T-457-88
Newfoundland Processing Limited (Plaintiff)
v.
Owners and all others interested in the Ship South
Angela (Defendants)
INDEXED AS: NEWFOUNDLAND PROCESSING LTD. V. SOUTH
ANGELA (THE)
Trial Division, McNair J.—Halifax, June 14,
1988.
Practice — Pleadings Amendments — Statement of
claim entitled "in the Federal Court of Newfoundland", a
non-existent court — Whether issuance thereof and service
upon defendants' ship nullities — Defect of statement of claim
constitutes irregularity capable of being cured by amendment
— Amendment cures irregularity retroactive to date of origi
nal statement of claim — In rem service of amended pleading
not required when defendants participate in proceedings.
The defendants sought leave to file a conditional appearance,
for the purpose of objecting to an irregularity which appeared
in the style of cause of the statement of claim. They also sought
to have declared as nullities the issuance of said statement and
the service affected on the defendants' vessel. The statement of
claim indicated that the action was "in the Federal Court of
Newfoundland"—a non-existent court. The first issue raised by
the Court was whether the original statement of claim is a
nullity, or an irregularity, which can be cured by an appropri
ate amendment. The second objection raised was as to the
necessity for service of an amended pleading. The defendants
submit that the amended statement of claim cannot be served
in compliance with the Rules, which require in rem service
against the res (South Angela) since said ship is' no longer
within the jurisdiction.
Held, the motion should be dismissed.
The improper entitlement on the face page of the statement
of claim constitutes an irregularity which can be amended
without leave: Island and Worldwide Shipping Agency Inc. v.
Astron (The), [1982] 1 F.C. 295 (T.D.). Service in rem of the
amended pleading is not required where the defendant (as in
this case) participates in the proceedings. The amended plead
ing is effective from the date of the original document.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, RR. 304(3), 401,
421(1), 1002(5).
CASES JUDICIALLY CONSIDERED
APPLIED:
Island and Worldwide Shipping Agency Inc. v. Astron
(The), [1982] 1 F.C. 295 (T.D.); Voth Bros. Const.
(1974) Ltd. v. Senate House Dev. Inc. (1983), 45
B.C.L.R. 353 (Co. Ct.); The Queen v. Fredericton Hous
ing Ltd., [ 1973] F.C. 196 (T.D.).
REFERRED TO:
Wirth Limited v. Atlantic Skou (The), [1974] I F.C. 39
(T.D.).
COUNSEL:
G. E. J. Brown for plaintiff.
John R. Sinnott for defendants.
SOLICITORS:
Stirling, Ryan, St. John's, Newfoundland, for
plaintiff.
Lewis, Sinnott & Heneghan, St. John's, New-
foundland, for defendants.
The following are the reasons for judgment
rendered orally in English by
MCNAIR J.: Despite Mr. Sinnott's able and
ingenuous argument, my decision is against grant
ing the relief sought in the motion. The defend
ants' motion is for leave to file a conditional
appearance, pursuant to Rule 401 [Federal Court
Rules, C.R.C., c. 663], for the purpose of object
ing to an irregularity in the commencement of the
proceeding, and the service of the statement of
claim on the defendants' ship, South Angela, on
the grounds that the statement of claim is entitled
in the Federal Court of Newfoundland, a non
existent court, and that the issuance thereof and
service upon the ship are nullities. The original
statement of claim was filed on the 9th of March,
1988. It was served on the vessel, in the manner
contemplated by Rule 1002(5). That is, a certified
copy was attached to the mast of the ship, South
Angela. The copy was certified under the seal of
the Court and the signature of Henry J. Thorne,
Deputy District Administrator of the Federal
Court of Canada. The required paragraph con
tained at the end of the statement of claim
referred to the Federal Court of Canada, at the
City of Ottawa or the local office, as being the
place where the defendant should file its defence to
the statement of claim. The only error or
irregularity was a reference in the style of cause or
entitlement of the action to the Federal Court of
Newfoundland. It is common ground that there is
no such court. I might say that a ship is an elusive
target, and parties seeking to secure its arrest in a
proceeding in rem, against a ship and its owners,
often have to move very quickly. I accept that the
defendants' ship owners probably remained una
ware of the defective style of cause entitlement,
until on or about the 12th of May, 1988. The
plaintiff must have become aware of this about the
same time by reason whereof an amended state
ment of claim was filed on or about the 19th of
May, 1988. As I see it, the first issue is whether
the original statement of claim is a nullity, or an
irregularity, which can be cured by an appropriate
amendment. Wirth Limited v. Atlantic Skou
(The), [1974] F.C. 39 (T.D.), held that a state
ment of claim can be amended without leave of the
Court, under Rule 421(1), where no limitation
period arises and where the effect of the amend
ment did not substitute a party or create confu
sion. The case of Island and Worldwide Shipping
Agency Inc. v. Astron (The), [1982] 1 F.C. 295
(T.D.), held that an amendment to a style of cause
may be made in the manner provided by the Rules,
for any amendment, including amendments with
out leave, under Rule 421(1). In that case, Mr.
Justice Mahoney said, at page 298, and I quote:
Under the present practice, a plaintiff is entitled to amend
his statement of claim before it has been pleaded to in the most
substantial particulars; he may add or subtract causes of
actions and remedies sought without an order of the Court, but
he cannot correct even a typographical or clerical error in the
style of cause without an order.
The Registry has been wrong in taking the Chief
Justice's comment to a logical, but absurd conclu
sion. Continuing with the quote:
A proper application of the comment would be that no
change is to be made in a style of cause without formal
amendment and the Registry should continue to examine and
refuse to accept for filing pleadings and other documents that
do not bear the current style of cause in an action, be it the
original or, if a formal amendment has been made, the amend
ed style of cause. An amendment to the style of cause may,
however, be made in the manner provided by the Rules of
Court, for any amendment. In this instance, the plaintiff is
entitled to effect the amendment it wishes without leave.
In Voth Bros. Const. (1974) Ltd. v. Senate
House Dey. Inc. (1983), 45 B.C.L.R. 353 (Co.
Ct.), the defendant sought a declaration that a
writ was a nullity, due to a defective style of cause
entitlement, showing a non-existent County Court
on the face of the writ. The writ was properly
sealed, and issued out of the correct Court Regis
try. The defendant's action was dismissed. The
learned County Court Judge distinguished two
other County Court decisions, that went the other
way, on the basis that the seal of the Court had not
been affixed, as in this case. And from the further
fact that the writ had been issued out of the proper
Registry. I find, in the present case, that the
improper designation of the Federal Court of
Newfoundland, and the entitlement on the face
page of the statement of claim is not a sufficiently
fatal defect or flaw as to constitute the action
instituted thereby a nullity. But that it is, at most,
an irregularity capable of being cured by an
amendment under Rule 421 of the Federal Court
Rules. Moreover, the case of The Queen v. Fred-
ericton Housing Ltd., [1973] F.C. 196 (T.D.),
supports the proposition that a curative amend
ment, duly made, takes effect from the date of the
original document that it amends, and not from
the date of the amendment. This leaves, for con
sideration, the other objection raised by the
defendant, namely, that pertaining to service. Rule
421 is silent as to the necessity for service of an
amended pleading. Mr. Sinnot's argument goes
like this:
Rule 1002, Sub. Rule (5) requires that a certified copy of the
statement of claim be attached to the mast of the vehicle, to
effect service in an in rem proceeding against the res, i.e., the
vessel. [sic]
The amended statement of claim cannot be
served in compliance with Rule 1002(5), so as to
constitute notice to all the world of an action, in
rem, against the res, because the res is no longer
within the jurisdiction. He points to Rule 430 and
contends that this mandate is in rem service, as
provided by Rule 1002(5). This is an impossibility
under the present circumstances. Hence, the action
becomes aborted. Mr. Brown relies on Rule
304(3), which reads as follows:
Rule 304... .
(3) Where the defendant, respondent or other interested
party voluntarily defends or takes such action as is necessary to
participate in the proceedings, service is not necessary under
paragraph 1. [Paragraph 1 of Rule 304.]
Paragraph 1 of Rule 304 alludes to the require
ment of personal service, inter alia, of an originat
ing document in the nature of a statement of claim
or a declaration. Reference to this is made in
paragraph 9 of the affidavit of Kenneth A. Tem-
pleton of the plaintiff's firm of solicitors, which
reads as follows:
That the defendant states that the error impacts upon the
validity of the original service.
However, in referring to Rule 304, and in par
ticular paragraph (3) thereof, service is not neces
sary where the defendant "takes such action as is
necessary to participate in the proceedings." Con
tinuing with paragraph 9, as deposed to in Mr.
Templeton's affidavit:
The defendant, through its solicitor, took an active role in the
proceedings following the arrest of the defendant vessel, by
having the solicitor, Mr. John Sinnott, stay on board the vessel
to allow for the immediate availability of his services, and by
having him actively engage in the negotiations with respect to
the terms or the release of the vessel, which ultimately resulted
in the formal release documents being filed. During all of which
there was no complaint nor was there an application to this
court wherein the defendant was alleging that the issuance and
service of the statement of claim were nullities.
Then paragraph 10 refers to Exhibit A as being
attached to the affidavit, with a copy of the under
taking, as to the terms of release. And paragraph
11 refers to Exhibits B, C and D, which are letters
from Mr. Sinnott, in which the deponent avers,
confirm his participation in the proceedings lead
ing to the release of the vessel from arrest. In my
view, the defendant participated in the proceedings
to the extent of obtaining the release of the vessel
from arrest, by posting security. Mr. Sinnott acted
for the defendant in that enterprise. The ship was
properly served under Rule 1002(5), apart from
the misnomer of the appropriate court in the enti
tlement of the action. In my opinion, the amend
ment made pursuant to Rule 421 cures that
irregularity, retroactive to the date of the original
statement of claim. The long and the short of it is,
that I consider that it would be unjust to require
that in rem service be affected on the vessel, which
is no longer within the jurisdiction, by reason of
having been released from arrest, where the
owners participated directly in the proceedings, to
design to secure the release of that vessel from
arrest. Under the circumstances, I am of the opin
ion that the plaintiff need not affect new service of
the amended statement of claim, under Rule
1002(5), but need only serve the same on the
solicitors representing the owners of the vessel. In
view of the fact that I consider that the motion was
not one that was lacking in merit, and raised some
rather special or exceptional circumstances in the
case, it would be my inclination on any award of
cost that the cost of the motion should be in the
cause.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.