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Tuxworth v Herman and Eggars [1985] PNGLR 282 (2 September 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 282 - Norman Tuxworth v Herman and Honna Eggars 

[1985] PNGLR 282

N516

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TUXWORTH

V

EGGARS & ANOR

Waigani

Barnett AJ

2 September 1985

PRACTICE - Foreign judgments - Registration of - Setting aside registration of - Service of process - Service on solicitor on record sufficient - Reciprocal Enforcement of Judgments Act (Ch No 50), s 5(1)(a)(iii).

PRIVATE INTERNATIONAL LAW - Foreign judgments - Registration of - Setting aside registration of - Service of process - Service on solicitor on record sufficient - Reciprocal Enforcement of Judgments Act (Ch No 50), s 5(1)(a)(iii).

PRACTICE - Service of process - Sufficiency of service - Registration of foreign judgments - Application to set aside - No personal service of notice of registration - Actual notice of registration held - Motion to set aside - Court “otherwise satisfied” as to service - National Court Rules, O 13, rr 73, 75.

Held

(1)      For the purposes of the Reciprocal Enforcement of Judgments Act (Ch No 50), s 5(1)(a)(iii), service of process on the solicitor on the record will satisfy the requirement of service on the judgment debtor.

(2)      Where a judgment debtor who did not formally receive personal service of the notice of registration of a foreign judgment, did nevertheless receive actual notice of the registration within the specified time and then applied by way of motion to have the registration set aside, the court was “otherwise satisfied” that the requirements of the National Court Rules, O 13, r 75, as to service had been fulfilled.

Cases Cited

Barclays Bank Ltd v Piacun (Unreported, Supreme Court of Queensland, Full Court, 0S No 291 of 1982).

Notice of Motion

This was an application to set aside the registration of a judgment of the Supreme Court of Queensland brought pursuant to the Reciprocal Enforcement of Judgments Act (Ch No 50), s 5(1)(a)(iii).

Counsel

N Diacos, for the plaintiff.

T Doherty, for the co-defendants.

2 September 1985

BARNETT AJ: This was a motion brought by the defendants to set aside the registration of a Queensland Supreme Court judgment pursuant to the Reciprocal Enforcement of Judgments Act (Ch No 50), s 5(1)(a)(iii).

The brief history of the matter is that the first defendant was served with a writ of summons issued by the Supreme Court of Queensland whereby the plaintiff claimed the sum of $A18,738.50 from both defendants, who are husband and wife. The sum was claimed as a liquidated amount due on various contract debts.

It appears that the second defendant was not properly served with the writ as it was served on her husband only. However both defendants then instructed their solicitors, Messrs Riba, Dent and Smith, to act for them in this matter and to file notices of intention to defend and defences on their behalf and this was done in December 1980.

It is clear from her affidavit that the second defendant gave these instructions herself thus waiving any right subsequently to take the point that she herself had never been served with the writ of summons.

A long delay then occurred until the matter was set down to be heard on 26 June 1984 and notice of this date was given to the defendants’ solicitors on 10 May 1984, being effectively six weeks and four days notice. Those solicitors wrote to the first defendant advising him of this date and seeking instructions. He received the letter in Papua New Guinea in mid-May and he swears he did not tell the second defendant nor did he send instructions. The second defendant has sworn she did not know the matter was set down for hearing. At the trial on 26 June 1984 the defendants’ solicitors withdrew for want of instructions. The plaintiff gave evidence and judgment was given against the defendants for $A18,738.50 and costs.

The plaintiff proceeded by way of originating summons in this Court dated 22 April 1985 to apply for registration of the judgment of the Queensland Supreme Court under the Reciprocal Enforcement of Judgments Act (Ch No 50). Registration was duly ordered on 10 May 1985 and it was further ordered that notice of registration be served on the debtors who were given fourteen days after service to oppose registration of judgment. The amount of the judgment entered was for K14,484.42 plus costs of K150. From his own affidavit of 29 June 1985, service of notice of registration was apparently effected on the first defendant sometime in May 1985, though no affidavit of service has been filed.

By notices of motion dated 28 June 1985 each defendant sought to have the registration of the Queensland Supreme Court judgment set aside.

Ms Doherty appears for both defendants and she argues first, on behalf of them both, that the registration of this judgment should be set aside pursuant to the Reciprocal Enforcement of Judgments Act (Ch No 50), s 5(1)(a)(iii), which states:

“... the registration of judgment:

(a)      shall be set aside if the registering court is satisfied that:

(i), (ii) ...

(iii)     the judgment debtor, being the defendant in the proceedings in the original court, did not (notwithstanding that process may have been duly served on him in accordance with the law of the original court) receive notice of those proceedings in sufficient time to enable him to defend the proceedings and did not appear;... .”

It is conceded that the first defendant was personally served with the writ of summons in December 1980. It is further clear that both defendants then instructed the same firm of solicitors to act and to give notice of intention to defend and to file a defence and these things were done. It is therefore not now open to either defendant to take the point that they did not receive notice of the writ of summons in sufficient time to enable preparation of a defence.

Ms Doherty however argues that the proceedings were finally brought on when a date was set for trial and she claims that notice of that proceeding was not given. It is clear from the affidavits that notice was given to the defendants’ solicitors in sufficient time (nearly seven weeks before the trial date) and that they wrote to the first defendant advising him in sufficient time.

Ms Doherty argues that “actual service of the notice” was required by the Act. She says that service on the defendants’ solicitors does not constitute actual service and that consequently this Court cannot be satisfied that the defendants received notice of the proceedings in sufficient time. Her authority for this somewhat startling proposition is the Queensland Full Court case of Barclays Bank Ltd v Piacun (Unreported, Queensland Supreme Court, Full Court, OS No 291 of 1982).

In that case the court was considering the situation where an order for substituted service had been made in England after which the United Kingdom High Court entered judgment for the plaintiff in default of appearance by the defendant, who was by then residing in Queensland and had received no “actual” notice of the proceedings. The Queensland Full Court, when interpreting the identical provision to our s 5(1)(a)(iii), held that the section required the registering court to be satisfied that the judgment debtor had been served with actual notice, not substituted service. That case did not involve the proposition that service on his solicitor shown on the record did not constitute service on the party.

I hold in this case that both defendants received notice of the proceedings in the Queensland Supreme Court when notice of the date set for the hearing was given to their solicitors. Further, I am satisfied that the six weeks and four days was notice in sufficient time to enable them to defend the proceedings had they so chosen, even though they were then residing in Papua New Guinea. As far as the first defendant is concerned, he received additional “subjective” notice when he received a letter from his solicitors advising him of the date for trial and seeking his instructions. As far as the second defendant is concerned, if the solicitors did not tell her, and if her husband did not either, she may have some right of action against one or both of them. As far as the plaintiff is concerned however both defendants were given notice by service on their legal representatives. For this reason the application to set aside the registration of judgment, being based only on s 5(1)(a)(iii) must fail.

That really disposes of all the matters raised by this motion. However as both counsel have also fully argued, Ms Doherty’s second submission — that the judgment is not enforceable against the second defendant, I shall also rule on that submission.

Ms Doherty correctly points out that the National Court Rules, O 13, r 73(1) and (2), specify that notice of registration shall be served on the judgment debtor and that unless the court otherwise orders “service of the notice shall be personal”. She argues this means the formal notice stating the matters specified in r 73(3) should have been personally served on the second defendant (a mandatory provision). In her affidavit the second defendant swears this never happened, and it is not contested by the plaintiff.

Referring to O 13, r 75(2), Ms Doherty argues that the plaintiff cannot take any step to enforce the judgment as an affidavit of service has not been filed (conceded) and the court should not be “otherwise satisfied that the requirement of these rules as to service of the notice of registration have been fulfilled”.

Rule 75 is designed to ensure that enforcement is not allowed to proceed (usually ex parte) unless the court is satisfied that the judgment debtor has received notice of the registration a specified number of days before enforcement, to allow sufficient time for the debtor to proceed by notice of motion to set the registration aside. In this case fourteen days was specified by the order for registration.

Even if the second defendant did not herself receive the formal notice it is quite clear from the affidavits of both defendants that the husband did receive notice, that they had time to, and did, discuss the matter with a lawyer, and gave instructions to proceed to have the registration set aside. Their notices of motion were in fact filed within fourteen days of the order and the substantive issues which both defendants claim would justify setting the registration aside have been fully, though unsuccessfully, argued before me. In these circumstances I am quite satisfied that notice of the registration was received in a way which satisfies the principles set down in r 75. To the extent that any formal requirements of these rules regarding notice and service of notice of registration have not been complied with, I exercise the discretion given to this Court by O 1, r 7, and order that such requirements be dispensed with. Accordingly I find that the submissions made, somewhat half-heartedly on behalf of the first defendant but strongly on behalf of the second defendant, that enforcement cannot proceed because of defects in serving of notice of registration, fail.

Ordered that registration of the judgment of the Supreme Court of Queensland ordered by this Court on 10 May 1985 be not set aside. The motion dismissed and costs of the application awarded to the plaintiff.

Lawyers for the plaintiff: Kirkes.

Lawyer for the co-defendants: T Doherty, Morobe Provincial Government.