DJAVEROSKI v Bunnings Manufacturing Pty Ltd

[2004] WADC 98

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   DJAVEROSKI -v- BUNNINGS MANUFACTURING PTY LTD [2004] WADC 98

CORAM:   COMMISSIONER GREAVES

HEARD:   14 APRIL 2004

DELIVERED          :   19 MAY 2004

FILE NO/S:   CIV 80 of 2001

BETWEEN:   PETER DJAVEROSKI

Appellant (Plaintiff)

AND

BUNNINGS MANUFACTURING PTY LTD
Respondent (Defendant)

Catchwords:

Practice and procedure - Appeal - Application to extend validity of writ for service - Discretion - Writ issued on expiry of limitation period - Inordinate and unexplained delay in service - Potential prejudice to defendant

Legislation:

Workers' Compensation and Rehabilitation Act 1981

Result:

Appeal dismissed
Writ set aside

Representation:

Counsel:

Appellant (Plaintiff)      :     Mr L M Hall

Respondent (Defendant) :     Ms M J McKay

Solicitors:

Appellant (Plaintiff)      :     Bradford & Co

Respondent (Defendant) :     Greenland Brooksby

Case(s) referred to in judgment(s):

Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561

Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79

Case(s) also cited:

Nil

1. COMMISSIONER GREAVES:  This is an appeal from the order of the learned Deputy Registrar on 2 April 2002 whereby he dismissed the plaintiff's application to extend the validity of the writ filed in this action.  There is also before the Court the application of the defendant to set aside service of the stale writ.  The two applications raise the same issues.  The issues are to be determined afresh on the materials now before the Court.  The application of the plaintiff is made pursuant to O 7 r 1(2) which provides:

   "Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the Court before that day or such later day (if any) as the Court may allow."

2. The plaintiff sustained injury at work on 1 February 1995.  The writ in this action was issued shortly before the expiry of the limitation period on 10 January 2001.  The writ was not served within the following 12 months.  The plaintiff made his present application by summons of 21 March 2002.  The learned authors of the Red Book observe that in light of O 7 r 1(2) the court has no power under this order to grant an extension of the validity of a writ for service on an application made more than 12 months after the last date on which the writ was valid for service.  The time for making application pursuant to O 7 r 1(2) may be extended pursuant to O 3 r 5 if it is necessary to do so to prevent injustice.  In this case, the question whether time should be extended and whether the writ should be renewed fall to be determined on the same facts.

3. The stale writ was served on 16 December 2003 so the plaintiff is seeking extension of the validity of the writ for the purposes of service from 10 January 2002 to the present, since the service of the stale writ is ineffective.

4. Counsel for the plaintiff submitted the court should exercise its discretion to extend the validity of the writ in this action.  Counsel submitted the writ of summons was not served because of an oversight and not as a result of a deliberate decision not to proceed with service.  It was said there were clear difficulties in identifying whether the plaintiff would have a right to sue the defendant under the Workers' Compensation and Rehabilitation Act 1981 (as amended).

5. Counsel submitted the mistake in this case was not that of the plaintiff and continued "There are cogent explanations provided for the periods of delay.  The intention was clearly to progress the claim, but service was delayed because of a combination of workload and oversight."  Counsel submitted renewal of the writ would result in little prejudice to the defendant.  Counsel relied on the affidavit of Renea Andrea Van Heerwaarden of 21 March 2002, where she states, among other things, the writ was filed in order to protect the plaintiff's rights while the plaintiff sought a favourable determination from Workcover in relation to his disability.  I was informed from the bar table the degree of that disability remains undetermined.

6. The affidavit evidence before me does not depose to facts that either explain the lengthy failure to serve the writ in this action or support the submissions of counsel for the plaintiff that service was delayed because of a combination of workload and oversight.  Nor has the plaintiff or his solicitors deposed to facts that explain the continuing delay since the decision of the learned Deputy Registrar.

7. In Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 at 89, Ipp J examined the policy behind O 7 r 1 when he said:

   "The policy in question is apparent from the time restrictions laid down by O 7, r 1 in regard to the validity of unserved writs, the finite periods for which the validity of unserved writs may be extended, and the finite periods during which applications may be made for such extensions.  The reasons for the policy are obvious.  It is undesirable to allow a plaintiff to issue a writ before the expiry of a limitation period and then to delay service for an indefinite period.  Lengthy delays cause difficulties in the ascertainment of the truth.  It is unfair to require potential defendants to contemplate potential litigation indefinitely.  The unfairness stems from the uncertainty and concomitant financial and other burdens that would be the consequence.  As Young CJ (with whom Kaye and Southwell JJ agreed) said in Ramsay v Madgwicks [1989] VR 1 at 5, 'it is not right that people should be left in ignorance of proceedings that have been taken against them if they are here to be served'. Finally, the proper administration of the court would be hampered if writs could be issued and then left to lie dormant for indefinite periods."

8. The discretion to order an extension of the period of validity for service of a writ is wide and unfettered and is to be applied to see that justice is done:  Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561 at 575. In the absence of adequate explanation about the length of the delay in this case and the reasons for delay, it is particularly material to have regard to the potential prejudice to the defendant if the court is to renew the writ. Counsel for the defendant submitted witnesses called to give evidence on behalf of the defendant in relation to the circumstances surrounding this accident will now be required to testify to events which occurred more than nine years ago. It is unlikely any trial would take place in the foreseeable future, given that the Workcover proceedings remain incomplete. In my view the inordinate and unexplained delay in the present case is in itself a sufficient ground to refuse the present application. As Ipp J observed, however, it is also undesirable to allow a plaintiff to issue a writ before the expiry of a limitation period and then to delay service for an indefinite period, because lengthy delays may cause difficulties in the ascertainment of the truth.

9. For these reasons, in my opinion the application to renew the writ should be refused and it should be set aside for irregularity.  Accordingly, the appeal will be dismissed and I shall hear counsel on the orders to be made.