Allan v Dale and Anor (Ruling)
[2015] VCC 1248
•11 September 2015 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-02367
| GARY BRUCE ALLAN | Plaintiff |
| v | |
| CHRISTOPHER DALE | First Defendant |
| and | |
| O’DONNELL SALZANO LAWYERS PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2015 | |
DATE OF RULING: | 11 September 2015 (revised) | |
CASE MAY BE CITED AS: | Allan v Dale & Anor (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1248 | |
RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application – defendants’ application to set aside order allowing extension of time for service of writ
Legislation cited: County Court Civil Procedure Rules 2008, r46.06
Cases Cited: Howard v Power [2013] VSC 198
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Ms A Golding | Collin Biggers & Paisley Pty Limited |
HIS HONOUR:
1 In this application the defendants seek to set aside an Order made on 15 May 2015 that the period during which the Writ in this proceeding could be served was extended to 10 June 2015.
2 The chronology relevant to the application may be summarised as follows:
·12 March 2014, the plaintiff made a complaint to the Legal Services Commissioner with respect to the legal management of the defendants, the subject of this application.
·14 May 2014, the Writ in this proceeding was issued.
·14 February 2015, the Legal Services Commissioner issued his decision as to the plaintiff’s complaint, which decision was made available to the parties on approximately 19 February 2015.
·7 May 2015, the plaintiff made application to extend the Writ. There is no issue that on that day, the plaintiff was assisted in that process by the Self-Represented Litigants’ Coordinator, Registrar Ryrie. An issue arises as to whether, in the course of that assistance, the plaintiff was advised by Registrar Ryrie as to the effect which the filing of his application had upon his ability to serve the Writ should his application be refused. I will deal specifically with this dispute and the relevance of the plaintiff’s evidence as to his alleged discussion with Registrar Ryrie in the course of these reasons.
·15 May 2015, an ex-parte Order was made extending the period during which the Writ could be served to 14 June 2015.
·10 June 2015, the plaintiff served the Writ upon the defendants.
3 For the reasons set out below, I consider it appropriate, in this instance, to refuse the application by the defendants to set aside the Order made 15 May 2015, which extended the date for the service of the process in this proceeding to 14 June 2015. In arriving at my decision in this instance, I approach my analysis upon the basis that:
(i)the defendants’ application is made under Rule 46.08 of the County Court Civil Procedure Rules 2008 and that the application is in the form of a rehearing;
(ii)the principles applicable to the determination of the matter are those set out by Derham ASJ in Howard v Power,[1] namely:
[1][2013] VSC 198
“10. The principles applicable are well settled. They derive in part from earlier Rules (Order 8 Rule 1), which provided that the court might order that a writ be renewed if satisfied that reasonable efforts had been made to serve the defendant, or for ‘other good reason’. Despite the change in language, however, the authorities make it clear that the court should determine the question of extending the validity of the Writ on the same basis as previously. Amongst the differences between the old and new Rules is a change of terminology, from renewal of the writ to extension of its validity. The principles applicable are, in summary, as follows:
(a)Although the power conferred by Rule 5.12 is wholly discretionary, a judge has to approach the exercise of the discretion in accordance with established principles: Dagnell v Freedman & Co [1993] 2 All ER 161 at 165 (‘Dagnell’);
(b)The jurisdiction given by the rule ought to be exercised with caution: Battersby v Anglo-American Oil Co Ltd (‘Battersby’); Ramsay v Madgwicks (‘Madgwicks’);
(c)It is the duty of a plaintiff to serve a writ promptly: Battersby at 32;
(d)An application to extend time for service is not granted as a matter of course: Battersby at 32; Madgwicks; Savcor Pty Ltd v Cathodic Protection International APS (‘Savcor’);
(e)The first question to consider is whether the plaintiff has taken reasonable steps to serve the writ. If not, it then becomes necessary to consider whether there was ‘some other good reason’ for making the order to extend time for service of the writ: Soper v Matsukawa (‘Soper’); Battersby;
(f)The plaintiff carries the onus of showing that there is a good reason for extending the time to serve the writ (Soper at 952; Madgwicks at 6; Savcor at [41]); the applicant’s burden is no greater if the limitation period has expired between the date of issue of the writ and the date on which the application is made: Findlay at 187.
(g)Whether there is good reason depends on all the circumstances of the case: Dagnell at 165; Kleinwort Benson Ltd v Barbrak Ltd & Ors [1987] AC 597 at 622-3 (‘Kleinwort’); and it is not possible to define or circumscribe the scope of the expression ‘good reason’: Kleinwort;
(h)Where the application is made after the period for service has expired, the reason must be one of substance (Savcor at [41]);
(i)The selection of relevant factors to establish that there is a good reason for making the order, and the significance to be given to each of the factors, are matters of discretion (Soper at 954);
(j)The fact that the plaintiff decides not to serve the writ whilst some other case is tried, or to await some future development, is generally not a good reason to justify extending time for service. Madgwicks at 4 and 5; Savcor at [42]); Dagnell at 165-168. It is for the Court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been commenced against them if they are there to be served: Battersby at 32;
(k)It is a relevant factor against the exercise of the discretion that the renewal of the writ might deprive the defendant of a limitation defence where the plaintiff has been aware that the passage of time might be dangerous: Battersby at 31–2; Madgwicks at 7; Soper at 953; see also Finlay v Littler [1992] 2 VR 181 at 187 (‘Finlay’).
(l)It is a relevant factor against the exercise of the discretion that the defendant was unaware of and had no reason to expect that a writ had been issued against them: Madgwicks at 7; Kleinwort at 623–4).
(m)The lapse of time is itself generally to be regarded as prejudicial to the defendant (Madgwicks at 7; Finlay at 188). In this contest, the relevant delay is to be measured from the time at which the plaintiff’s cause of action arose (Tyson v Morgan [200] 1 Qd R 100 at 104.50);
(n)Any delay in making the application to extend the time for service of the writ is a relevant factor against the exercise of the discretion (Finlay at 187); delay preceding (as well as following) the issue of the writ is material (Soper at 953);
(o)The expiration of the limitation period will not in itself constitute a good reason for extending the validity of the writ (Finlay at 187), although it is relevant (Soper at 952); and
(p)It may be appropriate to have regard to the balance of hardship: Kleinwort at 622; Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 343 and 346 (‘Van Leer’) (adopting the approach of Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496 at 502 (‘Victa’)).”
4 It is clear in this instance that the plaintiff took no steps to serve the Writ and that in these circumstances the plaintiff carries the onus of demonstrating the presence of good reasons for extending the time in which the Writ may be served.
5 In the circumstances of the present case, the fact that the plaintiff had submitted a complaint to the Legal Services Commissioner involving substantially the same allegations as are contained in the Statement of Claim, in my opinion, is a relevant factor which should be accorded appropriate weight upon the issue as to whether my discretion should be exercised in the plaintiff’s favour.
6 I make that statement having regard to the fact that the submission by the plaintiff of his complaint to the Commissioner involved a process in which the current dispute between the parties may have been resolved in a timely and cost-effective manner by which the parties may have achieved the resolution of the matters in dispute without recourse to the Court. That the jurisdiction of the Commissioner is different to that of the Court is, in my opinion, of little relevance given the potential which a finding by the Commissioner may have had in influencing the position of the parties to resolve their dispute by agreement or to accept the determination and take the matter no further. Given the likely influence which the serving of the Writ would have had in putting a halt to that process, I am of the opinion that the plaintiff was justified in delaying the service of the proceeding until the conclusion of that investigation.
7 There can be no issue that the Writ was initially issued at a time at which delay within the limitation period is a relevant factor in this instance.
8 Further, I accept the defendants’ position that Mr Dale had no notice of the commencement of the current proceeding until he was served with the Statement of Claim.
9 The defendants have not deposed to the presence of specific prejudice arising by reason of delay.
10 Further, the fact that the nature of the plaintiff’s allegations in this instance were largely the subject of the investigation undertaken by the Legal Services Commissioner must result in a process in which the potential prejudice associated with delay in this instance is, to some extent, diminished, given that the evidence and facts to be assembled in defence of the current proceedings must largely be those which were relied upon in the response to the process undertaken by the Legal Services Commissioner.
11 It is put on behalf of the defendants that the delay between 19 February 2015 and the filing by the plaintiff of his application in this instance on 7 May 2015 was excessive.
12 Given that the plaintiff:
· is self-represented; and
· that he initiated his application to extend the validity of the Writ seven days before the period during which the Writ could be currently served and only some eleven weeks after the parties received the determination of the Legal Services Commissioner;
I am satisfied that the delay following the determination of the Commissioner was not exorbitant and that it was not inappropriate that he have the opportunity to analyse and digest the Commissioner’s findings before making the decision to commit the parties to this proceeding.
13 Whilst I accept the defendants’ position that, in assessing the application to extend the Writ in this instance, appropriate weight should be accorded to the fact that:
“The defendants may lose the benefit of a limitation defence”
I also take into account the defendants’ position that a limitation defence may be open to them in any event, and that the relevant prejudice does not necessarily involve the loss of such a defence but rather only a potential of the diminution in the strength of the existing defence.
14 In his affidavit of 23 July 2015, the plaintiff deposed to a conversation between himself and the Self-Represented Litigants’ Coordinator, Registrar Ryrie, which is said occurred on 7 May 2015 in the following terms:
“I expressed concern that the date needed to be within sufficient time to allow me to still serve the Writ if my application was not granted. She responded that now that I had submitted the application in the form that I had, I no longer needed to worry about the 12-month service deadline. I had no reason to question that advice given the source that it had come from and so I accepted it.”
15 The defendants take issue as to whether such advice was ever provided by Registrar Ryrie to the plaintiff, and asserts that I could not be satisfied on the basis of the conflict between the parties that such advice was provided by Registrar Ryrie. Whilst I am satisfied that there is considerable merit in the defendants’ position, there is no issue that as a self-represented litigant, the plaintiff, upon attending the Court to file his application on 7 May 2015, would have been assisted in that process by Registrar Ryrie, and I am satisfied in those circumstances:
(i)that a conversation most probably took place between the plaintiff and Registrar Ryrie at that time relevant to the entitlement of the plaintiff to file the application and the authority of the Court to grant the relief which was sought; and
(ii)that the plaintiff, at that time, formed a genuine belief (although misguided) that the filing by him of his application gave rise to a position that his ability to serve the Writ was safeguarded pending the determination of the application and that this belief influenced the plaintiff’s decision not to serve the Writ prior to the date upon which the period for the valid service of the Writ expired.
16 I make the above finding being satisfied that:
· effecting service of the Writ was a relatively simple process for the plaintiff; and
· the plaintiff, certainly by 7 May 2015, and most probably before that date, had made a decision that he wished to serve the Writ and pursue the current litigation and would have done so had he appreciated that an order extending the time during which the Writ could be served may have exposed him to the application now made by the defendants.
17 Balancing the various factors to which I have referred above, I am satisfied that the plaintiff has established the existence of good reasons for the extension of the time during which his Writ could be served and accordingly, the maintenance of the current Order.
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