Charpentier v Perth Airport Pty Ltd
[2021] WADC 92
•30 SEPTEMBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: CHARPENTIER -v- PERTH AIRPORT PTY LTD [2021] WADC 92
CORAM: REGISTRAR KINGSLEY
HEARD: 16 SEPTEMBER 2021
DELIVERED : 30 SEPTEMBER 2021
FILE NO/S: CIV 1476 of 2019
BETWEEN: PAULA MICHELLE CHARPENTIER
Plaintiff
AND
PERTH AIRPORT PTY LTD
Defendant
Catchwords:
Practice - Application to extend validity of writ for service - Turns on own facts
Legislation:
Civil Aviation (Carriers' Liability) Act 1959
District Court Rules 2005 (WA)
Limitation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | Mr N F Morrissey |
| Defendant | : | Mr D G Price |
Solicitors:
| Plaintiff | : | Simon Walters |
| Defendant | : | GSG Legal |
Case(s) referred to in decision(s):
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Brown v Coccaro (1993) 10 WAR 391
Glendinning v Cuzens [2009] WASCA 21
Lamp v Americold Australia Pty Ltd [2018] WADC 52
REGISTRAR KINGSLEY:
The plaintiff commenced her proceedings by writ dated 23 April 2019 in relation to an incident at Perth Airport on 10 September 2016. The indorsed writ stated the defendant's registered office as a post office box in Cloverdale, Western Australia.
The writ was irregular in that no relief or remedy was specified (see O 6 r 1 Rules of the Supreme Court 1971 (RSC)) but no doubt that irregularity could well have been cured: Glendinning v Cuzens [2009] WASCA 21.
The writ was not served and the court sent an inactive notice dated 23 April 2020. The plaintiff's solicitor filed an entry for trial dated 24 August 2020 certifying:
•each party had given discovery;
•each party had complied with case management directions;
•the plaintiff did not require any further interlocutory order;
•the plaintiff had complied with O 36A RSC; and
•the plaintiff had complied with r 45C District Court Rules 2005.
Obviously, none of those certifications could have been correct.
By a chamber summons dated 11 November 2020 the plaintiff's solicitor sought orders for leave to discontinue the proceedings. The application was supported by the affidavit of Simon Myer Walters wherein he deposed that on 12 May 2019 his offices were burnt down and clients' files were destroyed. Mr Walters deposes that the entry for trial was filed in error and that the entry for trial was meant to be filed on action CIV 3806 of 2018, an action by the plaintiff against her employer.
By letter dated 16 November 2020 the plaintiff's solicitor seeks the hearing on the application for leave to discontinue to be vacated as that application was lodged in error.
By application dated 23 March 2021 the plaintiff's solicitor brings an application seeking orders, in effect, that there be leave for the writ to be served out of time. The application is supported by the affidavit of Mr Walters (which is undated). The only content of substance in the affidavit is that the extension of time will not prejudice any party.
On 8 April 2021 a registrar adjourned the chambers summons for hearing and gave leave to the defendant to appear at the adjourned hearing without submitting to the jurisdiction.
The defendant opposes the application and has filed an affidavit of Mark Andrew Gray-Spencer sworn 8 May 2021. Mr Gray-Spencer deposes that the first time the plaintiff's claim came to the attention of the defendant is on 15 April 2021 when the defendant received a copy of a letter from the plaintiff's solicitor in compliance with the registrar's order made 8 April 2021. Mr Gray-Spencer deposes that the defendant is likely to be prejudiced by being denied the opportunity to carry out investigations or to retain evidence (possibly including CCTV footage).
Relevant Rules
Order 7 RSC provides that for the purpose of service, a writ is valid in the first instance for 12 months from the date of issue. Order 7 r 1(2) allows the court to extend the validity of the writ for service provided the application to extend the validity is made before the writ expires.
Order 2 r 1 RSC provides that where proceedings are brought or purported to be brought there is something undone or there has been a failure to comply with the rules, the failure shall be treated as an irregularity and shall not nullify the proceedings.
Relevant legal authorities
In Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 the Full Court considered O 7 r 1 and O 7 r 2. In a joint judgment two tests for the extension of the validity of a writ were formulated; whether there is 'good reason' to act, and secondly, whether the extension is required to see that justice is done. The court was not going to enter into a semantic debate and adopted the view expressed by Ipp J in Brown v Coccaro (1993) 10 WAR 391 that the court has a wide and unfettered discretion which is to be applied to see that justice is done. In any such investigation the court is to have regard to the balance of hardship.
In Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Ipp J explained the policy behind O 7 r 1. Order 7 r 1 embodies a clear policy which should not be subverted by the mechanical resort to O 2 r 1. Ipp J explains the reason for the policy is that lengthy delays cause difficulties in the ascertainment of truth, it is unfair to require potential defendants to contemplate potential litigation indefinitely, and the unfairness stems from the uncertainty and concomitant financial and other burdens that would be the consequence. It goes on to refer to Brown v Coccaro and commented that the power to extend the validity of the writ should be exercised where, without such remedial relief in justice will occur and should only be exercised when the justice of the case requires a departure from the policy underlying O 7 r 1.
In Lamp v Americold Australia Pty Ltd [2018] WADC 52 Davis DCJ identified seven factors which need to be considered in determining whether to exercise the discretion to extend the validity of a writ.
Discussion
Turning to the factors mentioned by Davis DCJ in Lamp v Americold Australia Pty Ltd [27]:
(a)Has the statutory limitation applicable to the plaintiff's cause of action expired as at the date when the writ became stale?
Whilst the defendant's counsel made a passing reference to the Civil Aviation (Carriers' Liability) Act 1959 (both Commonwealth and West Australian) it is clear from the context of these proceedings and the matters deposed to in Mr Walters' affidavit sworn 11 November 2020 that the Limitation Act 2005 (WA) applies. The incident occurred on 10 September 2016 and the action would have become barred on 9 September 2019. The writ became stale on 22 April 2020 and the statutory limitation period has expired.
(b)Has the plaintiff given notice to the defendant regarding the particulars of claim?
From the affidavit of Mr Gray-Spencer the first time the claim comes to the attention of the defendant is by way of the court order of 8 April 2021. As at 15 April 2021 the defendant has notice of a claim but there are no particulars given of that claim.
(c)Has the plaintiff applied promptly for an extension of the validity of the writ?
The writ became stale on 22 April 2020. The plaintiff's application is lodged on 23 March 2021. It would appear that the plaintiff's attention was distracted by the improper entry for trial and the chambers summons for leave to discontinue. The application to extend the validity of the writ then comes almost as a last resort.
(d)Did the plaintiff in deciding not to serve the writ, choose to live by technicalities?
There is no evidence but the registered office of the defendant on the writ was an address in Cloverdale, Western Australia. There was no impediment to the writ being served. There is no evidence of any attempt at service prior to the fire at the plaintiff's solicitors office in May 2019. The plaintiff's solicitor had access to the court's electronic lodgement system and so could have downloaded the writ and affected service after May 2019. In this matter the plaintiff appears to have been distracted from the issue of extending the validity of the writ and must accept the consequence of that distraction.
(e)Did the plaintiff make productive use of the 12-month period?
Other than the improper entry for trial and the application for leave to discontinue, there is no evidence as to what has been done in the intervening period.
(f)What is the prejudice to be suffered by the plaintiff if the validity of the writ were not extended and is that prejudice self‑inflicted?
There is always prejudice to a plaintiff where their action is statute barred and the validity of the writ is not extended. In this matter the prejudice is not self-inflicted by the plaintiff but arises from events both out of the plaintiff and plaintiff's solicitors control in May 2019. In this matter the prejudice to the plaintiff may be ameliorated by the fact that there is already in existence an action by the plaintiff against another defendant arising out of the same incident.
(g)Would the defendant suffer any prejudice if the validity of the writ is extended?
Mr Gray-Spencer has deposed that the defendant has been deprived of the opportunity to gather evidence to properly examine witnesses and to view any CCTV footage. The plaintiff's counsel submitted that in the other cause of action the plaintiff's discovery may well have been given and the defendant in this action could have access to that documentation. In my opinion, it would be quite unsatisfactory for a defendant to rely on subpoenaing documents from third parties to ascertain what its evidence could well be when all of this comes from the plaintiff's inaction. In my opinion there is a greater prejudice on the defendant than the plaintiff.
Conclusion
For the reasons expressed under the heading 'Discussion' in my opinion the plaintiff has not made out a case that the validity of the writ be extended for the purposes of service. In my opinion having regard to the effluxion of time there is greater prejudice to the defendant than to the plaintiff.
Orders
The plaintiff's application be dismissed and the plaintiff pay the defendant's costs of the application including any reserved costs to be taxed if not agreed.
Delivery of reasons
A copy of this decision shall be emailed to each party. Each party has the right to request the court to list the matter to move for orders in different terms to [17] above. Such a request should be made within 21 days of emailing these reasons. If no request is made, the orders in [17] will be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MEB
Associate
30 SEPTEMBER 2021
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