Ex Parte

[2009] WASC 112

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   EX PARTE T&S GARCES FOR THE GARCES FAMILY TRUST [2009] WASC 112

CORAM:   MASTER SANDERSON

HEARD:   16 APRIL 2009

DELIVERED          :   17 APRIL 2009

PUBLISHED           :  4 MAY 2009

FILE NO/S:   CIV 1420 of 2008

MATTER                :Application to 'backdate' writ pursuant to O 2 r 1 of the Supreme Court Rules 1971 (WA)

EX PARTE

T&S GARCES FOR THE GARCES FAMILY TRUST Trading As PHOENIX NEWSAGENT AND POST OFFICE
First Plaintiff

HANUABADA TRADING PTY LTD (ACN 061 780 149)
Second Plaintiff

GRAEME PETER KING Trading As WENDY'S PHOENIX
JANINE MARGARET KING Trading As WENDY'S PHOENIX
Third Plaintiffs

WILDJAZZ HOLDINGS PTY LTD (ACN 086 457 507)
Fourth Plaintiff

AND

CAMERON CHISHOLM & NICOL (WA) PTY LTD (ACN 053 861 948)
First Defendant

WOOD & GRIEVE PTY LTD (ACN 008 808 786)
Second Defendant

BROAD CONSTRUCTION SERVICES (WA) PTY LTD (ACN 106 101 893)
Third Defendant

Catchwords:

Practice and procedure - Application to 'backdate' writ - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Plaintiff                  :     Ms R A Retnam

Second Plaintiff             :     Ms R A Retnam

Third Plaintiffs               :     Ms R A Retnam

Fourth Plaintiff              :     Ms R A Retnam

First Defendant              :     No appearance

Second Defendant         :     No appearance

Third Defendant            :     No appearance

Solicitors:

First Plaintiff                  :     Jarman McKenna

Second Plaintiff             :     Jarman McKenna

Third Plaintiffs               :     Jarman McKenna

Fourth Plaintiff              :     Jarman McKenna

First Defendant              :     No appearance

Second Defendant         :     No appearance

Third Defendant            :     No appearance

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

Nil

1. MASTER SANDERSON:  By chamber summons filed 18 March 2009, the plaintiffs relevantly sought an order in the following terms:

   The plaintiffs' writ filed on 23 April 2008 be backdated to 22 April 2008 pursuant to Order 2 Rule 1 of the Supreme Court Rules 1971.

2. After considering the plaintiffs' submissions in support of the application I dismissed it.  I indicated that I would publish reasons at a later date.  These are those reasons.

3. The events which gave rise to this application can be briefly stated.  On 22 April 2008 Ms Tanya Natalie Turner, a legal secretary employed by the plaintiffs' solicitors, attended at the central office of the Supreme Court.  She intended to file a writ of summons in this matter.  She says (in an affidavit sworn 3 March 2009) that she attended the central office at approximately 3.30 pm.  She attempted to file the writ.  It was rejected.  She says that the writ was rejected because it did not state the address for the plaintiffs in the endorsement of claim but instead stated the plaintiffs' solicitors address.  She then goes on:

   9.I was instructed by the registry clerk to amend the writ and return it when the amendments had been made.

   10.I was not advised by the registry clerk as to whether the amendments could be made at the Registry and did not seek the opportunity to amend the writ at the Registry either.  In any event, at the time of the rejection of the writ, I was not in possession of the information to allow any amendment to be made.

4. It would seem that any limitation period applicable to the plaintiffs' claim may have expired on 22 April 2008.  The position is not entirely clear from the material filed by the plaintiffs.  But certainly the argument was put on the basis that the date of the filing of the writ may give rise to a limitation defence.

5. In my view, there is simply no basis upon which I could order that the writ of summons be 'backdated'.  The fact is, it was filed on 23 April 2008.  That is the date upon which the action was commenced and that is the end of the matter.  If at some stage a limitation defence is raised by the plaintiffs because the writ was filed one day late, that is a matter which will have to be dealt with in due course.

6. Order 2 r 1 of the Rules of the Supreme Court 1971 (WA) deals with 'Non‑compliance with Rules'. It allows for proceedings which are irregular to be regularised. So for instance, if the writ had been accepted by the central office on 22 April 2008 in a form which was irregular because the plaintiffs' address was given as the address of their solicitors, then an order could have been made regularising any failure to comply with the rules of court. In this case there has been no failure to comply with the rules of court. The writ just has not been filed.

7. The plaintiffs' difficulties go further than that.  Any limitation defence is a defence available under statute.  If I were to make an order 'backdating' the issue of this writ it would effectively extend any available time limit.  Unless authorised by statute to extend a time limit, the rules of this court could not do so.

8. For these reasons I dismissed the plaintiffs' application.