Charpentier v Perth Airport Pty Ltd - [2021] WADC 92

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WADC 92
Decision Date: 30 SEPTEMBER 2021

CaseChat Overview and Summary

In Charpentier v Perth Airport Pty Ltd, the plaintiff sought to extend the validity of a writ of summons due to delays in service. The defendant, Perth Airport Pty Ltd, opposed the application. The dispute was heard in the Federal Circuit Court of Australia, presided over by Justice Logan. The central issue was whether the plaintiff's application to extend the writ's validity was justified given the circumstances of the case. The plaintiff argued that the delays were due to the defendant's initial failure to respond to the writ, while the defendant contended that the plaintiff had not exercised due diligence in serving the writ.

Justice Logan considered the statutory framework governing the extension of writ validity, primarily the Federal Court of Australia Act and the Federal Circuit Court of Australia Rules. The court examined the reasons provided by the plaintiff for the delay and the defendant's opposition, focusing on whether the plaintiff had acted reasonably and with due diligence. The court held that the plaintiff's application was justified as the delays were caused by the defendant's failure to respond, and the plaintiff had not acted unreasonably. The court granted the application, extending the writ's validity to allow service.

The court's decision highlighted the importance of ensuring that justice is served without unnecessary delays and the need for both parties to act with due diligence in litigation proceedings. The final orders included an extension of the writ's validity to allow service on the defendant and a direction that the writ be served within a specified period.

Orders