Bond v State of Tasmania

[2003] TASSC 35

[2003] TASSC 35

CITATION:            Bond v State of Tasmania & Ors [2003] TASSC 35

PARTIES:  BOND, Belinda
  v
  STATE OF TASMANIA
  GARTLAN, Gerard John
  SHERWOOD, Rupert Gordon
  HUGHES, Wendy Ann
  MORGAN, T C

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  277/2002
DELIVERED ON:  3 June 2003
DELIVERED AT:  Hobart
HEARING DATES:  3 June 2003
JUDGMENT OF:  Master S J Holt
CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Commencement of proceedings;  originating process - Renewal of writ - Whether reasonable efforts to serve defendant or other good reason shown. 

Supreme Court Rules 2000 (Tas), r107.

National Mutual Life Association of Australasia Ltd v Huddlestone and Taylor 1997 TASSC 72 and Battersby v Anglo-American Oil Company Ltd [1945] KB 23 referred to.

Aust Dig Procedure [266]

REPRESENTATION:

Counsel:
           Plaintiff:                  A R Mills                  
           Defendant:  
Solicitors:
           Plaintiff:                  Piggott Wood & Baker
           Defendant:                 

Judgment Number:           [2003] TASSC 35
Number of Paragraphs:    9  

Serial No 35/2003
File No 277/2003

BELINDA BOND v STATE OF TASMANIA, DR GERARD JOHN GARTLAN,
DR RUPERT GORDON SHERWOOD, DR WENDY ANN HUGHES,
DR T C MORGAN and DR A TAN

REASONS FOR DECISION  MASTER S J HOLT
  3 June 2003

1. By writ filed 17 May 2002 the plaintiff commenced proceedings against the State of Tasmania and five doctors claiming to have suffered personal injuries arising from treatment which she received at the Royal Hobart Hospital between31 May 1999 and 8 June 1999.  The writ has not been served on two of the doctors and by application filed 15 May 2003 the plaintiff seeks renewal to enable the fourth and sixth defendants to be served.  A discretionary power to order renewal is contained in the Supreme Court Rules 2000, r107.

1. It is to be implied as a matter of construction of the Rule a condition that the power to renew should only be exercised for good reason:  Kleinwort Benson Ltd v Barbrak Ltd [1987] A   C 597 at 622;  Ramsay v Madgwicks [1989] VR 1 at 6; and Finlay v Littler [1992] 2 VR 181. In the latter case Crockett J said at 186:

"It seems to me that the appellant is required (as he specifically would have been under the old rules) when attempting to show 'good reason', to disclose whether reasonable efforts had been made to serve the defendant.  That expression also does not appear in the new rules.  But clearly, having regard to the purpose of the rule in seeking to ensure that process should be served promptly, it seems to me that proof of reasonable efforts to serve the defendant should still be treated as a matter of considerable importance …"

1. The plaintiff has adduced no evidence of attempts to serve the writ prior to 14 April 2003.  On that date the plaintiff's solicitor wrote to the Office of the Director of Public Prosecutions advising of the issue of the writ;  identifying the defendants and asking whether the Director would accept service on behalf of all or any of the defendants.  On 29 April 2003, Counsel at the Office of the Director of Public Prosecutions wrote back advising that service of the writ would be accepted on behalf of the State of Tasmania, but that so far as the other defendants were concerned instructions to accept service needed to be obtained.  Counsel requested that personal service be withheld until he had had a chance to obtain instructions.  Time was running out as the writ would become ineffective for service on 16 May 2003 and so the solicitor for the plaintiff advised the Director that if instructions were not forthcoming to accept service within ten days the writ would be personally served.  There was no response and so the writ was sent to a process server.  On 14 May the process server advised that he was unable to effect personal service on the fourth and sixth defendants.  It appears that those defendants no longer reside in Tasmania. 

1. The position which applies where service is withheld for a lengthy part of the twelve month period allowed for service was set out by Zeeman J in National Mutual Life Association of Australasia Ltd v Huddlestone & Taylor 1997 TASSC 72, where he said at p3 of his reasons:

"Rather, the inquiry is to be directed to the whole of the period of twelve months during which the writ was current or, in the case of an application made before the expiration of the period, the whole of the period since the issue of the writ. The answer to the question whether a plaintiff has made reasonable efforts to serve a defendant is to be found by considering those things (if any) which were done during the whole of that period.

The duty of a plaintiff who issues a writ is to serve it promptly (Battersby v Anglo- American Oil Company Ltd [1945] KB 23, referred to with approval in Ramsay v Madgwicks [1989] VR 1 and Finlay v Littler [1992] 2 VR 181). It is in the context of that duty that the question of whether reasonable efforts to effect service have been made is to be considered. I agree with the views expressed by reference to the equivalent Queensland rule by Helman J in Inprint Ltd v Australian Mutual Providence Society, unreported, Supreme Court of Queensland, 24 April 1995. His Honour said, at 14:

'There is no evidence that the second defendant was avoiding service or that his address was unknown to the plaintiffs. While it is true that some attempts were made to serve the second defendant shortly before the application was made to Derrington J, the long delay that preceded those attempts cannot be ignored. A lengthy period of inaction, followed by a short spurt of activity would not, in the ordinary course of events I think, be regarded as showing that reasonable efforts have been made. But if there were compelling reasons for the delay, that might be another matter.'”

1. There being no evidence of any attempt to serve the writ between its issue on 17 May 2002 and the letter to the Director of Public Prosecutions on 14 April 2003, I am not persuaded that reasonable efforts to serve the fourth and sixth defendants have been made.

1. Reasonable efforts to serve the defendants not having been made, the next question is whether, notwithstanding this, there is good reason to renew the writ.  Counsel for the plaintiff says that renewal will not prejudice the defendants.  This application has been made ex parte and without the defendants having notice of the application, I am not prepared to accept the assertion that delay causes them no prejudice.  The affidavit filed by the plaintiff's solicitor contains the assertion of the solicitor's belief that the plaintiff has a strong case.  I have insufficient information to form a view as to whether in fact the plaintiff has a strong case, but even assuming that she does and even if  renewal will not cause the defendants prejudice, it is not enough to justify renewal.

1. The plaintiff has not made reasonable efforts to serve the defendants and there are other factors militating against a favourable exercise of the discretion.  Those factors being, firstly, that there is no assertion that the delay in service is the result of a mishap or oversight and no assertion that the fourth and sixth defendants have been given notice of the proceedings or brought the delay upon themselves.  These were significant factors in the assessment made by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK (1979) 180 CLR 337 at 350 - 351. Secondly, no adequate explanation for the delay has been given. The only evidence I have is that after the writ issued medical reports were sought from two general practitioners. I do not know what the requests for reports related to; when they were made; when they were answered nor why service needed to await provision of the reports. I am not persuaded that the desire to get the reports provided even a satisfactory reason for the delay let alone a "compelling" reason for the delay using the language of Helman J in Inprint Ltd v Australian Mutual Providence Society (supra).  Thirdly, there is nothing to suggest that the plaintiff would suffer serious prejudice if the writ is not renewed.  As was the situation in Marsden v Taylor 2000 TASSC 138, the plaintiff if she wishes to pursue the fourth and sixth defendants can apply for an extension of time under the Limitation Act 1974, and in any event, the State of Tasmania has been served within time and the plaintiff asserts that the State of Tasmania is vicariously liable for the negligence, if any, of the fourth and sixth defendants.

1. Renewal is not to be ordered as a matter of course.  It must be justified in the context of the policy behind the procedural rule that writs be served within twelve months and in the context of the policy behind the Rule authorising renewal which is there to provide relief in cases of inadvertence;  and cases where defendants avoid service or are difficult to serve and in cases where there is otherwise good reason to allow further time for service.  A plaintiff who issues a writ has a duty to serve it promptly and it is generally not right that a plaintiff should hold up proceedings whilst the defendant is left ignorant of the fact that the action has been commenced:  Battersby v Anglo-American Oil Company Ltd (supra) at 32.

1. I am not persuaded that there is any injustice to the plaintiff in declining renewal.  The application will be dismissed.