Lamp v Americold Australia Pty Ltd - [2018] WADC 52

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   LAMP -v- AMERICOLD AUSTRALIA PTY LTD [2018] WADC 52
CORAM:   JUDGE DAVIS
HEARD:   16 & 20 APRIL 2018
DELIVERED          :   1 MAY 2018
FILE NO/S:   CIV 4265 of 2016
BETWEEN:   PAUL MICHAEL LAMP
Plaintiff

AND

AMERICOLD AUSTRALIA PTY LTD
First Defendant

AMERICOLD LOGISTICS LTD
Second Defendant

Catchwords:

Practice and procedure - Appeal from registrar's decision to dismiss application to remove plaintiff's case from the Inactive Cases List - Application to extend the validity of the writ - Exercise of discretion

Legislation:

District Court Rules 2005, r 44F
Supreme Court Rules 1971, O 7 r 1

Result:

Appeal allowed
Validity of writ extended
Case removed from Inactive Cases List

Representation:

Counsel:

Plaintiff	:	Mr MP Hawkins
First Defendant	:	No Appearance
Second Defendant	:	No Appearance

Solicitors:

Plaintiff	:	Chapmans Barristers & Solicitors
First Defendant	:	No Appearance
Second Defendant	:	No Appearance

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

Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Brown v Coccaro (1993) 10 WAR 391
Chalmers & Partners v Kensit [2008] WASCA 122
EMS Holdings Pty Ltd v International Shipyards Pty Ltd (Unreported; WASC; Library No 980655; 12 November 1998)
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Hi-Tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342
Lashanksy v Legal Practice Board [No 2] [2010] WASC 159
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
ODG Properties (WA) Pty Ltd v Middler Nominees Pty Ltd [1990] WAR 235
Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185
Vanguard Press Pty Ltd v Baxter (1995) 14 SR (WA) 190

JUDGE DAVIS:

This appeal has been brought, ex parte, from a decision of Deputy Registrar Hewitt made on 18 January 2018 to refuse the plaintiff's application pursuant to r 44F of the District Court Rules 2005 (DCR) to have this case taken off the court's Inactive Cases List.
The writ was issued on 18 November 2016. It was not served, so nothing was done in the action.
By notice dated 20 November 2017 the court advised the plaintiff's solicitors that the matter was now in the Inactive Cases List. Very soon after this, on 12 December 2017, the plaintiff's solicitors filed the application for an order that the case be taken off the Inactive Cases List.
When the deputy registrar refused the plaintiff's application, no written reasons for the decision were given, although the plaintiff's solicitors have advised that the deputy registrar made it clear he was not convinced that the matter would be conducted in a timely way, as the time for service of the writ had passed.
The appeal was filed on 24 January 2018 and as part of the appeal the plaintiff has also made an application for leave to extend the validity of the writ filed in this action.
The matter has been heard ex parte because the writ has not yet been served on the defendants. The court has no jurisdiction over the defendants until they have been served: Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79 [23].
For the following reasons, I allow the appeal, extend the validity of the writ and remove this case from the Inactive Cases List. It is necessary that I provide written reasons for my decision, particularly because the orders I will make are ex parte and are therefore amenable to review pursuant to O 58 r 23 of the Rules of the Supreme Court 1971 (RSC).

The nature and hearing of the appeal

Pursuant to DCR r 15(6) an appeal from a registrar is a new hearing. The matter is to be decided afresh or de novo, and it is not necessary for the plaintiff to demonstrate any error of law or principle in the decision of the deputy registrar. Further because it is a hearing de novo, the court may exercise its discretion to admit additional evidence: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 – 29.
In the original application before the deputy registrar, the plaintiff filed an affidavit sworn 9 January 2018.
In further support of the appeal I have received two affidavits. The first is sworn by a legal practitioner employed by the plaintiff's solicitors, Morgan Peter Hawkins, sworn 15 March 2018, which among other things annexes a draft statement of claim, list of documents and particulars of damages. The second is a further affidavit by the plaintiff sworn 18 April 2018.

The relevant facts

Based on the information in the affidavits, the background to the action and this appeal can be briefly summarised follows.
The plaintiff, who is a truck driver, injured his shoulder in a work related accident on 21 November 2013. At the time he was employed by SITA Australia (SITA), but the accident occurred at premises described by the plaintiff in his affidavits as the Americold Refrigerated Distribution Centre, and described in the proposed statement of claim as the Spearwood Refrigerated Distribution Centre. According to the draft statement of claim prepared by the plaintiff's solicitors, one or both of the defendants controlled the distribution centre and were occupiers of the premises.
The plaintiff was at the distribution centre with a workmate to collect rubbish. This involved empting a three cubic metre steel rubbish bin at the distribution centre. While the truck the plaintiff was driving was fitted with a hydraulic lifting device, that could not be used because the bin was located hard up against the loading dock wall and needed to be manually turned in order to present the bin to the hydraulic lifting device on the truck. The plaintiff injured his shoulder when attempting to turn the bin.
According to the evidence from the plaintiff in his first affidavit, his employer SITA had previously raised the difficulties its drivers were experiencing when positioning the heavy rubbish bin for emptying with 'Americold' (the plaintiff does not state which of the defendants this relates or refers to). The plaintiff has deposed to the fact that after his injury, new processes were introduced by Americold for SITA's bin collection.
The draft statement of claim sets out particulars of residual disabilities the plaintiff has suffered as a result of his shoulder injury. These are occasional mild discomfort and reduced range of motion in his shoulder, decreased strength in his arm, reduced endurance, residual shoulder stiffness, difficulty sleeping, depression, stress and anxiety. The draft particulars of damages sets out a claim for loss of earning capacity, both past and future, based on the fact that the plaintiff is unable to return to his pre-accident employment as a truck driver and is currently employed as a courier, earning a lesser weekly wage. There are claims for loss of superannuation (both past and future), special damages, past gratuitous services, interest on past losses, future medical expenses and gratuitous services.
The plaintiff received workers' compensation payments from SITA. He instructed his solicitors to issue the writ against the defendants to protect his position, given that the three year limitation period was about to expire, and he was unsure whether to proceed against the defendants. This was because as he had already received workers' compensation payments from SITA's insurer, that insurer would have a right to recover the money he would receive if he was successful in his District Court proceedings against the defendants and obtained a judgment for damages. He also understood his exposure to the defendants' costs if he was unsuccessful.
As the plaintiff explained it in his second affidavit, before progressing this action he had to consider the extent of his financial losses as a result of his injuries to consider whether his financial loss was significant to justify progressing this action against the defendants.
After the issue of the writ, according to the plaintiff's first affidavit, between November 2016 to August 2017 he was in discussion with his lawyers and considering whether it was feasible to go ahead with the case. Further details of what the plaintiff did are set out in his second affidavit:
(a)in March 2017, he reviewed his past loss of wages, future loss of wages, medical expenses, current care and gratuitous services and future medical treatment and gratuitous services;
(b)from March to August 2017 he was progressing his workers' compensation matter against his employer so he could consider what expenses had been paid and determine whether it was worth pursuing the defendants;
(c)in August 2017, his lawyer sent a document setting out the particulars of his financial losses, and discussed those losses with him; and
(d)after those discussions, the plaintiff understood that his lawyers would re-draft this document and would contact him once they had finished drafting it to assist him with considering the merits of pursuing the defendants.
The next contact the plaintiff had from his lawyers, however, was not until November 2017 when he received a letter from them asking if he wanted to progress his action against the defendants. As the plaintiff stated:
I now understand that they thought they were awaiting instructions from me as to whether to proceed with the action.
The plaintiff did provide instructions on 29 November 2017 to his solicitors to proceed with the action, but by that stage the case had been placed on the Inactive Cases List.

The application to extend the validity of a writ

In the circumstances I consider it is necessary to first consider whether the validity of the writ should be extended, because if there is no extension to the validity of the writ, it cannot be served, the action cannot proceed, and the other aspect of this appeal falls away.
RSC O 7 r 1(2) provides that:
Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the court before that date or such later date (if any) as the Court may allow.
While no application for an extension of the validity of the writ was before the deputy registrar, that application has now been made on the de novo hearing of this appeal. An application to extend the validity of the writ for service under RSC O 7 r 1 can be made even after the 12‑month period to effect service has expired by virtue of RSC O 3 r 5, which gives the court the power to extend time generally: Brown v Coccaro (1993) 10 WAR 391.
In Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 [45] Ipp J (with whom Malcolm CJ generally agreed) explained the policy behind RSC O 7 r 1 in relation to the validity of unserved writs as follows:
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 finite periods for which the validity of unserved writs may be extended, and the finite periods during which applications may be made for such extensions. The reasons for the policy are obvious. It is undesirable to allow a plaintiff to issue a writ before the expiry of a limitation period and then to delay service for an indefinite period. Lengthy delays cause difficulties in the ascertainment 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. As Young CJ (with whom Kaye and Southwell JJ agreed) said in Ramsay v Madgwicks [1989] VR 1 at 5, 'it is not right that people should be left in ignorance of proceedings that have been taken against them if they are here to be served'. Finally, the proper administration of the court would be hampered if writs could be issued and then left to lie dormant for infinite periods.
It has been said that the power conferred by O 7 r 1 is a wide and unfettered discretion to be applied to ensure that justice is done in all the circumstances: Brealey v Board of Management Royal Perth Hospital [52]; Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561, 575.
There are, however, a number of factors which need to be considered when determining whether or not to exercise the discretion to extend the validity of a writ. The factors include the provisions of any limitation statute which applies to the plaintiff's cause of action and the relative hardships which a grant or refusal of renewal of the writ would impose upon the parties: Brealey [52]. Other factors were discussed in Chalmers & Partners v Kensit [2008] WASCA 122 [32] and [33] (Buss JA with Murray AJA agreeing) and summarised in Civil Procedure Western Australia at [7.1.8].
Relevantly to the circumstances of this case, the factors which I must consider are as follows:
(a)Has the statutory limitation period applicable to the plaintiff's cause of action expired as at the date when the writ became stale?
(b)Has the plaintiff given notice to the defendants regarding the particulars of the claim?
(c)Did the plaintiff apply promptly for an extension of the validity of the writ?
(d)Did the plaintiff in deciding not to serve the writ, choose to live by technicalities and should the plaintiff thus be taken to have accepted the risk of dying by them if the time limit imposed by O 7 r 1(2) has not been observed?
(e)Did the plaintiff make productive use of the 12‑month period to investigate whether he had a reasonable cause of action against the defendants?
(f)What is the prejudice to be suffered by the plaintiff if the validity of the writ were not to be extended, and is that prejudice self‑inflicted?
(g)Would the defendants suffer any prejudice if the validity of the writ is extended? The prejudice to the defendants may be general, in the sense of the inevitable effect of a long delay on the memory of witnesses, or specific such as a loss of access to witnesses or records: see Brealey v Board of Management Royal Perth Hospital [64] ‑ [67].
In the particular circumstances of this case these are the factors which I consider are in favour of an extension to the validity of the writ:
(a)The statutory limitation period which applies to the plaintiff's cause of action has expired.
(b)I am satisfied that the plaintiff made use of the 12‑month period to investigate whether he should pursue his action against the defendants. I accept that this is a particular consideration which arises in this case because of the provisions of s 92 and s 93 of the Workers' Compensation and Injury Management Act 1981. Under s 93(1)(a) it is contemplated that a worker can take common law action against a defendant for an injury, while making no allegation of common law liability against his employer. Any judgment against that defendant in favour of the injured worker must be for the full amount of damages, without regard to the compensation paid to the worker: Hi‑Tech Demolition Co Pty Ltd v Mainline Demolitions [2000] WASCA 342 [6] and [7]; EMS Holdings Pty Ltd v International Shipyards Pty Ltd (Unreported; WASC; Library No 980655; 12 November 1998), 8 ‑ 9 (Kennedy J). The defendant is bound then to pay to the employer, as a first charge against the judgment pursuant to s 92(c), any compensation or expenses paid by the employer: ODG Properties (WA) Pty Ltd v Middler Nominees Pty Ltd [1990] WAR 235, 242, 245; Vanguard Press Pty Ltd v Baxter (1995) 14 SR (WA) 190, 194. The legislative intent behind s 92 is to defeat a double recovery by a worker, who may recover workers' compensation or common law damages but not both: EMS Holdings Pty Ltd v International Shipyards Pty Ltd.
(c)I do not consider this to be a case in which the plaintiff has really decided to choose to live by technicalities and therefore must have accepted the risk of dying by them because of the failure to observe the time limits imposed by RSC O7 r 1(2). It is apparent from the facts I have set out in [18](d) and [19] that after August 2017 there was confusion between the plaintiff and his solicitors about how and when the plaintiff was to provide instructions on whether to progress his claim. The plaintiff was expecting to hear from his solicitors with a re‑drafted document containing particulars of his financial losses, while the plaintiff's solicitors were waiting to hear from the plaintiff with instructions on whether he wanted to proceed with the action.
(d)There will be a significant prejudice suffered by the plaintiff if the validity of the writ is not extended. He will lose his cause of action entirely. I am not satisfied that the prejudice is wholly self‑inflicted. To some extent the position in which the plaintiff now finds himself is due, at least in part, to the confusion I have mentioned, which in turn led to inaction.
In the particular circumstances of this case, there was inaction for about three months between the plaintiff's last communications with his solicitors in August 2017, and when his solicitors wrote to him in November 2017. The plaintiff does not specify the date of this letter, and whether it was before or after the expiry of the writ. However, I consider there to have been some fault on the part of his solicitors, who should have been alert to the need to serve the writ within the 12‑month period. That they were not alert to this may be inferred from the fact that an order for extension of the validity of the writ was not sought in the original application before the deputy registrar (and see my observations below at [31](b)). Ideally, the plaintiff's solicitors should have written to the plaintiff earlier than November 2017, given the writ would not be valid (and the case would be put on the Inactive Cases List) after 17 November 2017.
Of course, the plaintiff's solicitors are his agent. In some circumstances, the neglect or inaction of a party's solicitors may be visited upon that party. Nevertheless, the absence of fault on the part of the client always will be relevant, and might be a significant factor, when the justice of the case is an important consideration: Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [10]; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 199.
The factors which are against the extension are:
(a)No notice of claim has been given to the defendants.
(b)While the plaintiff did promptly apply to the court for the case to be taken out of the Inactive Cases List, the application for an extension of the validity of the writ was not made promptly. It was made after the expiry of 12 months from the date of issue of the writ and only as part of this appeal as a result of being alerted by the deputy registrar that time for the service of the writ had passed. It is apparent that the fact that the writ was only valid for service for 12 months was overlooked by the plaintiff's solicitors. To the extent that there has been fault on the part of the plaintiff's solicitors, the principles I have set out in [30] above apply.
(c)In my view the defendants will suffer prejudice, at least general prejudice, by reason of the fact that there has been a delay now between the date of the accident in November 2013 to the present day of over seven years. Against the general prejudice, however, I should take into account that particulars of the claim have been provided to the plaintiff's employer and a workers' compensation claim made, details of which may be available to the defendants. In addition, there is evidence that the defendants, or one of them, was informed by SITA of problems with the position of the bin and that after the plaintiff's injury, there was a change to the procedures for bin collection at the distribution centre.

After assessing the factors which are in favour of an extension of the validity of the writ, I find that these outweigh those factors which are against the extension.
I am satisfied that if I do not extend the validity of the writ, an injustice to the plaintiff will occur which exceeds any injustice to the defendant if the validity of the writ is extended.
I have therefore concluded that the interests of justice, including the balance of hardship between the parties, do require the exercise of my remedial discretion to extend the validity of the writ for a further period to allow service on the defendants.
This is, however, subject to whether I am satisfied that this case should be removed the Inactive Cases List.

The application to remove the case from the Inactive Cases List

The principles guiding DCR r 44F have been set out principally in two cases, Lashanksy v Legal Practice Board [No 2] [2010] WASC 159 and Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74.
The rules relating to inactive cases are part of a number of case management reforms implemented in recent years which are informed by contemporary case management principles. Those principles include that the courts have the jurisdiction to be proactive in terms of the management of litigation, and to ensure that cases progress with reasonable dispatch and that parties have a reasonable opportunity to litigate their disputes without undue prejudice to each other, or the wider community. As stated by Stevenson DCJ in Belendaine [41], the rules relating to inactive cases are intended to 'bite' if a matter is left to languish without proper or good reason so that the court can ensure that its business is managed efficiently and effectively, it being a public institution with an obligation to the public in that regard.
The rules relating to inactive cases are not intended to be punitive, but are a case management tool. The operation of r 44F gives the court a discretion to allow a case to be brought back in an active way into the court's lists, so that it can be progressed to resolution: Belendaine [42].
Rule 44F(3) provides that the court may order a case to be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way, or for any other good reason. This is a wide discretion, and also a beneficial one: Belendaine [43], [46] and [51].
When applying for removal from the Inactive Cases List, the applicant must produce evidence to explain how the case came to be on the Inactive Cases List, and why it should not be expected that, if it is removed from the list, it would return to the list. It is relevant to have evidence about the state of the action and how it is proposed that it will be progressed through to a trial: Lashanksy v Legal Practice Board [No 2] [37]; Belendaine [42], [46]. So some evidence should be advanced to demonstrate that the applicant is committed to advancing the proceedings.
I have considered the delay in this action, and the explanation for it, in my consideration of the application for an extension of the validity of the writ. The matters I have set out in [28](c), [29] and [30] are relevant also to explain how this matter came to be on the Inactive Cases List.
I am satisfied that the plaintiff is committed to advancing the action. The pleadings and discovery lists produced as annexures to the affidavit of Mr Hawkins sworn 15 March 2018, show that the action is ready to be progressed. Once the validity of the writ has been extended, given that both defendants are registered companies there should be little delay in effecting service of the writ on the registered office of those companies. Then, once an appearance is filed by the defendants, the plaintiff should be in a position to file his statement of claim without delay.
In these circumstances, I am satisfied that if the case is taken off the Inactive Cases List, it will be conducted in a timely way. In my view it is also in the interests of justice that this action be reinstated and removed from the Inactive Cases List, and the plaintiff be allowed to continue with his claim.

Conclusions and orders

I am of the view that the justice of the case requires that the validity of the writ for service be extended and this action be taken off the Inactive Cases List.
I am not prepared to grant the maximum extension of the validity of the writ of 12 months having regard to the matters I have set out in [42] above. In my view, about six weeks is all that is necessary to achieve service of the writ on the defendants. Accordingly I will order the extension of the writ by a period of 7 months until 11 June 2018.
I would observe that r 44F(4) provides that an order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure that the case is conducted in a timely way: see also Belendaine [57]. In this particular case I do not consider it is necessary to make programming orders, as once the defendants file an appearance, a case management hearing can take place in the ordinary way, pursuant to DCR r 31 and r 32.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
ASSOCIATE TO JUDGE DAVIS
1 MAY 2018