Kennedy v Loddon Shire Council and Ors (Ruling)
[2017] VCC 871
•29 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-13-05107
| Julie Kennedy | Plaintiff |
| v | |
| Loddon Shire Council & Ors | Defendant |
---
JUDGE: | His Honour Judge Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2017 | |
DATE OF RULING: | 29 June 2017 | |
CASE MAY BE CITED AS: | Kennedy v Loddon Shire Council & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 871 | |
REASONS FOR RULING
---
Subject:Application to reinstate proceedings and extend validity of Writ for service nunc pro tunc
Legislation Cited: County Court Civil Procedure Rules 2008; Limitations of Actions Act 1958; Wrongs Act 1958
Cases Cited:Brisbane South Regional Health Authority v Taylor; Howard v Power
Ruling: Proceeding reinstated, validity of Writ for service extended
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | N/A | In Person |
| For the Second and Third Defendants | N/A | Turks Legal |
HIS HONOUR:
1 This proceeding was initiated by way of a Generally Indorsed Writ, issued by the plaintiff’s then solicitors Slater & Gordon, on 3 October 2013.
2 In the proceeding, the plaintiff alleges that on 5 October 2010 she suffered injury to her right leg after an incident outside a premises owned by the Second and Third Defendants and claims damages in respect of that injury.
3 On 3 April 2014 by order of His Honour Judge Misso, the period of validity of the Generally Indorsed Writ for service was extended until 3 April 2015.
4 On 6 May 2015 by order of His Honour Judge O’Neill, the period of validity of the Generally Indorsed Writ for service was extended until 6 July 2015.
5 A Notice of Dismissal was sent to the parties on 6 October 2015 pursuant to Rule 34A 15(1) of the County Court Civil Procedure Rules 2008.
6 The plaintiff wrote to the Court Registry, personally, on 11 November 2015, seeking to have the matter reinstated and indicating it was unlikely Slater & Gordon would continue to act on her behalf for the remainder of these proceedings.
7 This proceeding was listed for a Directions Hearing on 27 November 2015 for the benefit of the plaintiff, who was directed to attend personally. Slater & Gordon were not required to make an appearance at the Directions Hearing on 27 November 2015. Due to an inability to notify the plaintiff of the Directions Hearing on 27 November 2015 a further Directions Hearing was listed on 11 December 2015.
8 The plaintiff failed to appear at the Directions Hearing on 11 December 2015 and orders were made inter alia that by 15 January 2016 the plaintiff must make a written request to have this proceeding reinstated, such request to set out the reasons for her failure to appear at the 11 December 2015 Directions Hearing.
9 On 1 March 2016 Slater & Gordon filed a Notice of Solicitor Ceasing to Act.
10 On 26 October 2016 the plaintiff filed an affidavit stating she had not been notified of the Directions Hearing listed on 11 December 2015 due to being interstate from 7 December 2015 returning home on 1 January 2016.
11 A further Ex Parte Directions Hearing was listed on 18 November 2016 in the course of which the plaintiff:
a) confirmed none of the three named defendants had been served with the Generally Indorsed Writ; and
b) indicated to the Court she did not wish to proceed against the First Defendant, Loddon Shire City Council, but intended to proceed against the Second and Third Defendants, should her application to reinstate the proceeding be granted.
12 At the 18 November 2016 Directions Hearing, the following orders were made:
i.The plaintiff's application to extend the validity of the Writ nunc pro tunc is reserved.
ii.This proceeding remains dismissed until further order.
iii.Service of any document or letter in this proceeding may be effected upon the plaintiff by sending the same by ordinary pre-paid post to the plaintiff's address at 24 Ridge Street Wedderburn VIC 3518.
iv.The Court will notify the defendants of the current application and upon any application by the defendants to be heard the matter will be listed for further Directions Hearing.
v.Should the defendants not seek to be heard on the plaintiff's application to extend the period for service of the writ, orders will be made on the papers without requiring the parties to attend.
13 On 31 January 2017 submissions in opposition of the plaintiff’s application for reinstatement were filed on behalf of the Second and Third Defendants.
14 By order dated 15 February 2017 the plaintiff was granted leave to file and serve responsive submissions to the submissions filed on behalf of the Second and Third Defendants. Any such submissions were to be filed and served by no later than 1 March 2017.
15 A Directions Hearing was listed on 11 April 2017 at which the plaintiff and representatives for the Second and Third Defendants appeared.
16 At the Directions Hearing on 11 April 2017:
a) The plaintiff gave sworn evidence that at the time she suffered her injury she was employed as a console operator and that she intended, in this proceeding, to seek damages for loss of income associated with her inability to continue in that employment;
b) Orders were made granting liberty to the Second and Third Defendants to submit responsive material to the evidence given by the plaintiff and to make application to cross-examine the plaintiff with respect to the evidence given or make any other application;
c) The plaintiff was granted leave to file any further written material upon which she sought to rely upon in this application.
17 Neither party has taken up the liberty of the subject of paragraphs 16 b) and c) above.
18 The plaintiff now makes application to reinstate proceeding and extend the date upon which her writ may be served.
19 In exercising the discretion vested in me in this instance I am satisfied that the principles which I should apply are largely those which apply in determining whether or not leave should be granted to effect service of the stale proceeding.
20 Those principles were, in turn, helpfully summarised by Derham ASJ in Howard v Power,[1] namely:
[1][2013] VSC 198.
“10. The principles applicable are well settled. They derive in part from earlier Rules (Order 8 Rule 1), which provided that the court might order that a writ be renewed if satisfied that reasonable efforts had been made to serve the defendant, or for ‘other good reason’. Despite the change in language, however, the authorities make it clear that the court should determine the question of extending the validity of the Writ on the same basis as previously. Amongst the differences between the old and new Rules is a change of terminology, from renewal of the writ to extension of its validity. The principles applicable are, in summary, as follows:
(a)Although the power conferred by Rule 5.12 is wholly discretionary, a judge has to approach the exercise of the discretion in accordance with established principles: Dagnell v Freedman & Co [1993] 2 All ER 161 at 165 (‘Dagnell’);
(b)The jurisdiction given by the rule ought to be exercised with caution: Battersby v Anglo-American Oil Co Ltd (‘Battersby’); Ramsay v Madgwicks (‘Madgwicks’);
(c)It is the duty of a plaintiff to serve a writ promptly: Battersby at 32;
(d)An application to extend time for service is not granted as a matter of course: Battersby at 32; Madgwicks; Savcor Pty Ltd v Cathodic Protection International APS (‘Savcor’);
(e)The first question to consider is whether the plaintiff has taken reasonable steps to serve the writ. If not, it then becomes necessary to consider whether there was ‘some other good reason’ for making the order to extend time for service of the writ: Soper v Matsukawa (‘Soper’); Battersby;
(f)The plaintiff carries the onus of showing that there is a good reason for extending the time to serve the writ (Soper at 952; Madgwicks at 6; Savcor at [41]); the applicant’s burden is no greater if the limitation period has expired between the date of issue of the writ and the date on which the application is made: Findlay at 187.
(g)Whether there is good reason depends on all the circumstances of the case: Dagnell at 165; Kleinwort Benson Ltd v Barbrak Ltd & Ors [1987] AC 597 at 622-3 (‘Kleinwort’); and it is not possible to define or circumscribe the scope of the expression ‘good reason’: Kleinwort;
(h)Where the application is made after the period for service has expired, the reason must be one of substance (Savcor at [41]);
(i)The selection of relevant factors to establish that there is a good reason for making the order, and the significance to be given to each of the factors, are matters of discretion (Soper at 954);
(j)The fact that the plaintiff decides not to serve the writ whilst some other case is tried, or to await some future development, is generally not a good reason to justify extending time for service. Madgwicks at 4 and 5; Savcor at [42]); Dagnell at 165-168. It is for the Court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been commenced against them if they are there to be served: Battersby at 32;
(k)It is a relevant factor against the exercise of the discretion that the renewal of the writ might deprive the defendant of a limitation defence where the plaintiff has been aware that the passage of time might be dangerous: Battersby at 31–2; Madgwicks at 7; Soper at 953; see also Finlay v Littler [1992] 2 VR 181 at 187 (‘Finlay’).
(l)It is a relevant factor against the exercise of the discretion that the defendant was unaware of and had no reason to expect that a writ had been issued against them: Madgwicks at 7; Kleinwort at 623–4).
(m)The lapse of time is itself generally to be regarded as prejudicial to the defendant (Madgwicks at 7; Finlay at 188). In this contest, the relevant delay is to be measured from the time at which the plaintiff’s cause of action arose (Tyson v Morgan [200] 1 Qd R 100 at 104.50);
(n)Any delay in making the application to extend the time for service of the writ is a relevant factor against the exercise of the discretion (Finlay at 187); delay preceding (as well as following) the issue of the writ is material (Soper at 953);
(o)The expiration of the limitation period will not in itself constitute a good reason for extending the validity of the writ (Finlay at 187), although it is relevant (Soper at 952); and
(p)It may be appropriate to have regard to the balance of hardship: Kleinwort at 622; Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 at 343 and 346 (‘Van Leer’) (adopting the approach of Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496 at 502 (‘Victa’)).”
21 In exercising my discretion in this instance I do so taking into account the following matters which are not at issue:
(i) the defendants were given notice of the potential claim to be made by the plaintiff against them on 7 October 2013;
(ii) on 13 March 2014 the defendants public liability insurers were provided with details of the alleged incident by the plaintiff’s previous solicitors;
(iii) on 1 April 2015 the defendants referred the plaintiff for assessment by medical panel to determine the degree of impairment with which she presented by reason of the injuries suffered by her in the incident the subject of her claim;
(iv) on 15 September 2015 the medical panel provided the parties with its certificate and the reasons for its decision that the plaintiff did not present with an injury which satisfied the serious injury threshold pursuant to the provisions of the Wrongs Act;
(v) the plaintiff was represented by solicitors until 1 March 2016;
(vi) the defendants assert that by reason of the fact that they are no longer registered owners of the premises they are prejudiced by reason of:
· their lack of access to the property given the absence of any relationship between the defendant and the property as at the current date;
· difficulties which they may encounter in locating and speaking to witnesses.
(v) the defendants further assert that they are prejudiced by reason of the effluxion of time.
Analysis findings and conclusion
22 As to the potential prejudice to which the defendants are now exposed I am satisfied that by reason of:
· the fact that the defendants had been given notice with respect to the plaintiff’s injuries in 2013;
· the plaintiff’s general endorsement which was made available to the defendants at that time the defendants were first put on notice as to the plaintiff’s claim provides considerable detail as to the basis of the plaintiff’s claim;
· the contact between the defendants insurer and the plaintiff’s previous solicitors which occurred throughout 2014 in early 2015 which provided the defendants with access to a considerable amount of evidence as to the circumstances in which the plaintiff suffered her alleged injuries and enabled the defendants to investigate the basis and merit of the plaintiff’s claim;
· the issue raised by the solicitors for the plaintiff on 7 April 2015 in which information was sought from the lawyers of the defendants as to the allegations made by the first defendant that the incident was located on private property and that the drainage pipe involved in the plaintiffs injury was not constructed or owned by the first defendant, which had not been the subject of any response by the lawyers for the second defendants as at 27 April 2015, [2]
that the weight allocated to any prejudice which may arise in this case the should be allocated on the basis of the weight appropriately accorded to General Prejudice arising by reason of the effluxion of time.
[2]See the affidavit of Sarah Baker sworn 28 April 2015.
23 That having been said however, it is clear from the decision of the High Court in Brisbane South Regional Health Authority v Taylor, [3] that general prejudice may give rise to significant levels of unfairness given that with effluxion of time is difficult to identify and quantify the evidence which has been lost.
[3]186 CLR 541.
24 It is clear that should an order be made extending the time at which the writ can be served in this instance, the defendants access to a potential defence under the provisions of the Limitations of Actions Act is circumvented, it is clear however that this is merely one factor which I should take into account and is in no way definitive.
25 I am satisfied that the reason for the plaintiff’s application at this time stems largely from the failure by her solicitors to serve her writ in combination with the referral by the defendants of the plaintiff for assessment by the Medical Panel.
26 Equally, having regard to the notification of the claim given by the plaintiff’s previous solicitors to the defendants and its referral of the plaintiff to the Medical Panel, I am satisfied that it was not unreasonable for the plaintiff’s solicitors to have withheld the service of the writ until the plaintiff’s position as to the damages was clarified, given the defendant’s selection to challenge that position by reason of its referral to the Medical Panel.
27 I am further satisfied that that delay was contributed to by the passage of information between the plaintiff’s solicitors and the defendants’ insurers or their legal representatives for the purpose of clarifying the issues in the case which arose as to liability.
28 Whilst the plaintiff is shut out from maintaining a claim for damages with respect to the pain and suffering consequences to her of her injury she has given sworn evidence as to the nature of the economic loss which she intends to pursue, which is not insignificant.
29 In the context of the history to which I have referred above, when considered in the light of the plaintiff’s position as a self- represented litigant, I am not satisfied that I should allocate any significant weight to the delay on the plaintiffs part in making the current application.
30 Taking into account all the matters referred to above, I am satisfied that, whilst this case is delicately poised upon the borderline of instances in which a judicial exercise should be granted to allow the plaintiffs claim to proceed, such an order should be made.
---
0
2
0