Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Spencer v Bamber [2012] NSWCA 274
• Hearing dates: 25 July 2012
• Decision date: 05 September 2012
• Before: Basten JA at [1]; Campbell JA at [24]; Macfarlan JA at [227]

Decision

(1) Set aside the order numbered (1) purportedly made in the court below on 26 October 2011.

(2) Otherwise, appeal dismissed.

(3) Appellant to pay costs of the First and Second Respondents.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL AND NEW TRIAL - bias of trial judge - where the trial judge is alleged to have been vitiated by actual or apprehended bias - allegations of bias must be dealt with first on appeal as the discovery of bias taints the whole of the judgment below; APPEAL AND NEW TRIAL - bias of trial judge - where the trial judge is alleged to have been vitiated by actual or apprehended bias - it is not prejudgment for a trial judge to rely on a party, without objection, seeking to confine the issues it agitates to particular arguments it has put forward at trial; EVIDENCE - proof of documents - where print-out of email produced before the court purporting to show email and its attachments were sent to a particular addressee - reasonable to assume that in the ordinary course of business emails reach their intended recipient - conclusion supported by s 161 Evidence Act 1995; JUDGMENT - reasons for judgment - amendment by judge to judgment after delivery of reasons extempore - extent to which amendments are permissible - permissible amendments are limited to matters which were clearly in the judge's mind at the time or are merely editorial or stylistic - changes of substance are not permitted - the inclusion of an order not requested by either party supported by reasons not addressed by either party is a change of substance - order set aside; JUDGMENT - reasons for judgment - amendment by judge to judgment after delivery of reasons extempore - where amendments were impermissible - proper course on appeal is to read judgment as if amendments had not been made; PRACTICE AND PROCEDURE - expedition list - not necessary for trial judge having an expedited matter come before him or her to question the reason for the placement of the matter in the expedition list - reasonable to proceed on the basis that the matter ought to be dealt with as expeditiously as practicable in the circumstances; REAL PROPERTY - service of notices - s 170 Conveyancing Act 1919 - the legislatively enumerated methods of service serve to increase, not limit, the ways in which service can be effected - any method by which a document actually comes to the attention of the person to be served is sufficiently served for the purposes of the section - Notice of Intention to Apply for Foreclosure required to be served on mortgagor - notice in electronic format attached to an email sent to the mortgagor by his solicitor was actual service of the mortgagor; WORDS AND PHRASES - "actual bias", "apprehended bias", "service"
• Legislation Cited: Butterworths Conveyancing Service New South Wales; Civil Procedure Act 2005; Competition and Consumer Act 2010 (Cth); Conveyancing Act 1919; Evidence Act 1995; Oaths Act 1900; Powers of Attorney Act 2003; Real Property Act 1900; Sale of Land Act 1970 (WA); Supreme Court Act 1970; Uniform Civil Procedure Rule 51.51
• Cases Cited: Barakat v Goritsas (No 2) [2012] NSWCA 36; Bell v Veigel [2008] NSWCA 36; Browne v Dunn (1893) 6 R 67; Caldwell v JA Neilson Investments Pty Ltd [2007] NSWCA 3; (2007) 14 ANZ Insurance Cases 61-724; Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342; Chapman v Larrescy [1978] 1 NSWLR 592; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577; Ebner v Official Trustee in Bankruptcy [200] HCA 63; (2000) 205 CLR 337; Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Ex parte Portingell [1892] 1 QB 15; Holloway v Coster [1897] 1 QB 346; Hope v Hope (1854) 4 De GM & G 328; 43 ER 534; House v R (1936) 55 CLR 499; Italiano v Carbone [2005] NSWCA 177; Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441; Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427; Palmer v Clarke [1989] 19 NSWLR 158; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Peter James Spencer v Wayne Dennis Bamber [2011] NSWSC 1245; Peter James Spencer v Wayne Dennis Bamber [2011] NSWSC 1313; R v Deputies of the Freeman of Leicester (1850) 15 QB 671; Schenck Australia Pty Ltd v Australian Coal Technology Pty Ltd [2006] NSWCA 211; Spencer v Bamber (Tobias JA, 7 March 2011, unreported); Spencer v Bamber [2011] NSWSC 141; Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118; Sullman v Sullman [2002] NSWSC 169; [2002] DFC 95-248; Talbot-Price v Jacobs [2008] NSWCA 189; The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; 70 CLR 141; Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463; Van den Bosch v Australian Provincial Insurance Association Ltd (1968) 88 WN (Pt 1) (NSW) 357; West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431
• Category: Principal judgment
• Parties: Peter James Spencer (Appellant); Wayne Dennis Bamber (First Respondent); Deneva Jean Bamber (Second Respondent); Registrar-General of New South Wales (Third Respondent)
• Representation: Counsel: PE King; PR Glissan (Appellant); GR Waugh (First and Second Respondents); Submitting Appearance (Third Respondent); Solicitors: Horowitz & Bilinsky (Appellant); Marriott Oliver (First and Second Respondents); Gavin Bartier (Third Respondent)
• File Number(s): 2012/33039

Decision under appeal

• Jurisdiction: 9111
• Citation: Peter James Spencer v Wayne Dennis Bamber & Ors [2011] NSWSC 1313
• Date of Decision: 2011-10-26 00:00:00
• Before: Pembroke J
• File Number(s): 2011/41598

Judgment

1 BASTEN JA: I agree with the orders proposed by Campbell JA and, subject to what follows, with his reasons.

Additional order

2 As explained by Campbell JA, on 26 October 2011 the primary judge delivered an ex tempore judgment on completion of the hearing of the summons listed before him. Because he was satisfied that there had been actual service of the notice on Mr Spencer, he found there was no basis to set aside the foreclosure order made by the Registrar General on 16 July 2010. He therefore made orders dismissing the summons and ordering the plaintiff to pay the costs of the defendants. It appears that, in accordance with usual practice, the orders were recorded on the Court's computerised court record system on the day on which they were made and were thereby taken to be entered on that day: Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), r 36.11(2). The summons having been dismissed, the proceedings were complete, subject to the liberty granted by order (3) with respect to a possible special costs order.

3 Rules 36.1A, 36.2 and 36.3 recognise the following possible results at a hearing, namely:

(a) delivery of an oral judgment with both orders and reasons;

(b) making orders, but reserving reasons;

(c) reserving judgment without making orders or giving reasons.

4 The primary judge in the present case adopted the first option of making orders and giving reasons orally at the conclusion of the hearing. As explained by Campbell JA, the orders were sufficient to dispose of the proceedings and the reasons for the orders then made were adequate, but it was open to the primary judge to revise those reasons to correct errors and infelicities of expression. One question now arising is whether it was open to the primary judge to make a further order, so as to validate the order made by the Registrar with respect to substituted service. It appears that the additional order was made in chambers and was not communicated to the parties until the delivery of the revised reasons on 3 November.

5 The proper manner of making orders, both under the UCPR and by reference to the general law and practice, was discussed by Campbell J, then in the Equity Division, in King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076; 64 NSWLR 441. At least in respect of the Supreme Court, as a superior court of record, orders can be made in open court or in chambers, pursuant to r 36.3(1): at [153]. However as Campbell J further explained, it is important that the court make clear the date on which the orders are made, that being the date on which they take effect in the absence of an order to the contrary, pursuant to r 36.4(1): at [160]. It would have been possible for the primary judge in the present case to make an order on 3 November and direct that it have effect from an earlier date, including 26 October: r 36.4(3). However, that must be done by order and no order to that effect was made. It is also possible that the primary judge decided to amend the orders on his own motion after the completion of the hearing in court. That course may have been open, pursuant to r 36.16, before entry of the judgment or order. Even after orders were entered and in the absence of an application to vary or set aside the orders, the court may do so of its own motion within 14 days after the orders were entered, as if they had not been entered: r 36.16(3B). Where a "new" order is being added to orders already made, there may be a nice question as to whether the effect is to vary orders already entered.

6 The precise circumstances in which the new order was made in the present case are unclear. The irregularity of the process was exacerbated by the absence of any request for an order in that form and, consequently, the lack of argument as to the need for or appropriateness of such an order.

7 Quite separately from the propriety of making the additional order, there was the delivery of additional reasons in support of the orders earlier made and the additional order.

Delivery of further reasons

8 The ways in which the reasons delivered orally were varied and the principle as to when that course can be taken have been comprehensively explained by Campbell JA at [137]-[192]. I agree with the principle stated, and with the application of that principle, except in respect of new paragraphs [25], [26] and [28], dealt with by Campbell JA at [170]-[175]. I would not infer that particular propositions were "in the judge's mind" at the time of delivering oral reasons, if those statements were not made. In any event, the test is an objective one, requiring consideration as to whether the additions were permissible or impermissible. As the authorities demonstrate, the distinction between improving the manner of expression and altering the substance of what has been stated does not involve a bright line. However, the fact that new material is consistent with the reasons already given, whilst perhaps a necessary condition of an appropriate variation, is not a sufficient test in itself.

9 A further test as to the propriety of an additional variation in reasons already delivered is the degree of conformity to the argument presented in court. There is a separate question as to the propriety of and the extent to which a judge can properly rely upon authorities or principles not addressed in the course of written or oral submissions. There is an important distinction, however, between a variation to oral reasons to deal with an argument which had been raised at the hearing, but not adequately addressed in the reasons delivered orally, and the addition of a process of reasoning or reliance on authority which had not been the subject of argument. Whatever the circumstances in which that is appropriate as a matter of principle, it is not acceptable as a variation to orders and reasons already made and delivered.

Correction on appeal

10 The making of an additional order and the provision of additional reasons, to the extent that such courses were inappropriate, gives rise to a separate question as to the consequences on appeal.

11 The present appeal was by way of rehearing, subject to s 75A of the Supreme Court Act 1970 (NSW). In exercising the powers under s 75A, this Court is able to make such orders as should have been made by the Court below, on the basis of the material available on appeal. On such an appeal, inadequacy of reasons may result in a judgment being set aside where the reasons relate to an issue, such as the credibility of witnesses, which cannot be adequately assessed by the appellate court. By contrast, where the inadequacy of reasons does not relate to the making of findings of fact, but rather the inferences to be drawn from such findings or identification of the appropriate principles of law, such omissions can readily be rectified on appeal and, for that reason, grounds restricted to the supposed inadequacy of the reasons of the trial judge are rarely successful where that is the sole basis for the appeal.

12 If the additional order in the present case had been appropriate and necessary for disposal of the proceedings below, the potential unfairness in making such an order where the party adversely affected had not had an opportunity to address the arguments raised, or the form of the order itself, might be capable of being remedied on appeal. However, as explained by Campbell JA, the order was not necessary and, in the circumstances, the proper course is, as his Honour has held, to set it aside.

13 There is a separate question as to the appropriate course for dealing with additional reasons not properly given in the exercise of judicial power. The course commonly taken is for the appellate court to "disregard" the additional improper reasons: in addition to the authorities referred to by Campbell JA, see Talbot-Price v Jacobs [2008] NSWCA 189 at [12] (Ipp JA). In practice, however, on an appeal by way of rehearing, the existence of additional reasons will rarely affect the outcome of the appeal. They are likely to be significant only in circumstances where, in respect of a material issue required to be determined for the purposes of the trial, the original reasons were inadequate in a respect which cannot be corrected on appeal. In such a case, the additional inappropriate reasons will not cure the inadequacy.

14 As already noted, except in respect of the additional order, which was itself unnecessary, the additional reasons adequately (and correctly) justified the conclusion reached, as reflected in the orders originally made. Accordingly, nothing turns on the existence of the additional reasons, whether appropriate or inappropriate.

Bias based on pre-judgment

15 The principles in respect of both actual and apprehended bias have been identified by Campbell JA and need not be repeated. However, the principles may operate differentially, depending upon the kind of bias in question. Thus, in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337, the references in the joint judgment to the need to identify "what it is said might lead a judge ... to decide a case other than on its legal and factual merits" and, separately, to articulate "the logical connection between the matter and the feared deviation from the course of deciding the case on its merits", arose in circumstances where the basis of the challenge was an extraneous interest of the trial judge, by way of shareholding, either in a party to the proceedings or in a person with an interest in the outcome of the proceedings. The two separate steps required in those circumstances may not apply readily in other circumstances: see Barakat v Goritsas (No 2) [2012] NSWCA 36 at [9]-[12]. In a case such as the present, where the challenge depends upon statements made by a judge in the course of proceedings, the emphasis is likely to fall on the apparent cause of the predisposition in favour of one party, rather than the other.

16 Further, the focus of attention differs in a claim of actual bias, as compared with a reasonable apprehension of bias. In the former case it is the actual state of mind of the judge (or juror) which is in issue; in the latter case, the focus is on the apprehension of the fair-minded bystander. The latter test is usually easier to satisfy, particularly where the evidential basis is limited to statements made by the judicial officer in the course of the proceedings: see Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [33].

17 This was not a case in which the primary judge had been involved in separate interlocutory proceedings. Rather, the gravamen of the complaint was that the primary judge appeared to adopt a firm view as to the merit of the case, prior to full argument, an attitude which was apparently confirmed by remarks not directly related to the issues in dispute, both in the oral reasons and in the revised reasons. For the reasons given by Campbell JA, these complaints are without substance. Two additional observations may be made.

18 First, claims of bias share the tendency of allegations as to the inadequacy of reasons to constitute a different way of articulating what is, in substance, disagreement with the conclusions reached. If a given finding, or even a series of findings, adverse to the appellant is in itself supportable, it is most unlikely to provide a basis for an apprehension of bias.

19 Secondly, where bias is said to be apprehended on the basis of a series of procedural rulings, it may be necessary, even where each is itself justifiable, to consider the cumulative effect of the adverse rulings. This is such a case.

20 Bearing these additional factors in mind, and accepting that some of the remarks adverse to the appellant were, to an extent, gratuitous, no allegation of a reasonable apprehension of bias, let alone actual bias, has been made good.

Operation of s 61 of the Real Property Act

21 Section 61 permits a mortgagee to apply to the Registrar-General for an order for foreclosure. The application must, in part, state that notice in writing of the intention of the mortgagee to make the application has been served on the mortgagor: s 61(2)(d).

22 As noted by Campbell JA, the fact that the statements in the application are to be verified by statutory declaration (s 61(4)) indicates that there is an implicit obligation to give notice in writing to the mortgagor. That conclusion may also be supported by characterising the terms of s 61(2)(d) as having a dual or double function. As explained by Dixon J in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; 70 CLR 141 at 165-166:

"It is not unusual to find that statutes impose liabilities, create obligations or otherwise affect substantive rights, although they are expressed only to give jurisdiction or authority, whether of a judicial or administrative nature."

23 Thus, s 61(2)(d) may be seen to be a drafting device, though not one to be recommended, which imposes the obligation to give a notice as an antecedent requirement to the obligation to make a statement that such a notice has been given.

24 CAMPBELL JA:

Nature of the Case

25 The First and Second Respondents are the sister and brother-in-law of the Appellant. The Registrar-General is the Third Respondent, but has filed a submitting appearance. Hence, I shall refer to the First and Second Respondents as "the Respondents".

26 The Appellant had mortgaged certain Real Property Act 1900 land known as "Saarahnlee" to the Respondents to secure a loan of $1m. The agreement under which that loan was made provided for the Respondents to borrow that $1m from St George Bank on the security of property owned by them. The mortgage was at all relevant times the only mortgage or charge over the land, and was registered. The contractual date for repayment of the money secured by the mortgage was 31 March 2007.

27 After the due date had passed without repayment occurring, the Respondents began proceedings in the Common Law Division of the Supreme Court of NSW seeking a monetary judgment and an order for possession of Saarahnlee ("the Common Law Proceedings"). When the secured money still remained outstanding, the Respondents served a notice under s 57(2)(b) Real Property Act on 8 January 2009.

28 On 20 July 2009 the Respondents obtained by consent a judgment for debt against the Appellant, in the sum of $1,510,943, in the Common Law Proceedings. Thirty thousand dollars was paid pursuant to that judgment, but no more. The Respondents obtained a writ of possession concerning the mortgaged property in November 2009, and obtained possession of the property in February 2010.

29 On 23 April 2010, the property was submitted for sale by auction, but only one bid was received, for less than two-thirds of the mortgage debt. The property was not sold to the bidder.

30 The Respondents then set about obtaining an order from the Registrar-General for the foreclosure of the mortgage.

31 Section 61(2)(d) Real Property Act requires an application to the Registrar-General for an order for foreclosure to state (as applicable in the facts of the present case) that notice in writing of the intention of the mortgagee to make the application for foreclosure has been served on the mortgagor. The Respondents' solicitors made an attempt to effect service of such a notice by serving it on Mr Peter McKell, a solicitor who had previously acted for the Appellant, and who held a power of attorney for the Appellant. However, the Respondents' solicitors evidently had doubts about whether their attempt had been successful. They applied to a Registrar of the Supreme Court for an order under s 170 Conveyancing Act 1919 that permitted service of the notice on Mr McKell. Registrar Walton made such an order on 11 June 2010. The notice in question was served on Mr McKell on 17 June 2010, in accordance with the procedure that the order permitted for service.

32 The Registrar-General made a foreclosure order on 16 July 2010. It was registered on 13 September 2010, whereupon the Respondents became the registered proprietors of the property.

33 The Appellant commenced proceedings in the Equity Division of the Supreme Court of New South Wales against (relevantly) the Respondents and the Registrar-General. The orders that the Amended Summons sought included:

"1 A declaration that the order for foreclosure of the land specified in the schedule hereto, made on, or about, 11 June 2010, by the [Registrar-General], at the request of the [Respondents], is void and of no effect or should be set aside.

2 Order that the foreclosure of the interests of the [Appellant], in the land referred to in the schedule, be re-opened.

3 Declaration that the Order signed by Registrar Walton on 11 June, 2010, was void and of no effect.

4. A declaration that the Notice of Foreclosure was not in accordance with section 61 of the Real Property Act, 1919."

The Appellant also sought an injunction restraining the Respondents from dealing with the land; and orders for the taking of accounts, damages, equitable compensation and costs.

34 Notwithstanding that the Amended Summons identified the order for foreclosure as made on 11 June 2010, the case proceeded on the basis that the first prayer for relief related to the order for foreclosure that had been made by the Registrar-General on 16 July 2010.

35 Those proceeding were heard and decided by Pembroke J on 26 October 2011. His Honour delivered reasons for judgment orally that day, and pronounced orders, including an order dismissing the Amended Summons. His Honour published revised written reasons and orders on 3 November 2011: Peter James Spencer v Wayne Dennis Bamber [2011] NSWSC 1313.

36 The Appellant appeals against the whole of the decision below. The relief sought is in substance an order setting aside the orders of Pembroke J and remitting the matter for a new trial. Mr P King and Mr J Glissan appeared for the Appellant on the appeal. Mr G Waugh appeared for the Respondents.

Relevant Statutory Provisions

37 Section 61 Real Property Act, so far as relevant, provides:

"(1) When default has been made in the payment of the interest or principal sum secured by a mortgage ... for six months, a registered mortgagee ... or his or her solicitor, attorney, or agent may make application in the approved form to the Registrar-General for an order for foreclosure.

(2) An application under this section shall state:

(a) that default has been made for 6 months in the payment of the principal sum or interest secured by the mortgage ...,

(b) that the land, estate or interest mortgaged ... has been offered for sale at a public auction by a licensed auctioneer, after notice was given in accordance with section 57 to the mortgagor ... and all other persons (if any) required to be given notice under that section,

(c) that the amount of the highest bid at the sale was not sufficient to satisfy the money secured by the mortgage ..., together with expenses occasioned by the sale, and

(d) that notice in writing of the intention of the mortgagee ... to make the application has been served on:

(i) the mortgagor ...

...

(4) The statements made in such application shall be verified by the statutory declaration of the applicant or other person applying on the applicant's behalf."

38 Section 62 Real Property Act provides:

"(1) Where an application is made in accordance with section 61 for an order for foreclosure, the Registrar-General may:

(a) issue the order to the applicant, or

(b) require the applicant to offer the land mortgaged ... for sale and to do so in accordance with the directions of the Registrar-General.

(2) If the applicant is required to offer the land for sale and it is not sold or an insufficient amount is realised by the sale to satisfy the principal sum and interest due, and all expenses occasioned by the sale, the Registrar-General may issue to the applicant an order for foreclosure.

(3) Every order for foreclosure issued by the Registrar-General and recorded in the Register has the effect of vesting in the mortgagee ... who applied for it all the estate and interest of the mortgagor ... in the land mentioned in the order:

...

(b) in the case of mortgaged land, free from any right and equity of redemption of the mortgagor or any person claiming through or under the mortgagor."

39 Section 100 Conveyancing Act states the effect of such an order for foreclosure:

"(1) On an order absolute for foreclosure the mortgagee ... shall be deemed to have taken the property mentioned in such order, in full satisfaction of the mortgage debt ..., and the mortgagee[s'] ... right or equity to bring any action or to take other proceedings for the recovery of the mortgage money ... from the debtor ..., shall be extinguished, ... and the right or equity of the mortgagor to redeem the said property shall also be extinguished.

(2) In the case of mortgages of or charges on land under the Real Property Act 1900, order absolute includes an order for foreclosure under the hand of the Registrar-General when recorded in the Register kept under that Act.

(3) This section applies only to:

(a) foreclosures obtained after the commencement of this Act, ...

(4) This section shall have effect notwithstanding any stipulation to the contrary."

40 As contemplated by s 61(1) Real Property Act, the Registrar-General has approved a form for applications for foreclosure orders. That form was, at the relevant time, identified as form 04FM, release 3.1. Part of it is the form of a statutory declaration, of the type contemplated by ss 61(2) and (4). A paragraph of that statutory declaration is:

"5. Notice of intention to make this application was served on the mortgagor on [blank] by [blank] at [blank].

41 The form also contains some instructions for completion. Marginal Note (I), applicable to para 5 of the statutory declaration, is:

"Insert the date and mode of service, and the address at which notice was served, together with any other relevant facts sufficient to show that notice was served in accordance with sections 61(2) and 61(2A) of the Real Property Act 1900. See also section 170 of the Conveyancing Act 1919. Notice must be served notwithstanding that the mortgage provides for waiver of notice."

Section 61(2A) enabled the notice of intention to make the application to be given to the NSW Trustee and Guardian, in circumstances where the mortgagor is dead and there is no personal representative of the mortgagor in New South Wales. It is not applicable in the facts of the present case.

42 Section 170 Conveyancing Act, referred to in that instruction, provides, so far as relevant:

"(1) Any notice required or authorised by this Act to be served shall be in writing, and shall be sufficiently served:

(a) if delivered personally,

(b) if left at or sent by post to the last known residential or business address in or out of New South Wales of the person to be served,

(b1) in the case of a mortgagor in possession or a lessee, if left at or sent by post to any occupied house or building comprised in the mortgage or lease,

(b2) in the case of a mining lease, if left at or sent by post to the office of the mine,

(c) if delivered to the facilities of a document exchange of which the person on whom it is to be served is a member, or

(d) in such manner as the Court may direct.

...

(2A) The provisions of this section extend to notices required to be served by any instrument affecting property (including any dealing under the Real Property Act 1900) executed, made or coming into operation after the commencement of the Conveyancing (Amendment) Act 1930, unless a contrary intention appears in the instrument or dealing or in the Real Property Act 1900.

(3) This section does not apply to notices served in proceedings in any court.

(4) This section applies only if and so far as a contrary intention is not expressed in any instrument, and shall have effect subject to the provisions of such instrument."

By the definitions contained in s 7 Conveyancing Act, "instrument" includes an Act of Parliament.

Facts Relating to Service of the Section 61(2)(d) Notice

43 On 16 April 2009, the Appellant executed a Power of Attorney in favour of Mr McKell. That document was created using a printed form that reproduced exactly the form for a prescribed Power of Attorney, contained in Schedule 2 of the Powers of Attorney Act 2003. All the parts of that standard form that identified powers, including the standard powers under Part 2 of the Powers of Attorney Act, that were conferred on the attorney had been crossed out. Thus, insofar as it had not been crossed out, or included instructions for completing the form, it stated:

"This power of attorney is made on the 16th day of April 2009 by PETER JAMES SPENCER (the "principal") of "Saarahnlee", Calemondah Road, Shannons Flat NSW 2630

1. I appoint PETER BRIAN McKELL of Suite 802, 135 Macquarie Street, Sydney NSW 2000

3. This power of attorney operates:

* immediately"

44 The paragraph in Part 2 of the standard form of Power of Attorney that begins: "This power of attorney is subject to the following conditions and limitations" had also been crossed out.

45 During April and May 2010, the Appellant was overseas. There was uncontested evidence from the Appellant that he was away from Australia from 23 March to 10 June 2010. The Appellant also gave uncontested evidence that "during the period Mr McKell did not contact me". It is not altogether clear from the context of that statement whether "the period" ended on 7 May 2010 or on the Appellant's return to Australia in June 2010.

46 There was uncontested evidence from the Appellant that "Mr McKell had no instructions to accept service on my behalf", and that "at no time did I give Mr McKell instructions in relation to an Application for Foreclosure".

47 Marriott Oliver are the solicitors who were acting for the Respondents. Ms Carolyn Hagedoorn had the carriage of the matter at that firm. On 5 May 2010, Marriott Oliver wrote to Mr McKell saying:

"... Our clients will now be making an application for foreclosure.

Please advise whether you have instructions to accept service of the formal notice of intention to apply for foreclosure on behalf of Mr Spencer."

48 Mr McKell replied on 7 May 2010 stating that the Appellant was overseas and not in contact at present, and that Mr McKell would obtain instructions as soon as possible.

49 On 20 May 2010, Mr McKell sent Marriott Oliver a copy of his Power of Attorney.

50 On 22 May 2010, the Respondents filed a Notice of Motion in the Common Law Proceedings. It sought an order under s 170(1)(d) Conveyancing Act that in lieu of personal service, service on the Appellant of a Notice of Intention to Apply for Foreclosure be effected by delivering a copy of the notice to the office of Mr McKell.

51 The Notice of Motion was supported by an affidavit that Ms Hagedoorn had sworn on 21 May 2010. It related the history of the unsuccessful auction, and that Ms Hagedoorn had:

"... been informed by Spencer's solicitor, Peter McKell, that Spencer is overseas and has been overseas since March 2010. Mr McKell was the solicitor on the record for Spencer in the substantive proceedings and has continues [sic] to represent Mr Spencer in relation to this matter until the present day."

The "substantive proceedings" there referred to are the Common Law Proceedings.

52 The affidavit annexed the correspondence of 5 May 2010 and 7 May 2010 ([47]-[48] above) and said, "I have not received any further communication from Mr McKell". It also annexed an email that Mr Robert King, an accountant, had sent to Mr McKell and the Appellant on 20 April 2010 relating to GST obligations on any sale of the property, and requesting the Appellant to review the documentation that was sent. An affidavit of Mr Bamber in support of the Notice of Motion also deposed to the history, the Respondents' lack of knowledge of the Appellant's whereabouts, and the financial difficulties into which they had been placed by the Appellant's failure to repay the loan. Neither of the affidavits in support of the Notice of Motion made any mention of the Power of Attorney.

53 The Notice of Motion seeking the orders for substituted service, and the affidavits in support of that application, were not served on the Appellant, or on anyone on his behalf. Mr McKell was not informed that the application had been made.

54 On 31 May 2010, before the Notice of Motion had been dealt with, Marriott Oliver wrote to Mr McKell noting that he was the attorney for the Appellant as evidenced by the Power of Attorney, and enclosing a Notice of Intention to Apply for Foreclosure. That Notice stated:

"NOTICE OF INTENTION TO APPLY FOR FORECLOSURE

To: Peter Brian McKell, as Attorney for Peter James Spencer

We, Wayne Dennis Bamber and Deneva Jean Bamber (in the mortgage described as Denever Jeanine Bamber), the registered proprietors of Mortgage Registered No XXXXXXXX and executed by Peter James Spencer to secure the sum of one million dollars $1,000,000.00) and interest, hereby give you notice that we intend forthwith to make application to the Registrar-General for an order for foreclosure in respect of the said mortgage."

It was dated, and signed by Ms Hagedoorn on behalf of the Respondents.

55 Mr McKell replied on 3 June 2010 saying:

"Peter Spencer has not instructed the writer to act relating to any foreclosure matters or indeed generally and accordingly you should advise the Registrar General accordingly.

The writer believes your letter to be an abuse of process. Should you require the writer to attempt to obtain instructions on this issue, please advise. After all, he is your client's relative, not the writer's, and your clients are very well aware of our client's whereabouts. Please confirm you will advise the contents of this letter to the Registrar General.

56 Even though the Notice of Motion had been filed in the Common Law Proceedings it appears to have been allocated to the Registrar in Equity. Marriott Oliver communicated with the Registrar in Equity by email on 7 June 2010, and again on 9 June 2010, providing a draft of the orders that were sought pursuant to the Notice of Motion.

57 The solicitors for the Respondents did not inform the Registrar of the terms of Mr McKell's letter of 3 June 2010.

58 On 11 June 2010 the Registrar made orders for substituted service of a Notice of Intention to Apply for Foreclosure, authorising service to be effected on Mr McKell.

59 On 16 June 2010, Marriott Oliver sent to Mr McKell by way of service, a copy of the order of the Supreme Court dated 11 June 2010, and a Notice of Intention to Apply for Foreclosure dated 16 June 2010. Mr McKell's secretary accepted those documents on 17 June 2010.

60 On 16 June 2010, the Appellant, Mr McKell and the then counsel for the Appellant, Mr Peter King, were in Canberra at the High Court, for the purpose of some other litigation.

61 On 18 June 2010, Mr McKell sent an email to Mr Peter King, (identified by name in the line of the email listing its addressees) and to another addressee referred to in that line of the email not by a name but by an email address in the form [e-mail]. The line entitled "subject" said "Spencer ats Bamber". The line headed "attachments" said "Spencer Bamber corres in 17.6.10.pdf". The body of the email said:

"Peter (King) and

Peter (Spencer)

Attached is copy of letter and enclosures served on this office on 17.6.10."

62 A PDF version of the documents that had been so served, was an attachment to the email. The Notice of Intention to Apply for Foreclosure that was one of those attachments, stated:

"NOTICE OF INTENTION TO APPLY FOR FORECLOSURE

To: Peter James Spencer

Wayne Dennis Bamber and Deneva Jean Bamber (in the mortgage described as Denever Jeanine Bamber), the registered proprietors of Mortgage Registered No.XXXXXXXX and executed by Peter James Spencer to secure the sum of one million dollars ($1,000,000.00) and interest, hereby give you notice that Wayne Dennis Bamber and Deneva Jean Bamber intend forthwith to make application to the Registrar-General for an order for foreclosure in respect of the said mortgage."

63 In cross-examination at the trial, Mr McKell said that that particular email address in the format [e-mail] was the Appellant's email address in 2010, that in particular it was the Appellant's email address at the time his secretary sent the email of 18 June 2010, and that Mr McKell was not aware of him having any other email address. An email that Mr McKell had received on 22 April 2010 stated that it was from the Appellant, and gave his email address as being the address in the [e-mail] format. It related to the Appellant cancelling his GST registration, for the purpose of any sale of Shannon's Flat (an alternative way in which Saarahnlee was sometimes talked of) not being a taxable supply.

64 On 21 June 2010, Mr McKell emailed another copy of the documents that had been served on 17 June 2010 to the [e-mail] address and to Mr Robert Pritchard, an accountant for the Appellant.

65 On 23 June 2010, Mr McKell sent an email to the email address in the format [e-mail], headed "Foreclosure proceedings Saarahnlee". That email said:

"Peter (Spencer)

Peter King says he cannot include the foreclosure matter in the submissions.

Also, I should not act as I am already involved and have put on affidavits. My Power of Attorney should be revoked.

An independent person should now act such as Bob Pritchard to whom we have emailed the notice."

66 On 30 June 2010, Mr McKell emailed yet another copy of the documents that had been served on 17 June 2010 to Mr Lionel Kramer, solicitor of the firm Horowitz & Bilinsky.

67 Meanwhile, on 23 June 2010, Marriott Oliver sent to the Registrar-General an application for foreclosure dated the previous day, with its supporting documents.

68 On 30 June 2010, Horowitz & Bilinsky wrote to Marriott Oliver, saying:

"We have been instructed to represent Mr Peter Spencer in certain Supreme Court/foreclosure proceedings. We have only been instructed in the proceedings today and have little by way of documents.

Would your kindly advise us as to exactly what stage the proceedings have reached. We also ask you to please confirm that no steps will be taken against Mr Spencer until such time as we have received a response from you and have also had an opportunity to consult with our client.

Please provide us with copies of any:

1. Foreclosure application your client is proposing to make.

2. Affidavits upon which your client intends to rely in the proceedings.

3. Material filed in the proceedings to date."

We will file a Notice of Address for Service in the immediate future.

69 Marriott Oliver replied on 2 July 2010, saying: "There are no proceedings on foot." Ms Hagedoorn gave uncontested evidence that she believed that Horowitz & Bilinsky's request related to court proceedings, not to an administrative foreclosure application.

70 Horowitz & Bilinsky replied to Marriott Oliver on 7 July 2010, saying: "Are you able to inform us as to the precise situation with regards Supreme Court proceedings number 2007/264782." That proceedings number was the number of the Common Law Proceedings.

71 Marriott Oliver replied to that letter on 21 July 2010, after the Registrar-General had made the foreclosure order on 16 July 2010, saying that that proceeding "was a Notice of Motion to obtain an order for substituted service of the Notice of Intention to Apply for Foreclosure".

72 On 3 August 2010, Horowitz & Bilinsky wrote to Marriott Oliver saying:

"We refer to the above matter and to previous communications. We are advised that your client is seeking to foreclose with regard to the subject property. Would you kindly confirm to us exactly what the current position is.

If foreclosure is in the process of being sought then would you kindly provide to us with all procedural documents being relied on. If foreclosure has already occurred then similarly we ask you to kindly provide to us copies of all documents used in the process.

We wait to hear from you."

Marriott Oliver did not reply to that letter.

73 Even though the foreclosure order had been made on 16 July 2010, it eventuated that one of the lots of land comprised in the property was Crown land, and that a Ministerial consent was needed before the foreclosure order could be registered. That consent was obtained on 6 September 2010. On 13 September 2010 the Respondents became registered proprietors.

74 After that date, the Appellant lodged a caveat against the title to the lots in question, claiming as his estate or interest "the mortgagor's equity of redemption". The Respondent served a lapsing notice concerning that caveat, which led to the institution in the Equity Division of the Supreme Court of NSW of the proceedings that Pembroke J ultimately decided.

Circumstances of the Case Being Heard

75 In June 2011, the proceedings were set down to be heard for two days before Black J, commencing on 20 October 2011, which was a Thursday.

Before Black J on 20 October 2011

76 On 18 October 2011, counsel for the Appellant applied to the Duty Judge, Gzell J, for a vacation of the hearing date. Gzell J stood that application over to be determined by Black J on 20 October 2011. On 20 October 2011 Ms F Sinclair of counsel represented the Appellant, and Mr G Waugh of counsel represented the Respondents. Mr Kramer was also in court, and gave some evidence.

77 Black J vacated the hearing date, and ordered that the matter be listed in the Expedition List the following day: Peter James Spencer v Wayne Dennis Bamber [2011] NSWSC 1245. One basis upon which the application for adjournment was put was that the Appellant's counsel was unavailable, as he was overseas, and Ms Sinclair was not available the next day. Mr Kramer's evidence about the circumstances in which counsel had become unavailable included:

"Q. Have you been able to get instructions about running the matter - that is the full matter that's before the court today?

A. Yes, your Honour, I was instructed to proceed or to ask counsel to proceed with an application for an adjournment.

Q. Have you received instructions in regard to the amended summons that's before the court?

A. Not recently, your Honour, I mean there were discussions some months ago with Mr Spencer regarding the amended summons.

Q. Have you been able to instruct counsel on the matters in connection with the amended summons?

A. Well, counsel drafted the amended summons, your Honour, in that form and I attended to the filing.

Q. And where is that counsel now? Why is that counsel--

A. That counsel is not currently available, your Honour, because I was informed on a particular date - I can't recall the precise date at this moment, but it was a few weeks ago - I was informed that counsel had to proceed to London for a matter and would not be available today. ..."

That evidence was elaborated on in cross-examination:

"Q. You have had you no [sic] counsel instructed to run this case, the substantive case, now since the end of September, have you?

A. That is right, your Honour. I was informed by Mr Peter King on a particular date in September, I think it might have been 30 September, that he was not available and he then said to me that he would try and find alternate counsel who would be prepared to do the matter on a pro bono basis.

Q. Ms Sinclair, who appears for Mr Spencer today, is not briefed to run the substantive case, is she?

A. Well--

Q. Or is she?

A. Well, she is briefed to run the matter but there are difficulties because we have not been able to get instructions from the client. The client was most unhappy that Ms Sinclair was going to be in the matter and not Mr King and he expressed that to me a number of times."

78 Black J did not regard the unavailability of counsel as a basis to vacate a hearing that had been fixed for months ([2]).

79 The second basis on which the application to vacate the hearing date was put was that the Appellant had suffered a heart attack, or series of heart attacks, over the previous weekend and had been admitted to hospital. Mr Kramer's evidence on that topic included:

"I am able to speak to Mr Spencer on the telephone and I have done so at least three or possibly even four times since Monday of this week. ... I ascertained that he was in hospital, that he had suffered heart attacks, that he had been given some treatment for those heart attacks and the impression I had was that he was quite distressed and upset and not really wanting to engage in any sort of conversations with me because he said to me, 'Look, I feel I have just been within an inch of my life and I need time to take stock'."

80 The evidence before Black J as to the medical condition of the Appellant was imprecise, but his Honour accepted that the Appellant's condition over the weekend was sufficiently serious to require his transfer from Hawkesbury Hospital to Nepean Hospital. However, Black J observed, at [3], "there is no evidence before me as to whether Mr Spencer is still in hospital or as to the present constraints on his activities arising from the heart attack(s)."

81 Mr Kramer gave evidence, in the course of being cross-examined by Mr Waugh, that explained why the medical evidence was imprecise:

"Q. You are still answering the question. My question was whether or not Mr Spencer had told you not to talk to Dr Patel?

A. Yes, he did tell me at one stage but I had already left a message for Dr Patel and the message was to the effect that the report was inadequate. Then Mr Spencer said, Look, as far as he was concerned that report was adequate and that I was not to speak to Dr Patel again, and I did not do so after that.

Q. As you sit in the witness box now, your current instructions are from Mr Spencer that you should not talk to Dr Patel, is that correct?

A. Yes, your Honour.

Q. Did Mr Spencer give you any reason other than [it] is his own personal opinion that the report Dr Patel provided was sufficient in telling you not to speak to Dr Patel?

A. What he said to me was that Dr Patel was extremely busy. They were not [sic] business of saving lives and he felt that Dr Patel had saved his life and he did not want me to bother Dr Patel again."

82 His Honour apparently did not regard the submission that the Appellant had not been able to meet with his lawyers during that week because of his medical condition as a sufficient justification for an adjournment, when no explanation had been provided as to why such conferences had not occurred at any prior date. (I say, "apparently" because I suspect that a "not" is missing from the final sentence of [4] of the judgment.) He accepted that the Respondents "are suffering extraordinary hardship (and I do not use that phrase lightly)" arising from the Appellant's failure to repay the loan, and various legal proceedings that had occurred between the Appellant and the Respondents. He noted his obligation to decide the adjournment application bearing in mind ss 56-59 Civil Procedure Act 2005. He said he had "no doubt" that the matter was urgent, and that the Respondents would suffer hardship as a result of vacating the hearing date. However, he also noted that there was an issue as to whether the Appellant's affidavits could be read "where he is not available for cross examination and, if those affidavits cannot be read, he would be shut out of the opportunity to have his case determined on the merits". ([8])

83 His Honour went on to observe that there had been tendered before him correspondence between the Appellant and Mr McKell that had been produced on subpoena some days earlier. The correspondence in question included the various emails that I have identified at [61]-[66] above, including the annexures to the emails, of which the most significant was the Notice of Intention to Apply for Foreclosure. He said that that correspondence:

"... raises the possibility that [the Appellant] had in fact been provided, by his former solicitor, with a copy of the Notice of Intention to Foreclose which had been served on that solicitor, and had received that notice prior to the plaintiff's application to the Registrar-General for foreclosure made on 22 June 2010."

84 Black J stated in his reasons for judgment that if that were to be established at a final hearing, it may have a significant impact on the outcome of the final hearing. In particular, he observed:

... the questions which arise in respect of substituted service in the proceedings may be displaced by evidence of actual service upon the plaintiff of the Notice of Intention to Foreclose, albeit that such service had occurred in an informal manner and through Mr Spencer's former solicitor sending the notice to him."

85 His Honour noted that the new evidence created a practical difficulty with proceeding with the hearing "today", because the Appellant:

"... would not have had an opportunity to respond to this evidence, in circumstances that he is not present in Court. ... The defendants would also not have the opportunity to put this evidence to [the Appellant] in cross-examination and seek his response to it and that in turn may constrain the defendants' ability to rely on that evidence in final submissions".

Before Pembroke J on 21 October 2011

86 When the matter was listed before Pembroke J the next day, 21 October 2011, in the Expedition List, Mr Kramer appeared for the Appellant. Mr Waugh appeared for the Respondents. Pembroke J established at the outset that Mr Kramer had been solicitor for the Appellant since June 2010. Pembroke J stated that he had read Black J's judgment of the previous day. There is no indication that Pembroke J had read the transcript of the previous day's hearing, if indeed one had been produced by that stage.

87 The transcript of the proceedings on 21 October included the following exchanges:

"HIS HONOUR: As I understand it, the plaintiff seeks to invalidate the foreclosure order and the ground advanced is that there has not been effective service under the Real Property Act, no effective service, that is so?

KRAMER: That's correct.

HIS HONOUR: Your attack is really all to do with whether substituted service is an available method of service in this area of the law?

KRAMER: That's correct.

HIS HONOUR: That is the only point in your case?

KRAMER: Yes. I was going to ask for leave to hand you an affidavit.

...

HIS HONOUR:... On your case, Mr Waugh, apart from the legal question as to whether substituted service is available or not, you also have a contention as a matter of fact as to whether there was actual service?

WAUGH: Yes.

HIS HONOUR: Is that an issue that has cropped up recently?

WAUGH: No. That is one that we have pleaded for a long time but we only found out very recently some additional facts.

HIS HONOUR: So, you have some better evidence now?

WAUGH: Yes. Justice Black referred to that in his judgment yesterday.

HIS HONOUR: That just turns principally on some correspondence from which I should be able to draw inferences?

WAUGH: Yes.

HIS HONOUR: If I heard the question of actual service as a separate point, would that resolve the proceedings?

WAUGH: I don't think so because I think Mr Kramer may have been a bit rash in agreeing that was the only issue. There are amended points of claim which go into other issues.

HIS HONOUR: Such as?

WAUGH: They are not entirely clear to me.

HIS HONOUR: I will ask Mr Kramer again - I did ask if the substituted service challenge was the only point. Was I wrong? Do you effectively only put that forward?

KRAMER: It is a little broader than that.

HIS HONOUR: What else is there?

KRAMER: We are asking for a declaration that the foreclosure is void and of no effect and should be set aside and that the foreclosure question be reopened. We are also claiming that an order relating to substituted service made by Registrar Walton was void and of no effect.

HIS HONOUR: What is the underlying contention which supports the proposition that the order is void or that the foreclosure order should be reopened? Doesn't it get back to the invalidity of the service?

KRAMER: Yes."

88 After the judge indicated that the damages claim could be dealt with separately, if the invalidity of the foreclosure was established, the transcript continued:

"HIS HONOUR: Bearing in mind the long history and the very unsatisfactory history of these proceedings, the plaintiff's damages claim is not something which I will deal with. It will have to be dealt with separately if it arises. It will only arise if you succeed in the main case. It seems to me that the issues about service are very short. What I am interested in knowing is whether I can deal with those questions promptly and why is it that the apparent heart attack which the plaintiff has suffered will prevent a hearing on those serviced [sic] issues?

KRAMER: I understand some cross-examination of the plaintiff will be required. The information that I have is that the plaintiff would not really be available, in medical terms, for approximately one month.

HIS HONOUR: Mr Waugh, is cross-examination of the plaintiff essential to your case?

WAUGH: It is not essential. It would be advisable on one discrete issue. That is the evidence that was tendered yesterday before Justice Black, an email that looked like it was sent to the plaintiff, two emails sent to the plaintiff to an email address he was then using. The only question would be whether or not he received the emails.

HIS HONOUR: Does he deny that he received the emails?

WAUGH: We don't know yet. He didn't refer to this at all in his affidavit and nor did Mr McKell.

HIS HONOUR: Is the email address to which those emails were sent still the one used by the plaintiff?

WAUGH: I don't know.

HIS HONOUR: If an email address was one used by the plaintiff at the time, then the irresistible inference is that he received the emails.

WAUGH: One would think so.

HIS HONOUR: Mr Kramer, you either know that now or you will be able to find that out very promptly.

...

HIS HONOUR: Mr Waugh, if it be the fact that the email address from which Mr Spencer commenced to communicate with and instruct his current solicitor is the address to which the 18 June emails were sent, that is if we have emails in early July the same address as the 18 July, would you be content to move forward without the need to cross-examine Mr Spencer?

WAUGH: If that were the only issue the Court was dealing with, yes.

HIS HONOUR: Mr Kramer has now confirmed to me twice that service is the underlying basis of the plaintiff's claim, whether it be an attack on substituted service or some other attack.

WAUGH: I am not here to put the plaintiff's case. The pleadings reveal--

HIS HONOUR: I am going to cut you short, Mr Waugh, because Mr Kramer is in the best position of all people to say what his client's case is. He has been acting for him since the beginning, effectively since June 2010. Whatever some drafter put in the pleadings at an earlier stage will go by the wayside, having regard to the way Mr Kramer has put his case and described it and contained it today. I will have regard to that at any final hearing. There is a transcript being taken so we will all be quite clear about it."

89 Mr Kramer did not say anything that suggested that the judge was misunderstanding the issues. The judge then adjourned the matter until later in the morning.

90 Upon resumption later in the morning, Mr Kramer said he had been able to identify the email address at which he had communicated with the Appellant as being an address that Mr Waugh had showed him. It appears that that address was the address in the format [e-mail]. The discussion continued:

"HIS HONOUR: ... In that case, Mr Waugh, do you wish to wait until after a month when Mr Spencer may or may not be recovered and when you can cross-examine him or do you wish to proceed earlier without cross-examination of Mr Spencer?

WAUGH: On the basis that the issues in the case have been limited by the discussion this morning--

HIS HONOUR: It is an attack on service, one way or another."

91 Mr Waugh indicated that he would not require Mr Spencer for cross-examination, but would wish to ask Mr McKell some questions. In the course of discussing the possibility of a hearing date the following Wednesday, the transcript shows:

"HIS HONOUR: If Mr King or your other choice is not available, I am sure the Bar Association will help you out because this looks like a very short tightly confined case - with not a lot of merit, I have to say, on your side - but there are legal issues that need to be determined and I will do so. It does not seem to me it will take more than two hours. Do you agree with that, Mr Waugh?

WAUGH: I think two hours would probably be fine, with written submissions. I have prepared some already."

Ms Petrolo's File Note

92 At the hearing in this Court, Mr King sought to tender a file note made by Ms Jane Petrolo, barrister, concerning what transpired when she telephoned the chambers of Pembroke J on Monday, 24 October 2011, seeking to arrange a time to make an application. The judge's associate transferred Ms Petrolo to Pembroke J.

93 This file note came before the Court in a most unsatisfactory fashion. It was included in a Black Book prepared for the purpose of the appeal hearing, with no indication of what was proposed to be done concerning it. There was no attempt to follow the procedures in UCPR 51.51 that are applicable when an application is made for the Court of Appeal to receive additional evidence.

94 Mr Waugh objected to the Court receiving the material. As well as objecting to the irregularity of the way in which it was sought to be put before the Court, he submitted that it should not be received because it "goes nowhere". The basis for that submission is that, in summary, the file note indicates that Ms Petrolo stated that she wished to make an adjournment application on the basis that there were issues besides service that needed to be determined, in response to which the judge expressed some scepticism about there being other issues, but said an application could be made on the morning of the hearing because he had no earlier time available. It goes nowhere because, despite Pembroke J's permission to make it, no application was made.

95 At the hearing on Wednesday, 26 October 2011, Mr PR Glissan of counsel appeared for the Appellant. The first statements made that day were:

"GLISSAN: I was retained in this matter yesterday afternoon. My understanding is that--

HIS HONOUR: Are you making an application?

GLISSAN: No, I want to try and indicate my limited understanding of what is before the court today and I understand it was a hearing last Friday when your Honour narrowed the issues to focus upon the legal issues.

HIS HONOUR: I didn't narrow anything. Your instructing solicitor informed me what the real issues were."

96 Mr Glissan then went on to present the case. The file note should not be received in evidence, for both of the reasons advanced by Mr Waugh.

The Reasons and Orders of 26 October 2011

97 This Court has before it both the Court Reporting Services transcription of the reasons for judgment given and orders made on 26 October 2011, and the revised version of the reasons and orders that was issued on 3 November 2011. As Mr King submits that the differences between the reasons delivered extempore and the revised reasons are significant, it will be necessary for them both to be considered.

98 In the extempore reasons, the judge found the following facts:

"Later on 16 June [the Respondents' solicitor] sent to Mr McKell by way of service, the orders of the Registrar made on 11 June and the notice of intention to apply for a foreclosure order dated 16 June 2010. On 18 June 2010, Mr McKell sent those documents by email to the plaintiff and to his then counsel who had represented him in the High Court of Australia 2 days before.

The proceedings in the High Court of Australia are unrelated to the issues in this litigation other than that they demonstrate that on 16 June 2010 the plaintiff was present in Canberra with his solicitor, Mr McKell, and his counsel, Mr King. I have no doubt that the plaintiff received and became aware of the order of the Registrar made on 17 June 2010 and the notice of intention to apply for a foreclosure order dated 16 June 2010 on 18 June following the email from Mr McKell. The email address of the plaintiff to which the documents were sent is the email address which at all times relevant to the issues in these proceedings has been the plaintiff's email address.

Not only were the documents served on 18 June by email but on 21 June, Mr McKell sent another email to the plaintiff and to his accountant attaching a further copy of the documents served by the defendants' solicitor on 17 June.

On 23 June, Mr McKell sent another email to the plaintiff relating to the foreclosure application. It is clear from the contents of that email that Mr McKell and the plaintiff were in consultation about the application by the defendants for a foreclosure order and the strategies which they should adopt in relation to it. It is also clear the Mr King of counsel was involved in some of those discussions.

On 30 June 2010, Mr McKell sent the copies of the Registrar's order made on 11 June and the notice of intention to apply for a foreclosure order to Mr Kramer who from that date commenced to act on behalf of the plaintiff. I should add that the evidence revealed that in 2010, Mr McKell acted [for] Mr Spencer in relation to 8 separate court proceedings."

99 He concluded:

"I am satisfied that the defendants' notice of intention to apply for a foreclosure order actually came to the attention of the plaintiff. That first occurred on 18 June 2010.

For those reasons that is sufficient service in my view for the purposes of s 61(1)(d) [sic] of the Real Property Act."

100 The judge went on to hold that:

"Insofar as it is necessary to consider whether substituted service pursuant to s 170 of the Conveyancing Act is an appropriate method by which service pursuant to s 61(1)(d) [sic] of the Real Property Act is effected, I am satisfied that it can be for the following reasons."

It is unnecessary to set out his Honour's reasons for reaching the conclusion at this stage.

Judgment Vitiated by Unjudicial Conduct or Apprehended Bias?

101 Mr King submits that the entire judgment is vitiated by wrongful failure to grant an adjournment, by both actual and apprehended bias, by prejudgment, by reason that the judge "paid no or no sufficient regard to the pleadings and to the issues", and because findings were made disregarding the principle in Browne v Dunn (1893) 6 R 67.

102 In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 the High Court held that when a judgment is appealed against on the ground of apprehended bias, and also on the basis of other discrete grounds of appeal, an appellate court should deal with the issue of bias first. Kirby and Crennan JJ at [117] (with whom Gummow ACJ agreed on this point at [3]) expressed the reason to taking this course as being:

"It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias."

103 The attacks that Mr King makes on the judgment of the types that I have just mentioned go wider than apprehended bias, but they all aimed at contending that the decision is totally vitiated by unjudicial behaviour. It is consistent with the reasoning in Concrete Pty Ltd that they all be dealt with first, and only in the event that they fail should any other substantive and discrete questions be considered.

104 The test for the existence of apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Ebner v Official Trustee in Bankruptcy [200] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.

105 In Johnson v Johnson at [13], their Honours also observed:

"Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge (Webb v The Queen (1994) 181 CLR 41 at 73, per Deane J), the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly (1989) 167 CLR 568 at 571 Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of 'the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case' (See also Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15; 32 ALR 47 at 53, per Murphy J). Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them."

106 There is a conceptual difference between apprehended bias and actual bias. The difference emerges in the discussion by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [7] of what apprehended bias is not:

"The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror." (emphasis in original)

107 The actual thought processes of the judge need only be enquired into in deciding whether a judge has been actuated by actual bias. Though there is this analytical difference, in the present case all the matters that the Appellant relies upon to establish actual bias are the same as those relied upon to establish apprehended bias. It is therefore convenient to discuss both allegations together.

108 Any consideration of whether there is apprehended bias should be carried out bearing in mind the statement of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at [8]:

"Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."

See also Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [63].

109 Nowhere in the Appellant's submissions is there any attempt to identify what it was that might have led Pembroke J to decide the case other than on its legal and factual merits. That is a sufficient reason why the challenges based on actual and apprehended bias fail. However, I will go on to consider, in their own terms, the arguments advanced for the Appellant.

Failure to Grant Adjournment

110 The Appellant submits that the judge erred in failing to grant an adjournment "in view of the appellant's hospitalisation for 3 heart attacks and major surgery during the course of the hearings before his Honour so that the appellant could have an opportunity to be present at the hearing of his matter" (ground 8). As well, the Appellant submits that fixing the case at such short notice imposed a burden that was so unreasonable on the Appellant as to amount to an injustice and a miscarriage of justice.

111 These contentions cannot be sustained. The case had been fixed in June 2011 for hearing before Black J in October 2011. The reason for it not proceeding before Black J is not attributable to either the Respondents, or the court. The evidence before Black J about the Appellant's medical condition was imprecise. No evidence of his medical condition was placed before Pembroke J, notwithstanding that the shortcomings of the medical evidence placed before Black J had been clearly exposed on 20 October 2011 (and in any event were apparent to Mr Kramer even before then). There is no legal requirement that a litigant have an opportunity to be physically present at the hearing of his litigation. Rather, the requirement is that he have a reasonable opportunity to present his case. The pre-trial preparation for the hearing before Black J had resulted in an exchange of affidavits that presented his case on the issues as then perceived. The issues raised by the Points of Claim included whether there had been actual receipt of the notice in question. The affidavits that the Appellant had filed dealt with some email correspondence, but said nothing about emails of 18 June 2010, 21 June 2010, 23 June 2010 or 30 June 2010, that I have mentioned at [61]-[66] above. From the time that those documents were produced to the Court, a matter of days before the hearing before Black J, it should have been apparent to the Appellant's legal advisers that it was likely that the Respondents would rely on them as proof of actual service. Once those documents were tendered before Black J, and their significance discussed, there was no room for the Appellant's legal advisers to doubt that the Respondents would rely on them.

112 On 21 October the possibility of a very early hearing was discussed. The judge said, immediately before adjourning the matter in the midst of that day's proceedings, that once the Appellant's email address had become known "then you will be in a position to make a decision as to whether you take an earlier date without the need to wait for the recovery of Mr Spencer's health." At that hearing, Mr Kramer made no protest about whether two hours would be a sufficient hearing time, and made no submission about a hearing date the following Wednesday being inappropriate for any reason, after the judge had specifically enquired of Mr Waugh whether he would be available that day.

113 No application for adjournment was made to Pembroke J on 26 October, even though at the start of that day's proceedings his Honour enquired if Mr Glissan had an application to make. As already mentioned, no evidence was before Pembroke J of the Appellant's medical condition, though it appears to have been common ground at the hearing on Friday, 21 October 2011 that the Appellant had been hospitalised. In light of the discussion concerning the issues in the case on Friday, 21 October 2011, there was no need for the Appellant to be present for cross-examination.

114 Mr King submits that the reasons that led Black J to adjourn the hearing before him on 20 October 2011 were every bit as powerful on Wednesday, 26 October 2011, and should have led Pembroke J to adjourn the hearing.

115 In my view, there were two relevant differences between the situation before Black J and the situation before Pembroke J. The first arises from it being at the hearing before Black J that the significance of the newly revealed documents which raised the possibility that the Notice of Intention to seek foreclosure had actually been sent to the Appellant became quite clear, if it had not previously been clear. If the evidence remained in the state it was in on 20 October 2011, there would be grounds for inferring that the terms of the Notice had come to the attention of the Appellant on, or shortly after, 17 June 2010.

116 The basis for the inference is as follows. The email from Mr McKell of 18 June 2010 ([61] above) was addressed to Mr Peter King, and to the email address that Mr McKell said in cross-examination was the Appellant's email address on 18 June 2010, and the only email address of the Appellant of which Mr McKell was aware. The body of the email showed that the Appellant was an intended addressee. The correspondence that was attached to it was correspondence that was of particular relevance to the affairs of the Appellant. Further, the email of Mr McKell on 23 June 2010 ([65] above) was sent to the email address that Mr McKell had identified as being that of the Appellant, the body of the email showed that it was intended for the Appellant, and both the heading and the text of the email showed that it related to foreclosure proceedings. The text was written on a basis that assumed that the recipient would understand what was meant by "the foreclosure matter" and "the notice". These matters provide grounds for a strong inference, in the absence of any evidence to the contrary, that the emails of 18 June 2010 and 23 June 2010 were received by the Appellant. Such an inference arises not only as a matter of ordinary experience that emails usually reach their addressee, but also from s 161 Evidence Act 1995.

117 The fact that there was now that extra evidence, and that it had the significance that was discussed in the course of the hearing before Black J, and in his reasons for judgment, cried out for the Appellant to make an affidavit proving, if such was the fact, that he had not received any of those emails. Such an affidavit could be quite brief. It is the type of affidavit that a competent solicitor could take instructions for, and draft or dictate, inside several hours. Alternatively, those matters cried out for cogent evidence to be provided that explained why the medical condition of the Appellant was such that he could not undertake the task of giving instructions for, and preparing such an affidavit. By the time of the hearing on 26 October 2011, a reasonable time in which to take those steps had elapsed.

118 The second arises from the fact that an application for adjournment was made to Black J, but no such application was made to Pembroke J. Sometimes a judge might adjourn a hearing of his own motion if the judge needs to give his or her attention to some more urgent matter that has arisen. My consciousness of the limitations of my own imagination make me refrain from saying that it could never happen that circumstances would arise when a judge should adjourn a hearing of his own motion when all parties to litigation are represented by counsel before him, no one applies for an adjournment, and no emergency has arisen concerning a matter other than the one listed before the judge. However, such a situation must be extremely rare, if it ever arises.

119 Further, whether an adjournment is granted is a discretionary matter concerning practice and procedure, capable of being challenged only on the grounds in House v R (1936) 55 CLR 499. No attempt was made in the present appeal to identify which of the possible grounds upon which House v R might be invoked should be applied here. I am unpersuaded that the judge was in error in not adjourning the case, or that his failure to adjourn it is indicative of either apprehended bias or actual bias.

Failure to Advert to Pleadings

120 In the course of pre-trial preparation, Points of Claim and Points of Defence had been exchanged between the parties. Without going to the detail of those documents, it can be accepted that the primary judge did not decide all the issues that the documents raised. Mr King submits this is particularly important in light of some findings of White J and Tobias JA.

121 At an early stage in the proceedings in which the judgment appealed from was ultimately given, White J considered whether the caveat that the Appellant had placed on the land should be extended. On 1 March 2011 he concluded, on the balance of convenience, that it should not be extended: Spencer v Bamber [2011] NSWSC 141. On the way to that conclusion his Honour accepted, at [27], that there was a serious question to be tried about whether the preconditions for the making of the foreclosure order were satisfied.

122 Proceedings challenging that decision of White J were begun in this Court. In exercise of what I take to be this Court's jurisdiction to grant an interlocutory injunction pending the determination of appeal proceedings, Tobias JA restrained the Respondents for seven days from completing a contract that they had entered to sell part of Saarahnlee: Spencer v Bamber (Tobias JA, 7 March 2011, unreported and no medium neutral citation). Tobias JA at [9] said that he agreed with White J's view that there were serious questions to be tried.

123 Those observations of White J and Tobias JA were made concerning the issues that were put before them. They were made at a time when it appeared that the only way in which a notice of intention to seek foreclosure could have been served on the appellant was if service pursuant to the Registrar's order was valid. They are not determinative of what the issues were by the time the matter came before Pembroke J on 26 October 2011. In light of the discussion that occurred on 21 October 2011, the primary judge was entitled to proceed on the basis that the issues were as Mr Kramer described them as being. Mr Kramer had accepted that the issue was whether there had been service, even though Mr Waugh had mentioned, contrary to his own client's interest, that the Points of Claim went wider than that.

124 A related basis upon which "preconception" is alleged is articulated in [21] of the Appellant's written submissions:

" ... his Honour did not appreciate the nature of the issues: see the Amended POC and the issues in paragraphs 4-6 above. The judge in short erred in not reading and/or not referring to and/or in striking out substantial parts of the Appellants affidavit evidence and/or in applying a preconceived view of the case."

125 The "substantial parts" of the affidavit evidence were never identified in submissions. Nor was any reason given why rejecting them was indicative of bias. This "preconceived view" amounted to nothing more than the judge accepting what Mr Kramer told him were the issues, and conducting the case accordingly. The judge was entitled to act on what Mr Kramer told him.

Erroneous Assumption of Hardship to Respondents?

126 Another basis upon which the judgment is attacked is that on 21 October 2011 the primary judge "appears to have proceeded on the assumption that the erroneous assertions in Mrs Bamber's affidavit about hardship were correct." From the context in which that statement is made in the written submissions, it is apparent that the affidavit of Mrs Bamber being referred to is one made on 17 October 2011. That affidavit is not contained in the appeal papers. However, Black J in his judgment of 20 October 2011 at [6], had summarised that affidavit as showing:

"... that this matter has a long history and that Mr and Mrs Bamber are suffering extraordinary hardship (and I do not use that phrase lightly) arising from their loan made to Mr Spencer in 2003, the fact that loan has not been repaid, the subsequent events and the subsequent proceedings."

127 The basis upon which Mr King submits that Mrs Bamber could not have been suffering hardship by reason of the failure to pay the debt was that it was a consequence of the foreclosure that the debt had ceased to be owing.

128 I accept that the consequence of the foreclosure is that when it became effective the debt ceased to be repayable. However, that does not disprove any of the matters that Black J had drawn from the affidavit. For the Respondents to borrow money and on-lend it to the Appellant, and for the Appellant to fail to repay the loan on the due date and for more than three years thereafter, is quite capable of causing hardship to the Respondents, even if that loan later ceases to be repayable because of a foreclosure.

129 But there is a more fundamental difficulty with this basis for attacking the judgment. No passage in the transcript that was taken on 21 October 2011 has been identified as demonstrating that his Honour proceeded on the assumption that he is alleged to have made. It was Black J who placed the matter in the Expedition List, and there is no appeal from his decision to do so. Once it was in the Expedition List, Pembroke J dealt with it on the basis that the decision had already been made that the matter should be dealt with as expeditiously as was practicable in the circumstances. There is no error in that, let alone a basis for a finding of actual or apprehended bias.

Prejudgment?

130 Mr King submits that the judge's remark about "not a lot of merit", that I have set out at [91] above, is indicative of prejudgment of the case. That remark was made practically at the end of the proceedings on 21 October, and at a stage when it had been established that the only issue related to service. Questions of whether a document has been adequately served can often fairly be described as legal technical questions, rather than ones concerning the merits of the case. In Chapman v Larrescy [1978] 1 NSWLR 592 at 597, Helsham CJ in Eq described an argument, that he upheld, that the notice to complete that was in question in that case had not been served as an "unmeritorious but interesting argument". That is the sense in which Pembroke J was using "merit" in the present case, because he went on to say "there are legal issues that need to be determined and I will do so." Taken as a whole, I do not accept that this remark shows that his Honour had prejudged those legal issues.

Finding of Pattern to Delay

131 In the extempore reasons for judgment the judge recited various events that had happened in the period of over three years between the Appellant's failure to repay the loan, and the Registrar-General issuing the foreclosure order. The primary judge then expressed the view that the proceedings before him were misconceived. He continued:

"In so far as the plaintiff complains about the order made by Registrar Walton, the proper course for him to take was to seek to have the order set aside or varied pursuant to Uniform Civil Procedure Rule 36.16(2)(d). Alternatively he could have sought a review of the Registrar's order under UCPR 49.19.

Insofar as the plaintiff is dissatisfied with the order for foreclosure made on 16 July, he could and should have sought orders pursuant to ss 121 and 222 of the Real Property Act. Section 121 provides that a person who is dissatisfied with a decision of the Registrar General to, among other things, order foreclosure of land, may apply to the Registrar General for a copy of the Registrar General's reasons for the decision. Section 122 provides that a person who is dissatisfied with a decision referred to in section 121(1) may apply to the Supreme Court for a review of the decision.

The plaintiff has not followed any of those courses but has instead sort [sic] the orders set out in the amended summons.

I mentioned these matters partly because they indicate that the proceedings are structurally misconceived but also because they indicate a persistent pattern of delay and obfuscation which the evidence reveals the plaintiff was determined to set out upon. In particular, I am satisfied that in late 2006, during a discussion with the first defendant about his failure to keep his commitment to the defendants, the plaintiff said to the first defendant during a conversation about the possibility of legal action, words to this effect, 'You can get fucked and I will fuck you around for 2 to 2 and a half years'."

132 Mr King submits that the judge's finding about the conversation in late 2006 is indicative of prejudgment and bias on the part of the judge. Mr Bamber's evidence concerning that conversation is in paragraph 17 of his affidavit of 20 February 2011. That paragraph identifies the occasion for the conversation as being "at the end of 2006 when my wife and I were struggling to make the loan payments we had to make to St George, my wife and I met Spencer at the Royal Mail Hotel at Bungendore." Paragraph 18 of that affidavit was rejected, and does not appear in the appeal books. The Appellant's affidavit in reply deals with paragraphs 17 and 18 together. He said:

"Although we did not meet at Bungendore I did have a discussion there with the Defendants at the end of 2006. I deny being abusive towards the First Defendant and I would not have used the language he attributes to me in the presence of my mother, wife and my children."

133 There is nothing in paragraph 17 of Mr Bamber's affidavit to suggest that the mother, wife or children of the Appellant were present at the meeting at the Bungendore hotel.

134 However, even if the Appellant's affidavit is taken as a denial that he used the language that the judge quoted, compliance with the principle in Browne v Dunn does not always require an allegation to be put to a witness in the witness box. In particular, exchange of affidavits before trial can adequately give each side the opportunity to respond to allegations made concerning them: West v Mead [2003] NSWSC 161; (2003) 13 BPR 24,431 at [97] and cases there cited. Further, there is no rule of law requiring that evidence not challenged in cross-examination be accepted -a judge can reject evidence that has not been cross-examined on if, for example, it was inconsistent with other evidence that he or she accepted, or if it was inherently incredible; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 507 per Samuels JA (Hutley and Priestley JJA agreeing); Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586-588; Sullman v Sullman [2002] NSWSC 169; [2002] DFC 95-248 at [304]-[306]; Caldwell v JA Neilson Investments Pty Ltd [2007] NSWCA 3; (2007) 14 ANZ Insurance Cases 61-724 at [96]; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 at [105].

135 In the present case the objective history of the matter, including that the Appellant had taken proceedings in the Federal Court against the Respondents that were dismissed with an order that the appellant pay indemnity costs, entitled the judge to draw an inference that the Appellant had been seeking to delay. The words the judge quoted were indicative of such delay. I do not regard the judge making this finding as indicative of any prejudgment on his part. It is a judgment his Honour made, but not prejudgment of any of the issues that were before him for decision. it provides no basis for a conclusion that the judge was actuated by bias, or that there was apparent bias. In any event, whether the words the judge quoted were used is peripheral to the issues the judge was deciding.

Prompt Delivery of Judgment

136 The Appellant's written submissions at [25] submits that the fact that judgment was delivered immediately upon the conclusion of the hearing "of itself revealed a certain attitude not just to the Appellant but to the issues in the case." There is nothing unusual in judgment being delivered extempore at the conclusion of a case that involves confined issues, particularly when the case is in the Expedition List. No conclusion of the type which the Appellant submits is available should be drawn from it.

Alterations to the Extempore Reasons

137 The practice of the court when an extempore judgment is delivered is that the judge's words are transcribed or recorded as they are spoken, the transcription or recording is reduced to writing and provided to the judge as a draft judgment, and the judge then revises it for final publication. In Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 Beazley JA helpfully collected the principles about the limits within which a judge can correct the Court Reporting Service's draft of orally delivered reasons for judgment. Powell JA and Sperling J agreed with the statement of principle (though Sperling J differed from her Honour concerning its application to the facts of the instant case). Beazley JA said, at [41]-[47]:

"The appellant contends that his Honour's alteration to the written form of judgment was impermissible. It is a well accepted rule of judicial practice that reasons for decisions may be revised after the delivery of oral reasons. The basis for the practice and its parameters were discussed by Gleeson CJ extracurially in "Revising Transcripts of Summings-Up" (1997) 9 Judicial Officers' Bulletin 25 at 25:

'A judicial officer revising a transcript of reasons for a decision is entitled to alter the transcript where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say; or where there is some infelicity of expression which the judicial officer desires to remedy. There is no reason, in law or in policy, why a judicial officer who delivers a judgment ex tempore should be strictly bound to the precise manner in which the reasons were expressed. On the contrary, judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately. It would not advance that policy to prevent them from later improving the manner of expression of their reasons, provided, of course, that they do not alter the substance.'

Kirby J has also written on the topic. In his paper "Ex Tempore Judgments - Reasons on the Run" (1995) 25 University of Western Australia Law Review 213 at 229-230, his Honour stated:

'... First, it is always possible, and entirely proper, for a judicial officer to revise ex tempore reasons, even extensively, without altering their substance or the orders which they sustain. ...

Depending upon the rules of court which typically govern such matters, judicial officers in superior courts can make even more substantial corrections to ex tempore reasons, extending even to the correction of their orders if it is demonstrated that they have made a mistake or a slip, or if the orders do not properly reflect the reasons and have not been taken out. Except for the case of the summing up or direction to a jury, a wide latitude is given to judicial officers to refine their ex tempore reasons. Litigants will not be heard to complain about the modifications made between delivery and the release of the certified text. It is obviously essential for each judicial officer to be familiar with the rules of court governing the delivery of reasons. Such rules may contain particular requirements which limit the power of the judicial officer to alter the transcript or to deliver reasons on a date different from that on which the orders were made.' (footnotes omitted)

The rule of practice is usually referred to in the context of ex tempore judgments. However, I do not believe it to be so confined.

The matter has also been considered judicially. In Lam v Beesley (1992) 7 WAR 88 at 93-94, Owen J said:

'So far as concerns reasons given orally and later transcribed, the judicial officer has the right to edit the document and correct errors of grammar and style. The difficulty lies in determining the extent to which he or she can go beyond this and make changes of substance rather than of form.

In Bromley v Bromley (No 2) [1965] P 111, the Court of Appeal commented on this problem ... Willmer LJ said (at 114):

"... If there were ever a case in which it could be shown that, after delivering judgment and after the drawing up of the order, the judge had in substance rewritten his judgment, so as to put a completely different complexion on the issues in dispute, then I apprehend that this court would not be slow to censure any such behaviour on the part of the judge ..."

... Danckwerts LJ [said] at 116 ... :

"The general principle must be that this court must accept as the authentic record of the judge's judgment that which has been approved by him after consideration of the draft produced by the shorthand writer. It is not only a question of possible mistakes by shorthand writers, who do their best extremely well, but are sometimes unable to hear exactly the words used by the judge in the course of his judgment. There are other cases which arise through the judge not saying clearly what he meant, or indeed sometimes by a slip saying something which he cannot possibly have meant. After all, an ex tempore judgment is not always easy to deliver perfectly in all respects on the spur of the moment; there must be corrections which need to be made so as to give the real meaning of the judge, and he is perfectly entitled, so it seems to me, not only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them." '

Owen J concluded (at 95) that if changes to a judgment were matters 'such as could lead to an appearance of altered substance' as opposed to matters of form, that was sufficient, in the context of a criminal trial, to render a conviction unsafe and unsatisfactory.

Lam v Beesley involved the reasons for judgment given by a magistrate in a summary criminal trial. In a civil action, I would consider that the appropriate test in determining whether an alteration to a judgment is permissible is whether the change is one of substance in fact and not the higher test stated by Owen J in the case of a criminal trial.

In Bar-Mordecai v Rotman [2000] NSWCA 123 at [193], the Court considered the matter in relation to an ex tempore judgment, stating:

'It is always possible, indeed proper, for a judge to revise ex tempore reasons. So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive.''

138 This Court has referred to Todorovic in Schenck Australia Pty Ltd v Australian Coal Technology Pty Ltd [2006] NSWCA 211 at [29] and in Bell v Veigel [2008] NSWCA 36 at [221] per Mason P (Giles and Tobias JJA agreeing).

139 In Todorovic at [53], Beazley JA also said:

"Where a judgment has had impermissible alterations made to it, the proper approach is to treat the judgment as if the additions had not been made: see Palmer v Clarke [[1989] 19 NSWLR 158] (at 170)."

140 In Todorovic, a judgment as originally delivered orally had recorded that a Mr Fefelov had given evidence at the trial that corroborated evidence of the plaintiff about the manner in which the plaintiff had come to be injured. The written version of the reasons for judgment had added to it, at that point, a finding that the judge did not accept Mr Fefelov as an accurate witness. Beazley JA held that that was an alteration of substance, and thus the judgment should be considered as if that finding was not contained in it.

141 Palmer v Clarke [1989] 19 NSWLR 158 at 170, provides an example of the principles stated by Beazley JA at [53] in Todorovic, though not itself a statement of the principle. However, I agree with her Honour's statement at [53] of the principle. A judge has a fundamental duty to provide reasons for the orders that he or she makes. It is permissible in a superior court for a judge to make orders, on the basis that reasons will be provided later: King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076; (2005) 64 NSWLR 441 at [156]-[159] and cases there cited. However, when a judge purports to give reasons at the same time as orders are pronounced, principles of open justice require that the judge's reasons should be taken to be in substance those that he or she is purporting to give at that time. Once the orders are pronounced, a right of appeal, or to seek leave to appeal, arises concerning them, and, subject to one qualification, that right can be given effect to only if the reasons are in substance those that the judge has given at the time of making the orders concerning which the right of appeal or to seek leave to appeal arises.

142 The qualification I have just referred to is that in deciding what is an "impermissible alteration", one must not only consider whether an alteration is one of substance, but also Gleeson CJ's recognition that alteration is permissible "where, because of a slip, the reasons as expressed do not reflect what the judicial officer meant to say". The circumstances in which a mistake or slip could justify corrections in draft reasons were elaborated on in Bell v Veigel at [220], where Mason P said:

"It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge's own motion, in a proper case."

143 That remark reflects the basis upon which Sperling J had differed from the majority in the application of principles in Todorovic v Moussa. Sperling J recognised the possibility that the judge in that case might have already decided when he delivered the judgment that he rejected the credibility of the witness in question, and failure to mention it in his extempore reasons might have been a slip. Permitting a slip to be corrected is consistent with the function of reasons for judgment being to let the parties know why the judge is making the orders in question.

144 When an appeal court sees the text of published reasons for judgment that differ from the court reporter's transcription of the reasons as delivered orally, it is sometimes possible to recognise some of the alterations as being stylistic or editorial. In the present case, the published judgment contained headings that identify the topic that the paragraphs following a heading deal with. There were no such headings in the extempore judgment. Addition of headings helps the comprehensibility of the judgment, but does not alter its substance. Similarly, [27] of the judgment appeared (apart from alteration of a few words) in the original draft judgment as a very long single paragraph, but the revised reasons break that text into ten lettered subparagraphs. Other additions make explicit what an attentive reader would probably realise was already implicit in the words used in the extempore judgment. For example, in the paragraph that is now [22] of the revised reasons, the judge had described in the oral reasons the plaintiff's contention as being "that in some way he has not received adequate notice and has been denied natural justice". The revised reasons insert the words "of the intention of the first and second defendants to apply for a foreclosure order" after the expression "adequate notice". All changes of this type are clearly permissible.

145 However, not all of the alterations to the judgment are of this clearly permissible stylistic or editorial type. While I will discuss the alterations in more detail later in these reasons, I can say now that some of them are such as might possibly be the product of the judge making a slip in stating what was in his mind at the time, but it is more difficult to reach that conclusion concerning other alterations. In those circumstances, I will first approach the questions about whether the orders that the judge made on 26 October 2011 are legally justifiable in the way approved by [53] of Todorovic by considering only the reasons that are contained in the draft judgment.

146 The Appellant submits that the alterations that the judge made to the reasons for judgment as delivered show that there was a failure to give adequate consideration to the issues that had to be addressed (transcript 17). Mr Glissan, who presented the argument on this point for the Appellant, relied on two decisions to support his argument. The first was Todorovic. It is clear from [53] of Beazley JA's judgment, that the trial judge's statement in Todorovic, that he did not accept Mr Fefelov as an accurate witness, had the consequence that the trial judge had not adequately considered the evidence. However, the omission of numerous paragraphs of her Honour's judgment from the report in the NSWLR has the consequence that the case as reported there does not make clear how that consequence arose. To find that out, one must look at the full text of her Honour's reasons.

147 The appellant in Todorovic had sustained an injury on a building site of the respondents. In the District Court, a judgment was entered for the respondents, because the judge did not accept the evidence of the appellant and his witness, Mr Fefelov, about the circumstances in which the accident had occurred. In the portions of the judgment that were edited out of the NSWLR report between [21] and [40], her Honour discussed in detail topics upon which different accounts had been given by the appellant and Mr Fefelov on the one part, and the respondents, on the other. These related to whether Mr Fefelov had been at the site before the accident occurred or whether he had arrived at the site with the appellant, to who had telephoned for the ambulance that took the plaintiff away from the site (and in particular to whether there was a telephone installed at the building site) and to the condition of the appellant at the time he entered the ambulance. There was objective contemporaneous documentary evidence, in the form of a council building inspection report, and the records of the ambulance service relating to collecting the appellant, that bore upon the latter two questions. The trial judge had neither recounted nor analysed the difference between the accounts of the respective sides in the litigation. Nor had he considered how the probability of the account of the appellant and Mr Fefelov being true was affected by the contemporaneous documentary records. Her Honour held, at [36], that the trial judge's failure to refer to those matters was a failure to consider them. She categorised it in that way "because of the complete absence of any reference to them in the judgment". She concluded, at [40], that Mr Fefelov's evidence was of fundamental importance to the appellant's case, and although the trial judge had made cursory mention of it, he had not properly considered it. That "cursory mention" was, it seems, the trial judge's statement that he did not accept Mr Fefelov. It was only after reaching those conclusions that her Honour went on, at [41] ff, to consider the significance of the reasons having been changed after the judgment was delivered orally.

148 At [52], her Honour explained why she regarded the addition to the draft reasons of the statement that the judge did not accept Mr Fefelov as an addition of substance:

"In the first place, it was a critical finding. The rejection of Mr Fefelov as a witness of truth was an essential underpinning of his Honour's finding against the appellant. Secondly, had that finding not been made, the appellant could have rightfully complained that his Honour had failed to adequately consider relevant evidence in the case, namely, that of his corroborative witness."

149 It was in that context that her Honour proceeded to make the remarks in [53], which I will here quote in full:

"Where a judgment has had impermissible alterations made to it, the proper approach is to treat the judgment as if the additions had not been made: see Palmer v Clarke (at 170). Accordingly, the judgment should be considered as if that finding was not contained in it. The consequence is that his Honour's reference to Mr Fefelov's evidence went no further than saying he gave evidence which corroborated the appellant's evidence. I have already indicated what flows from that. His Honour failed to give it adequate consideration in its essential parts and/or failed to give adequate reasons for decision."

150 When it is understood in that context, her Honour's conclusion that the trial judge in Todorovic had failed to give Mr Fefelov's evidence adequate consideration is not an automatic consequence of striking out the sentence that the judge later added to his judgment. Rather, it arises from what was left in the judgment once that striking out had occurred. It was because the judgment, with that finding of credit deleted, failed to consider and weigh important matters of evidence, that her Honour reached her conclusion.

151 In the present case, if one ignores every addition made to the reasons for judgment after they were delivered orally, what remains is a set of reasons that considered the salient points of evidence that were relevant to the issues that the judge was deciding. Pembroke J's extempore judgment is not one that inadequately considers the evidence.

152 The second case upon which Mr Glissan relied in support of his submission was Schenck v Australian Coal Technology. The order from which that appeal was brought was an order that had been made in the Commercial List requiring discovery of documents. The hearing at which that order was made was very short. Early in the hearing, counsel for the party resisting discovery handed the judge an affidavit of 37 pages, which gave reasons why that party contended that the application for discovery was oppressive. The judge gave leave for the affidavit to be filed in court and looked at it for a very short period of time. After brief argument, the judge indicated he would make the requested order for discovery, and stood the matter down to later in the day for the bringing in of short minutes. The entire proceedings in that hearing were recorded in two and a half pages of transcript. When short minutes of order were brought in that afternoon, the judge delivered an extempore judgment of just over six pages. The judgment as delivered orally made no mention of the affidavit that had been filed in court that morning. However, the revised reasons mentioned it, though only by a parenthetical allusion "(cf the affidavit of Mr Ammer of 4 October 2005)".

153 Though Beazley JA (Santow and Tobias JJA agreeing) made mention at [29] of the extent to which extempore reasons could be revised, and referred to Todorovic, her Honour's decision did not turn upon the addition that had been made to the reasons as delivered. Rather, her Honour dealt with the case on the basis that the addition that had apparently been made to the draft reasons for judgment, remained. The nub of her Honour's reasons was, at [31] and [32]:

"In my opinion that reference by his Honour in the transcript does not give any indication that his Honour had fully appreciated the extent of the oppression that was claimed. Rather it is indicative of his Honour having had a quick look of the affidavit, having picked up one paragraph where reference was made to oppression in terms of time and money, but without having, in any way, properly assessed the burden on the case that was being advanced by the claimant before his Honour.

In my opinion his Honour failed to give proper consideration to the claimant's application that the discovery in the disputed categories was oppressive. It would have been impossible for him to do so in the short period of time in which he dealt with the matter. The affidavit of Mr Ammer of 4 October 2005 could not have been assessed in that period of time. It was clear from the transcript of the hearing before his Honour in the afternoon of 7 October 2005, that he had not had any further regard to that affidavit."

154 The reasoning of the Court in Schenck thus provides no support to Mr Glissan's contention that in the present case the additions that were made to the reasons as delivered show that the judge failed to properly consider the evidence.

155 Mr King also submits that the additions that were made to the extempore reasons are indicative of bias. Considering that submission will involve some detailed consideration of the additions that were made that are not of an editorial or stylistic kind.

Additions to Extempore Reasons - Validity of Registrar's Order and Order Nunc Pro Tunc

156 The Points of Claim in the present case had raised an issue about whether, on the proper construction of s 61 Real Property Act, service of the Notice of Intention to Seek Foreclosure could be effected by obtaining an order for substituted service under s 170(1)(d) Conveyancing Act. No separate point was raised about whether, if s 61 permitted service of such a notice to be effected by service on someone other than the mortgagor, but in accordance with an order made pursuant to s 170(1)(d) Conveyancing Act, the Registrar had power to make such an order. Nor was any mention made at the hearing, or in the extempore reasons for judgment delivered on 26 October 2011, of there being any question about the Registrar's power to make such an order.

157 However, the revised reasons for judgment included at the end about four pages of text on topics that bore no resemblance to anything in the extempore reasons for judgment. These extra portions opened at [29] by saying:

"By way of post-script I should note that the parties and the Registrar in Equity assumed that she had the power to make an order pursuant to Section 170(1)(d) of the Conveyancing Act. I am not convinced this is the case but if it is so, it is not fatal and may be cured."

158 The primary judge went on, at [30]-[37], to consider whether the Registrar had such power. He concluded that the Registrar did not have power, but that the order was nonetheless valid by reason of s 121(4) Supreme Court Act 1970. Having reached that conclusion, the judge went on, at [38]-[39] of the revised reasons, to deal with another topic that had not been mentioned in the course of the pre-trial documentation, the hearing or the extempore reasons. The judge decided that it was appropriate for himself to make an order nunc pro tunc pursuant to s 170(1)(d) Conveyancing Act, to make clear that the service of the documents on Mr McKell on 17 June 2010 was pursuant to a valid order made under s 170(1)(d). The orders appearing at [41] of the revised reasons, contained such an order nunc pro tunc, namely:

"I direct, pursuant to Section 170(1)(d) of the Conveyancing Act, that service of notice by the first and second defendants of their intention to apply for a foreclosure order should be taken to have been validly effected by delivery to the plaintiff's then solicitor, Mr McKell on or about 17 June 2010."

159 No such order had been pronounced in the course of the extempore reasons for judgment delivered in open court on 26 October 2011. However, through a process that is at present unexplained, the court's records record that the last occasion when orders were made in the present proceedings was on 26 October 2011, and that the text of the orders made on that day was identical with the orders appearing at the end of the revised reasons for judgment.

160 The primary judge's discussion of whether the Registrar had power to make an order under s 170(1)(d), and whether the validity of the Registrar's order was saved by s 121(4) Supreme Court Act, and whether the judge himself should make an order nunc pro tunc validating the service, are clearly matters of substance that should not have been added to the reasons for judgment as delivered orally. However, the fact that the judge made those particular additions does not show that he failed to consider the issues that were argued before him adequately. Nor is it indicative of either actual or apprehended bias. It made no difference to the outcome of the case. The entire topic of the validity of the Registrar's order was not of decisive importance, when the judge had found that there was actual service of the notice. Further, when the additions to the judgment questioned an assumption that had been made in the hearing, about the Registrar having power to make an order under s 170, it was embarking on territory that, if anything, tended to be of assistance to the Appellant. When the additions went on to conclude that the order was valid by reason of s 121(4) Supreme Court Act they were doing nothing more than providing reasons for an assumption on which the case had originally been decided being correct. The making of the order nunc pro tunc did not alter that situation.

161 However, the order nunc pro tunc was made without having been asked for. It was made without the Appellant having had any notice that the judge was proposing to make the order, and thus no opportunity to present any evidence or submissions concerning the appropriateness of making the order. For the order to be made in those circumstances, is a breach of the requirements of procedural fairness. That order must be set aside. The judge's view that there "could be no practical injustice" in making the order is an insufficient reason for overlooking the requirements of procedural fairness.

162 In the present case it is possible to identify clearly what it is that has been affected by this particular denial of procedural fairness. It is the addition of the order, after the other orders in the case had been pronounced. That a denial of procedural fairness occurred in the judge's chambers, after the other orders had been pronounced, provides no reason for overturning the orders that were pronounced orally in court on 26 October.

Additions to Extempore Reasons - Service on 31 May 2010

163 The judgment as delivered orally had recorded that the solicitors for the Respondents had sent a letter to Mr McKell on 31 May 2010 enclosing by way of service a Notice of Intention to Apply for Foreclosure order, and that that was based upon the fact that Mr McKell was the holder of a Power of Attorney from the Appellant. The revised reasons for judgment repeated the substance of those remarks, but then inserted, as [14]:

"There is nothing about the form or construction of the power of attorney that appears to have prevented it from operating in accordance with its intended purpose. By itself, the letter dated 31 May 2010 was probably sufficient service on the plaintiff of the notice of intention to apply for a foreclosure order. I am satisfied that it is likely that, even by that date, the intention of the first and second defendants to apply for a foreclosure order had come to the plaintiff's attention."

164 The reasons for judgment as delivered orally had summarised Mr McKell's letter of 3 June 2010 ([55] above). The revised reasons preceded the summary of that letter by the opening words of [15]:

"Notwithstanding that he held a general power of attorney from the plaintiff, and had received the letter dated 31 May"

165 The reasons delivered orally set out the judge's conclusion, which I have set out in the second paragraph quoted at [98] above, that on 18 June the Appellant became aware of the Registrar's orders of 11 June 2010 and the Notice dated 16 June 2010. The revised reasons added, at the end of [18]:

"In addition of course, Mr McKell continued to be the plaintiff's attorney. As I mentioned in paragraphs [13] and [14], the plaintiff had probably become aware of the intention of the first and second defendants to apply for a foreclosure order on or shortly after 31 May 2010."

166 I have set out at [99] above the conclusion the judge reached about the Notice having actually come to the attention of the Appellant. In the revised reasons of 3 November, the sentence that had read "That first occurred on 18 June 2010" was amended to read, "That first occurred on 31 May 2010. It certainly occurred on 18 June 2010 and again on several subsequent occasions."

167 Counsel for the Respondents had not put any argument to the primary judge submitting that the notice sent under cover of the letter of 31 May 2010 was adequately served because of Mr McKell holding the Power of Attorney. The form of the Power of Attorney ([43] above) is such that there must be very real doubt about whether it conferred any powers at all. The addition of these passages holding that there had been service on 31 May 2010 was an unjustified addition to the reasons for judgment.

168 Mr King also submits that the finding that by 31 May 2010 it had come to the Appellant's attention that the Respondents intended to apply for a foreclosure order involved a breach of the principle in Browne v Dunn, and an overlooking of unchallenged evidence from the Appellant that Mr McKell had not been in contact with him while he was overseas. The evidence to which Mr King refers is the evidence I have mentioned at [45] above. I am not satisfied that that evidence deposes clearly to a lack of contact between the Appellant and Mr McKell during the entire time of the Appellant's absence overseas. The additions to the judgment relating to the intention of the Respondents to apply for a foreclosure order having come to the Appellant's attention on or shortly after 31 May 2010, do not say that he has actually received a copy of the document, rather than a second-hand account of the contents of the Notice. Even so, it would not have been justifiable for the judge to draw a conclusion that there was a passing on of information about that Notice without that having been put to Mr McKell in cross-examination.

169 For both these reasons, the additions to the extempore reasons that related to there being an effective service of the Notice on 31 May 2010 should be treated as notionally removed from the judgment. When that happens, what remains is still an adequate considering of the evidence and of the issues that were debated before the judge. The fact that these alterations were made to the reasons after they were delivered does not justify a finding of actual or ostensible bias, or that there was in any other way an unjudicial process in making the orders that were pronounced in open court.

Additions to Extempore Reasons - Paras [25], [26] and [28]

170 The revised reasons contained, at [25] and [26], text that had not appeared in the reasons as delivered orally:

"It should not be overlooked that the service with which Section 61 is concerned is not service of a writ or other originating process. The requirements for effective service of such a document have a long history and a different legal justification: Ainsworth v Redd (1990) 19 NSWLR 78 at 84 (Kirby A-CJ). A notice by a mortgagee of its intention to apply to the Registrar-General for a foreclosure order is not an originating process. While it has particular implications for the person whose property is to be foreclosed, it is of a quite different character to a document that founds the jurisdiction of the court. It is a step in the administrative process by which the Registrar-General may or may not exercise the powers given to him pursuant to Section 62 of the Real Property Act. Those powers are only exercisable when, among other things, there has been six months' default and the land has been offered for sale at a public auction. Additionally, the exercise of those powers is reviewable by the court pursuant to Section 122. There is every reason in principle why service of such a notice should be considered pragmatically.

Where, in relation to such a document, the method of service is not prescribed, then in my view any reasonable method should suffice if its effect is to fairly and directly bring the existence, nature and content of the document to the attention of the party required to be served. I see no basis for an implicit requirement for personal service - as if the notice were equivalent to a writ or originating process. A reasonable method of service includes, in my view, delivery to the party's attorney as well as service by email, including an email to the party from his own solicitor forwarding documents sent to him. The question in such a situation, as distinct from that which applies in relation to service of an originating process, is one of substance not form."

171 The remarks in those paragraphs are, with one possible exception, an elaboration of the reasons why service under s 61 can occur through any means that results in the notice in question coming to the attention of the mortgagor. In the reasons given orally, the primary judge had clearly come to the view that any means that communicated a notice to a mortgagee was sufficient. The matters in [25] and [26] are articulations of features of the context in which such a notice comes to be served. They are the sorts of matters that could readily spring to mind in the course of concluding that there had been service of the Notice on 18 June 2010.

172 The possible exception I mentioned earlier is the statement in [26] that a "reasonable method of service includes ... delivery to the party's attorney". If those words were intended to convey that delivery to an attorney would be sufficient service even if the attorney never passed the communication on to his principal, they would be going beyond the ambit of the argument that had occurred before the primary judge, and be an impermissible addition to the reasons. However, I doubt that that is the correct way of reading those words. The overall theme of the paragraph is that any process whereby the notice comes to be communicated to the mortgagee can be sufficient service. I would not conclude that [25] and [26] are impermissible additions, rather than statements of matters that were in the judge's mind at the time of delivering the extempore reasons.

173 Most of [28] of the revised reasons did not appear in the reasons as delivered. The additions supported a conclusion that it was possible for an order under s 170 Conveyancing Act to be made concerning a notice required by s 61(2)(d) Real Property Act. The added portion was:

"No sound reason of practice and no sensible policy argument were put forward as a basis for such a limited reading of Section 170 of the Conveyancing Act. On its face, Section 170 applies to the notice requirement in Section 61(2)(d) of the Real Property Act. To limit its application, and to read Section 61, as if the notice requirement of the latter provision were not entitled to the beneficial effect of Section 170, would produce a result that is inconvenient. It is also, I think, unlikely. It may well be regarded as 'irrational, extraordinary or obscure'. In those circumstances, a more sensible construction should be preferred: Cooper Brookes (Wollongong) Proprietary Limited v Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 320-321 (Mason and Wilson JJ). See also Turner v George Weston Foods Ltd [2007] NSWCA 67 at [58]-[60] per Campbell JA."

174 These additions cover principles of statutory construction that judges use very frequently. I would not conclude that this addition was not an articulation of something that was present in the judge's mind at the time the extempore reasons were delivered.

175 However, even if I am wrong, and the quoted parts of [25], [26] and [28] of the judge's reasons were not present to his mind at the time of delivering the extempore reasons, their consequent excision from the reasons for judgment would not show that the judge had dealt adequately with the issues and evidence before him. Nor would their addition show any bias, either actual or ostensible, concerning the orders made orally.

Additions to Extempore Reasons - Opening Words

176 The revised reasons for judgment open with the following words that had not appeared in the judgment as delivered orally:

"The plaintiff is a well known litigant who spent many days in 2010 living and sleeping on top of a pole in protest against certain actions by the federal government. His dispute with the federal government is unrelated to the issues in this case but the pole is situated on land which he mortgaged to the first and second defendants."

177 Mr King's written submissions submit that these remarks are "evidence of apparent contempt for the appellant and of actual bias founded on nothing else except rumour or populist newspaper talk. There is no evidence about any of these representations, which belittle the Appellant and are incorrect." Insofar as the submission is that there was no evidentiary basis for the remarks, it is incorrect. An affidavit of Ms Hagedoorn read before the primary judge stated:

"14. The Bambers proceeded to obtain a writ for possession in November 2009.

15. In about late November 2009 Mr Spencer commenced his hunger strike on a pole on the land, the subject of the writ of possession and also being the subject of these proceedings.

16. In January 2010 Mr Spencer ceased his hunger strike."

178 An affidavit of Wayne Bamber that was read in the proceedings included:

"31. My wife and I obtained a writ of possession in November 2009.

32. Instead of preparing to vacate the property, in early December 2009 Spencer then went on a hunger strike and stayed up on a wind monitoring mast on the subject property for about 52 days."

179 There was evidence before the judge of the Appellant being in dispute with a government. An affidavit of Deneva Bamber said:

"Peter commenced Federal Court proceedings to prevent Wayne and me from enforcing our mortgage until Peter's case for compensation against the government in relation to the Native Vegetation Act was determined."

180 An affidavit of the Appellant that was read in the proceedings below said:

"These were proceedings in the Supreme Court ... against the Minister for the Environment and Climate Change, the Nature Conservation Trust of New South Wales ... and Another for, inter alia, unconscionable conduct His Honour Rothman J also said in his judgment, inter alia, '...The Federal; and State Governbments have entered into a scheme to improve the environment and, in so doing, improve the lot of other rural and other proprietors. Nevertheless, they have done so at the expense of Mr Spencer. While all members of society must accept that there will be restrictions on their activities for the 'greater good of society', when those restrictions prevent or prohibit a business activity ... society is asking Mr Spencer, and people in his position, to pay for its benefit, ... a person in Mr Spencer's position is effectively denied proper compensation for the restrictions imposed upon him by a scheme implemented for the public good." (punctuation and spelling as in original)

181 That affidavit also said:

"Because I have also been involved in Federal Court proceeding against the Commonwealth of Australia I was not in any financial position to defend the Supreme Court proceedings ('the possession proceedings') brought by the Defendants against me in or about December, 2007.

...

I then resumed the Federal Court action in relation to the Just Terms Compensation Act ... in an attempt to raise the money to pay the Defendants."

182 The evidence before the primary judge contained reference to the judgment of the High Court in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118, which explained in some detail the nature of the dispute between the Appellant and the Commonwealth. Mr King's criticism of the sentences added at the beginning of the judgment should not be upheld.

Additions to Ex Tempore Reasons - Role of Mr McKell

183 In the extempore reasons for judgment, the judge had referred to the orders that were obtained in the Common Law Proceedings on 20 July 2009, and continued "but it is clear that the plaintiff made it as difficult as he could to prevent the defendants achieving those orders." There followed a brief account of steps that the Appellant had taken both in the Supreme Court and in the Federal Court that delayed the ultimate determination of the Common Law Proceedings.

184 In the revised reasons for judgment, the judge substituted "obtaining and implementing" for "achieving" in the sentence I have just quoted, and followed that sentence by: "He was aided and abetted by his then solicitor Mr McKell." The Appellant's supplementary written submissions, signed by Mr Glissan, submit this is "a very damaging finding of professional misconduct against Mr McKell, in language used to describe the commission of a criminal offence of being an accessory to the commission of a criminal offence."

185 There appears to have been no dispute about Mr McKell having been the solicitor who acted for the Appellant in the various court proceedings that the judge listed, and that the existence of these proceedings had the effect of delaying resolution of the Common Law Proceedings.

186 While it is true that "aiding and abetting" is language that is sometimes used in the context of aiding and abetting the commission of a crime, it is also used in the context of aiding and abetting the contravention of a standard imposed by the civil law (eg s 75(b)(1)(a) Competition and Consumer Act 2010 (Cth). In the present case, what Mr McKell is said to have "aided and abetted" is various litigious steps that did not contravene any law. But it should be recognised that the expression "aided and abetted" usually refers to assisting and encouraging an activity that is in some way not approved of. Even recognising that it is often a lawyer's task to assist a client in taking steps within the law whether or not the lawyer personally approves of those steps being taken, the sentence might be read by some as suggesting that Mr McKell had engaged in discreditable behaviour. The course of the proceedings and the lack of any attack on Mr McKell's conduct in cross-examination meant that the judge would not have been justified in making it a finding that was personally detrimental to Mr McKell. The sentence complained of is not a clear finding that is detrimental to Mr McKell, but it might be read as suggesting or alluding to conduct on his part that was in some way undesirable. For that reason, it would be better if it had not been added to the judgment.

187 However, the fact that it was added does not reflect upon the correctness of the findings that the judge made in his oral reasons on 26 October 2011. It does not provide a reason why there should be a new trial in the present case.

Additions to Ex Tempore Reasons - Description of Part of Mr McKell's Evidence

188 Yet another attack on the reasons for judgment arises from how the judge treated some evidence of Mr McKell concerning his communications with the Appellant. In the extempore reasons the judge had said:

"The plaintiff's application is based upon a contention that in some way he has not received adequate notice and has been denied natural justice. It will be clear from the facts which I have recited that there is really no factual basis for this contention. Mr McKell gave evidence and was cross-examined. He confirmed there was no other email address used by the plaintiff other than the one to which the emails to which I have referred were sent. He also confirmed that he communicated during 2010 with the plaintiff by mobile telephone and by email. He suggested in evidence which I regard as unsatisfactory, that there was a period of time when he was unable to communicate with the plaintiff during May or June but the evidence of the communications to which I have already referred all of which are included in exhibit 1, indicate that there were a number of relevant communications in June in the period of approximately 2 weeks following the making of the order by the Registrar on 11 June. There was also email communication on 22 April to which I have referred."

189 That portion of the extempore reasons is the basis for [22] of the revised reasons. There are some changes of an editorial or stylistic nature between these portions of the extempore reasons and the revised reasons, but the change upon which the Appellant focuses is that the judge replaced the words "which I regard as unsatisfactory" with the words "which I have to say was vague and unsatisfactory".

190 The evidence that the judge regarded as unsatisfactory, or vague and unsatisfactory, was not the totality of Mr McKell's evidence. It was the evidence relating to there having been a period of time when Mr McKell was unable to communicate with the Appellant during May or June of 2010. The evidence that was being referred to occurred in Mr McKell's cross-examination:

"Q. So that throughout 2010 you were in contact with him by telephone and by email, was that correct?

A. That's correct but it was one time when his email, his service provider was down and he was not receiving my correspondence.

Q. Do you recall when that was?

A. When he was overseas. I don't recall the period of time but, no I don't. I think it may have been May or June. I don't recall actually.

Q. But your recollection is that occurred whilst he was overseas?

A. That was the only time, yes.

HIS HONOUR

Q. I assume that was for a day or 2 at the most?

A. I was told subsequent by client it was for a period of several weeks.

Q. That sounds most unusual?

A. That is what I was told by my client."

191 I would agree that the evidence was vague and unsatisfactory, because of its imprecision about the precise time period during which the communication difficulties occurred. I would not be willing to conclude that the addition of the description "vague" was outside the permissible bounds of correction of extempore reasons, as it is quite possible that it is making explicit something that was in the judge's mind at the time the extempore reasons were delivered.

192 In any event, in itself the addition is not an addition of substance. On Mr McKell's evidence, the communication difficulties, whenever precisely they occurred, occurred whilst the Appellant was overseas. The emails from Mr McKell to the Appellant, which the judge concluded in the extempore reasons were part of the chain of communication by which the Appellant came to be served with the Notice, all bear dates after the Appellant's return from overseas.

Otherwise, New Trial Appropriate?

193 Mr King alternatively submits that all the matters on which he relies as showing bias also show that the trial was an unfair trial, and for that reason there should be a new trial. The discussion of each of the matters relied on leads to the conclusion that, once the submissions concerning actual or ostensible basis are rejected, there is no independent basis on which one should conclude that the trial was unfair.

Erroneous Finding of Actual Service?

194 Mr King attacks the judge's finding that there was actual service of the Notice of Intention to Seek Foreclosure in broadly two ways:

The first is that the judge was not justified in finding that the Notice came to the attention of the Appellant on 18 June 2010.

The second is that, even if the judge was right in finding that the Notice came to the attention of the Appellant on 18 June 2010, the manner in which it came to his attention is insufficient to amount to its being "served" within the meaning of "served" in s 61(2)(d) Real Property Act.

I have reached the conclusion that each of these attacks fails.

The First Attack - Finding that Notice came to Appellant's Attention

195 No attack is made on the validity or legal correctness of the reasoning by which the judge concluded that the Notice had come to the Appellant's attention on 18 June. Rather, the attack arises as a consequence of the arguments that I have already rejected, namely that the finding was made in a hearing that was itself improper and unjudicial.

The Second Attack - Construction of "Served" in Section 61(2)(d)

196 In Hope v Hope (1854) 4 De GM & G 328; 43 ER 534 Lord Cranworth LC considered the court's justification for making orders for substituted service, in the course of which he said, at 342, 539-540:

"The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required."

197 In Ex parte Portingell [1892] 1 QB 15, the English Court of Appeal considered a statutory provision that required written notice of an intention to oppose the renewal of a liquor licence to be "served on" the holder within a particular time. Their Lordships held that there had been such service when a notice was left with a servant on the licensed premises, and came to the hands of the holder of the licence in due time. Lord Esher MR, with whom Fry and Lopes LJJ agreed, approved a statement of Lord Campbell CJ in R v Deputies of the Freeman of Leicester (1850) 15 QB 671 at 675:

"In general, when personal service is required by an act, it is so said in express words; but here the words used are 'give or deliver notice in writing unto such Deputy,' which have no such force."

198 Lord Esher held that the words in the case before him, "has been served on such holder" were "the exact equivalent" of the words considered by Lord Campbell. He said, at 17:

"Upon this interpretation of the Act personal service in the sense contended for by the applicant was not necessary. The magistrates enquired into the question whether the notice had come to the hands of the applicant in due time."

When the magistrates were satisfied it had come to his hands within the relevant time period, the statutory requirement was satisfied.

199 In Holloway v Coster [1897] 1 QB 346 Justices were permitted by a statute to order the vaccination of a child if an appropriate officer "has given notice to the parent or person having the custody of such child to procure its being vaccinated, and that this notice has been disregarded". Wright J said, 347:

"I think that no particular mode of service of the notice is necessary; it is for the Justices in each case to determine whether they are satisfied that it has reached the person to be notified."

Bruce J at 347, gave a judgment to similar effect.

200 Capper v Thorpe [1998] HCA 24; (1998) 194 CLR 342 concerned a terms contract for the sale of land. The Sale of Land Act 1970 (WA) forbad the termination of a terms contract "unless and until the vendor has served on the purchaser a notice in writing specifying the breach" and requiring the purchaser to remedy it within a particular time from the date of service. The High Court (Gaudron, McHugh, Kirby, Hayne and Callinan JJ) said, at [21]:

"Where a statutory provision, such as s6, requires a document to be 'served', the statutory command is ordinarily perceived as requiring the contents of the document to be delivered to the person to be served (Ex parte Portingell [1892] 1 QB 15 at 173). However, unless the statute says so, a document may be 'served' although it is not personally served (In re McGrath; Ex parte The Official Receiver (1890) 24 QBD 466 at 467). Thus, it may be served by posting it to the person required to be served (In re McGrath; Ex parte The Official Receiver (1890) 24 QBD 466 at 467; cf In re 88 Berkeley Road, NW 9 [1971] 1 Ch 648). In many statutory contexts, a document may also be 'served' when it is brought to the notice of the person who has to be served (Holloway v Coster [1897] 1 QB 346; In re Harris [1931] 1 Ch 138; In re A Debtor [1939] 1 Ch 251). At all events, it will be 'served' in such contexts if the efforts of the person who is required to serve the document have resulted in the person to be served becoming aware of the contents of the document. Thus, in Ex parte Portingell, the English Court of Appeal held that a notice of objection had been 'served on' the applicant for renewal of a licence when it was handed to a boy of 14 on the licensed premises and the magistrates inferred that 'the notice had in fact come to the hands of the applicant' (Ex parte Portingell [1892] 1 QB 15 at 16)."

201 Capper v Thorpe involved an attempt to give notice by post, where the intended recipient of the notice had changed addresses and did not receive the posted notice until well after it was posted. However, the Court held at [27] that his earlier receipt of a copy of that notice constituted service upon him.

202 In Edelbrand Pty Ltd v H M Australia Holdings Pty Ltd [2012] NSWCA 31, Bathurst CJ (McColl JA and Tobias AJA agreeing) set out at [57] the following principles that were not disputed in Edelbrand:

"In Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542 at 544, Young J, as he then was, held that personal service merely means that the document must come to the notice of the person for whom it was intended. In Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259, Hodgson JA, with whom Handley JA and Hunt AJA relevantly agreed, stated the position as follows (at [58] citations omitted):

'In the first place, in my opinion it is clear that if a document has actually been received and come to the attention of a person to be served or provided with the document, or of a person with authority to deal with such a document on behalf of a person or corporation to be served or provided with the document, it does not matter whether or not any facultative regime has been complied with. In such a case, there has been service, provision and receipt.'"

Though those principles were not disputed, they are consistent with the authority that I have earlier set out. Basten JA's discussion of principle in Italiano v Carbone [2005] NSWCA 177 at [56]-[62] is to similar effect, and with additional citation of authority.

203 Mr King placed some reliance upon Chapman v Larrescy. He spoke as though, in a matter not fully articulated, Chapman supported the conclusion that the Appellant had not been served with the Notice in the present case.

204 In my view, Chapman does not support that conclusion. The issue in Chapman concerned whether a contract for the sale of land had been effectively rescinded, following the purchaser's failure to comply with a notice to complete. Clause 22 of the contract included:

"(a) service of any notice or document under or relating to this agreement:

(i) may be effected as provided in Section 170 of the Conveyancing Act (1919); and

(ii) shall be sufficient service on a party if effected on his solicitor in any manner provided in that section."

205 The notice in question had been sent to the document exchange box of the purchaser's solicitor. At the time s 170 Conveyancing Act had no provision like the present s 170(1)(c) that permits service at a document exchange box. Helsham CJ in Eq held that the notice had not been effectively served. He said, at 597:

"Clause 22 draws a distinction between service of a notice on a party, in respect of which the methods listed in the section are permissible, and service of a notice on that party by means of service on his solicitor, in which case one of the methods listed in the section is obligatory. In the former case the posting of a notice to the party by ordinary mail would, if the notice were received, be sufficient service, and the same would apply to any other method of getting it to him; but not so, it would seem, in the latter." (italics added)

206 By the italicised words, Helsham CJ in Eq was accepting that any method of getting a notice to a party can be effective service. This view of Helsham CJ in Eq is in accord with the authorities that I have already cited.

207 As I understand it, Mr King submits that consideration of the context and purpose of s 61(2)(d) would lead to it not being sufficient, for the notice to have been "served on" the mortgagor, that it has in some fashion reached the mortgagor. The contextual matter to which he points is that s 61(2A) contains a specific provision that enables notice of intention to make the application to be given to the NSW Trustee and Guardian in circumstances where a mortgagor is dead and there is no personal representative.

208 I do not accept that s 61(2A) provides a reason for departing from the usual meaning of "served". When a mortgagor is dead and no personal representative has been appointed is the very circumstance in which communicating a message to the mortgagor, or someone who can enforce the legal rights of the mortgagor, is not possible. Section 61(2A) expands the usual means of effecting service of a notice for the purpose of s 61 being applied in that limited set of circumstances. That the statute makes an expansion of the usual means, applicable only in those special circumstances, provides no reason to constrict the ordinary meaning of "served on" in s 61(2)(d), when those special circumstances do not apply.

209 Nor do considerations of purpose of s 61(2)(d) lead to any such constriction of meaning.

210 The purpose of service of the notice of intention to make the application for foreclosure is to enable the message to be transmitted to the mortgagor that an application for foreclosure is to be made. Once such a message has been transmitted, the mortgagor will have the opportunity to make such submissions as he, she or it might desire to the Registrar-General about why it is inappropriate to make the order for foreclosure, or why it would be appropriate for the Registrar-General to exercise the discretion he has under s 62(1)(b) to require the land to be offered for sale again in accordance with the directions of the Registrar-General. If, for example, the Registrar-General were to be persuaded that the failed auction sale that was the basis of an application for foreclosure had been conducted with inadequate advertising, the Registrar-General might decide it was appropriate to require the property to be auctioned again with advertising of a type he or she specifies. If there was proof that the amount owing under the mortgage had been tendered to the mortgagee and refused, that could be grounds for refusing to make the foreclosure order at all: Van den Bosch v Australian Provincial Insurance Association Ltd (1968) 88 WN (Pt 1) (NSW) 357 at 365. Alternatively, once the mortgagor has notice of the intention to make the application, the mortgagor might approach the Court to restrain the application being lodged or for an order requiring it to be withdrawn. When that is the purpose of the requirement of service of the notice, there is no reason to construe "served on" in any narrower way than I have earlier discussed.

211 The statutory requirement that it is "notice in writing" that must be served on the mortgagee, has the consequence that the medium of communication of the message in question must be writing. However, the writing can take any of the forms that the technology of the time makes available. In 2010, that included an electronic image of a document that had originally been written on paper, where that electronic image is communicated as an attachment to an email. Further, it is implicit in the notion of "service of a notice in writing" that the writing in question is placed before the person being served in circumstances where it is within that person's power to read the writing in question. If a notice in writing is served personally, all that is needed is that it be handed to the intended recipient or left in his or her presence. If the intended recipient then leaves the document unread, or destroys or discards it, it has nonetheless been served. Similarly, when notice in writing is served electronically it is not necessary to prove that the message contained in the notice has actually been read and understood by the intended recipient. It suffices if the notice in question has been received in an email account that the person intended to be served uses at the time.

212 For the reasons I have given, when the judge was right in concluding that the notice came to the Appellant's attention on 18 June 2010, there is no error in the judge's conclusion that the manner in which the notice came to the Appellant's attention is sufficient to fall within s 61(2)(d) Real Property Act.

No Valid Service Pursuant to Registrar's Order?

213 Once the judge had concluded that there was actual service of the Notice because it came to the attention of the Appellant it was unnecessary for him to consider whether in any event the order for substituted service would have sufficed to make service on Mr McKell count as service on the Appellant. However, in his reasons of 26 October 2011 he considered that issue, and concluded that the order for substituted service was valid. Mr King submits that the judge was wrong in reaching that conclusion. Because of the conclusion to which I have come concerning the finding of actual service of the Notice, it is likewise unnecessary for me to consider the validity of the order for substituted service. However, the question was argued, and in light of Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 at [12], I should express a view concerning those arguments that were raised on the appeal about it.

Court's Power to Make Section 170(1)(d) Order Re Notice of Intention to Apply for Foreclosure Order?

214 An issue that was debated at the hearing before the primary judge and that was decided in the reasons for judgment delivered on 26 October 2011, was whether it was possible for the Court to make an order under s 170(1)(d) concerning a Notice of Intention to apply for a foreclosure order. The judge concluded that the Court could make such an order.

215 Though there was a ground of appeal asserting that the judge was in error in reaching this conclusion, the written submissions did not elucidate why the judge's finding was in error. But several bases were put forward in oral submissions.

216 The first, spelling out some steps that were glossed over in the argument, seems to start by submitting that s 170(1) does not itself apply, because the notice referred to in s 61(2)(d) Real Property Act is not one "required or authorised by this Act [ie the Conveyancing Act] to be served". That step in the argument is right.

217 The next step is that the provisions in s 170(2A) that extend the scope of the types of notices concerning which s 170 empowers the Court to make orders do not apply because the s 61(2)(d) notice is not "required to be served by any instrument affecting property". Mr King submits that one reason why section 61(2) Real Property Act does not require the service of such a notice is because all that s 61(2) requires is that an application under s 61 shall make certain statements, one of which is that the notice in writing has been served.

218 I do not accept this step in the argument. Section 61 not only requires that the statement be made, that the notice has been served on the mortgagor, but also requires that statement to be verified by statutory declaration. Section 25 Oaths Act 1900 makes it a criminal offence, punishable by imprisonment for five years, if a person "wilfully and corruptly makes and subscribes any such declaration, knowing the same to be untrue in any material particular." Section 25A Oaths Act makes it a criminal offence, punishable by imprisonment for seven years, if a person "wilfully and corruptly makes and subscribes any such declaration, knowing the same to be untrue in any material particular, and ... derives or attempts to derive a material benefit as a consequence of the untrue particular". Section 61 thus proceeds on the basis that there has been such a service of notice in writing, that is adequately proved to the Registrar-General for the purpose of s 61(2) by a statement that there has been such service, which is verified by statutory declaration. In those circumstances, it would be within ordinary language usage to say that service of the notice was "required" by the Act.

219 Alternatively, Mr King submits that the Real Property Act is not "any instrument affecting property" within the meaning of s 170(2A). I do not accept that submission. The definition of "instrument" in s 7 Conveyancing Act includes an Act of Parliament. When the Real Property Act is the principal Act under which land is held and dealt with in this State, it would be hard to think of a clearer example of an Act "affecting property".

220 Alternatively, Mr King submits that the definition of "instrument" in s 7 does not apply to a notice under s 61 because there is a contrary intention in s 61. He submits that this arises from the words "served on" in s 61(2)(d) and from the fact that s 61(2A) contains a specific provision that enables notice of intention to make the application to be given to the NSW Trustee and Guardian in circumstances where a mortgagor is dead and there is no personal representative.

221 I do not accept that there is any such contrary intention. For reasons already given "served on" extends in its ordinary meaning to any procedure that places the text of the notice in writing before the mortgagor in circumstances where it is within the mortgagor's power to read the notice, and s 61(2A) provides no reason for narrowing that ordinary meaning. For these reasons the judge's conclusion that the Court had power to make an order under s 170(1)(d) concerning the manner of service of a notice of intention to apply for foreclosure was right.

This Particular Section 170 Order "Void"?

222 Mr King submitted both orally and in writing, that the substituted service order was "void" because it was obtained ex parte in circumstances where the Respondents did not comply with their obligations of disclosure. An applicant for an ex parte order has stringent obligations of disclosure: Thomas A Edison Ltd v Bullock (1912) 15 CLR 679. However, no ground of appeal raises any such contention.

223 That in itself might not be an insuperable problem as, subject to any questions of prejudice that might be raised by a late amendment, it might possibly be cured by permitting the filing of an Amended Notice of Appeal. However, that is not the only difficulty concerning this submission. The Amended Summons claimed a declaration that the order of Registrar Walton of 11 June 2010 was void and of no effect, and White J had referred to the effect of non-disclosure on the validity of the Registrar's order as a serious question to be tried. However, the Points of Claim that were filed in the case did not seek to base the alleged invalidity of the Registrar's order on any failure of disclosure. There is no basis for believing it was an issue actually litigated in the court below. In those circumstances, such submissions as were made in this Court on the topic should not be entertained.

224 A second basis upon which Mr King attacked the order of Registrar Walton in oral submissions was that it should not have been made without notice to the Appellant or Mr McKell. There is more than a little oddity in a submission that notice should have been given to the Appellant, when the basis of the application to Registrar Walton was that it was not possible to personally serve, or to contact, the Appellant. There is also more than a little oddity about a submission that Mr McKell should have been notified, when he denied that he had instructions, and there was no basis on which to doubt his denial. However, it is not necessary to explore those oddities. I say that recognising that White J took the view that there was a serious question to be tried about whether either actual service, or substituted service, was necessary before the Court could make an order under s 170(1)(d) Conveyancing Act. I also recognise that Butterworths Conveyancing Service New South Wales at [3360.50] proceeds on the basis that it is possible to make an ex parte application to the Court for directions as to service. It is not necessary to explore the oddities because there is no ground in the Notice of Appeal that supports any such contention. Beyond the close to totally uninformative statement that the "circumstances of the way in which the order and its validity was obtained is in issue", the Appellant's written submissions make no mention of this topic. It was not a basis that was relied on by the Points of Claim in the court below. It was not litigated at the hearing before Pembroke J. The submission should not be entertained in this Court.

225 Mr King reminded us several times of the finding that the primary judge made in the revised reasons that the Registrar (as opposed to the Court itself) had no power to make an order under s 170. That is not a matter on which I express any opinion, as the Respondents do not attack by Notice of Contention or cross-appeal, the finding that the Registrar lacked power to make the order. However, even assuming that this finding of the primary judge is right, it does not affect the outcome of the present appeal. That is not only because the whole topic of whether the Registrar's order was efficacious is not decisive of the appeal, but also because there is no ground of appeal, and no submission advanced, to the effect that the judge was wrong in finding that the validity of the order of the Registrar was saved by s 121(4) Supreme Court Act.

Orders

226 As already mentioned, the order nunc pro tunc should be set aside. In every other respect, the appeal has failed. Notwithstanding that the order nunc pro tunc is to be set aside, the appeal has in substance been a total failure so far as the Appellant is concerned. For that reason the Appellant should pay the costs of the appeal. The Third Respondent (the Registrar-General) filed a submitting appearance, save as to costs, and did not seek any order concerning the costs of taking that step. I propose the following orders:

(1) Set aside the order numbered (1) purportedly made in the court below on 26 October 2011.

(2) Otherwise, appeal dismissed.

(3) Appellant to pay costs of the First and Second Respondents.

227 MACFARLAN JA: I agree with Campbell JA.

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Decision last updated: 05 September 2012