Goldsmith v Prime Health Pty Ltd
[2007] WADC 172
•4 October 2007
GOLDSMITH -v- PRIME HEALTH PTY LTD [2007] WADC 172
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 172 | |
| Case No: | CIV:2317/2001 | 17 SEPTEMBER 2007 | |
| Coram: | BOWDEN DCJ | 4/10/07 | |
| PERTH | |||
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application to extend validity of writ refused Application to issue notice of writ outside of jurisdiction refused | ||
| PDF Version |
| Parties: | IAN JAMES GOLDSMITH PRIME HEALTH PTY LTD |
Catchwords: | Practice and procedure Application to extend the validity of a writ and application to issue notice of writ outside of jurisdiction Writ expired Very lengthy delays Plaintiff negotiating and waiting outcome of other case Application made after matter entered for trial Application refused |
Legislation: | Rules of the Supreme Court |
Case References: | Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Coyne v Sun Securities Limited (1992) 8 WAR 218 Goldberg v Western Continental Corporation Ltd (in liq) SCt of WA; Library No 8644; 18 December 1990 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Kent v Lechmere Financial Corporation & Ors [2002] WASC 75 Kleinwort Benson Ltd v Barbrak [1987] AC 597 Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 Ramsay v Madgwicks (a firm) [1989] VR 1 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff (Appellant)
AND
PRIME HEALTH PTY LTD
First Defendant
Catchwords:
Practice and procedure - Application to extend the validity of a writ and application to issue notice of writ outside of jurisdiction - Writ expired - Very lengthy delays - Plaintiff negotiating and waiting outcome of other case - Application made after matter entered for trial - Application refused
Legislation:
Rules of the Supreme Court
Result:
Application to extend validity of writ refused
(Page 2)
Application to issue notice of writ outside of jurisdiction refused
Representation:
Counsel:
Plaintiff (Appellant) : Mr Gill
First Defendant : Mr D Bristol
Solicitors:
Plaintiff (Appellant) : Chapmans
First Defendant : Murcia Pestell Hillard
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
Coyne v Sun Securities Limited (1992) 8 WAR 218
Goldberg v Western Continental Corporation Ltd (in liq) SCt of WA; Library No 8644; 18 December 1990
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Kent v Lechmere Financial Corporation & Ors [2002] WASC 75
Kleinwort Benson Ltd v Barbrak [1987] AC 597
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Ramsay v Madgwicks (a firm) [1989] VR 1
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
(Page 3)
1 BOWDEN DCJ: By notice of appeal filed 23 August 2007 the plaintiff/appellant (hereinafter referred to as the plaintiff) appeals against orders made by Deputy Registrar Hewitt on 17 August 2007.
2 The learned Deputy Registrar's orders were:
1. that the plaintiff's application to extend the time for service of the writ be dismissed;
2. the plaintiff's application to be granted leave to serve notice of the writ on the second defendant outside the jurisdiction be dismissed; and
3. there be no order as to costs.
3 The orders sought by the plaintiff in this notice of appeal are:
1. pursuant to O 2 r 1 and/or O 3 r 5 the plaintiff have leave to extend the time to serve the writ on the second defendant in this action;
2. the time allowed to serve the writ on the second defendant in this action be extended to 31 October 2007 of some other date as the court thinks fit;
3. pursuant to O 5 r 9 the plaintiff have leave to issue notice of writ on the second defendant outside of the jurisdiction; and
4. such other orders as this court considers appropriate
5. costs be in the cause of the main action.
4 It is clear that this appeal is a re-hearing de novo. Hazart Pty Ltd v Rademaker (1993) 11 WAR 26.
5 I am at liberty to consider the evidence before the learned Deputy Registrar and any other evidence which the parties place before me. In this regard the only evidence before me in addition to the court file is the affidavit of Ian Goldsmith sworn 18 June 2007. The plaintiff through his counsel made submissions to me. The first defendant through his counsel indicated that he did not wish to make any submissions to me on the appeal but there were matters that he wished to raise in connection with costs.
6 It is appropriate to consider the chronology of this matter as it does have considerable significance:
(Page 4)
- 1. the plaintiff's claim is based in negligence in relation to medical treatment received by him between September and October of 1995;
2. the writ of summons was issued on 6 September 2001 and an amended writ of summons amended pursuant to O 21 r 1 was filed on 3 September 2002. The amendment related to removing a third and fourth defendant from the writ of summons;
3. on 17 February 2003 the statement of claim was filed;
4. on 17 June 2003 the first defendant filed its appearance;
5. on 3 September 2003 the first defendant filed its defence;
6. on 22 March 2004 the second defendant filed its memorandum of appearance;
7. on 1 July 2004 the plaintiff made an application to consolidate this action with another action (2206 of 2001), the application was subsequently dismissed;
8. on 5 October 2004 the second defendant made application for leave to withdraw his appearance;
9. on 28 October 2004 the plaintiff made application that judgment be entered for the plaintiff if within 7 days the second defendant failed to file and serve its defence;
10. on 3 November 2004 the first defendant made application for directions for contribution and indemnity proceedings against the second defendant;
11. on 8 November 2004 the second defendant's application to withdraw its unconditional appearance was heard;
12. on 10 December 2004 Deputy Registrar Harman dismissed the second defendant's application;
13. on 16 December 2004 the second defendant filed a notice of appeal against Deputy Registrar Harman's order dismissing the second respondent's application to withdraw its unconditional appearance;
14. on 8 April 2005 that appeal, by way of a re-hearing de novo was heard before His Honour Judge Mazza;
15. on 20 May 2005 His Honour Judge Mazza ordered that the second defendant's appeal be allowed in part and that the second defendant have leave to withdraw the appearance
- filed on 22 March 2004. His Honour however did not order that the writ naming the second defendant as a party to the action be set aside;
- 16. on 11 July 2005 the second defendant made application to set aside service of the writ;
17. on 26 July 2005 Deputy Registrar Hewitt made orders that the service of the writ of summons on the second defendant be set aside;
18. on 10 March 2006 the plaintiff filed his entry for trial and papers for the Judge;
19. on 12 April 2006 a pre-trial conference was held at the District Court involving the plaintiff and the first defendant (the second defendant of course being no longer a party) which was adjourned by consent on 4 July 2006;
19A. On 1 May 2006 the directions hearing was adjourned to 15 May 2006. There was no appearance by the plaintiff's solicitors. On 15 May 2006 the directions hearing was further adjourned to coincide with the pre-trial conference of 4 July 2006.
20. on 4 July 2006 the pre-trial conference was further adjourned to 2 August 2006;
21. on 2 August 2006 the pre-trial conference was further adjourned to 17 October 2006;
22. on 20 September 2006 the plaintiff made an application that District Court action number 2206 of 2001 be consolidated with this action;
23. on 22 September 2006 that application was heard and the application was adjourned to 17 October 2006 for a pre-trial conference;
24. on 17 October 2006 at a pre-trial conference involving both of the plaintiff's actions the pre-trial conference was adjourned to 5 December 2006;
25. on 22 November 2006 the plaintiff filed a schedule of damages;
26. on 5 December 2006 at the pre-trial conference the matter was adjourned for a directions hearing on 16 January 2006 and the pre-trial conference was otherwise adjourned;
(Page 6)
- 27. on 16 January 2007 the directions hearing/pre-trial conference was adjourned to 15 February 2007;
28. on 15 February 2007 a directions hearing/pre-trial conference took place and further orders were made relating to further and better particulars, and discovery of documents on behalf of the plaintiff and orders that the action when listed be listed together with the plaintiff's other cause of action;
29. on 21 May 2007 at the directions hearing/pre-trial conference the plaintiff was ordered to file and serve any application for leave to serve notice of this action on the second defendant outside the jurisdiction by 11 June 2007 and the first return date of any such application be 18 June 2007 at 2.15 pm and the matter was adjourned to the directions hearing on 18 June 2007;
30. on 18 June 2007 the directions hearing was adjourned to 9 July 2007;
31. on 9 July 2007 case management was suspended until further order;
32. on 27 June 2007 the plaintiff made an application for leave to extend the time to serve the writ on the second defendant, that the time allowed to serve the writ on the second defendant be extended until 30 December 2007 or some other date if the Court thinks fit and that the plaintiff have leave to issue notice of writ on second defendant outside of the jurisdiction (I note that application filed on 27 June 2007 was filed 23 months after the order was made that the service of the writ on the second defendant be set aside and 16 days outside the date ordered by the court on 21 May 2007);
33. on 17 August 2007 that application was heard before the learned Deputy Registrar Hewitt. The application being refused; and
34. on 23 August a notice of appeal against the decision of Deputy Registrar Hewitt referred to above was filed.
7 It is that appeal that I must now deal with.
(Page 7)
Legal Framework – Leave to issue a writ for service outside of the jurisdiction
8 The plaintiff is required to obtain the leave of the Court to issue a writ for service outside of the jurisdiction pursuant to O 5 r 9 of the Rules of the Supreme Court 1971 ("RSC").
9 The affidavit of the plaintiff sworn the 18 June 2007 indicates that he was aware from "on or around 13 March 2003 that the writ was required to be served on the second defendant personally in London".
10 Whether the plaintiff was aware that the second defendant had left the jurisdiction at the time the writ was issued is not necessary for me to determine.
11 Rules requiring grant of leave to serve the writ out of the jurisdiction are not mere procedural provisions. They confer jurisdiction on the court. The Rules are designed to ensure that the court properly supervises that jurisdiction. Kent v Lechmere Financial Corporation & Ors [2002] WASC 75 per Pullin J at [5]. The foundation of the jurisdiction of the court is physical power and where a writ cannot legally be served upon the defendant the court can exercise no jurisdiction over him. In an action in personam, and whenever a defendant can be legally served with the writ, the court on service being effected has jurisdiction to entertain an action against him. The rules as to the legal service of a writ define the limits of the court's jurisdiction. Order 10 r 1(1) permitting service on a defendant outside the jurisdiction is an example of the court supervising the extension of its jurisdiction and ensuring, by granting of leave that only in appropriate cases will a writ issue for service outside the jurisdiction.
12 The plaintiff must identify in his affidavit supporting his application the provisions of the order upon which he relies. Goldberg v Western Continental Corporation Ltd (in liq) SCt of WA; Library No 8644; 18 December 1990. In this case although the plaintiff identifies in his affidavit that the action is based on alleged negligence he does not specify the location of the negligence and in particular does not swear to the fact that it occurred within the jurisdiction of this court. It is a defect; however, it is a defect that in the circumstances of the case I would allow to be remedied by way of an adjournment and I would allow the filing of a further affidavit if I was not deciding the case against the plaintiff for other reasons.
(Page 8)
Principles relating to extending the validity of the Writ
13 The plaintiff is required to renew the validity of the writ after 12 months have elapsed from its date of issue pursuant to O 7 r 1 of the RSC.
14 It is clear that a court does have the power to extend the validity of a writ notwithstanding that in the meantime time has run against the cause of action under the statute of limitation. If the writ is issued within the time limitation "any defence based upon the time limitation is gone forever in respect of that writ. If the writ is not served within the period limited it is not a nullity". Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 per Malcolm CJ at [14].
15 Order 7 r 1 embodies a clear policy which should not be subverted by mechanical resort to O 2 r 1. 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 periods for which the validity of unserved writs may be extended and the periods during which applications may be made for such extensions. The reason for this policy is obvious. It is undesirable to allow a plaintiff to issue a writ before the expiration of a limitation period and then to delay service for an indefinite period. Lengthy delays cause difficulties in the ascertaining 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. The proper administration of the court would be hampered if writs could be issued and then left to lie dormant for indefinite periods per Ipp J in Brealey v Board of Management Royal Perth Hospital (supra) at [45]. The court is nonetheless considered as having a wide discretion to renew a writ after its expiry and the court should exercise that discretion to prevent injustice. It is clear, however, that the power does not exist to indulge mere delay on the part of the plaintiff or the plaintiff's solicitors which is inadequately explained. The wide discretion referred to by O 2 r 1 must be exercised having full regard to the policy reflected in O 7 r 1. Brealey v Board of Management Royal Perth Hospital per Malcolm CJ at [15] and Ipp J at [46].
16 The court should have regard to "the general justice of the case paying regard to all the circumstances".
17 Order 2 r 1 does enable the Court to prevent manifest unfairness arising from the need to adhere rigidly to the time limits laid down by O 7 r 1 (2).
(Page 9)
18 Before the power may be so exercised it must be established that without such remedial relief injustice will occur.
19 All the circumstances of an individual case are relevant. Every case must, of course, be treated on its own merits. However, relevant factors are the provisions of any limitation statute applicable, the relative hardship which a grant or a refusal of renewal would impose upon the parties, the length of the delay, whether the delay is caused by mistake, whether such mistake is excusable, the nature of attempts made at service, the hardship or prejudice caused to the plaintiff by refusing the renewal, the hardship or prejudice caused to the defendant by granting it. The court has a wide and unfettered discretion to see that justice is done. The category of factors referred to above is not exhaustive. Each case must be treated on its own merits. Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561. All relevant circumstances are to be considered. One is not more relevant than the other.
20 However, as it has been pointed out one matter to be considered is whether or not the application to extend the validity of the writ is made at a time when the writ is stale and whether or not the limitation period has expired. The fact that the plaintiff applies to extend the validity of the writ after the limitation period has expired is of considerable relevance. Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337. The failure of an applicant to apply for an extension of time before the validity of the writ expired is also of significance. Brealey v Board of Management Royal Perth Hospital, although the absence of such explanation would not necessarily be fatal.
21 In addition to showing good reason for an extension of time within which to serve a writ an applicant is required to give a satisfactory explanation for its failure to apply for extensions before the validity of a writ has expired.
22 The general policy of the rules is that it is the duty of a plaintiff who issues a writ to serve it promptly and on an application for an extension renewal will certainly not be granted as of course. Coyne v Sun Securities Limited (1992) 8 WAR 218 at 222.
23 The plaintiff seeking an extension must show a good reason and what constitutes a good reason depends upon all of the circumstances. Coyne v Sun Securities Limited (supra) at 222.
24 It is also clear that there is no reason to limit the court's power to extend the validity of a writ to only those cases where no attempt has been
(Page 10)
- made to serve an invalid writ. In this case there was an actual invalid service of the writ. That service resulted in an unconditional appearance being filed by the second defendant. The unconditional appearance was as I have previously indicated set aside. The writ was found not to have been validly served because when it was served leave had not been granted for the service of the writ outside of the jurisdiction and the writ was a stale writ.
25 It is a consideration that the appellant would suffer prejudice if the validity of the writ is not extended, that prejudice is said to be the loss of his cause of action against the second defendant. However, this prejudice is substantially less where the prejudice does not result from the appellant's own deliberate inaction. Where an application for an extension is made at a time when the writ has ceased to be valid and the relevant period of limitation has expired it can properly be said that at the time when the application for an extension is made a defendant on whom the writ has not been served has an accrued right of limitation. Kleinwort Benson Ltd v Barbrak [1987] AC 597 at 616. This is of "considerable relevance" but is not determinative of the application. Van Leer Australia Pty Ltd v Palace Shipping KK and Brealey v Board of Management Royal Perth Hospital.
26 The plaintiff claims that the prejudice is the loss of his cause of action against the second defendant. However, the plaintiff did not serve a valid writ on the second defendant before the limitation period expired nor did he apply to extend the writ whilst the writ was valid and without service of the valid writ the plaintiff had no rights to preserve. Ipp J in Brealey v Board of Management Royal Perth Hospital (supra) at par 62.
27 It is also clear that the mere lapse of time is itself generally to be regarded as prejudicial. Brealey v Board of Management Royal Perth Hospitalper Ipp J at [64]. There has been a lengthy delay on the part of the plaintiff it is inevitable that it must cause at least some prejudice to the respondent.
28 The plaintiff says in his affidavit at par 7 that "discussions with both the first and second defendant's solicitors to try and have the matter resolved (have been had). To date this matter has not resolved" and at par 8 "I have recently settled my claim for workers compensation damages against my employer and now wish to pursue my claim against the first and second defendant".
(Page 11)
29 Ordinarily it is not a good reason that the plaintiff desires to hold up proceedings while some other case is tried or to await some further developments. Coyne v Sun Securities Limited at [22] and Ramsay v Madgwicks (a firm) [1989] VR 1. The plaintiff has chosen a tactic; that is that the plaintiff wishes to await the outcome of other proceedings. This was one of the reasons advanced and rejected in the matter of Coyne v Sun Securities Limited and Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79.
30 The fact that the plaintiff had some negotiations according to his affidavit and was waiting the outcome of other proceedings is not a valid reason for failure to apply to this court to serve the writ out of the jurisdiction or to extend the validity of the writ.
31 It is appropriate for the Court to consider the reasons for an effect of a long delay in considering the appropriateness of extending the validity of the writ. The delay in this case is in fact extreme.
32 The plaintiff's statement of claim refers to medical treatment received by the plaintiff from the second defendant commencing on 6 September 1995 and concluding on 23 October 1995. From that date there was a delay of approximately five years and 11 months until the writ was issued in September of 2001. The memorandum of appearance to the invalid writ was filed in March of 2004 and therefore one can assume (by virtue of the fact that the plaintiff made no application to enter judgment) that the invalid writ had been served in either April or March of 2004, i.e. after approximately two and a half years. Irrespective of any other arguments the plaintiff knew from the date of His Honour Judge Mazza's decision, (20 May 2005) that the second defendant's appearance had been set aside and knew from the very terms of His Honour Judge Mazza's decision at [23] that:
"By not making an order setting aside the writ insofar as it relates to the second defendant the plaintiff would now have the opportunity to apply to the court pursuant to O 2 r 1 of the SCR to set aside the irregularities relating to the writ. … The plaintiff or his solicitors will have to put before the court the reasons for the failure to comply with the Rules relating to extending the validity of the writ and obtaining leave to serve the notice of the writ out of the jurisdiction."
33 Notwithstanding the opportunity afforded to the plaintiff to do so that opportunity was not taken advantage of. Indeed it was the second
(Page 12)
- defendant who on 26 July 2005 obtained an order from the court that the service of the writ be set aside. The plaintiff did not seek to make the application referred to in Judge Mazza's decision despite being given the opportunity to do so. Further from 26 July 2005 the plaintiff was aware that the service of the writ of summons had been set aside and yet a further 23 months elapsed before the plaintiff made any such application to this Court.
34 In those circumstances there has been a failure to provide a satisfactory explanation for both the failure by the appellant to apply for an extension before the validity of the writ expires and the plaintiff's failure to apply for an extension after His Honour Judge Mazza's decision and subsequent to the second defendant's application on 26 July being successful.
35 Indeed the plaintiff's application was not made until after the matter had been entered for trial and papers for the judge filed. This was done on 10 March 2006. The plaintiff is therefore in a position that having issued a writ against the second defendant, having allowed that writ to expire, and not having applied to extend the validity of the writ and not having applied to serve the writ out of the jurisdiction he has then consciously entered the matter for trial and after entering the matter for trial seeks to extend the validity of the writ and apply for leave to serve the writ outside of the jurisdiction.
36 Simply put this is an unsatisfactory way for litigation to be conducted. Any prejudice suffered by the appellant as a result of these failures is self inflicted. In my opinion no good reason to exercise the discretion conferred upon the court has been shown and I am not persuaded that the interests of justice require the exercise of the remedial discretion under O 2 r 1.
37 I hasten to add that in outlining the chronology of events I have not detailed other applications, chamber summonses and the like.
38 The delays that had been occasioned in this case are such that in my opinion not only am I not persuaded that the court ought to exercise its discretion and extend the time I am firmly of the opinion that to extend the time within which to serve a writ for a matter that occurred in 1995; approximately 12 years ago would be against public policy considerations and fly in the face of the commendable efforts made by the court to encourage parties to not only litigate promptly but to execute their claims expeditiously. As can be seen from the number of pre-trial conference
(Page 13)
- and direction hearings the Court is placing increasing emphasis on case management even since the decision of Brealey v Board of Management Royal Perth Hospital.
39 I therefore refuse the plaintiff's application to extend the time to serve the writ and accordingly refuse to grant leave to issue a notice of writ on the second defendant outside of the jurisdiction.
Costs
40 The first defendant wishes an order for costs to be made in favour for the first defendant's appearance at the hearing of this matter on 17 August and 17 September. The reason for the appearance by the first defendant's on 17 August is that the plaintiff's solicitors had served upon them the affidavit of Jenette Marie Baker sworn 13 August 2007 in support of the original application the subject of this appeal. Issues arose about the admissibility of certain of the annexures. Efforts were made by solicitors for the first defendant to clarify the matter with the plaintiff's solicitors by correspondence. The matter was not resolved. Deputy Registrar Hewitt did on 17 August 2007 order the affidavit be uplifted from the court file and be returned to the plaintiff.
41 As the recent decision of Monteleone v Owners of the Old Soap Factory (supra) makes clear the plaintiff's application to extend the validity of the writ or for leave to serve a writ outside the jurisdiction is an ex parte application. The first defendant would not have been entitled to have been heard on that application other than, perhaps on the questions of costs arising from the file of the affidavit of Ms Baker. Although no appeal notice has been filed by the first defendant or notice of contention it seems to me that in the circumstances the plaintiff should be ordered to pay the first defendant's costs of the appearance of 17 August 2007. I would however, bearing in mind, the matters just mentioned not order the plaintiff pay the first defendant's costs of the appearance of 17 September 2007.
Orders
42 The orders I make are therefore as follows.
1. The plaintiff's application to extend the validity of the writ be dismissed.
2. The plaintiff's application for leave to issue a notice of writ outside of the jurisdiction be dismissed.
(Page 14)
- 3. The plaintiff do pay the first defendant's costs of the appearance of 17 August 2007.
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