material non-disclosure of a material matter by the party who obtained the order. The order is set aside because of some irregularity and not on the merits. When this jurisdiction is enlivened, the court's function is to determine on the material that was placed before the judicial officer at first instance, whether a party has failed to discharge the obligation which rests upon any party seeking an order ex parte, namely, making a full and fair disclosure of all matters within its knowledge and which are material, to the court. The court is not concerned whether the order should have been made on the material before the court. Whether or not the court will set aside the order upon proof of the failure to discharge the obligation depends upon the particular circumstances. (my emphasis)

Ordinarily, where an ex parte order has been set aside for material non-disclosure at the time it was made, the party who obtained that order is able to make a fresh application for the order (based on full disclosure).”

Determination

233. 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.
234. 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.
235. 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).
236. 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).
237. 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].)
238. 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.
239. 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.
240. In this regard, the Plaintiffs’ former solicitors must assume some responsibility for the failure to serve the Statement of Claim more promptly than it was. In my view, these errors are not ones for which the Plaintiffs, themselves, should be held responsible. Undoubtedly, they could have been avoided.
241. In my view, the length of the delay, and the causes of the delay, as set out above, at least in part by errors on the part of the Plaintiffs’ solicitors, was each excusable. There was a candid account given to Rein J of the problems being faced in respect of service and there has been a candid account given to this Court on behalf of the Plaintiffs. Action on the part of the Plaintiffs, even though, perhaps, misconceived and certainly ineffective, should be regarded more indulgently than complete inaction: Victa Ltd v Johnson (1975) 10 SASR 496, per Bray CJ, at 502: Issue 2(b).
242. The explanations that have been offered for the delay in serving the Statement of Claim in the 2018 proceedings go far beyond the alleged “playing of ducks and drakes”. I confess that a jaundiced view of events might suggest such an element existed.
243. In this regard, it is fair to say that until October 2018, the Defendants have not made it easier to formally serve the Statement of Claim on either of them. Whilst this is not a case where either Defendant could not be located, neither assisted in agreeing to formal service of a document, a copy of which was in his possession, and in the possession of his solicitor, until they did so following the hearing before Slattery J in October 2018.
244. The Defendants were well aware of the proceedings, having been provided with a copy of the Statement of Claim in the 2018 proceedings, which had been provided to their solicitor on 8 March 2018, and provided to each of them, later, in March 2018, by her. Indeed, the amended Statement of Claim, filed in the 2017 proceedings, which was in the same terms, had been provided to their solicitor, Ms Levy, in December 2017, and to each of the Defendants, by her, later in December 2017. Having been made aware for some time, both that the Statement of Claim had been filed and the general nature of the claims being made against each of them, each of the Defendants could have made arrangements to accept formal service at any time prior to the expiry of the time for service, or could have instructed Ms Levy to accept service. However, each of the Defendants maintained that he was not amenable to the jurisdiction of the Court.
245. (In this regard, no inference is being adversely drawn about the Defendants’ conduct. It is simply a fact that, on the evidence relied upon, and as I have found in relation to both of the Defendants, each had a copy of the Statement of Claim and the amended Statement of Claim in the 2017 proceedings, in December 2017, and a copy of the Statement of Claim filed in the 2018 proceedings in March 2018.)
246. If that were not enough to ensure that the Defendants were made fully aware of the proceedings brought by the Plaintiffs, in late October 2018, in accordance with what the Plaintiffs had been told, and with the co-operation of each of the Defendants, both were served with the Statement of Claim in the 2018 proceedings. They have continued to argue about service since then, even now asserting that the Statement of Claim was “delivered” not “served”.
247. This is not a case where either of the Defendants has been left in ignorance of proceedings that had been taken against them. In fact, despite over 18 months having passed since the amended Statement of Claim in the 2017 proceedings, which revealed the nature of the case being advanced against each of them, the case has not been advanced because various interlocutory steps, most of which involve disputes about service, have been taken: Issue 2(d).
248. Detailed knowledge of the existence of the proceedings, and of the originating process, must be regarded as going some distance to mitigating any prejudice that a defendant might otherwise suffer through delay in actual service of process, if unaware of the proceedings until service is actually effected.
249. To the extent that the Defendants have sustained any prejudice since December 2017, it is arguable that prejudice has been caused by disputing proper service since that time. (I have picked that month even though the 2017 proceedings have been stayed as it was accepted that the amended Statement of Claim in the 2017 proceedings and the Statement of Claim in the 2018 proceedings are in identical terms.)
250. One matter of prejudice relied upon by the Defendants relates to a resolution sought to be put to a Meeting of Creditors of Inosite, held on 7 November 2018, which related to the disposal of the books and records of the company 12 months after the dissolution of the Company or earlier at the discretion of ASIC, which resolution was passed without dissent.
251. It is important to note that the Meeting of Creditors occurred nearly 12 months after the Defendants came to have a copy of the Statement of Claim in the 2017 proceedings, and almost 8 months after the Defendants came to have a copy of the Statement of Claim in the 2018 proceedings. There is no evidence that each of the Defendants was not given notice of the Meeting (although in submissions it was asserted, from the Bar table that they were not creditors of Inosite): Tcpt, 11 June 2018, p 59(6-19).
252. In any event, there is no suggestion that either of the Defendants have informed the Liquidator of the 2018 proceedings, or that either has, or both have, made a request that the books and records of Inosite not be disposed of. They did not need to be creditors to take either of those steps.
253. The evidence from Ms Levy on this point is instructive. On 14 May 2019, she telephoned the office of the Liquidator and spoke to Ms H Ponton, Head of Forensic Accounting who gave her certain information. Ms Levy, apparently, did not ask, and was not told, anything about whether the books and records of Inosite had been disposed of, and there is nothing to suggest that Ms Levy informed Ms Ponton of the 2018 proceedings, or asked how the Defendants could ensure that if they had not been, how disposal of the books and records of Inosite, could be protected: Affidavit, Katja Jane Levy, 20 May 2019.
254. If the books and records of Inosite are disposed of, and if there is prejudice suffered by either of the Defendants, each appears to have had available to him an opportunity to avoid that prejudice.
255. As earlier stated, the Defendants may, in any defence, raise limitation issues if either wishes, or both wish, to do so. Furthermore, if they do so, and are found to be correct, they must still deal with the balance of the claims made by the Plaintiffs: Issues 2(e), (f) and (g).
256. I have earlier dealt with the Defendants’ complaint regarding the Plaintiffs alleged failure to comply with the duty of disclosure. I am not persuaded, having read the transcript of evidence before Rein J, that the complaints have any merit at all. In any event, since I must deal with the matter afresh, I am satisfied that all relevant matters have been disclosed
257. Generally, the Court regards it inappropriate to determine a question as to the application of limitation periods on an interlocutory application, such a question best being best considered in light of all of the facts: Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 and Young v Waterways Authority of New South Wales [2002] NSWSC 612.
258. As earlier stated, counsel for the Defendants maintained that the merits of the Plaintiffs’ action constitute a factor to be weighed in the balance in determining whether the time should be extended. However, as I repeated during submissions, assessing the merits for that purpose is not possible in this case at this time. The claims against the Defendants are of serious misconduct and the material facts, currently, are no more than assertions that have not been supported in evidence and have not been tested. Similarly, since no defence has been filed, or served, by either, it is not possible to know, with any degree of certainty what will be raised by each of the Defendants. It does not seem to me, that an application, such as the one currently before the Court, is the occasion for a determination of the merits of the Plaintiffs’ claims: The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2006] QCA 407; [2007] 1 QdR 148, at [38]; [2006] QCA 407.
259. Furthermore, the question of limitation, which is relied upon by the Defendants, at least in respect of some of the claims, might be complex and, in all probability, will require investigation of the facts and also substantial argument. Extending the time for service of the Statement of Claim will not deprive the Defendants of any limitation defence as that defence can still be pleaded in any Defence to the Statement of Claim. It is non-compliance with the UCPR, not disregard of the Limitation Act 1969 (NSW), which has brought the Plaintiffs to Court seeking the exercise of discretion to extend the time. However, I have not ignored there being, at least potentially, a Limitation Act defence that may be raised by the Defendants.
260. For the reasons set out earlier, the order made by Rein J should not be set aside upon the bases identified in Issue 3. The Defendants, because they had not been served, had not been drawn into the 2018 proceedings when, on 26 September 2018, the matter was dealt with by Rein J and they had no definitive status in relation to those proceedings: Issue 3.
261. In any event, even if the limitation period might have expired before the order by Rein J was made, it was conceded by counsel for the Defendants that the limitation period had not expired in relation to more than half of the value of the claims made by the Plaintiffs.
262. In addition, whilst it is true that there may be some points of pleading in respect of the Statement of Claim, to which counsel for the Defendants referred, which may have some merit, those points may be overcome by amendment. No doubt, when the pleading complaints made are considered, an opportunity will be taken by the Plaintiffs to recalibrate the claims made.
263. I have not put aside the merits of the Plaintiffs’ claims as having no possible relevance, and have considered the arguments on this topic advanced on behalf of the Defendants. These are merely factors in this particular case that ought to be considered before the discretionary judgment is exercised. In the circumstances, I do not think it is appropriate to determine these issues on the applications presently before the Court. The parties are not in a position to address a full argument on that issue and the Court simply cannot make any meaningful assessment of the Defendants’ prospects of success in successfully raising any defences.
264. In the present case, by the time of the rehearing, each of the Defendants had acknowledged that the Statement of Claim had been “delivered” to him in late October 2018. However, 8 months later, each is still maintaining that Rein J should not have made the order extending time.
265. In my opinion, when regard is had to all of the factors in the case, including ss 56 to 59 of the Civil Procedure Act to which reference has been made, the cogency of the case in favour of not discharging his Honour’s order is far stronger than the cogency of the case for discharging his Honour’s order extending the time for service of the Statement of Claim in the 2018 proceedings. Indeed, the pursuit of all of the satellite interlocutory proceedings of the kind here in question does not fulfil the overriding purpose of the Civil Procedure Act. To the contrary, it is the very kind of conduct which should be avoided if those purposes are to be achieved: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, at [59].
266. In all the circumstances of this case, and in the interests of justice, I do not propose to make an order discharging the order made by Rein J on 26 September 2018 extending the validity for service of the Statement of Claim in the 2018 proceedings.
267. Finally, I am satisfied that each of the Defendants has been served with the Statement of Claim in the 2018 proceedings on the dates that the Statement of Claim was delivered to him in October 2018. Even if they had not been served, it is clear beyond all doubt that the Statement of Claim in the 2018 proceedings has come to the attention of the Defendants and they have had this document for a lengthy period of time. This Court should not hesitate, now, to deem service to have been effective. The approach of the Defendants, at least in part, has delayed, and frustrated, the progress of the 2018 proceeding.
268. In the circumstances, I am also not prepared to set aside the service of the Statement of Claim in the 2018 proceedings at that time: Issue 4.
269. Should it be required, or perhaps, for abundant caution, I am prepared to make a declaration in terms of Paragraphs 1 and 2 of the Plaintiffs’ notice of motion filed 23 October 2018: Issue 5.
270. As stated, it is not possible to deal with what consequential orders should be made as to the costs of the 2017 proceedings and in respect of the 2018 proceedings: Issue 6.
271. It may be, bearing in mind, the substantial time and costs involved, and my concern, expressed more than once, that the parties and their lawyers have not complied with their obligations to facilitate the just, quick and cheap resolution of the real issues, that a special costs order will be warranted. However, I leave this for further argument if the parties are unable to agree on how the costs should be determined.
272. I do not propose to make any orders, at this stage, to give effect to these reasons for judgment. Instead, Counsel are invited to agree a form of orders to give effect to these reasons and are directed to provide to my Associate, within 14 days, in hard and soft copy, short minutes of order, for the Court’s consideration.
273. When these reasons are delivered, the matter of the costs of the two notices of motion, and any argument about the form of orders reflecting these reasons, will be listed for hearing.

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