Davidson v Clinical Laboratories Pty Ltd
[2011] VCC 851
•15 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-00502
| SANDRA DAVIDSON | Plaintiff |
| v | |
| CLINICAL LABORATORIES PTY LTD | Firstnamed Defendant |
| and | |
| CAMPASPE FAMILY PRACTICE PTY LTD | Secondnamed Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 April 2011 |
| DATE OF RULING: | 15 June 2011 |
| CASE MAY BE CITED AS: | Davidson v Clinical Laboratories Pty Ltd and Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 851 |
RULING
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Catchwords: Renewal of a stale Writ – application of Rule 5.12 of the County Court Civil
Procedure Rules 2008 – alleged prejudice by both defendants.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring | Ryan Carlisle Thomas |
| For the Firstnamed Defendant | Mr S J Loftus | Wisewould Mahony |
| For the Secondnamed Defendant | Mr R H Stanley | Palmer Stevens & Rennick |
| HIS HONOUR: |
1 By way of Summons returnable on 15 April 2011, the plaintiff seeks that she be granted an extension of time to serve the Writ and Statement of Claim filed with the Court on 12 February 2010. In support of such relief, the plaintiff relies on an affidavit sworn by Simon Guthrie (“Guthrie”) on 12 April 2011.
2 Through their respective counsel, both the first and second defendants oppose the granting of such relief. Essentially, the basis of such opposition is that both defendants claim they would be prejudiced if the plaintiff was successful in her application.
3 The first defendant relies on an affidavit from Dominic Peter Lay sworn 14 April 2011, and the second defendant relies on an affidavit sworn by Jacqui Power on 14 April 2011 and an affidavit of Richard Bourke also sworn on 14 April 2011.
4 None of the deponents of the affidavits were cross-examined.
5 I refer to the affidavit of Guthrie which sets out the facts and circumstances leading up to the Writ becoming stale. It is convenient to set out a chronology based on such affidavit:
Chronology
26 May 2003
The plaintiff suffers injury in the course of her employment with the first defendant when she was attending at the premises of the second defendant.
1 February 2005
The plaintiff attends the Melton office of Ryan Carlisle Thomas, giving instructions to Guthrie to pursue her legal entitlements. Guthrie has continued to act on her behalf since that time.
5 August 2005
After investigation was made, application was made under s.98C/E of the Accident Compensation Act 1985 (“the Act”) seeking permanent impairment benefits arising from the injury.
22 September 2005
The s.98C/E claim was accepted by way of letter by an authorised agent of the Victorian WorkCover Authority.
23 May 2009
Guthrie lodges an application for a serious injury certificate, and a copy of such application was forwarded to the second defendant as well as the Victorian WorkCover Authority.
15 September 2009
Messrs Wisewould Mahony, solicitors acting on behalf of the Authority, advise Guthrie that the application for serious injury certificate is “deemed” to have been accepted as the plaintiff has a degree of impairment greater than 30 per cent in accordance with the AMA Guides.
Over a period of time
After the acceptance of the serious injury claim, various necessary statutory conferences were held pursuant to the provisions of the Act, with statutory offers made by both the plaintiff and the first defendant.
23 December 2009 The plaintiff made her statutory offer to the
defendant.12 February 2010
Guthrie caused a Writ to be issued, to which was annexed a Statement of Claim in respect of the injury suffered by the plaintiff.
6 May 2010
Guthrie received an email from Peter Stockdale from Messrs Thomson Playford Cutlers who were acting for the Authority in proceedings under s.138 of the Act. In the email, he raised with Guthrie a letter written by him about this matter on 8 February 2010. When that email was provided to him by Patricia Smith, she made a note about the file that no work had been done on the file since 29 January 2010.
17 February 2011
Guthrie received a message from a solicitor from Messrs Wisewould Mahony, solicitors for the Authority, enquiring as to the status of the Writ. When Guthrie made enquiries, he discovered, on 17 February 2011, that the Writ had not been served, and he then took steps to have the Writ served on both defendants.
21 February 2011 The Writ was served on the first and second
defendants.23 February 2011
Guthrie received a letter from WorkSafe advising that the Authority had received the Writ on 22 February 2011 and the matter had been allocated to Wisewould Mahoney on that date.
4 April 2011 Guthrie received a conditional appearance from the
solicitors for the Authority.6 I set out paragraphs 9 and 10 of Guthrie’s affidavit, which sets out the circumstances surrounding the Writ not being served in a timely way:
“9
At the time that this Writ was issued by my office Ms Kim Pitman was my Senior Assistant who was responsible for issuing, serving and dealing with Originating Motions and Statements of Claim. Ms Pitman was on holidays and not in the office between the 12th day of February 2010 and the 1st day of March 2010. Ms Pitman did not issue the Writ which would have been one of her normal responsibilities. The system that operated in my office at that time was that once a Writ or an Originating Motion was issued the details of the issuing were entered into a book, which is described in the office as the ‘Originating Motion and Writ Book’. Now produced and shown to me and marked with the letters ‘SG-7’ is a copy of the page of the book showing the OM’s and Writs issued in late 2009 and early 2010. If the issuing of the Writ had been entered in the ‘Originating Motion and Writ Book’ then Kim Pitman would have seen the entry upon her return from holidays. In my office at the time it was also part of the system that an electronic entry would have been made in our computer system by Kim Pitman of the Writ once it had been issued. Ms Pitman maintains an electronic file of all my issued Writs and that file shows the progress of such writs through the court processes. Now produced and shown to me and marked with the letters ‘SG-8’ is a copy of a print out of the electronic file.
10 I have made enquiries and can say that Patricia Smith was the person in my office who issued the Writ in this matter. She then gave the Writ to Megan Dyer to process because Kim Pitman was on holidays. After the issuing of the Writ on behalf of the Plaintiff the details were not entered into the ‘Originating Motion and Writ Book’ as it should have been. I am unable to say why this occurred and it is clearly an oversight. I only became aware that the issuing of the Plaintiff’s Writ had not been entered into the ‘Originating Motion and Writ Book’ after I was notified the Writ had become stale and not been served within twelve months of the date of issuing.”
The Statement of Claim Sought to be relied on by the Plaintiff
7 The plaintiff alleges that she was employed by the first defendant as a courier, working from premises situated at O’Shanassy Street, Sunbury. She also alleges that the second defendant was “the occupier of and/or had the care and control of premises situate at Wedge Street in Kyneton”.
8 On or about 26 May 2003, the plaintiff alleges during the course of her employment with the first defendant, she was “walking up the front concrete steps at the secondnamed defendant’s premises when she slipped and fell and sustained injury”. Such injuries included injury to the left knee involving the articular cartilage, requiring left knee replacement, together with pain and suffering and anxiety and depression.
9 Curiously, paragraphs 5 and 6 of the statement of claim are pleaded in the following way:
“5
The plaintiff visited the secondnamed defendant’s premises on the said date pursuant to an implied agreement between the plaintiff and the secondnamed defendant, one of the terms of which was that the secondnamed defendant would take reasonable care to ensure its premises were reasonably safe for the use of the plaintiff.
6 The accident and the plaintiff’s injuries were caused by the negligence of the secondnamed defendant, its servants or agents, and/or by the breach by the secondnamed defendant of its duty under Part IIA of the Wrongs Act to the plaintiff as a person on the secondnamed defendant’s premises to take such care as in all the circumstances of the case was reasonable to see that the plaintiff was not injured by reason of the state of the premises or of things done or omitted to be done in relation to the premises, and/or by breach by the secondnamed defendant of the terms of the agreement referred to in the last preceding paragraph.”
10 Various particulars of negligence and/or breach of duty are annexed to paragraph 6. Thereafter, the plaintiff claims damages, but no claim is made for loss of earning capacity.
11 Although the Statement of Claim clearly makes reference to the first defendant in the title, and indeed in paragraphs 1 and 2, the pleadings as they now stand plead no cause of action against the first defendant.
Material Relied on by the Defendants
12 I refer to the affidavit of Dominic Peter Lay sworn 14 April 2011, wherein he states, in part:
“2
I have been advised and believe that the Second Defendant’s premises referred to in paragraph 3 of the Plaintiff’s statement of claim have been demolished.
3
In my experience in industrial accident personal injury matters involving both employers and occupiers, it is usual for lawyers acting for the employer to obtain instructions to engage consultant engineers, or appropriately qualified professional to conduct a view of the occupier’s premises, carry out tests, measurements as the case may be and prepare an expert report.
4
In my experience, the allegations of negligence and/or breach of duty subjoined to paragraph 6 of the Plaintiff’s statement of claim, usually are specifically discussed in the expert’s report.
5
The First Defendant is prejudiced in its defence of this matter by virtue of not being able to adequately test the allegations of negligence and/or breach of duty because the premises have been demolished.”
13 I refer to the affidavit of Ms Jacqui Power said to be sworn on 14 April 2011 wherein she describes herself as an employee of the second defendant, which was the practice manager operating General Practice Surgeries in Kyneton and Lancefield at the time of the plaintiff’s injuries. In particular, Ms Power states:
“2 From in or about 2001 to February 2005 the Business operated from within the southern half of a building located within the grounds of the then Kyneton Hospital in Wedge Street, Kyneton (‘the building’). 3 Up until some time in 2003 the northern half of the building was occupied by the Royal District Nursing Service. The two parties shared the front entrance and the internal foyer of the building. 4 The Business never owned any part of the building. I believe the building was owned by the Kyneton District Health Service (‘the Hospital’) or the State Government and was managed by the Victoria Government Property Group. 5 The Business was granted a leasehold on the portion of the building it occupied under an informal arrangement with the Hospital and later the State Government. I have looked for, but am unable to locate any formal agreement or the like. This does not surprise me given the symbiotic and harmonious relationship which existed between the Business and the Hospital. 6 I recall that maintenance men engaged by the Hospital would often attend to any repairs required to the building. 7 In or about 2003 the Hospital moved from Wedge Street to its new current premises in Caroline Chisholm Drive, Kyneton. 8 In or about February 2005 the Business vacated the building and relocated the surgery to Jennings Street Kyneton. 9 In or about 2008 or earlier the building was demolished. There is nothing left of the building now. 10 I am unable to locate any photographs or plans of the building. 11 I believe the first I knew of the Plaintiff’s alleged fall was in or about May 2009 when I received a telephone call and/or letter advising me that a woman was intending to make a personal injury claim against the Business and that I should notify my insurer. I was not told any detail of what the injury was or how it was supposed to have happened. Shortly thereafter I telephoned Aon Risk Services Australia Limited (‘Aon’) and was told that they would handle the matter. I did not hear anything further and assumed the matter had been resolved. 12 In or about April 2011 after I became aware of the Writ I again telephoned Aon, but this time I was advised they denied the Business cover for the claim. The Business intends to dispute Aon’s denial.
13 The Business operates standard medical software which keeps patient records, together with billings and referrals. It is accessed by doctors, nurses and receptionist. I recently performed a search of the activity which took place on 26 May 2003. There is no record of any fall by the Plaintiff or anyone for that matter. The records do identify that:
(i) my husband Dr Robert Power;
(ii) Ms Sophie Collins (nee Turley), a Nurse; and
(iii) Ms Areeya Fisher, a Receptionist;
were all on duty that day. I have recently enquired of each of them and all deny witnessing any fall at the building on or around the said date.
14 The Business has no other records whatsoever of any fall in or
around 2003.”
14 I also refer to the affidavit of Richard Bourke sworn 14 April 2011, wherein he describes himself as an employee of Palmer Stevens & Rennick, lawyers, and deposes that based on the instructions of Ms Power set out in the aforesaid affidavit, any extension granted to the plaintiff to serve her writ will cause “undue prejudice and injustice to the Campaspe Family Practice”.
15 In particular, Mr Bourke deposes:
“4 As matters presently stand, the Campaspe Family Practice has
acquired the following:
(i)
a complete defence to the plaintiff’s current claim pursuant to the Rules of this Honourable Court;
(ii)
a complete defence to any new claim brought by the Plaintiff given the expiry of time;
(iii)
a right to defend any application made under Section 23A of the Limitations of Actions Act.
5
Further, given the expiration of time, if an extension were granted, the Campaspe Family Practice will likely suffer prejudice to its ability to secure contribution and/or indemnity from other appropriate third parties. Based instructions I have received, I am of the opinion and have advised the Campaspe Family Practice that such parties would include:
(i)
Kyneton District Health Service and/or the State Government of Victoria – as owner and/or manager of the premises.
(ii)
Royal District Nursing Service – as joint occupier of the premises.
(iii)
The maintenance and/or cleaning contractor engaged at the Hospital grounds.
6
In addition, given the premises where the fall was said to have occurred has now been demolished, the Campaspe Family Practice will lack the forensic benefit of having an expert provide opinion as to the state of the premises should an extension be granted.
7
As an aside, the Campaspe Family Practice has instructed me that it intends to dispute the stated denial of cover by its insurance agent, Aon Risk Services Australia Limited to this claim. If the extension is granted, the Campaspe Family Practice will likely suffer prejudice in prosecuting that indemnity claim by reason of the effluxion of time.”
Relevant Legal Principles
16 Rule 5.12 of the County Court Civil Procedure Rules 2008 (“the Rules”) states:
“(1) A writ or an originating motion shall be valid for service for one
year after the day it is filed.(2) Where a writ or an originating motion has not been served on a defendant, the Court may from time to time by order extend the period of validity for such period from the day of the order as the Court directs, being not more than one year from that day. (3) An order may be made under paragraph (2) before or after expiry. (4) The plaintiff may apply under paragraph (2) without notice to the defendant, but if the Court considers that the defendant ought to be heard the Court shall adjourn the further hearing and direct the plaintiff to give notice to the defendant by summons or otherwise. (5) Where an order is made under paragraph (2), the Registrar shall stamp any sealed copy originating process for service with the date of the order and the extended date of validity.”
17 Although the present Rule does not in terms refer to “good reason” as contained in the previous Rule, it has been held that it is implied as a matter of construction that “the power to extend a writ or other originating process should only be exercised for good reason”.[1]
[1] Ramsay v Madgwicks (a firm) [1989] VR 1 at page 6; See also Savcor v Cathodic Protection International APS (2005) 12 VR 639 at 651
18 An application under Rule 5.12 is not a “pleading summons” and any perusal of the Statement of Claim by the Court is to ascertain the substance of the matter before the Court.[2]
[2] See Ramsay V Madgwicks (op cit) at page 5
19 It is, perhaps, important to stress that the failure to serve a writ within twelve months gives a defendant no more than a right to contend that the Court, in the exercise of its discretion, should not renew the writ. The efficacy of a writ does not expire absolutely at the end of twelve months. The writ only expires if and insofar as the Court sees fit not to renew it. Such approach is made clear by the decision of Van Leer Australia Pty Ltd v Palace Shipping KK[3] wherein the plaintiff imported from Japan two consignments of steel which arrived in Australia in November and December 1977. The plaintiff alleged that much of the steel was rusting on arrival. Accordingly, it issued proceedings against Simsmetal, the alleged charterer of the ship, and the defendant, which was alleged to be the Japanese owner of the ship.
[3] (1981) 180 CLR 337
20 The plaintiff issued the writ in November 1978, nearly a year after the arrival of the steel. The writ was served on Simsmetal in September 1979 but notice of the writ was not served on the defendant until much later.
21 The plaintiff sought an order that would have had the effect of renewing its writ of summons, whereas Palace Shipping sought to the have the writ and the service upon it of notice of the writ set aside. The Rules to be applied required that “reasonable evidence had been made to serve the defendant” or for other good reason.[4]
[4] Such Rule was in the same terms as the previous Rule to 5.12
22 In particular, the so-called Hague Rules, which are scheduled to the Sea- Carriage of Goods Act 1924 (Cth) provided that a carrier is discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods. In such circumstances, it was put by the defendant that to accede to the application made by the plaintiff would have “the effect of depriving … [the defendant] of the absolute defence to the plaintiff’s claim available to it were the plaintiff forced to issue a new writ”.
23 Stephen J, sitting as a single judge in the High Court of Australia, noted that the plaintiff did in fact “bring suit” within the twelve months specified by the Hague Rules and that like other conventional limitation of action statutes of common law jurisdictions, was concerned with the institution of proceedings after the event and not with the subsequent service of process.[5] In this sense, Stephen J noted that it is non compliance with the procedural Rules of that Court rather than with the limitation provisions of the Hague Rules, that the plaintiff must overcome. Stephen J distinguished between a line of English authority which treated a “stale” writ as a nullity and various decisions in particular of the Full Court of the South Australian Supreme Court and Canadian courts which recognised that renewal out of time cannot properly be described as depriving a defendant of a defence, the essence of which is failure to issue within time.
[5] See Van Leer Australia Pty Ltd v Palace Shipping KK (op cit) at paragraph 10
24 In particular, Stephen J referred to decisions of Bray CJ in the Full Court of the South Australian Supreme Court. In particular, Stephen J referred to Victa Ltd v Johnson,[6] wherein Bray CJ stated:
“It follows then that it is incorrect to talk about allowing a cause of action or a new cause of action to be set up after expiry of the period of limitation. Once the writ is issued within the period, the Statute of Limitations is ousted or rather never comes into operation. It is not the Statute, which the court must obey on which it thinks is its proper interpretation, but the rule of court which takes over then. That rule has the discretion built into it and that discretion is to be exercised judicially, indeed, but not fettered by inflexible prescriptions … .
It is not correct to say that the defendant has acquired an absolute right to immunity when a writ issued within the limitation period is not served within 12 months of its issue and the limitation period has in the meantime expired. What has expired is in reality not the limitation period but the period which would have been a limitation period if no writ had ever been issued. What the failure to serve a writ within 12 months gives the defendant is no more than a right to contend that the court in the exercise of its discretion should not renew the writ. The efficacy of the writ does not expire absolutely at the end of the 12 months, it only expires if and in so far as the court sees fit not to renew it. … .”[7]
[6] (1975) 10 SASR 496
[7] Victor Ltd v Johnson (op cit) at page 24
25 Rule 34A.15(1) of the Rules makes clear that a writ, at the end of the period by which the process should have been served, does not become a nullity. It provides that a proceeding shall stand dismissed as against any defendant at the expiration of three months after the period of the validity of service of the writ or originating motion if at that time the defendant has not filed an appearance or judgment has not been entered or given against the defendant.
26 I also refer to Irving v Carbines,[8] a decision of the Full Court of the Supreme Court of Victoria which dealt with an application for the extension of time for service of a summons issued out of the County Court.[9] The Court referred to Van Leer Australia Pty Ltd v Palace Shipping KK[10] and Victa Ltd v Johnson[11]and in particular, to the comments of Bray CJ, wherein he commented that there was a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties. The Full Court commented:
“Whether this tendency is ultimately for the benefit of society may be debated, but we agree that it is clearly discernible and we think that we should give effect to it. The relaxation of which Bray, CJ spoke can only be where there is no undue prejudice or injustice to other parties but there is also discernible, or so it seems to us, a tendency to minimize the injustice caused to defendants by enlarging time limits, particularly when the defendant is an insurance company or entitled to be indemnified by an insurance company.”[12]
[8] [1982] VR 861
[9] The application was dealt under the old Rules
[10] (op cit)
[11] (op cit)
[12] Irving v Carbines (op cit) at page 866
27 Such tendency may well have been retarded by Brisbane South Regional Health Authority v Taylor[13] and in particular, the judgment of McHugh J, wherein he reinforced the importance of limitation periods, particularly in relation to limitation of actions.
[13] (1996) 186 CLR 541
28 In Irving v Carbines,[14] the Full Court also stated:
“If the failure of the plaintiff's original solicitor to serve the summons within a year after its issue was due to incompetence or negligence it might be thought that the plaintiff should be left to his remedy against the solicitor, but such a course is not often a practical alternative and the relevance of the original solicitor's failure was rather to show that the plaintiff was not himself responsible for the delay.”[15]
[14] (op cit)
[15] at page 867
29 I also refer to Savcor v Cathodic Protection International,[16] a decision of the Court of Appeal which dealt with, in part, an application to extend the time for service of a writ. The Court of Appeal notes that:
“It is not possible and indeed is unwise to attempt to define the circumstances which amount to a good reason. It is trite observation but not very helpful that whether or not it is a good reason must depend upon all the circumstances of the particular case. … .”[17]
[16] (op cit)
[17] at page 651
30 Counsel for the first defendant also referred to Tyson v Morgan,[18] a decision by a single judge in the Queensland Supreme Court. In that matter, a plaintiff was injured in a motor vehicle accident on 15 July 1992 and a Writ of Summons was issued on 4 May 1995, just within the relevant three-year limitation period. The Writ of Summons became “stale” on 4 May 1996 and an application to renew was made on 23 April 1998 by way of service upon the insurer of the defendant. The Court noted that a period of nearly five years and nine months had expired between the time the cause of action allegedly rose and the date the application was made to renew the Writ.
[18] [1998] QSC 90
31 The judge described the lack of activity on behalf of those acting on behalf of the plaintiff and ultimately found he was not satisfied that reasonable efforts had ever been made on her behalf to effect personal service on the defendant within the period of twelve months. Turning then to the alternative basis for renewal – that is where there was “good reason” why the Writ should be renewed – and in spite of the fact that reasonableness had not been made to serve it within the twelve months, the judge considered various matters relevant in the exercise of the discretion, including the prejudice “which would undoubtedly be suffered by the defendant in now being called upon to rely upon the recollection of witnesses relevant to his case … “. The judge ultimately stated:
“I am unpersuaded however on the facts of this case that the defendant would not be prejudiced in the conduct of his case by the delay in serving the writ upon him. The evidence does suggest to my mind that the delay, which is really unexplained, will result in evidence either being no longer available or to the extent that it is available, being greatly reduced in value because of the diminishing recollection of the witnesses … .”
32 Later, the judge further stated:
“In the light of the approach of the High Court in Brisbane South Regional Health Authority v Taylor … - and particularly the observations of McHugh J …, I take the view that when considering the question of delay as an aspect of prejudice to a defendant, the better approach is to consider the period of time that has elapsed between the arising of the alleged cause of action and the application made for a discretionary extension of time within which to pursue it rather than to consider the delay that has occurred since the necessity first arose to obtain an extension by leave of the Court. … .”
Matters for Consideration
33 During the course of submissions, I was informed by the parties that the plaintiff was also granted leave to bring proceedings against the first defendant in respect to an earlier injury on 1 June 2004. I was also informed that the Draft Statement of Claim initially pleaded the injury on 1 June 2004 and that such claim in respect of that injury had been “resolved”. It was postulated by counsel that this may well explain the state of the Statement of Claim which has now excised any reference to the injury on 1 June 2004.
34 On the basis of the pleadings, it is a matter of speculation as to whether or not the plaintiff intends to only sue the second defendant in respect of the injury suffered by her on 26 May 2003 or rather, intends to sue both defendants. Clearly, those acting for the first defendant consider that a cause of action may well be alleged against their client, bearing in mind the affidavit material lodged on its behalf claiming prejudice.
35 In any event, consistent with authority, it is not appropriate to treat the subject application as a pleading summons.
36 I was also informed by the parties that the Authority had issued proceedings against the second defendant pursuant to s.138 of the Act seeking indemnity from the second defendant in respect to payments of compensation paid to the plaintiff in relation to her knee injury. Such proceedings have yet to be served on the second defendant. Seemingly, notwithstanding the claim of prejudice to this application, the Authority (the first defendant) presumably considers it is in a position to establish that the second defendant has a “legal liability to pay damages” pursuant to s.138(1) of the Act.
37 I consider the following matters are relevant in the exercise of the discretion to extend the time by which the Writ can be served:
(a) The plaintiff suffered injury on 26 May 2003 and application for serious injury was made on 23 May 2009, within the relevant six-year limitation period. As a result of s.134ABA of the Act, the following periods of time are to be disregarded for the purposes of the Limitation of Actions Act 1958: (i) the period of time commencing on the day a claim for compensation under s.98C or s.98E of the Act is lodged and ending thirty days after the Authority advises the worker of the determination under s.104B(2); and
(ii) the period of time commencing on the day on which the plaintiff makes an application under s.134AB(4) and ending on the day in which proceedings are commenced in accordance with s.134AB(12)(e);
The Writ was issued on 12 February 2010, consistent with the statutory framework outlined in s.134AB of the Act. By this, I note that the plaintiff made a statutory counteroffer on 23 December 2009 and that proceedings could not be commenced any earlier than twenty-one days after such offer but no later than fifty-one days of such offer;
(b)
If the time for the service of Writ is not extended, the plaintiff has no common law remedy against the first or second defendants. Given that such injuries arose out of or in the course of her employment with the first defendant, any claim for common law damages is governed by s.134AB of the Act. In particular, s.134AB(21) of the Act provides that a worker can only make one application under sub-section (4) and “must not make a further application under that section in respect of that injury”;
(c)
The Writ should have been served on 12 February 2011 and was actually served on both defendants on 21 February 2011, some nine days after the twelve-month period;
(d)
The delay in serving the Writ was through no fault of the plaintiff and indeed, although the solicitor for the plaintiff was at fault in that his system for keeping a record of issued writs did not work appropriately at the time that the subject Writ was issued, I infer that such solicitor thought that his normal process of issuing and serving writs was operating in an appropriate way;
(e)
If the Writ had been served within the requisite twelve months, both the first defendant and second defendant would be confronted with the same material circumstances as now complained of to be prejudicial to the interests of the defendants – that is, the destruction of the building where the alleged incident of injury occurred;
(f)
In the event that the application was granted, either defendant would be entitled to join third parties as of right within thirty days of the date for a delivery of its defence. Rule 11.05 of the Rules states:
(1)
In a proceeding commenced by writ … a defendant may not file a third party notice until the defendant has first served a defence.
(2) A defendant may file a third party notice—
(a)
within 30 days after the time limited for the service of a defence; or
(b)
at any time with the leave of the Court or the consent in writing of the plaintiff and any other party who has appeared.”
(g) The application for serious injury made pursuant to s.134AB(4) of the Act “must be served on each person against whom the applicant claims to have a cause of action”. In her affidavit, Jacqui Power deposes, in part: “In or about May 2009 … I received a telephone call and or letter advising me that a woman was intending to make a personal injury claim against the business and that I should notify my insurer … .”
I infer that such reference is to the service of the serious injury application contemplated by s.134AB(5A) of the Act. Accordingly, in May 2009, the defendants were put on notice of the intention of the plaintiff to seek leave to bring a claim for common law damages in respect to her knee injury.
Conclusion
38 I conclude that after a consideration of all of the above relevant matters, the Court should exercise its discretion to extend time for the service of the Writ on the two defendants. I have formed the opinion that there is “good reason” to exercise such discretion in favour of the plaintiff. I give much weight to the following factor - that the claim for damages against both defendants had followed a “regular course” until such time as the Writ was not served within the relevant twelve months through the mistake of the solicitor for the plaintiff. When such mistake was brought to the attention of the solicitor, he promptly sought to rectify the situation and the Writ was served on both defendants about nine days after the requisite twelve months. In that circumstance, it is also relevant to consider that if the application is not granted, the plaintiff has no possibility of a remedy against either defendant given the operation of s.134AB of the Act.
39 I do consider it of some relevance that the building in which the alleged injury occurred was demolished in or about 2008 or earlier. I also consider it of some relevance that the effluxion of time also does not assist either defendant. However, both defendants would have been confronted with the same situation if the Writ had been served nine days earlier.
40 In this sense, to the extent that the decision of Tyson v Morgan[19] stands for the principle that any prejudice must run from the date when the cause of action accrued rather from the date when the twelve months for service ran, I consider that the particular circumstances of that case where witness statements were critical at or around the time of the motorcar accident, may have played great weight as a factor in the exercise of the discretion. The issue relied on by the defendants in this matter is the demolition of the building in 2008 or earlier.
[19] (op cit)
41 I do not consider it a relevant factor that indemnity has been denied by the insurer of the second defendant and nor do I consider it a relevant factor issues about the joinder of third parties which would be of right pursuant to the Rules of Court.
42 Accordingly, I grant the application, and permit the plaintiff to serve the Writ issued on 12 February 2010 to be served on the defendants within fourteen (14) days of this date.
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