Bruinewoud v Tasmania Dairy Industry Authority

[1990] TASSC 135

Serial No B58/1990
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Bruinewoud v Tasmania Dairy Industry Authority [1990] TASSC 135; B58/1990

PARTIES:  BRUINEWOUD
  v
  TASMANIAN DAIRY INDUSTRY AUTHORITY

FILE NO/S:  366/1979
DELIVERED ON:  10 October 1990
JUDGMENT OF:  Crawford J

Judgment Number:  B58/1990
Number of paragraphs:  19

Serial No B58/1990
List "B"
File No 366/1979

BRUINEWOUD v TASMANIAN DAIRY INDUSTRY AUTHORITY

REASONS FOR JUDGMENT  CRAWFORD J

10 October 1990

1. This is an appeal from a decision of the Master who dismissed the plaintiff's application seeking an extension of the time limited for making an application to renew a writ and also seeking leave to renew the writ. The relevant rules of this court are as follows:–

ORDER 8

"1–(1)  No original writ of summons shall be in force for more than twelve months from the day of the date thereof, including the day of such date; but if any defendant therein named shall not have been served therewith, the plaintiff may, before the expiration of the twelve months, apply to the Court or a judge for leave to renew the writ; and the Court or a judge, if satisfied that reasonable efforts been (sic) made to serve such defendants, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal, inclusive of such date, and so from time to time during the currency of the renewed writ".

ORDER 79

"7–(1) The Court or a judge may enlarge or abridge the time for doing any act or taking any proceeding allowed or limited by these rules, or allowed or limited for the like purpose by any order of the Court or a judge, whether so allowed by way of enlargement or otherwise, upon such terms, if any, as the justice of the case may require; and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time originally allowed or limited."

1. Although the unserved writ expired before the application was made for leave to renew it, such leave may still be given because of the provisions of O79, r7(1): Baker v Baker [1973] Tas SR (NC) 5; Krawszyk v Graham [1966] SASR 73; Victa Ltd v Johnson (1975) 10 SASR 496; Irving v Carbines [1982] VR861; Rossiter v Bishop [1985] Tas R 107.

1. The writ of summons issued by the appellant named the Herd Improvement Board of Tasmania as defendant. I will refer to it as "the Board". The notice of appeal names the respondent as the Tasmanian Dairy Industry Authority. It was stated by the Master in his reasons for judgment that at the outset of the hearing before him an order was made amending the name of the defendant accordingly. The record of proceedings reflects this. However, the transcript of the proceedings before the Master does not reveal that this in fact occurred. On 1 January 1989 the Herd Improvement Board of Tasmania was dissolved as a result of s12 of the Herd Improvement Amendment Act 1988 and all claims against the Board became claims against the Tasmanian Dairy Industry Authority. It may therefore still be necessary for an amending order to be made but it is not necessary for me to make further mention of this in this judgment. For convenience I will simply refer to the Board rather than to the Authority.

1. The evidence before the Master consisted of affidavits made by the appellant and his present solicitor, Mr. Ellis. The appellant was cross–examined before the Master and again before me. I will state my findings of fact.

1. The writ of summons was issued by the appellant against the Board on 31 May 1979. A statement of claim was annexed. In it, it was stated that the appellant had been employed in the Department of Agriculture as a herd recorder, that employment being pursuant to the provisions of the Public Service Act 1973. On 29 September 1977, he resigned from his position and entered into employment with the Board pursuant to the provisions of the Herd Improvement Act 1977, s11(4), which made express provision for herd recorders previously employed by the Department to enter into the employment of the Board. By virtue of s11(4) such persons were entitled to retain all their existing and accruing rights as if they had continued to be employed under the Public Service Act 1973.

1. The statement of claim alleged two causes of action. The first arose out of an alleged transference of the appellant's place of residence from Scottsdale to Launceston in December 1977. It was alleged that it was a term of the employment that the Board would pay to the plaintiff his actual costs incurred in such transference and that he was paid $1350 instead of $1900 for such costs. Impliedly the balance of $550 was claimed. The second cause of action arose, according to the statement of claim, as a result of the appellant being wrongfully dismissed from his employment on or about 4 April 1978. Particulars of the alleged wrongful dismissal, and also of alleged breaches of the terms and conditions of the contract of employment, complained in substance of a failure to comply with sections of the Public Service Act 1973, including s76. The basic theme of the Act was that those employed under it could not be dismissed except in special cases. Part VII, in which s76 was contained, provided that if an officer employed under the Act committed any breach of the provisions of it, or misconducted himself in some way, he was guilty of an offence the consequences of which could be dismissal. Section 76 provided for a copy of the charge to be furnished to the officer charged with a direction to reply in writing, and other provisions of the Act provided for the holding of an enquiry at which the officer was entitled to appear and to be represented by counsel and to adduce evidence and examine and cross–examine witnesses. The statement of claim alleged breaches of the provisions of the Act in a number of respects, including breaches of the provisions to which I have referred. The particulars of damage appearing in the statement of claim were simply loss of salary from 4 April 1978 to the date of the writ of summons.

1. On 12 May 1978 the appellant applied for legal assistance (by which I presume is meant legal aid in the usually understood sense of that expression) and with a union representative he first consulted a solicitor at McManus Palmer and Zeeman on 23 May 1978. On 13 July 1978 that solicitor wrote a letter of demand to Archer Hall Waterhouse and Campbell, solicitors for the Board. Since that time the firm of Archer Hall Waterhouse and Campbell has changed its name to Archer Bushby and although, no doubt, the identity of the partners has altered over the years, that same firm continued to act for the Board and represented the respondent on the hearing of this appeal.

1. On 20 July 1978 the Board's solicitors replied to the appellant's solicitors stating that liability was denied. The writ came to be issued on 31 May 1979. On the same day the appellant's solicitors wrote to the Board's solicitors asking whether they would "accept service of a Writ on behalf of Tasmanian Herd Improvement Organization". This name appears to have been erroneous and nothing turns on it, except to the extent I will refer shortly. On 7 June 1979 the Board's solicitors replied advising that they had instructions to accept service of a writ. On 11 June the appellant's solicitors sent to them the writ of summons in duplicate and asked them to "sign the undertaking on the original Writ and return the same to us". I presume that it was an undertaking in the usual form as to entry of appearance. On 13 June 1979 the Board's solicitors replied saying that they were "unsure about the title of the Defendant and consequently we are taking instructions. We will enter an Appearance and return the sealed copy Writ as soon as our instructions are clear". The uncertainty must have arisen because of the previous erroneous reference in correspondence to Tasmanian Herd Improvement Organization, notwithstanding that the writ correctly named the Board.

1. At no time did the Board's solicitors complete the acceptance of service and entry of appearance. They simply retained both copies of the writ of summons and no further reference was made between the parties concerning service until 1989.

1. On 2 July 1979 the Board's solicitors wrote to the appellant's solicitors inviting a conference which "may be fruitful". The evidence is not clear but it seems likely that such a conference did occur, and on 13 August 1979 the Board's solicitors wrote a further letter asking for "the details of your client's claim as promised". There were no further communications between the solicitors until 1983. In the meantime the writ of summons became stale on 31 May 1980.

1. Communications between the solicitors were briefly restored between February and May 1983 when the appellant's solicitors wrote five letters to the Board's solicitors "for details of comparable wages", according to the appellant. These details were apparently furnished in about May 1983. There were no further communications between the solicitors until December 1988 when Mr. Ellis first came to be instructed by the appellant and wrote to the Board's solicitors. The Board takes no point concerning the time which has elapsed since then. In view of this concession I must consider the application as if it had come before me shortly after December 1988.

1. None of the blame for the delay which occurred can be attributed personally to the appellant. It was the fault of some of a number of legal representatives in whom, over the years, he trusted. I do not propose to set out all of the detailed history of his dealings with solicitors and barristers from 1979 until late 1988. I am satisfied that he made regular contact with his solicitors and did not fail to respond when called on by them. He was frequently given to understand that his case was progressing and that he had nothing to worry about. After substantial inaction by his solicitors, counsel was briefed for an opinion as to damages, with full details being sent to him in May 1983. His opinion, however, was not provided and attempts to obtain it were apparently abandoned in December 1985. Apart from the little which occurred in that regard, it appears that his solicitor did nothing from May 1983 until late 1988 to promote the case, but at the same time he gave the appellant every understanding that the case was proceeding as it should be. The appellant is not well educated and had no understanding of legal procedures and it is understandable that he left matters to his solicitor. Eventually near the end of 1988, not being prepared to wait longer, he removed the file from his solicitor, went to a legal aid authority and instructed his present solicitor. I conclude the statement of facts by saying that at no time between 13 August 1979 and the end of 1988 were any details of the appellant's claim sent to the Board's solicitors "as promised" or at all.

1. Order 8, r1(1), provides that a judge may order that a writ of summons be renewed "if satisfied that reasonable efforts been (sic) made to serve such defendants, or for other good reason". Without any doubt it can be said that if this application had been made shortly after the writ became stale, it would plainly have been granted. The Board's solicitors had stated that they had instructions to accept service of the writ and they said that once they had taken instructions concerning the name of the Board they would enter an appearance and return the sealed copy writ. They failed to do as they promised and in these circumstances the Board could not, about 10 years ago, have justified an argument that the appellant had not made reasonable efforts to serve the writ nor that there was no good reason for the writ being renewed. However, the writ became stale on 31 May 1980 and before the appellant can invoke the court's jurisdiction under O8, r1(1) he must first obtain an enlargement of the time for making the application to renew the writ, pursuant to the power to enlarge time contained in O79, r7(1).

1. The appellant bears the burden of showing why the time should be enlarged from 31 May 1980 to now. During that period, indeed from July 1979 until now, the appellant took no step in the action, and no details or information relating to the claim were communicated to the Board. The only communications from the appellant were the five letters from his solicitors to the Board's solicitors in the first half of 1983 seeking certain information. It must have been clear to the appellant's solicitors that after July 1979 the Board was waiting to hear from them with some positive communication advancing his claim. The delay was most excessive.

1. Although it is relevant to consider that the cause of the delay was the fault of the appellant's legal advisers, it must be kept in mind that what is to be determined is whether the appellant should now be entitled to proceed with his claim against the Board.

1. No prejudice as a result of the delay has been claimed by the Board, and that is an important consideration. It is also significant that throughout the period of the delay, the Board had possession of the writ of summons and statement of claim and was therefore well aware of the nature of the claim and the fact that the action had been instituted.

1. No evidence from any of the appellant's legal advisers during the relevant period has been given. Any reasonably competent solicitor, on perusal of the appellant's file, in the years which followed May 1980, would have realized that service had not been perfected and that the writ had become stale. Yet nothing was done and although the appellant satisfied me that personally he was not at fault, there is a limit to the extent to which he can shelter behind the fault of his solicitors when considering whether he should be allowed to proceed.

1. Because of such inactivity for such a considerable period of time, I am not persuaded that it would be just or appropriate to allow the application. To allow it in a case such as this would be tantamount to rendering almost nugatory the time limit prescribed in O8, r1(1) as being a standard for the proper conduct of part of the proceedings in an action. The appellant is not entitled to succeed as a matter of course. In the above circumstances he has not persuaded me that I should exercise my discretion in his favour.

1. Accordingly, the application to extend the time in which application to renew the writ may be made, will be refused.