Langlands v Commissioner of Main Roads - [2009] WASC 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LANGLANDS -v- COMMISSIONER OF MAIN ROADS [2009] WASC 59

CORAM: MASTER SANDERSON

HEARD: 4 MARCH 2009

DELIVERED : 19 MARCH 2009

FILE NO/S: CIV 1765 of 2007

BETWEEN: KERRY JAMES LANGLANDS
SANDRA ANNE LANGLANDS
Plaintiffs
AND
COMMISSIONER OF MAIN ROADS
First Defendant
GHD PTY LTD (ACN 008 488 373)
Second Defendant

Catchwords:

Practice and procedure - Application to set aside order made ex parte - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiffs:     Mr C P Dunnell
First Defendant              :     No appearance
Second Defendant         :     Mr I Armeli

Solicitors:

Plaintiffs:     Talbot Olivier
First Defendant              :     SRB Legal
Second Defendant         :     Maxim Litigation Consultants

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

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561

MASTER SANDERSON: On 27 July 2007 the plaintiff filed a writ of summons in this matter. The writ was valid for 12 months. Sometime in July 2008, the plaintiff purported to serve the writ on the second defendant in the eastern states. The plaintiff did not comply with the provisions of the Service and Execution of Process Act 1992 (Cth). Service of the writ was liable to be set aside. The second defendant applied by summons dated 28 August 2008 to set aside service and, on 14 October 2008, I made that order.
The plaintiff, realising its mistake, applied by summons dated 29 August 2008 to extend the validity of the writ. This was an ex parte application. It too was heard on 14 October 2008. I ordered that the validity of the writ be extended until 7 November 2008. This time the plaintiff got it right. It duly served the second defendant. The second defendant has now applied to set aside the service of the writ.
Where an ex parte order has been made, a party affected by it who was not before the court is entitled to apply subsequently to the court inter partes to discharge the order: see O 58 r 23. The question is, in what circumstances should an order made ex parte be set aside? Fortunately, there is a decision directly on the point. It is Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561. In that case, a master had made an order ex parte extending the validity of a writ. The defendants who were subsequently served brought the matter back seeking to have the order set aside. The Full Court set out, quite clearly, the approach to be taken to such applications. The court said:
Counsel for the appellant submitted that before the jurisdiction to reconsider an ex parte order can be enlivened, it is necessary for a party seeking such relief to adduce additional material evidence or to establish that there was material non‑disclosure by the party who obtained the order. We think this is correct. A subsequent hearing, either by the judge who made the original order or by another judge with co‑ordinate powers, is not an 'appeal' against the first order. Nor is it an application merely to reconsider the correctness of the original decision on the materials then placed before the judge. The application rests in every case on production of further materials not before the judge who heard the ex parte application and which throw a new and different light on the situation of the parties involved (569).
So the starting point then is to ask whether there has been material non‑disclosure on the part of the party seeking the ex parte order. The court then went on to consider the situation where there had been no material non‑disclosure. The court said:
In the absence of material non‑disclosure it seems to us that the applicant must adduce or point to material sufficient to persuade the reviewing judge that had the initial judicial officer appreciated the full facts and circumstances the decision would have been different.
There is no doubt that the power to review an ex parte order exists. That is the plain wording of the rule. However, it seems to us that the power must be exercised judicially. In these circumstances a proper exercise of the power should be reserved for those cases in which it can be demonstrated that there was material non‑disclosure or that, on the basis of new material, the full facts and circumstances had not been appreciated.
This is not to say that the power is to be exercised in a vacuum. The role of the judge is to administer justice. Each case depends on its own facts. The making a decision whether or not to vary or set aside an order made ex parte the reviewing judge will be obliged to take into account the circumstances as they actually exist and the likely effect of the order on the parties and on the administration of justice generally (570).
The court also considered circumstances which, although said to be particular to the Bell Group case, may perhaps be of wider application. That is the question of whether or not the order made has been fully carried into effect. The court put the position as follows:
There is another issue, and it is one that affects the parties and the administration of justice. This case is unusual in one sense. The Rules provide that a writ is valid for a period of 12 months. The validity period can be extended by order of the Court. Within the 12 month period, the appellant made an application for an extension. Before the period had expired the order was made granting the extension. The order was valid and regular on its face. Within the extended period (as further extended on 30 May 1997 in relation to the third named respondent) the writ was served. Once service had been effected the order or orders extending the validity period had been fully executed and were spent.
It is in these circumstances that the application to have the orders set aside came to be considered. It seems to us that additional caution was called for in dealing with the application. We are not saying that the mere fact that an order has been fully carried out precludes review. That would be inconsistent with the plain wording of O 58 r 23 and would lead to an unfortunate result. For instance, it could preclude review of an order obtained by material non‑disclosure. But the fact that a party seeks, and is granted, an indulgence in accordance with the Rules and then relies on the order and acts in accordance with it must be a factor to be taken into account in a proper exercise of the discretion reposed in the reviewing judge (571).
The first question then in this case is whether or not there was material non‑disclosure by the plaintiff when the application was made to extend the validity of the writ. The simple answer is that there was not. In making that application, the plaintiff relied on an affidavit of Christopher Peter Dunnell sworn 29 August 2008. In that affidavit, Mr Dunnell recounts the circumstances which led to the writ being served out of time. He says that the reason that the writ was not served was that the plaintiff wished to make further investigations about the claim and obtain further documents. The second defendant does not submit that there was anything false or misleading about that evidence. Nor is it suggested that there was more evidence which was in the possession of the plaintiff which could and should have been put before the court.
In support of this application, the second defendant relied on two affidavits. The first was an affidavit of Madeline Ashdown sworn 28 August 2008. The second was an affidavit of Vasil James Borshoff sworn 8 October 2008. Both affidavits deal with the prejudice allegedly occasioned to the second defendant by the writ being served more than seven years after the events, said to give rise to the claim, took place. Even accepting that there has been some prejudice occasioned to the second defendant, this is not something which could have been in the contemplation of the plaintiff when the application for extension of the writ was made. Of course, the fact that the writ was stale and that it was issued almost at the end of any limitation period was apparent from the papers. But the plaintiff clearly did not know what specific prejudice the second defendant might suffer and was in no way in a position to put any evidence in relation to that matter before the court.
That being so, there is still a jurisdiction to reconsider the ex parte order. But the ex parte order has now been carried into effect and the renewed writ has been served. In line with the decision of the Full Court in Bell Group, extra caution must be exercised in now reversing the ex parte order.
In my view, the circumstances do not exist which would warrant interfering with the order I have made. It can be accepted that the delay in bringing these proceedings to the attention of the second defendant will occasion the second defendant prejudice. Delay always leads to prejudice in one form or another. In this case it would seem that the designer of certain road works, the subject of the claim, may not be easily contactable. However, the delay in this case is not gross. A party has a period of six years to issue proceedings. It is not an abuse of process to issue proceedings close to the end of the six year limitation period. Once proceedings are issued, the writ is valid for 12 months. But for the technical oversight on the part of the plaintiff in failing to include an appropriate notice under the Service and Execution of Process Act, these proceedings would have been regularly served within the allotted time - albeit at the very end of the time period available. But this is not a case where the delay is so gross as to warrant interfering with the ex parte order extending the validity of the writ.
There is one further fact which needs to be borne in mind and which is perhaps particular to this case. This application is brought by the second defendant. If the ex parte order was set aside and the writ was not extended, then, it seems clear the plaintiff's claim against the second defendant would be time barred. But the plaintiff still has a claim against the first defendant. This claim relates to flooding which affected the plaintiff's business. The flooding occurred after certain road works were undertaken by the first defendant. Those road works were designed by the second defendant. In the circumstances, there is every chance that the first defendant would join the second defendant as a third party to these proceedings. The Statute of Limitations would not prevent them from doing so. So even if this application succeeded, the second defendant is likely to be drawn into the dispute albeit in a capacity as a third party rather then a defendant. In those circumstances it is, in my view, in the interests of justice that the plaintiff's writ against the second defendant stand. That way all claims can be put against the defendants by the plaintiff in the conventional manner.
I would dismiss the second defendant's application. I will hear the parties as to the form of orders and as to costs.