Kelsh v Tobiassen - [2009] WADC 124

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KELSH -v- TOBIASSEN & ANOR [2009] WADC 124

CORAM: O'NEAL DCJ

HEARD: 3 AUGUST 2009

DELIVERED : 24 AUGUST 2009

FILE NO/S: CIV 2075 of 2003

BETWEEN: PATRICIA KELSH
Plaintiff (Respondent)
AND
SVEN TOBIASSEN
First Defendant
MUSEO PTY LIMITED
Second Defendant (Appellant)

Catchwords:

Fatal accident - Joinder of defendant - Limitation

Legislation:

Fatal Accidents Act 1959, s 7
Rules of the Supreme Court 1971, O 18 r 6

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff (Respondent)     :     Ms K A Vernon
First Defendant              :     No appearance
Second Defendant (Appellant)    :    Mr G M Slattery

Solicitors:

Plaintiff (Respondent)     :     Slater & Gordon
First Defendant              :     Hotchkin Hanly
Second Defendant (Appellant)    :    Minter Ellison

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

Agricultural and Rural Finance Limited v Gardiner [2008] HCA 57
Bainbridge v Lawton [2002] WASC 293
Brandsma & Crockett Pty Ltd & Anor v Heindal Pty Ltd & Ors [2002] WASCA 96
Commonwealth v Verwayen (1990) 170 CLR 394
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Ketteman v Hansel Properties Ltd [1987] AC 189
Seabridge & Ors v H. Cox & Sons (Plant Hire) Ltd & Anors [1968] 2 QB 46
Slack v Leeds Industrial Co‑operative Society Ltd [1923] 1 Ch 431
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232

O'NEAL DCJ: The appellant has applied to strike out an action pleaded against it on the ground that it is barred by a statutory limitation period. The appellant's application was dismissed by the learned Deputy Registrar in chambers. This matter now comes before me by way of appeal as a hearing de novo.
On 18 September 2002 the late Desmond Kelsh and another man, Peter Hunt, were working on a construction site at the corner of Norma Road and Leach Highway in Myaree. The building project involved the use of tilt up concrete panels as a method of construction. On 18 September 2002, while Hunt and Kelsh were working on the site, two of the panels that had been previously erected collapsed. Both men were injured, but Mr Kelsh died of his injuries that same day.
In September 2004 this action was commenced by the respondent, claiming damages pursuant to the provisions of the Fatal Accidents Act 1959. There were then four defendants to the action, but the appellant, Museo, was not one of them.
The indorsement of claim to the writ that was filed describes the respondent as the lawful widow of the late Desmond John Kelsh. The indorsement says:
"The action is bought [sic – brought] pursuant to the provisions of the Fatal Accidents Act 1959 in respect of the death of Desmond John Kelsh ('the deceased'), who died on 18 September 2002 … as the result of a negligent construction falling and crushing the deceased."
The statement of claim filed on 24 November 2004 expands on that specific cause of action and, somewhat confusingly, refers to a claim "on behalf of the estate of the Deceased pursuant to the Law Reform (Miscellaneous Provisions) Act 1941 …"
An action was also later brought by Mr Hunt against several of the same defendants sued by the respondent (the "Hunt action"). On 21 November 2007 the appellant was added as the fourth defendant in the Hunt action.
The appellant, it is alleged, did the structural engineering design for the buildings on the site where Hunt and Kelsh were injured and allegedly breached a duty of care that it owed resulting in the collapse of the concrete panels and the death of Mr Kelsh.
Section 7 of the Fatal Accidents Act, as it stood in 2002 and 2003, required that any action brought under the Act in cases such as this was to be commenced within 12 months after the death of the person in respect of whose death the cause of action arose: s 7(1). Pursuant to 7(2)(b), even after that 12 month period had expired, a person could consent in writing to the bringing of an action against them, before the expiration of six years from the date of the death.
Whether or not such consent was forthcoming it was also open to a person wishing to make a claim under the Act to apply to the court for leave to bring an action at any time before the expiration of six years: s 7(2)(c).
Section 7(2)(d) stipulated several matters that a court might consider in determining whether or not leave should be granted.
Section 7(2)(e) required a party intending to make an application for leave to give notice in writing of such an application and to provide the grounds on which the application was to be made to a prospective defendant. That notice was required to be given at least 14 days before any application was made. In the course of argument before me counsel for the appellant conceded that this requirement at least could be waived by a prospective defendant.
Before the Deputy Registrar and on the hearing before me, the appellant relied upon the affidavit of James Robert Fielding, sworn 5 March 2009 in support of the original application made here by the appellant. It is apparent from the contents of that affidavit that the law firm that employs Mr Fielding is engaged in the defence of both the action brought by Mr Hunt as well as this action on behalf of Museo. The Hunt action was commenced by writ of summons dated 27 March 2007. The solicitors for the respondent in this action are also the solicitors for Mr Hunt.
In describing the basis of the information contained in his affidavit, Mr Fielding deposes that "subject to the supervision of my principals I have the day to day conduct of the defence of this action on behalf of Museo" and that the affidavit is made from "my own knowledge unless otherwise indicated in which case I state the grounds and sources of my statements of information of belief."
According to Mr Fielding, on 12 September 2008, by agreement between the parties, a pre-trial conference was held in both actions. On that same day, the respondent's solicitors sent a fax to Museo's solicitors. The facsimile is JRF1 to the affidavit. The facsimile is addressed to the attention of Ms Prue Griffin from Chris Prast, the managing law clerk of the respondent's solicitors. Mr Prast wrote:
"Dear Madam
Patricia Kelsh v City of Melville & Ors
District Court Action No 2075 of 2003
I refer to my discussions with you at the pre trial conference.
Just so there is no misunderstanding could you please advise as a matter of urgency whether or not Museo Pty Limited will consent to being joined as a defendant to the proceedings commenced on Mr Kelsh's widow arising out of the incident that occurred on 18 September 2002.
Absent your consent it is likely I will make an application to join Museo as a defendant, which application will need to be determined on an urgent basis.
Could I please hear from you by 9.00 am on Monday 15 September 2008.
Yours faithfully
…"
The response of the appellant's solicitors was faxed to the respondent's solicitors on 15 September 2008. That facsimile is annexed to Mr Fielding's affidavit as JRF2. The facsimile is signed by Michael Cornes who is identified as the partner responsible. Mr Cornes wrote:
"Dear Sir
Patricia Kelsh v City of Melville & Ors
District Court No. 2075 of 2003
We refer to your fax of 12 September 2008.
With respect to your client's intention to join our client as a defendant to the proceedings commenced by Mr Kelsh's widow, our client does not consent to being joined but will not oppose any application made by your client to join it.
Yours faithfully
…"
I have no doubt that the reason for the urgency referred to in the facsimile of 12 September 2008 was known and understood by both parties, that is, the imminent bar of a six year limitation. From the background circumstances that I have described it seems obvious that competent solicitors would have been so aware. It would be astounding if the appellant's solicitors had been unaware of the exact nature of this action prior to the pre-trial conference and more astounding had it not been freely discussed in the course of that conference. The absence of any affidavit disavowing such knowledge on the part of the appellant's solicitors allows me to readily infer that they knew the reasons underlying the urgency for action by the respondent's solicitors, namely the imminent expiry of the time for bringing an application for leave to bring an action under the Fatal Accidents Act.
On 15 September 2008 the respondent's solicitors provided the appellant's solicitors with a copy of the chamber summons and affidavit of the respondent in support of that chamber summons. The documents were in a form filed that same day that I will describe below. The respondent's solicitors enquired as to whether the appellant's solicitors would accept service of those documents on behalf of the appellant.
On 15 September 2008 the solicitors for the respondent filed a chamber summons returnable on 17 September 2008. The document filed by the respondent's solicitors was simply entitled "chamber summons" and did not disclose what rule or provision supported the bringing of the summons. Nor did it set out the grounds for making the application.
The summons sought two orders. The first was an order to abridge the time for hearing of the summons to enable it to be heard before 18 September 2008. The second was an order that "the applicant be granted leave to join Museo Pty Ltd … as a defendant in these proceedings."
An affidavit of the respondent was filed in support of the chamber summons. The affidavit referred to the fact that the respondent did not know when the proceedings were commenced that the applicant had in fact prepared structural engineering design drawings for the buildings upon which her husband was working when he was killed. The affidavit goes on to refer to the fact that proceedings had been commenced against the appellant in the Hunt action and that the solicitors for the appellant had been present at a pre‑trial conference on 12 September 2008 where the respondent's action had not been successfully resolved.
At par 15 of his affidavit filed in support of the appellants application to strike out, Mr Fielding deposes:
"Neither the chamber summons nor the supporting affidavit referred to the Fatal Accidents Act ... and no mention had been made in any other court document or correspondence provided to Minter Ellison by Slater & Gordon that the plaintiff was seeking orders extending the twelve month limitation period for the plaintiff to bring an action under the Act."
With respect to Mr Fielding, so much is obvious from the documents themselves. The documents on their face were sufficient to support the submission made on behalf of the appellant that absent any express reference to the Fatal Accidents Act the materials filed by the respondent for the purpose of joining the appellant to the action did not refer in their terms to an application for leave under s 7 of the Fatal Accidents Act.
After repeating however that "the joinder application contained no reference to the Act", Mr Fielding goes on to depose that "Minter Ellison did not advise Museo whether to consent or oppose any application by the plaintiff to extend the limitation period under the Act as Museo had not been served with notice of nor any application to extend the limitation period under the Act": at par 30. Mr Fielding swears that until it was served with the respondent's substituted statement of claim on 24 October 2008 "Museo did not have a full appreciation of the scope of the plaintiff's claim": at par 31. There are other references in Mr Fielding's affidavit that appear to imply that the appellant's solicitors did not have a good appreciation of the nature of the respondent's claim and did not appreciate what, procedurally, needed to be done on behalf of the respondent to preserve a cause of action.
I note that the affidavit relied upon by the appellant was not sworn by Ms Prue Griffin to whom the facsimile of 12 September 2008 was addressed, nor by Mr Cornes who responded on behalf of the appellant's solicitors on 15 September 2008.
The appellant's solicitors responded to the respondent's solicitor's inquiry as to whether service of the chambers summons and affidavit would be accepted on behalf of Museo Pty Ltd by a facsimile of 16 September 2008. That facsimile is signed by Prue Griffin and the responsible partner is again noted as Michael Cornes. The facsimile reads as follows:
"We refer to the application to join Museo Pty Ltd as a defendant, returnable at 10am on Wednesday 17 September 2008.
We confirm our conversation with your Ms Waller to the effect that our client does not oppose the orders sought in that application. We do not propose to attend Court tomorrow, and are content for you to hand this fax to the Court if required."
The respondent's chamber summons came before the Principal Registrar on 17 September 2008. The appellant's solicitors did not appear. When the application came before the Principal Registrar he made the following orders:
1.The time for hearing of the summons be abridged to enable it to be heard before 18 September 2008;
2.The respondent be granted leave to join Museo Pty Ltd … as a defendant in these proceedings; and
3.By 24 September 2008 the respondent do file the amended writ of summons and serve it on each other party.
It will be observed that this third order was not included in the terms of the order sent to the appellant's solicitors.
On 17 September 2008, the respondent's solicitors faxed a copy of the Registrar's order, together with an amended writ of summons to the appellant's solicitors, and asked whether they would accept service.
The respondent's solicitors later provided further copies of the Court documents in the manner and circumstances described below. An appearance was filed on behalf of the appellant on 24 September 2008 and the respondent served a substituted statement of claim on 24 October 2008.
On 18 September 2008, Ms Griffin wrote to the respondent's solicitors advising that her firm was instructed to accept service on behalf of Museo and asked the respondent's solicitors to:
"Please also provide us with a copy of your client's [respondent's] list of discoverable documents together with your pre‑trial conference submissions".
On 18 December 2008, Mr Fielding wrote on behalf of the appellant's solicitors to the respondent's solicitors. In that letter he advised them the respondent's claim was not properly maintainable for a variety of reasons there set out. These included such matters as the failure of the respondent to give the appellant 14 days notice required by s 7(2)(e) of the Fatal Accidents Act and the failure to refer in the respondent's application for leave to the Fatal Accidents Act. The letter also made the point that although the amended writ of summons was faxed to the appellant's solicitors on 17 September, and on 18 September the appellant's solicitors advised that they were instructed to accept service of the amended writ. On 19 September 2008 there was a further facsimile by which the respondent's solicitors sent the orders and amended writ again. The point taken by the appellant's solicitors was "the joinder of the party takes effect from the date of service of the originating process upon the newly joined party". Thus, they argued, the appellant was not joined to the action until 19 September 2008 "the day after the expiration of the six year period". The letter also asserts that no valid grant of leave was obtained because the application "was not made pursuant to the provisions of s 7 of the Fatal Accidents Act and … did not comply with the notice requirements in the section."
The appellant then applied to strike out the action against it on the basis that the respondent's claim pursuant to the Fatal Accidents Act was time barred as against the appellant, no application having been made to the Court for leave to bring an action before the expiration of six years from the date of the death of the person in respect of whose death the cause of action arose.
An affidavit has been filed on behalf of the respondent by Mr Prast. The affidavit was affirmed 23 April 2009. Mr Prast says, in effect, that at the time of writing the letter of 12 September 2008 he intended "if necessary" to apply for leave to bring a claim against the appellant out of time under the Fatal Accidents Act, and to thereby join Museo Pty Ltd as a defendant to the proceedings that had been commenced pursuant to the Fatal Accidents Act. He explains that that was the purpose of his letter. He says that given the advice from the appellant's solicitors that they did not oppose any application he understood that no application was necessary "for leave to bring a claim against Museo Pty Ltd out of time under the Fatal Accident Act." If that was in fact what was in his mind it was well concealed in his letter of 12 September 2008.
By his letter he sought the appellant's consent to the joinder of the appellant as a defendant and advised that unless the consent was forthcoming an application in those terms would be made. The consent was not forthcoming. Rather, as set out above the appellant's solicitors advised Mr Prast that the appellant did not oppose any application by the respondent to join the appellant. Mr Prast has deposed, "if any objection had been taken I would have been able to and would have in fact ensured that the necessary application would have been made for leave to bring a claim against Museo Pty Ltd out of time under the Fatal Accident Act": (at par 6). He goes on, "I understood that such application was not necessary because Museo Pty Ltd had advised that it did not oppose being joined to the proceedings": at par 7.
The appellant's application to strike out the respondent's claim was defended before the Deputy Registrar and in the written submissions before me on the basis that the appellant was estopped from now raising an issue of leave under s 7 of the Fatal Accidents Act in that the appellant's solicitor's letter of 15 September 2008, in response to the respondent solicitor's letter of 12 September 2008 conveyed to the respondent's legal representatives a representation, or induced an assumption on the part of the respondent's representatives that the appellant did not require the respondent to obtain leave under s 7 of the Fatal Accidents Act.
Putting aside issues of service, at perhaps its most general level of abstraction, the central issue on the application before me is whether having allowed the Principal Registrar to make the order of 17 September 2008 joining it as a defendant in this action, it remains open to the defendant to nonetheless raise a limitation issue pursuant to s 7 of the Fatal Accidents Act. More particularly that requires consideration of:
1.The nature of the respondent's application to the Principal Registrar in substance as well as form and the effect of the Principal Registrar's order.
2.Whether if the Principal Registrar's grant of leave to join the appellant as a defendant did not effectively grant leave for all purposes including for the purpose of s 7(2)(c) of the Fatal Accidents Act, the appellant is or can be estopped in the circumstances here from relying upon the 12 month limitation of s 7(1) of the Fatal Accidents Act.
3.If the Principal Registrar's order was effective as a grant of leave pursuant to s 7(2)(c) of the Fatal Accidents Act when time ceased to run for the purposes of that sub-section. To put it another way, where a respondent brings an application for leave pursuant to s 7(2)(c) what must be done prior to the expiration of six years from the date of the relevant death, to preserve the cause of action pursuant to the Fatal Accidents Act?

Nature of the respondent's application

The respondent's chamber summons failed to identify the nature of the application or the grounds upon which it was being made. It should go without saying that a competent solicitor would attend to those matters if only to save time and avoid inconvenience to other parties and to the Court. Had the respondent's solicitors taken the time to simply refer to the specific purposes for which leave needed to be sought, if indeed they were then conscious of those purposes, then a substantial part of the dispute reflected by this application would have fallen away.

The summons does not refer in its terms to O 18 r 6. That is the procedural mechanism by which a party may be joined as a defendant to an existing action when their "presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon…" In this action the only substantial claim made was one made pursuant to the Fatal Accidents Act. On the respondent's case as pleaded in the amended statement of claim the appellant's "presence before the Court" would be necessary.
Order 18 r 6 does not require an application for "leave". It requires that a party apply for an order for joinder unless the Court is acting of its own motion. The reference to "leave" in the respondent's chambers summons is unnecessary but given the content of Mr Prast's affidavit it would appear to be no more than a draftsman's flourish.
When the respondent sought to join the appellant, the appellant had the benefit of the accrued 12 month limitation under s 7(1) of the Act. The fact that a party is successful in obtaining an order for joinder does not, in of itself deprive the party joined of an accrued limitation defence: Fernance v Nominal Defendant (1989) 17 NSWLR 710. In that sense joinder under O 18 r 6 is no different in effect from the commencement of a fresh action. It was necessary therefore for the respondent to do something more than merely join the appellant. It was necessary for the respondent to comply with the provisions of s 7(2) of the Act.
If the respondent's solicitors were in fact conscious of those requirements, no appreciation of the need to address s 7(2) is apparent from any of the correspondence or the chamber summons that was filed. The issue of leave pursuant to s 7(2) was simply not addressed. It follows in my view that unless the appellant is some how barred from invoking the limitation its application to dismiss the action must succeed.

Order 18 rule 6

The respondent did not seek to commence a fresh action against the appellant but sought to join the appellant in the existing action. Order 18 r 6 provides:
"6(2)At any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –
…
(b)order that any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party …"
Order 18 r 8 provides:
"8(1)Where an order is made under Rule 6, the writ by which the action in question was begun must be amended accordingly and must be indorsed with –
(a)a reference to the order in pursuance of which the amendment is made; and
(b)the date on which the amendment is made,
and the amendment must be made within such period as may be specified in the order or, if no period is specified, within 14 days after the making of the order.
8(2)Where by an order under Rule 6 a person is to be made a defendant, the rules as to service of a writ of summons shall apply accordingly to service of the amended writ on him, but before serving the writ on him the person on whose application the order was made must procure the order to be noted in the Cause Book.
…
8(4)Where by an order under Rule 6 or 7 a person is to be added as a party or is to be made a party in substitution for some other party, that person shall not become a party until –
(a)where the order is made under Rule 6, the writ has been amended in relation to him under this Rule and (if he is a defendant) has been served on him;
... "
There is a further obstacle facing the respondent created by O 18 r 8(4).

When does time cease to run for limitation purposes when a defendant is joined pursuant to O 18 r 6?

The relevant provisions of s 7(2) of the Fatal Accidents Act were considered by the Full Court of the Supreme Court of Western Australia in Stevens v Motor Vehicle Insurance Trust [1978] WAR 232. The Full Court in Stevens (supra) held (at p 234) that the limitation provisions of s 7(2) are not merely procedural in character:
"…they do and have been held to condition the cause of action which is created by the statute so that unless the action is commenced within the prescribed period there is no cause of action at all."
The appellant's submission is that the joinder of the appellant pursuant to O 18 r 6 does not take effect until the service of the amended originating process upon that defendant. They rely as authority for that proposition upon dicta of McLure J in Brandsma & Crockett Pty Ltd & Anor v Heindal Pty Ltd & Ors [2002] WASCA 96 at [26]:
"Order 18 r 6 gives the court the power to order … that any person who ought to have been joined as a party be added as a party. The joinder of a party under this order takes effect from the date of service of the originating process upon the newly added party: Morgan v Banning (1999) 20 WAR 474 at 481‑482; Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 236 per Dawson J; Anthony Leslie John Woodings (as a receiver and manager of Elcos Australia Pty Ltd (in liq)) v Jay A Stevenson and Phillip G Jefferson (as liquidators of Elcos Australia Pty Ltd (in liq)) [2001] WASC 174 at par 25; Ketteman v Hansel Properties Ltd [1987] AC 189 at 198, 201, 209, 210 and 213."
Of course when a fresh action is commenced against a defendant time ceases to run for limitation purposes when the writ is issued notwithstanding that the writ may not be served immediately. At least that would be the case if the action was brought within time or leave had been obtained in respect of a cause of action under the Fatal Accidents Act. There is an instinctual resistance to the idea that the position should be different where a fresh action is not commenced but instead a defendant is added as a necessary party in accordance with O 18 r 6.
Resistance to the idea that there should be a difference between those two positions, both instinctual and reasoned, may be found in the decision of the Court of Appeal in Seabridge & Ors v H. Cox & Sons (Plant Hire) Ltd & Anors [1968] 2 QB 46, and in particular in the reasons of Lord Denning M.R. at pp 51 – 52.
The Court of Appeal was there considering the effect of O 15 r 8(2) and r 8(4) of the English Rules which are relevantly the same as our O 18 r 8(2) and r 8(4). Lord Denning M.R. compared the procedure of joinder with the commencement of a fresh action. He said:
"It seems to me that when the amendment is made in the prescribed manner, namely, by the amendment being taken to the Central Office and filed and the amended writ stamped, then at that moment the amended writ takes effect as against the added defendant. That procedure is equivalent to the issue of a writ against an original defendant. Once the amendment is made, the rules as to service apply as against the added defendant, just as they do to an original defendant on the issue of a writ … The result is that the plaintiff has to serve the added defendant within 12 months from the date when the amendment is made."
However, in Ketteman v Hansel Properties Ltd [1987] AC 189, in reasons which were unanimous on that point, the House of Lords overruled Seabridge (supra) and held that the plain words of RSC O 15 r 8(4) (our O 18 r 8(4)) meant that notwithstanding that an order has been made that a party be joined and the writ amended accordingly, it is only when the amended writ is actually served upon that party that they are effectively joined and time ceases to run for limitation purposes. While this aspect of the decision in Ketteman (supra) is obiter dicta as the appellant concedes, it is quite obviously in the category of reasoned and considered dicta to which considerable weight would ordinarily be given: Slack v Leeds Industrial Co‑operative Society Ltd [1923] 1 Ch 431 at 451 per Lord Sterndale MR.
While it does not appear to me that to date there has been any West Australian authority where the result turned on the resolution of the meaning of O 18 r 6 and r 8(2) and r 8(4), the dictum of the House of Lords in Ketteman has been embraced in obiter dicta in Brandsma v Crockett (supra) and subsequently Bainbridge v Lawton [2002] WASC 293. In those circumstances, and absent any argument that persuades me that the House of Lords was plainly in error in overturning Seabridge, I rely on the authority of Ketteman as set out in Brandsma v Crockett and Bainbridge (supra). It follows that in my view, time would only cease to run for limitation purposes when the appellant was effectively served. That of course assumes that the time for commencement of an action had not already expired. The effect of s 7(1) of the Fatal Accidents Act meant that here it had, unless leave to extend the time was obtained pursuant to s 7(2).

When was the appellant served?

Following the orders made by the Principal Registrar, on 17 September 2008, the respondent's solicitors sent to the appellant's solicitors a letter by facsimile transmission enclosing copies of the orders made by the court that day and the writ. The appellant's solicitors were asked to advise the respondent's solicitors whether they would accept service on behalf of the appellant. By facsimile on the following day the appellant's solicitors advised the respondent's solicitors:
"… that we are instructed to accept service of the writ of summons on behalf of Museo Pty Ltd.
Please also provide us with a copy of your client's list of discoverable documents together with your pre-trial conference submissions.
Yours faithfully
…"
No appearance had been filed at this date, much less an appearance that stated a fax number that could be used to serve documents: RSC O 71A r 3, DCR r 21A. Nor did the appearance that was ultimately filed on 23 September 2008 provide a fax number to be used to serve documents.
Despite this, following receipt of the appellant's solicitor's fax of 18 September 2008, on 19 September 2008 the respondent's solicitors again faxed a copy of the order of the Registrar made 17 September 2008 and the amended writ of summons "by way of service". Originals of the writ and orders were sent by post and received by the appellant's solicitors on 22 September 2008. Following receipt of those documents on 24 September 2008 an appearance was filed on behalf of the appellant.
The appellant says that service of the amended writ was not effected until 22 September 2008. In his affidavit of 23 April 2009 with respect to the question of service Mr Prast says:
"By facsimile dated 18 September 2008, a copy of which … the solicitors acting for Museo Pty Limited accepted service of the proceedings that had been served on 17 September 2008 …"
With respect, that gloss on the correspondence is not borne out by Mr Prast's own conduct subsequent to the appellant's solicitors fax of 18 September 2008. If in fact he had been under that impression on 18 September 2008 then the delivery of a further amended writ and order by facsimile on 19 September and by mail on 22 September under a cover letter "by way of service" makes no sense.
In the respondent's written submissions of 23 April 2009 the argument is advanced that service was effected on 17 or 18 September 2008 "as a matter of construction" from the terms of the facsimile of 18 September 2008. Alternatively the submission is that it is "at least reasonably arguable" that the correspondence bears that meaning. In argument before me counsel for the respondent first disavowed and then subsequently embraced the notion that there had been waiver on the part of the appellant by its solicitor with respect of the need for service in accordance with the rules of court. Beyond asserting the availability of waiver however the argument was not developed.
What was urged upon me was that if the position advanced was at least "reasonably arguable" then that was a matter which should not be dealt with by way of a summary application but rather should be left for trial.
Waiver has been described as "a word applied in a variety of senses 'one of a number of 'solving words' which are 'but substitutes for thought', one of a number of 'pseudo-conceptions', and a word 'of indefinite connotation' which 'like a cloak…covers a multitude of sin'.": Agricultural and Rural Finance Limited v Gardiner [2008] HCA 57 per Gummow, Hayne and Kiefel JJ at [50].
It is difficult, particularly in the absence of any submission directed to the point, to see how the appellant's solicitors facsimile of 18 September could amount to a waiver, in any of the variety of senses in which that term has been used, of the right to require compliance with the Rules of Court, except to the extent that service would be accepted at the offices of the appellants solicitors. There is no apparent election between competing rights. There is nothing that would appear to amount to some form of estoppel. That the respondent's solicitors did not understand the 18 September facsimile as relieving them from the responsibility of service, at least in accordance with the order made by the Principal Registrar, is demonstrated by their subsequent conduct in arranging for service both by facsimile and of hard copies of the documents at the offices of the appellant's solicitors as well as the accompanying correspondence that identified the provision of those documents as being "by way of service".
Nor in my view did the 18 September facsimile evidence the kind of waiver that sometimes occurs in litigation where "a party to litigation will be held to a position previously taken (that position having been intentionally taken with knowledge) if, as a result of that earlier position, the relationship of the parties has changed": Commonwealth v Verwayen (1990) 170 CLR 394 per Gaudron J at 484.
On its proper construction the appellant's solicitors facsimile of 18 September 2008 does not amount to an acknowledgment of past service or nor would it suggest to a reasonable person in the position of the respondent's solicitors (and in any event as demonstrated by their subsequent conduct) that the appellant would not insist upon service in accordance with the provisions of the Corporations Law albeit it at the offices of its solicitors.
The Principal Registrar of course allowed until 24 September for service. That I suspect was done without consideration of what the law might require given that it appears that the respondent's solicitors had not put their minds to it. It was not within the power of the Principal Registrar to extend the time for the bringing of an action against the appellant beyond that permitted by the Fatal Accidents Act by extending the time for service.
It follows that service was not effected until 22 September 2009 subsequent to the expiry of the relevant limitation period.

Estoppel

The argument advanced by the respondent is that "… the second appellant (through its solicitors) caused the respondent's solicitors to believe that no limitation point was to be taken". It is urged upon me that this is a reasonably arguable proposition on the facts and circumstances here. I am conscious that limitation issues should not be resolved on interlocutory applications except in the clearest of cases.
Taking what might be described as the high water mark of the law in that respect, the law will not permit an unconscionable, or more accurately unconscientious departure, by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to. For the conduct to be characterised as unconscionable the party concerned must have played such a part in the adoption of, or persistence in the assumption, that that party would be guilty of unjust and oppressive conduct if it were now to depart from it. Cases where departure would be unconscionable include where that party has induced the assumption by express or implied representations, has entered into contractual or other material relations with the other party on the conventional basis of the assumption or knew that the other party laboured under the assumption and refrained from correcting him when it was duty and conscience to do so: Commonwealth v Verwayen (supra) at 444 per Deane J.
On the facts here there were no statements made by the appellant similar to those made by the Commonwealth and described in Commonwealth v Verwayen. There was no "unequivocal renunciation" by the appellant of any defence, in particular the limitation defence, that would otherwise be available. The best that can be said with respect to the respondent's argument is that when the respondent foreshadowed making an application to join the appellant, the appellant's solicitors advised that while the appellant would not consent to be joined it would not oppose any application to be joined.
The evidence does not support any representation, by conduct or otherwise, whereby the appellant's solicitors could be seen to lead the respondent's solicitors to believe that the appellant's solicitors were expressing any view about the appropriateness or otherwise of the procedural steps being taken on behalf of the respondent or what position the appellant would be taking with respect to matters of limitation. Whatever was in the heads of the party's respective solicitors with respect to the requirements of the Act and the procedural steps necessary to deal with the limitation in s 7(1) of the Act, those were matters which, on the evidence before me, the lawyers kept to themselves. At its highest it may be that, conscious of the necessity for a grant of leave to bring the Fatal Accidents Act claim out of time and the fact that the respondent's solicitors were apparently blundering in that regard, the appellant's solicitors stood by and said nothing. It was not argued that in such circumstances "duty and conscience" would have required them to do otherwise. So long as they did not induce the error in my view it is a position they were entitled to take on behalf of their client.
If the respondent's solicitors in fact turned their minds to the issue of the necessity of leave under the Act and consciously decided that it was unnecessary for them both to give notice and make the application they did not do so, on the evidence before me, as a result of anything that the appellant's solicitors said or did.
In particular there was nothing in the conduct of the appellant's solicitors that would have lead the respondent's solicitors to conclude that they were freed from the requirements of service within the time permitted by the law.
It is obvious that no consent was given by the appellant pursuant to s 7(2)(b). There was no notice in writing in terms that began to meet the requirements of s 7(2)(e). While it may be open to a party to waive the notice requirement, on the evidence before me the appellant was never asked to do so and could not be taken to have represented that it was prepared to do so.
There is no reason for me to not take Mr Prast at his word when he deposes that he did not in fact ensure that the necessary application was made in time. Mr Prast understood that an application to join was not necessary "because Museo Pty Limited had advised that it did not oppose being joined to the proceedings." That understanding was incorrect but it was not an understanding induced by the conduct of the appellant's solicitors.
For the reasons set out above the appeal is allowed. I will hear from the parties with respect to costs.