#7380 - Topic Six Appearance - Civil Procedure

TOPIC SIX: APPEARANCE

An appearance is the procedure used by the defendant to inform the plaintiff that he or she intends to defend the proceedings. Gives name of the defendant’s solicitors, and provides a proper address for service where service can be effected on defendant. It prevents the plaintiff entering a default judgment or taking further steps without notice to the defendant.

• An appearance must be entered before taking a step in a proceeding (r8.02)

• D files sealed copy on each and every P in accordance with r6.07 (ordinary service) (r8.05(3))

• Must be in form 8A, and have to get ‘sealed’ in the court (Form 8A)

• Appearances are filed for five reasons:

  • To avoid a default judgment

  • To inform the plaintiff the action is to be defended, the name of the defendant’s solicitors, and an address where service can be effected

  • In the case of an unconditional appearance, to acknowledge the courts jurisdiction

  • As a precondition before a defendant can take a step in proceedings otherwise than with leave of the court; and

  • In the case of conditional appearances, to prevent waiver of procedural irregularities and of the right to object to the court’s jurisdiction

• Failure to enter an appearance enlivens the issues of waiver and default judgment

  • Default judgment

  • Waiver:

    • An inference can be drawn that the party does not intend to rely on the objection upon which he or she may otherwise be entitled to rely Lindgran v Lindgran

    • The following conduct would appear to give rise to waiver:

      • An application for security for costs and an extension of time for appearance

      • An application for adjournment and to serve and answer interrogatories

    • The following does not:

      • Seeking particulars of a statement of claim on a summons to have service of the writ set aside

      • Attempting to discharge an interim injunction on an application to set aside service prior to an appearance

1. Special Categories

a) Minors/disability

• Special rules apply in relation to appearances by infants or others under a disability under which a guardian or similar person needs to be appointed (r15.02)

b) Corporations

• A corporation may file an appearance by any person duly authorised by it to so act (r8.03(2))

c) Partnerships

• When a partnership is sued in the firm name, a partner must appear individually in his or her own name (r17.04-17.06)

d) Third parties

• Third parties are required to enter appearances or risk default judgment. (r11.08)

• Persons added or substituted as defendants must also enter an appearance (r9.11)

2. Procedure for entry of appearance

• A defendant in person or by a solicitor may enter an appearance by filing an appearance in the registry out of which the originating process issued (r8.02)

• Requirements:

  • States the name and address or contact details of the person entering the appearance (r8.06)

  • Filing or entering the appropriate form (r8.05)

  • Must be in the form of Form 8A, B (A is unconditional, B is conditional) (r8.05)

  • Ordinary service or by prepaid post (r6.07(1), r8.05(4))

    • Can’t claim costs for personal service, as it is not ‘reasonably necessary’

  • That an address for service be given (r8.06)

• Situations where a party may proceed without entering an appearance:

  • Applying to set aside the originating process or its service r8.09

  • Objecting to the court’s jurisdiction

a) Time limit

• Time periods governed by that jurisdiction’s Rules of Court, whilst time periods for entry of an appearance relevant in another state or territory are governed by SEPA

  • A defendant may enter a late appearance at any time before judgment (r8.07)

    • Leave is required to enter an appearance after final judgment

  • Served in Vic – 10 days after service (r8.04(a))

  • Served interstate – 21 days (r8.04(b)/s17 SEPA)

  • Served in NZ or PNG – 28 days (r8.04(c))

  • Served overseas – 42 days (r8.04(d))

• NOTE: Court does have the power to set aside a writ, originating motion or its service on application made by the defendant BEFORE they have filed an appearance. (r8.09)

b) D’s response to service

• Do nothing

  • Exposed to default judgment

• Enter unconditional (standard) appearance (Form 8A)

  • This document acknowledges the court’s jurisdiction and waives any irregularity in service or commencement of proceedings.

  • Shall be filed by filing a notice of appearance in form 8A (r8.05(d))

  • Submits to jurisdiction Colbert v Tocumwal Co Pty Ltd

  • Indicates action will be defended

  • Gives address for service of all future documents

  • State name, address and contact details of person entering an appearance

  • Files in court registry and served on the plaintiff

  • Waives:

    • Objections to the jurisdiction of the court Moore v Gamgee

    • Irregularities in the originating process Healey v Ballarat East Bowling Club

    • Irregularities as to commencement Edwards v Warden

    • Irregularities in service Perkins v Williams

• Enter a conditional appearance (Form 8B)

  • Does not waive procedural irregularities, but reserves arguments on lack of jurisdiction and other irregularities.

  • Shall be filed by filing a notice of appearance in form 8B (r8.08(2)) and shall have effect for all purposes as an unconditional appearance, unless defendant serves application 15 days after conditional filed

  • Possible basis of objection:

    • The plaintiff’s cause of action has no nexus with the jurisdiction and that service was invalid

    • The plaintiff tricked the defendant into coming into the jurisdiction as so as to serve the originating process

    • Forum non conveniens

    • Immunity: a foreign sovereign cannot generally be sued without consent.

  • Possible outcomes following conditional appearance

    1. Court determines it has jurisdiction – defendant bound by that decision Forbes v Smith

    2. Court determines it lacks jurisdiction, or an irregularity or defect in process or service, court can stay or set aside proceedings.

  • Disputing service outside Australia r 7.05

    • Defendant can enter a conditional appearance (via solicitor – don’t enter the...