Beyfield Pty Ltd v DFRS Mechanical (Aust) Pty Ltd [2011] QDC 150 (12 July 2011)

Last Updated: 23 August 2011

[2011] QDC 150

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1434 of 2011

BEYFIELD PTY LTD	Plaintiff
and
D F R S MECHANICAL (AUST) PTY LTD (ACN 055 838 438)	Defendant

BRISBANE

..DATE 12/07/2011

ORDER

CATCHWORDS

(Cth) Service and Execution of Process Act 1992, s 16 Uniform Civil Procedure Rules 1999, r 144

Belated concession by plaintiff that omission to include Form 1 when purportedly serving a claim and statement of claim interstate necessitated reservice - costs

HIS HONOUR: This application as resolved into one about costs. The plaintiff inadvertently omitted the Form 1 required by the Service and Execution of Process Act 1992 of the Commonwealth when serving the claim and statement of claim in this matter at the registered office of the defendant in New South Wales using postal means.

The requirement of a Form 1 is mandatory by section 16 of the Act which provides that service is effective only if copies of such notices as are prescribed are attached to the copy of the process served.

The requirement is well recognised as it was by the primary Judge in C & P Trading Pty Ltd v Roladuct Spiral Tubing Pty Ltd [1994) 2 QdR 247, and I'm grateful to Mr Alford for reminding me that on previous occasions I've been alert to the requirement myself in Thomas v Yanoulatos [2010] QDC 67 and Adams v Karkeet [2010] QDC 495.

C & P Trading establishes that the requirement of a Form 1 is one that may be waived. It was held to have been waived there by the defendant's participation in a context where there seems to have been mention of the Form 1 apparently being missing in a summary judgment application argued on the merits.

Mr Tam, who appeared for the plaintiff/respondent, submits that the defendant here has likewise waived entitlement to take the point.

The claim was filed on the 4th of May 2011. A conditional notice of intention to defend was filed on the 9th of June 2011. This is the application which the defendant was allowed 14 days to make under Rule 144.

The parties have wasted little time in progressing the proceeding and the steps relied on by Mr Tam as pointing to a waiver include the requesting by the defendant's lawyers and the providing of at least one document referred to in the statement of claim, the making of disclosure, and perhaps other steps, none, it seems to me, as telling as participation in a hearing on the merits in C & P Trading.

The cooperative attitude shown in the work that's been done to date is of a kind that from time to time one sees done even before there are proceedings with a view to those who may become parties in litigation identifying where they stand.

Just as the deficiency in relation to Form 1 was not noticed in the plaintiff's camp, nor was it noticed until somewhere along the line in the defendant's camp. It may have been when apprehension arose that judgment in default might be sought once the Brisbane firm who are town agents for the defendant's principal solicitors became alive to the important point available to them, albeit a technical one. The point was pursued by the defendant, attracting contentions in response that a waiver had occurred, that it was too late for the defendant to run the point. There's some benefit to the defendant in doing so as it gets additional time to consider what to do and prepare a case. The Form 1 invites an application to the Supreme Court of Queensland, for example, if it's contended that a court in another jurisdiction is the appropriate one to determine the claim.

It's conceded now by the plaintiff that the defendant ought to have the Form 1 rights. It effected service again by express post to the registered office and by service on the Brisbane agents on or about the 5th of July, which is conceded to have been effective as of the 7th of July.

The plaintiff's solicitors have made a series of offers calculated to forestall the present application which essentially relate to the saving of costs, particularly so far as the plaintiff's potential liability to pay costs are concerned. As I read the documents, it's really only today at the hearing that the defendant gains the assurance which I think it's entitled to that it has 28 days from the 7th of July to respond to service, that is, proper service, of the claim and statement of claim.

A good deal of the work that's been done ought still to be useful. I've attempted in the order to be made to make it clear that as much of that work as can be ought to be embraced and made useful without being repeated.

One of the interesting questions that may lurk here is whether it's possible to waive an entitlement without being aware that something is being given up. I'm inclined to think that it is not necessary in all circumstances for there to be awareness. Today's matter is decided on the basis that, all things considered, including a lack of reference to the need for a Form 1 on the defendant's side, it's clear that there hasn't been a waiver here. I'm willing to hear the parties as to the details of the order I propose before finally making it;it's as follows:

1. Direct that the claim proceed on the basis that 7th of July 2011 was the date of service of the claim and statement of claim in New South Wales and that the defendant's rights and obligations in respect of filing a notice of intention to defend run from that date.

2. Direct that to the extent appropriate and in the interests of saving costs and avoid repletion of work either party may use documents already in existence and confirm the applicability of steps already taken in the proceeding and reliance on them.

3. I order that the plaintiff pay the defendant's costs of its application filed 23rd of June 2011 and any costs necessarily thrown away and wasted by reason of the original service being defective.

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