Lintott v Harvey Industries Group Pty Ltd
[2014] WADC 15
•5 February 2014
LINTOTT -v- HARVEY INDUSTRIES GROUP PTY LTD [2014] WADC 15
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 15 | |
| Case No: | CIV:719/2012 | 29 JANUARY 2014 | |
| Coram: | EATON DCJ | 5/02/14 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| PDF Version |
| Parties: | MARK CHARLES LINTOTT HARVEY INDUSTRIES GROUP PTY LTD VIVIENNE-LEE MULDER TREVOR WAYNE JONES DARRYL WERTH HARVEY INUSTRIES GROUP PTY LTD RHONDA MEGAN GADDES MICHAEL BRADLEY WOOD ANTONIO MICHAEL PANETTA |
Catchwords: | Practice and procedure Appeal from a deputy registrar Validity of unserved writs Applications to extend validity Considerations |
Legislation: | District Court Rules 2005 Limitations Act 2005 Rules of the Supreme Court 1971 |
Case References: | Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
HARVEY INDUSTRIES GROUP PTY LTD
Respondent
- Appellant
AND
HARVEY INDUSTRIES GROUP PTY LTD
Respondent
- Appellant
AND
HARVEY INDUSTRIES GROUP PTY LTD
Respondent
- Appellant
AND
HARVEY INUSTRIES GROUP PTY LTD
Respondent
- Appellant
AND
HARVEY INDUSTRIES GROUP PTY LTD
Respondent
- Appellant
AND
HARVEY INDUSTRIES GROUP PTY LTD
Respondent
- Appellant
AND
HARVEY INDUSTRIES GROUP PTY LTD
Respondent
Catchwords:
Practice and procedure - Appeal from a deputy registrar - Validity of unserved writs - Applications to extend validity - Considerations
Legislation:
District Court Rules 2005
Limitations Act 2005
Rules of the Supreme Court 1971
Result:
Appeals dismissed
Representation:
CIV 719 of 2012
Counsel:
Appellant : Mr A J Stewart
Respondent : No appearance
Solicitors:
Appellant : Chapmans
Respondent : Not applicable
CIV 720 of 2012
Counsel:
Appellant : Mr A J Stewart
Respondent : No appearance
Solicitors:
Appellant : Chapmans
Respondent : Not applicable
CIV 721 of 2012
Counsel:
Appellant : Mr A J Stewart
Respondent : No appearance
Solicitors:
Appellant : Chapmans
Respondent : Not applicable
CIV 722 of 2012
Counsel:
Appellant : Mr A J Stewart
Respondent : No appearance
Solicitors:
Appellant : Chapmans
Respondent : Not applicable
CIV 723 of 2012
Counsel:
Appellant : Mr A J Stewart
Respondent : No appearance
Solicitors:
Appellant : Chapmans
Respondent : Not applicable
CIV 724 of 2012
Counsel:
Appellant : Mr A J Stewart
Respondent : No appearance
Solicitors:
Appellant : Chapmans
Respondent : Not applicable
CIV 1029 of 2012
Counsel:
Appellant : Mr A J Stewart
Respondent : No appearance
Solicitors:
Appellant : Chapmans
Respondent : Not applicable
Case(s) referred to in judgment(s):
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158
1 EATON DCJ: On 12 March 2012 six plaintiffs each filed a writ of summons in this court, each with an endorsement of claim seeking damages arising out of each plaintiff's employment with the defendant. The defendant in each case is Harvey Industries Group Pty Ltd.
2 The endorsement of claim, in each case, is in the following terms:
The plaintiff's claim is for damages as a result of the breach of employment contract and/or wrongful dismissal and/or breach of statutory duty by the defendant, its servants and/or agents on or about 11 March 2009.
3 On 5 April 2012 Antonio Michael Panetta filed a writ of summons in this court with an endorsement of claim seeking damages arising out of his employment with the same defendant, Harvey Industries Group Pty Ltd. The endorsement of claim in his writ was in precisely the same terms as that of the other six plaintiffs. By notice dated 17 April 2013 Mr Panetta was advised that on 5 April 2013 his case had been put on the inactive cases list, no document having been filed in the preceding 12 months.
4 By notice dated 18 March 2013 the plaintiff in all six actions commenced on 12 March 2012 was advised that on 12 March 2013 each had been put on the inactive cases list, no document having been filed in the preceding 12 months.
5 By separate chamber summons filed 10 September 2013 each of the plaintiffs, in all seven actions, sought orders that their case no longer be deemed inactive and consequential orders. The application, in each case, was supported by an affidavit by a law clerk in the plaintiffs' solicitor's office advising that the plaintiff had been reluctant to proceed until another matter before this court had been to trial. That other matter was settled before trial in April 2013.
6 By chamber summons dated 19 September 2013 the plaintiff in all seven actions applied to extend the validity of the writ in each case. On 15 October 2013 Deputy Registrar Hewitt dismissed all seven applications. On 24 October 2013 each plaintiff filed a notice of appeal from those decisions, respectively.
7 Order 7 r 1 of the Rules of the Supreme Court 1971 (WA) provides that for the purpose of service, a writ is valid in the first instance for 12 months beginning with the date of its issue. It further 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 day or such later day (if any) as the court may allow.
8 The explanation proffered by the plaintiff, in each case, for the failure to promptly serve the writ on the defendant, is identical. It is that the plaintiff did not want to proceed with the action until another matter had been to trial. It is said that that other matter suffered a number of unexpected delays and that it was eventually finalised by a settlement in April 2013.
9 The first thing to note about the power conferred by O 7 r 1 is that an application to extend the validity of a writ must be made before that validity expires. In the case of six of the actions before me the writs expired on 11 March 2013 and in the case of the seventh action the writ expired on 4 April 2013. In all seven matters, the chamber summons to extend validity was filed on 19 September 2013, at least six months, in every case, after the expiry of the writ. There is a discretion to allow an application to be made after the expiry of the writ's validity. It is clear that the discretion is to be exercised in favour of an applicant only to prevent an injustice.
10 In each of the seven actions the writ has not been served on the defendant. The defendant is and has been readily amenable to service without delay. In all matters the writs have remained unserved for a period approaching two years. I infer, therefore, that the defendant in each case, is unaware of the existence of the action.
11 The affidavit material filed by the plaintiff in each case discloses that the reason for filing each of the writs was to protect the plaintiff's rights to take action 'in the event of a three year limitation period applied to this type of action'. In each case the plaintiff deliberately did not serve the writ, preferring to await the outcome of another action before this court, Sabourne v Harvey Industries Group Pty Ltd CIV 1498 of 2010. That matter was apparently the subject of a number of delays but was eventually settled in April 2013. In all actions, except that commenced by Mr Lintott, at some stage following the settlement of the Sabourne matter the plaintiff, having considered the position, gave instructions to proceed with the action. Although the position is not clear, it seems that the action commenced by Mr Lintott was different from the others in that there was some difficulty contacting him and getting his instructions.
12 Mr Lintott has now filed an affidavit sworn 1 October 2013 in support of his application for an extension of time within which to apply to extend the validity of his writ. In it he advises that he was mistakenly advised that the relevant limitation period for the commencement of his action was three years, rather than six years, hence the filing of the writ in 2012. It appears that there was a meeting or meetings involving some or all of the various plaintiffs at which it was agreed by all that their respective writs should not be served pending the disposition of the Sabourne action which they regarded as a 'test case'. There was, it seems, a deliberate choice to keep the defendant in the dark as to the seven pending actions. Mr Lintott said that he was aware that that Sabourne action had settled 'some months ago' and that he and the other plaintiffs now wished to proceed with their action. He indicated that, if his application for renewal of the writ was unsuccessful, he would commence action anew by filing a new writ, the relevant time limitation being, he now believes, six years not three.
13 The plaintiffs, having seen fit to commence their actions when they did, based upon advice as to limitation periods, have deliberately chosen to keep the defendant in the dark for their own benefit. There is no indication from any plaintiff that any consideration has been given to the position of the defendant and any prejudice to it. In other words, the plaintiffs seek to prepare their case, having commenced their actions while keeping the fact of the action and their preparation a secret, to the disadvantage of the defendant.
14 Rule 15 of the rules of this court provides that if a party is dissatisfied with a decision of a registrar that party may appeal to a judge. Such an appeal must be commenced within 10 days after the date of the decision. In the matters before me all appeals were filed within time. The appeal notice must set out the particulars of the registrar's decision or that part of it to which the appeal relates; and the final orders proposed on the appeal. The appeal is to be by way of a new hearing of the matter that was before the registrar.
15 In the matters before me, there being no service of any of the writs, involved, the applications are to be dealt with ex parte.
16 In Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 (2 September 1999) Ipp J said (at 45):
However, when O 2 r 1 is used to remedy an irregularity in connection with the extension, renewal or service of a writ, the broad discretion normally available under that sub-rule must be exercised with care and caution. That is because O 7 r 1 embodies a clear policy which should not be subverted by mechanical resort to O 2 r 1. 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] VicRp 1; [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 indefinite periods.
17 Ipp J took the view that, the general discretion under O 2 r 1 should only be exercised with due regard to the policy evinced by O 7 r 1. He observed that O 2 r 1 enables the court to prevent manifest unfairness arising from the need to adhere rigidly to the time limits laid down by O 7 r 1(2) but, he said, before power under O 2 r 1 may be so exercised, it must be established that, without such remedial relief, injustice will occur. The application should only be granted when the justice of the case requires a departure from the policy underlying O 7 r 1.
18 Order 2 r 1 of the Rules of the Supreme Court deals with a failure to comply with the requirements of the rules. Under that order a court may, on the grounds that there has been a failure to comply, on such terms as to costs or otherwise as it thinks just, make such order dealing with the proceedings generally as it thinks fit. Order 3 r 5 of those rules provides that the court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by the rules to do any act in any proceedings. The contention of each of the appellants is that they may proceed under either of those two provisions.
19 He also pointed to the need for an applicant to show good reason for an extension and give a satisfactory explanation for the failure to apply for extension before the validity of the writ expired. In the matters before me the plaintiffs are not applying to extend the validity of their writs after the limitation period has expired. If that were the case it would be of considerable relevance to the applications, but it would not be determinative. Rather, it would be a factor in considering the general justice of the case. Ipp J said that he would regard a satisfactory explanation for a failure by the plaintiff to apply for extension before the validity of the writ expired to be of considerable significance to the application. He did observe that the absence of such an explanation would not necessarily be fatal.
20 In the matters before me there is no suggestion of any prejudice to the plaintiffs, should the validity of their writs not be extended, by reason of the loss of a cause of action by reason of the expiry of a limitation period. Ipp J observed that the significance of that kind of prejudice is substantially less than in instances where prejudice does not result from the appellant's own deliberate inaction, coupled with the intended and known consequences of the provisions of O 7 r 1.
21 In each of the appeals the plaintiff has filed an affidavit in support of their respective applications for an extension of the validity of their respective writs. Each deposes to the writ having been issued at a time when each thought, presumably based upon legal advice, that they were subject to a three year limitation period. Each concludes their affidavit with the following:
If this application to extend the writ is not granted, I will request the plaintiff’s lawyers to issue a fresh writ as it is clear to me now that the limitation period is six years, not three years.
22 The implication of the foregoing is that the plaintiffs believe that they were initially erroneously advised as to the relevant limitation period. It is the case that the Limitation Act 2005 provides that the general limitation period is six years. Division 3 of that Act provides for departures from the general limitation period. For example, s 14 provides that an action for damages relating to a personal injury to a person cannot be commenced if three years have elapsed since the cause of action accrued. It also provides that an action under the Fatal Accidents Act 1959for damages relating to the death of a person cannot be commenced if three years have elapsed since the death.
23 Section 16 of that Act provides that an action for trespass to the person, assault, battery or imprisonment cannot be commenced if three years have elapsed since the cause of action accrued.
24 On the hearing of the appeal, counsel for the appellants, Mr Stewart, submitted that a component of each plaintiff's claim included a cause of action based upon an allegation of a breach of a statutory duty by the defendant and that such a cause of action was subject to a three-year limitation period. This submission was not advanced in the written submissions filed in support of each application to the deputy registrar filed 14 October 2013. None of the plaintiffs deposed in their affidavits in support of their respective applications to prejudice should their application not be granted in the form of the loss of a cause of action by reason of the expiration of a three-year limitation period.
25 Having regard to the provisions of the Limitations Act 2005, I have come to the conclusion that the submission as to the loss of a cause of action by reason of the expiry of a three-year limitation period is erroneous.
26 In the matters before me, the appellants did not serve their writs on the defendant. It follows, the relevant limitation periods not having expired, that the appellants have no rights to preserve. In each case before me the appellant has failed to protect his position in terms of the requirement to serve a writ within the appropriate time. No rights have accrued to any plaintiff that are capable of being prejudiced. Each has the right to commence their action anew.
27 As regards the prejudice that the defendant would suffer, were an extension to be granted, there is a general inference to be drawn from the extensive delay that has occurred in these matters. There has been lengthy delay on the part of the appellants and in my view it is inevitable that it must cause at least some prejudice to the defendant. Apart from the difficulties of ascertaining the whereabouts of the several persons who may be able to give relevant evidence in the case, the prospect of those persons remembering the relevant facts with clarity must be questionable.
28 In my view, the appellants have not given a satisfactory explanation for their failure to serve their writs within time or to apply timeously for an extension. Each chose to delay the service of the writ because each saw some advantage to their case in doing so.
29 In the matters before me delay on the part of the appellants was for a considerable period. Each has failed to give a satisfactory explanation for that delay. It was quite deliberate, there being no question of mishap or oversight. In my view the prejudice suffered by the appellants is limited to the cost and inconvenience of commencing their actions anew. Were it otherwise, any prejudice, should the validity of the writs not to be extended, would be self-inflicted. Were the validity of the writs to be extended the prejudice the defendant would suffer would not be insignificant. In my opinion, good reason to exercise the discretion under O 7 r 1 has not been shown and I am not persuaded that the interests of justice require the exercise of a remedial discretion under O 2 r 1 or O 3 r 5. I dismiss the appeals.
1
3