Bidner v Bridge

[2005] NSWSC 643

CITATION:	Bidner v Bridge & Anor [2005] NSWSC 643
HEARING DATE(S):	23 June 2005
JUDGMENT DATE :	1 July 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The appeal is dimissed; (2) The decision of Magistrate Hodgson dated 8 December 2004 is affirmed; (3) The summons filed 4 January 2005 is dismissed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS:

Appeal decision of Local Court Magistrate - extend time for service - statement of claim

LEGISLATION CITED:

Local Courts (Civil Claims) Act 1970 (NSW) - s 69
Local Court (Civil Claims) Rules 1970 (NSW) - Part 5 r 5(1)(a)
Motor Accidents Act 1988 - s 52(4)

CASES CITED:

Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Devries v Australian National Railways Commission (1993) 177 CLR 472
Franklin House Ltd v ANI Corporation Ltd & Ors (unreported Windeyer J, 7 November 1994)
House v The King (1936) 55 CLR 499
Itex Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207, [2001] NSWCA 442
Kessey v Golledge (1999) 30 MVR 95
Kleinwort Benson Ltd v Barbrak [1987] 1 AC 597
Parainga Mining & Exploration Co Pic v North Flinders Mines Ltd (1998) 165 CLR 452
Rust v Barnes [1980] 2 NSWLR 726
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588

PARTIES:

William Grant Bidner
(Plaintiff)

Neville Bridge
(First Defendant)

Valerie Fay Bridge
(Second Defendant)

FILE NUMBER(S):

SC 10012/2005

COUNSEL:

Mr S Winfield
(Plaintiff)

Mr R Colquhoun
(Defendants)

SOLICITORS:

Paul Gowran & Co
Jesmond
(Plaintiff)

Walker Smith
Forster
(Defendants)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	429/1998
LOWER COURT JUDICIAL OFFICER :	Hodgson LCM

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

FRIDAY, 1 JULY 2005

10012/2005 - WILLIAM GRANT BIDNER v
NEVILLE BRIDGE & ANOR
JUDGMENT (Appeal decision of Local Court Magistrate – extend time for service – statement of claim)

1 HER HONOUR: By summons filed 4 January 2005 the plaintiff seeks an order that leave be granted to appeal the decision of his Honour Hodgson LCM made on 8 December 2004 in 429/1998 at Forster Local Court be vacated; and secondly that the notice of motion heard on 8 December 2004 between the plaintiff and the defendants be quashed and in substitution that the notice of motion be dismissed with costs. The plaintiff relied on his affidavits sworn 24 December 2004, 23 February 2005 and 28 February 2005 and the affidavit of Paul Kevin Gowran sworn 4 May 2005. The plaintiff is William Grant Bidner (Bidner). The first defendant is Neville Bridge, the second defendant is Valerie Fay Bridge (the Bridges).

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156. It cannot be said that the Tribunal member acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588.

3 No grounds of appeal as required by Part 51A r 5 of the Supreme Court Rules 1970 (NSW) have been provided. While the appeal could have been struck out as incompetent, I have elected to take this course. However, I acknowledge that approach gave the plaintiff an advantage as to whether leave should be grant as he was not constrained to any particular grounds of appeal.

4 Section 69(2B) provides that an appeal against an interlocutory order does not lie to this Court except by leave. Where an interlocutory order does not determine the rights of the parties, the order would usually be an exercise of discretion on a point of practice or procedure.

5 In Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452, the High Court stated (at 458):

“In general, the orderly administration of justice would be impeded if this Court intervened in interlocutory proceedings in a matter pending in a court of trial. It is the responsibility of a court of trial to determine the course of interlocutory proceedings, subject to appeal to the relevant intermediate appellate court.”

6 However, more recently in Itek Graphix Pty Ltd v Elliott (2001) 54 NSWLR 207, [2002] NSWCA 104, the Court of Appeal considered whether an interlocutory appeal concerning a limitation matter should be entertained. In Itek the Court of Appeal agreed with the approach taken in Kessey v Golledge (1999) 30 MVR 95 where Rolfe AJA (with whom Sheller and Beazley JJA agreed) held that the appellate court should decide whether leave under s 52(4) of the Motor Accidents Act 1988 (NSW)should or should not be granted before the substantive proceedings were heard. This is because an erroneous interlocutory order which allows proceedings to be commenced and continued should, if possible, be corrected before trial, not later. However, the Court of Appeal also commented that the position is quite different where the reversal of an interlocutory order would not avoid a first trial or require a second trial. Had an order for an extension of time to serve the statement of claim not been made, the proceedings would have been at an end. The same reasoning as in Itek applies to an extension of time to serve a statement of claim so I will adopt the approach taken in Itek and grant leave to appeal.

The appeal

7 The principles according to which this court is to decide whether the Magistrate’s discretionary decision to extend the time for service of a statement of claim constitutes an error of law, are stated definitively in a short passage in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505. It is, I think, useful to re-state them as follows:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

The Local Court proceedings

8 On 26 August 1998 the statement of claim was filed in the Local Court at Forster. It seeks recovery of money for two breaches of contract which allegedly occurred in September 1993. The statement of claim went stale on 26 August 2000. In 2004 the notice of motion seeking the extension of time for service to 26 August 2005 pursuant to Part 5 r 5(1) Local Court (Civil Claims) Rules 1988 (NSW) in support of the motion was the affidavit of Ian James Graham sworn 17 September 2004.

9 Briefly, Mr Graham the solicitor acting for the plaintiffs deposed that neither he nor the Bridges knew where Mr Bidner was living. On 31 August 1998 Mr Graham telephoned Mr P Iverson of Countrywide Collections to discuss service of the statement of claim on Mr Bidner.

10 On 18 October 1998 Mr Graham and Mr Iverson met to further discuss service of the statement of claim on Mr Bidner. Mr Iverson told Mr Graham that he would follow leads in the Newcastle/Hamilton and Kurri Kurri areas, and that he would do an electoral roll search. Mr Graham informed Mr Iverson that the Bridges were pensioners and could not afford to pay more than $100 for his services. In March 1999 Mr Iverson reported to Mr Graham that his search for Mr Bidner had been unsuccessful.

11 The solicitor at that time did not consider that there would be any utility in seeking an order as he had no idea where Mr Bidner was living or working nor did he know of any person who, if served with the statement of claim, would have been likely to bring the document to Mr Bidner’s knowledge.

12 Pursuant to Part 5 r 5(1) to the learned Magistrate exercised his discretion and allowed the statement of claim to be served.

The Local Court Rules

13 Part 5 r 5(1)(a) of the Local Court (Civil Claims) Rules 1970 (NSW) provides:

“(1) For the purposes of service:

(a) a statement of claim filed before 1 January 2002 is valid for 2 years from the date on which it is filed or such further period as the court may direct….”

Magistrate’s decision

14 On 8 December 2004 Mr Bromhead solicitor appeared for the Bridges and Ms Wilson appeared as agent solicitor for Bidner. The transcript is brief so I shall reproduce it here ([35-58])

“HIS HONOUR: Righto, so we don’t have to serve him. You instructed to accept service?
WILSON: No.
HIS HONOUR: You’re not?
WILSON: Absolutely not.
HIS HONOUR: Why not? They haven’t been able to find this bloke, been chasing him for years and he has the temerity to send a solicitor along to court to impose a reasonable application to extend the time for service so we can get him served and get this thing moving, I don’t believe this.
WILSON: That’s because it’s our application your Honour that he wasn’t unable to be served and that the plaintiffs have not made out their case that they couldn’t find him within the 6 year limit, in fact he was able to be found, that’s our case.
HIS HONOUR: All right, we’ll get him served now. Application granted, yes thank you.”

15 Firstly, the plaintiff’s counsel submitted that Ms Wilson, the solicitor appearing for the plaintiff, did not get an opportunity to be properly heard and had been denied procedural fairness. However, the transcript shows that this is not so. Ms Wilson informed the Magistrate that she did not have instructions to accept service “absolutely not”. The solicitor availed herself of the opportunity to put her submissions as to why leave should not be granted and concluded by stating “that’s our case”. The solicitor did not ask for an adjournment nor did she seek to rely upon any affidavit evidence from her client. I might add, that at the hearing of this appeal, there was no affidavit evidence from her to the effect that she was denied the opportunity to present her case. This ground of appeal fails.

16 The plaintiff submitted that the Magistrate erred in law when he exercised his discretion to extend time for service of the statement of claim. The question of extension of time for the service of a statement of claim was discussed in Franklin House Ltd v ANI Corporation Ltd & Ors (unreported, Windeyer J, 7 November 1994). Windeyer J stated:

“A plaintiff seeking an extension of time must put forward grounds for seeking relief. It is not sufficient ground just to say that the statement of claim has not been served as that would have the effect of providing for almost automatic extensions such as were at one stage granted under old rules as to renewal of writs. While it must be remembered that most of the cases dealing with the problem rest upon specific rules providing for extension of the validity of a writ or originating process and not upon a general rule such as Pt2r3 or RSC Ord 3r5 of the English Rules the considerations which apply are I consider generally the same. A party seeking an extension of time must give a proper or sufficient reason for delay in service.

Exceptional circumstances need not be shown as they need no longer be shown in the United Kingdom but good cause for delay should I think be shown. See Rust v Barnes [1980] 2 NSWLR 726 at 738; Ramsay v Madgwicks [1989] VR 1; Finlay v Littler [1992] 2 VR 181 at 186. If proper reason for delay is shown then it is a matter for the Court in exercising its discretion to see where the interest of justice lie. The most important case in England on this subject is Kleinwort Benson Ltd v Barbrak [1987] 1 AC 597. In that case Lord Brandon of Oakbrook explained the three categories of case to which extension would apply being:

1. where application is made when the writ is valid and before the limitation period has expired;

2. where application is made when the writ is still valid but the limitation period has expired; and

3. where application is made when the writ has ceased to be valid and the limitation period has expired.

He [Lord Brandon of Oakbrook] explained that in at least cases 1 and 2 when application is made the defendant has not an accrued right of limitation although of course in category 2 the defendant might reasonably think he has if service is effected after the normal period of validity of the writ. Category 1 cases cause no problem; category 3 cases according to the House of Lords decision require satisfactory explanation of delay as it would seem do category 2. See Kleinwort Benson at 618 apparently approving Stevens v Services Window & General Cleaning Co Ltd [1967] 1 QB 359.”

17 In Rust v Barnes [1980] 2 NSWLR 726 the limitation period for service of a statement of claim was extended after having been served approximately 3 years out of time.

18 Kleinwort Benson Ltd v Barbrak [1987] 1 AC 597 set out three main categories of cases where questions of limitation of action may arise on an application for extension of the validity of a writ. In all categories the applicant applying for an extension to be granted out time would need to show “good reason” not “exceptional circumstances”. A further “satisfactory explanation” would be required if the writ was invalid at the time the extension was sought.

19 Lord Brandon of Oakbrook stated in Kleinwort (at 623):

“Once a judge has exercised his discretion, it is only on very limited grounds…that an appellate court will be justified in interfering with his decision.”

20 In the present case there was a satisfactory explanation for delay or good reason proffered. The defendant did not put on any evidence as to hardship or his inability to meet the claim. It was open to the Magistrate to exercise his discretion in the way he did. There is no error of law. The appeal is dismissed. The decision of Magistrate Hodgson dated 8 December 2004 is affirmed. The summons filed 4 January 2005 is dismissed.

21 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants’ costs as agreed or assessed.

The Court orders:

(1) The appeal is dismissed.

(2) The decision of Magistrate Hodgson dated 8 December 2004 is affirmed.

(3) The summons filed 4 January 2005 is dismissed.

(4) The plaintiff is to pay the defendants’ costs as agreed or assessed.
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