YLC Case ‘Nopes’

Case ‘Nopes’

When the law goes wrong - cautionary tales from the cases for new (and not so new) lawyers

Chris Burch

Chair, Young Lawyers Committee

‘These circumstances are every young practitioner’s nightmare’ — The perils of effecting service with only hours before a writ expires

‘“We have instructions to accept service on behalf of our client’.” Every solicitor involved in litigation would at some time either have sent or received a letter or email containing the above sentence. Most practitioners would assume they knew exactly what was meant when these words were used …’: City of Canning v Christou Nominees Pty Ltd [2020] WASC 97 [1]. So began Master Sanderson with another of his paragraph 1 zingers. A writ (and the claims in it) was set to expire on 29 July 2019. As sometimes happens, that day a junior lawyer was instructed to make sure it was served. One defendant’s solicitors had told the plaintiff’s previous lawyers that they had instructions to accept service. But the junior lawyer, unaware of that, sent an email attaching the writ and asking for confirmation the defendant’s solicitors had instructions to receive service. The response — we’ll get back to you. They never did.

As the Master succinctly put it: ‘at 12.37 pm … [the junior lawyer] found herself in an extremely difficult position’. She knew service had to be effected that day. She had approached the defendant’s solicitors, but only received a holding response. And she had mistakenly searched for a very similar company name, causing her arrangements for physical service to result in delivery of the writ to the wrong address. ‘These circumstances are every young practitioner’s nightmare’: [13]. Fortunately for the junior lawyer, the defendant’s solicitors’ previous undertaking saved the writ — the provision of a copy by email was enough to effect service: [23] – [25]. As the Master noted, it ‘is an essential part of the training of any junior practitioner that they learn to perform when under pressure’ ([14]), and there are a number of lessons for new lawyers about performing under pressure that come out of this case:

Make sure you understand

service — You will be asked to serve documents, and what needs to happen to make sure it’s done right. You’ll probably be asked with only hours left to get it done. Looking it up and learning it now means you won’t be searching through the Rules while stressed out of your mind.

Know when things need to be

served —The senior lawyers should know all the limitation periods and times for service on their matters. But you can too, and you can make sure you set up alerts so you’re aware of them before the day they expire. That might avoid you having to serve something on only a few hours’ notice.

Don’t try to do it all alone — The Master noted that ‘knowing what was at stake it is surprising [the senior lawyer] did not check with [the junior lawyer] on an hourly basis as to her progress in serving the writ’ and ‘[c]lose supervision may have prevented the mistake’ about the wrong corporate address being made. So when you’re facing the challenge of serving a document on a tight timeline, don’t go it alone — involve your supervisor so they can sense check the requirements and details you’ve identified. It’s their responsibility to help you do it right.

Be clear in your correspondence

— One argument run in the case was that the junior solicitor’s email asking for confirmation that the defendant’s solicitors would accept service meant she never intended to effect service by email. While the Master rejected that service is ‘some part of a forensic game, in which one party, by taking advantage of an oversight by another party, gains an advantage’ ([22]), it’s an important lesson in being clear in written communications about what you intend by them. So when you’re serving a document by email, be plain — say that you’re attaching the document by way of service, and if the other side won’t confirm they accept it, keep following them up (and making notes that you have). The junior lawyer avoided her nightmare turning into a reality. But it could easily have been otherwise. So don’t wait until a writ that’s about to expire is dropped on your desk — get to know your service requirements and deadlines now. You won’t regret that later.