Hargraves v Strathalbyn West Perth Pty Ltd t/as METROPOLIS FREMANTLE - [2022] WADC 44

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   HARGRAVES -v- STRATHALBYN WEST PERTH PTY LTD t/as METROPOLIS FREMANTLE [2022] WADC 44
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   12 MAY 2022
DELIVERED          :   26 MAY 2022
FILE NO/S:   CIV 376 of 2021
BETWEEN:   SEAN HARGRAVES
Plaintiff

AND

STRATHALBYN WEST PERTH PTY LTD t/as METROPOLIS FREMANTLE
Defendant

Catchwords:

Practice and procedure - Application to remove action from inactive cases list and extend validity of writ - Impact of delay on defendant

Legislation:

District Court Rules 2005 (WA)
Limitation Act 2005 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr A A Nolan
Defendant	:	Mr C P K Russell

Solicitors:

Plaintiff	:	CLP Legal Pty Ltd
Defendant	:	Not applicable

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

Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158

DEPUTY REGISTRAR HEWITT:

In this matter the plaintiff filed a writ of summons with an indorsement of claim on 5 February 2021. The indorsement revealed that the plaintiff intended to pursue a claim for personal injuries said to have been sustained in or about 25 February 2018, which injuries were caused by the negligence or breach of statutory duty and/or breach of contract by the defendant.
Since the action was for personal injuries, the Limitation Act 2005 (WA) is applicable which provides in s 14(1):
An action for damages relating to a personal injury to a person cannot be commenced if 3 years have elapsed since the cause of action accrued.
The materials which have been supplied to support the application make it clear that such injuries as were sustained were sustained on the nominated date, but in any event the plaintiff would be prevented by the statute from commencing any fresh action unless the court granted an extension of the limitation period.
Having filed the writ nothing whatever was done in relation to progressing the action until the last day of the period of its validity for service and unsurprisingly, service was not achieved before the writ was stale.
On 7 February 2022 the plaintiff's solicitors received a notice advising that the matter had been placed on the inactive cases list by reason of the fact no document had been filed for the preceding 12 months. That notice stimulated the plaintiff to bring an application filed 17 February 2022 seeking that the validity of the writ be extended to 19 March 2022. Such an order would have course not had an impact on the notice to which I earlier referred, and the matter would remain on the inactive cases list.
The chamber summons to which I have referred came before me for determination on 12 May 2022 and it appears to have been tacitly agreed between the parties that the application should be regarded as an application to remove the matter from the inactive cases list and to extend the validity of the writ, notwithstanding the deficiencies within the summons which has been filed.
At about the same time as the plaintiff commenced the present action, he also commenced workers' compensation proceedings against his employer and gathering evidence in support of his claim, that evidence appearing to be medical evidence from various medical practitioners noted in par 12 of the affidavit of Mr V Calalesina filed in support of the application and sworn on 17 February 2022. It is notable that the defendant was never told that a writ had been filed nominating it as the defendant and the first that the defendant knew of this proceeding was the service on it of a stale writ. The plaintiff did commence a workers' compensation claim against his employer on 27 July 2020 and on 10 March 2021 a further compensation claim amplifying the earlier claim. It appears neither claim has proceeded to determination.
I think it of importance as appears in par 8 of the affidavit to which I have referred, that the writ was filed to preserve his right to claim against the defendant as it was described 'pending the outcome of his Workers' Compensation claims …'.
In par 23 of the affidavit it is explained that the plaintiff upon service of the summons ie about one year after it was filed and four years after the incidents in question, intended to seek a stay of the proceedings because he was awaiting the outcome of his workers' compensation claims, which were ongoing.
In summary then, the plaintiff commenced this action to protect himself against a limitation defence, did not intend to proceed with the action during the first year of its existence, and intended to obtain an indefinite stay of the action to allow him to complete his workers' compensation claims. In relation to such claims, the workers' compensation insurer has denied liability, although the basis of that denial is not explained to me and the length of time the claim might take place is indefinite.
There is no doubt that the court is possessed of the power to remove the matter from the inactive cases list and to extend the validity of the writ, and if authority for that proposition is required it is to be found in a number of cases of which one is: Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158. Likewise, r 44F of the District Court Rules 2005 (WA) invests the court with the power to remove a matter from the inactive cases list. The issue in this case is whether those powers should be exercised.
In making a decision on that score I am required to balance the fairness of any proposed order on the parties concerned. If I make an order refusing the plaintiff's application he will have lost his opportunity to litigate, in this court at least, his common law claim.
On the other hand, the defendant contends that it has been seriously handicapped in its ability to defend the action by reason of the lack of notice of its existence, the consequent lack of ability to investigate the matter, the loss of CCTV footage which could have been available had early notice been given, the general difficulty of finding witnesses who could assist the defendant in its defence, and the loss of the ability of the defendant to have the plaintiff examined by a doctor of its choosing at an earlier stage. It is now some four and a half years since the incidents with which we are concerned took place. The difficulties which are faced by the defendant appear to me to be irremediable.
The plaintiff has made available a statement which it gave some four years after the relevant incidents in the early part of 2022 which mentions some fellow employees and others who apparently might have some knowledge of the case. Whether they were eyewitnesses to the events which happened or whether they were merely parties with whom the plaintiff reported the incidents is not clear. Where they might be and how they might be contacted is not clear. Whether they would be amenable to cooperating with the defendant is not clear. This situation is likely to work to the advantage of the plaintiff since his testimony is not liable to be challenged and to the disadvantage of the defendant since it is not likely to have the opportunity to challenge that evidence.
The delay of the first three years or thereabouts from the date of the incidents appears to have been due to the actions on the part of the plaintiff, although I pause to mention that the plaintiff did consult other lawyers prior to instructing the present lawyers though the upshot of those consultations has not been disclosed to me. On the face of it, it looks as though delay for the first three years was primarily the fault of the plaintiff, and thereafter a deliberate decision undertaken for tactical reasons by the solicitors for the plaintiff firstly to protect him against a limitation defence and secondly to delay proceedings as long as was necessary to allow his workers' compensation actions to be concluded.
As I have mentioned before, cases such as this are a balancing act: to dismiss the application would deprive the plaintiff of an opportunity to present his case, however the delay has handicapped the ability of the defendant to mount a defence to the claim. Since much of the delay has been due to deliberate decisions undertaken by the plaintiff and his express intention not to proceed with the action in the event that he was able to do so, I think that the burden of these decisions should lie on the plaintiff and that the defendant should not be forced to contest an action when the actions of the plaintiff have made it very difficult for it to do so.
For those reasons I shall dismiss the present application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
FN
Associate
24 MAY 2022