Major v Australian Sports Commission
[2001] QSC 320
•4 September 2001
SUPREME COURT OF QUEENSLAND
CITATION: Major v Australian Sports Commission [2001] QSC 320 PARTIES: KATE MAJOR
(first plaintiff/respondent)
and
EMMA MAJOR
(second plaintiff/respondent)
v
THE AUSTRALIAN SPORTS COMMISSION
(first defendant/applicant)
and
GEOFF HUNT
(second defendant)
and
SIMON LOCKE
(third defendant/applicant)
and
IAN LYNAGH and IAN LYNAGH CONSULTANCY PTY LTD
(fourth defendants/applicants)
and
IAN KING
(fifth defendant/applicant)FILE NO: S3667 of 1999 DIVISION: Trial Division DELIVERED ON: 4 September 2001 DELIVERED AT: Brisbane HEARING DATE: 24 July 2001 JUDGE: Mullins J ORDER: 1. Service of the writ in this proceeding on the fifth defendant in the circumstances where it came to his attention on 20 April 2001 be declared to be effectual as service on that date.
2. The applications filed on 25 and 28 May 2001 be dismissed.
CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – renewal of originating process – Uniform Civil Procedure Rules r 24(2) – review of registrar’s decision to renew the writ on ex parte application – whether there was good reason to renew the writ
PROCEDURE – SUPREME COURT PROCEDURE – service of writ on defendant which was not personal service – whether service can be declared to be effectual – whether prejudice to the defendant
Trade Practices Act 1974 (Cth)
UCPR r 5, r 16, r 24, r 105, r 106, r 371Bell Group NV (in liq) vAspinall (1998) 19 WAR 561
Farrell v Delaney (1952) 52 SR (NSW) 236
MacDonnell v Rolley [2001] QCA 32 (16 February 2001)
MQF vCorry [2000] QSC 416 (21 January 2000)
Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 (10 December 1999)
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337COUNSEL: RJ Douglas SC for the plaintiffs/respondents
JD McKenna for the first, fourth and fifth defendants/applicants
DK Boddice for the third defendants/applicantSOLICITORS: Bowdens Lawyers for the plaintiffs/respondents
Mallesons Stephen Jaques for the first, fourth and fifth defendants/applicants
Tress Cocks & Maddox for the third defendant/applicant
MULLINS J: On 21 April 1999 the plaintiffs issued the writ in this action against the defendants claiming damages for negligence and/or breach of contract and/or breach of statutory duty. The writ was not served before it was due to expire. An affidavit of Mr Simon Carter, the solicitor for the plaintiffs, sworn on 20 April 2000 was filed on behalf of the plaintiffs on that same date seeking a renewal of the writ. Pursuant to r 24(2) of the UCPR the registrar renewed the writ on 20 April 2000 for a period of 12 months. The proceeding came to the notice of the defendants when service of the writ was undertaken on 19 and 20 April 2001.
By application filed on 25 May 2001 the first, fourth and fifth defendants apply for an order that the order of the registrar made on 20 April 2000 extending the period for service of the writ of summons be set aside. In addition, the fifth defendant is also seeking a declaration that the writ was not properly served on him in accordance with rules 105 or 106 of the UCPR within the time stipulated by r 25 of the UCPR.
By application filed on 28 May 2001 the third defendant is also applying for an order that the order of the registrar made on 20 April 2000 be set aside.
Nature of plaintiffs’ claim
The plaintiffs are identical twins who were born on 3 December 1977. The first defendant is a body corporate which conducts the Australian Institute of Sport (“AIS”). At the commencement of 1995 the plaintiffs were awarded scholarships by the first defendant and admitted to the Australian Institute of Sport Squash Unit (“the unit”) at Brisbane. The plaintiffs were also awarded scholarships by the first defendant in the years 1996 and 1997. The plaintiffs were champion junior squash players in Australia when they commenced at the unit.
In the years 1996 and 1997 the plaintiffs allege that as members of the unit they were subject to direct and close control and direction of the servants or agents of the first defendant in intensive training for and participation in the sport of squash. The plaintiffs allege that they were monitored by the first defendant in respect of sporting prowess in squash, health and medical wellbeing, psychological health and athletic fitness.
The plaintiffs allege that the day to day monitoring was under the overall control of the second defendant who was an athletic coach and, although named as the second defendant in this proceeding, is not the subject of further action in this proceeding. The plaintiffs allege that the medical monitoring was undertaken by the third defendant who is and was a medical practitioner and who entered into an agreement with the first defendant for that purpose. The plaintiffs allege that the psychological monitoring was undertaken by the fourth defendants pursuant to an agreement for that purpose with the first defendant. Dr Ian Lynagh is and was a sports psychologist and the other fourth defendant is and was a corporation carrying on sports psychology with Dr Lynagh as its principal. The plaintiffs allege that the athletic monitoring was undertaken by the fifth defendant who was a sporting coach pursuant to an agreement for that purpose with the first defendant.
The plaintiffs allege that from early in 1996 each of them was suffering weight loss and from diminished body fat content and neither did thereafter whilst with the unit substantially regain such weight or body fat loss. It is alleged that by about July 1996 each of the plaintiffs was suffering an obsessive eating disorder whereby each was not obtaining sufficient nutrition to maintain good health (“the disorder”). It is also alleged that by reason of suffering the disorder, each of the plaintiffs thereafter suffered a psychiatric condition being anorexia nervosa (“the condition”). The plaintiffs claim that by reason of the disorder and the condition each of them was significantly inhibited in maintaining and pursuing the training and regimen required in order to pursue a professional squash career.
Each plaintiff alleges against the first defendant that it was an implied term of the scholarship agreement or, alternatively, the duty of the first defendant that reasonable care would be exercised in the provision of the specialist squash and associated sports training services provided to the plaintiff under the scholarship agreement. There is an alternative claim made against the first defendant pursuant to the Trade Practices Act 1974 (Cth) (“TPA”) relying on statutory implied terms on the basis that each plaintiff was a consumer within the meaning of the TPA and the services provided by the first defendant under the scholarship agreement were supplied in the course of a business of such supply by the first defendant.
The plaintiffs allege that they developed the disorder and the condition as the first defendant failed to adapt the services provided under the scholarship agreement to the specific needs of the plaintiffs, failed to communicate properly with each of the plaintiffs, regularly subjected the plaintiffs to negative comments directed to their weight and fitness without any adequate positive reinforcement, regularly threatened the plaintiffs that their funding would be withheld or reduced, failed to provide the plaintiffs with the support and services required pursuant to the scholarship agreement, placed excessive and inappropriate and constant emphasis on body fat levels and body shape and on allegations that the plaintiffs were overtraining and/or competing against each other, tried to separate the plaintiffs and failed to treat adequately or at all the weight loss or loss of body fat suffered by the plaintiffs.
It is also alleged that the first defendant failed to detect that each of the plaintiffs was suffering from the disorder and subsequently the condition or, having detected that each of the plaintiffs was suffering from the disorder, failed to seek out and direct each plaintiff to appropriately qualified and experienced medical personnel, failed to inform the mother of the plaintiffs of the fact, failed to remove or recommend the removal of the plaintiffs from the unit in sufficient time to avoid the development of the disorder into the condition and continued to act in the manner which the plaintiffs allege caused the development of the disorder and the condition.
Each plaintiff alleges that the condition and its consequences were caused or aggravated by a breach by the first defendant of the implied term of the scholarship agreement, its common law duty or the implied terms under the TPA.
The plaintiffs allege that it was an implied term of the agreement between the first and third defendants and the duty of the third defendant to each plaintiff that reasonable care would be exercised in the medical monitoring of each plaintiff. It is alleged that the agreement was made for the benefit of the plaintiffs and that each of the plaintiffs accepted the benefit of such agreement by undergoing the medical monitoring. The plaintiffs claim that they are entitled to enforce that agreement against the third defendant and that the condition and its consequence in the case of each plaintiff were caused by a breach by the third defendant of the implied term and duty alleged against the third defendant. Similar allegations are made by the plaintiffs against the fifth defendant in respect of the athletic monitoring of the plaintiffs.
Similar allegations, but in respect of the psychology monitoring, are made against the fourth defendants. In addition, as the fourth defendant Ian Lynagh Consultancy Pty Ltd is a corporation, it is alleged that the fourth defendant also breached the implied term of the agreement with the first defendant that the services would be rendered with due care and skill which it is alleged was implied pursuant to s 74(1) of the TPA.
It is alleged by each plaintiff that by reason of the condition she has suffered a psychiatric injury and therefore suffered a greatly diminished ability to nurture, develop and pursue her talents as a squash player with resultant economic loss and an impairment of earning capacity.
Service of the writ
The writ was served on the first and third defendants on 20 April 2001. The writ was served on the fourth defendants on 19 April 2001. There is no issue as to service of the writ on these defendants.
The process server engaged by the plaintiffs to serve the fifth defendant swore an affidavit on 4 May 2001 stating that on Thursday 19 April 2001 he had served the fifth defendant with the writ and statement of claim by delivering the same to the fifth defendant personally at 23 Woodward Place, Pullenvale. The deponent then states:
“I effected personal service on the Fifth Defendant by putting the Writ of Summons and Statement of Claim down in the presence of the Fifth Defendant after he refused to accept service of the documents and threatened to physically throw me off his property if I didn’t leave.”
The fifth defendant in his affidavit sworn on 29 June 2001 set out his recollection of the events surrounding the attempt by the process server to serve the writ and statement of claim on him. It is apparent from this affidavit which was not challenged by the plaintiffs that the affidavit of the process server sworn on 4 May 2001 did not correctly set out the circumstances of service.
At 8.27pm on 19 April 2001 the fifth defendant went to the front of his house and saw a man standing at the top of the front stairs outside the security door. The fifth defendant states that the man said “How’s it going” and that he responded with “Good, what’s happening?”. The fifth defendant states that the man then said words to the effect of “I am looking for Ian King. Are you Ian King?”. The fifth defendant says that he said words to the effect of “Who are you?”. The fifth defendant states that the man asked him again whether he was Ian King, but that he responded “Tell me who you are first”. It appears that the man then showed the fifth defendant a document and asked whether it was his name on the document. The fifth defendant says he was about a metre away from the man and tried to read the document, but could not read any of the words or make out what kind of document it was, and that he said again words to the effect “Who are you?”. The fifth defendant states that the man said “Is this your name?”.
The fifth defendant states that he then said “We are not used to strangers visiting at this time of the night. I am asking you to leave” and that he then started walking back inside. There was further conversation and the fifth defendant states that he repeatedly asked for the man to leave. The fifth defendant states that the man did say words to the effect of “This is a legal matter”. The fifth defendant states that he went back inside his house and then watched the man walk up the driveway to the main road.
The fifth defendant states that around 8am the next morning (after telephoning the second defendant and being informed that the plaintiffs had issued proceedings against him), he looked outside towards his front driveway and saw a document situated approximately 20 metres to the front of his house in the driveway and that it appeared to have been placed to ensure that he could not drive out of the driveway without seeing the document. The fifth defendant states that he had walked passed the place where the document was placed twice during the previous evening after the man had departed and did not see the document on either of those occasions.
The process server swore a further affidavit on 23 July 2001 in response to the fifth defendant’s affidavit. The process server’s recollection of the conversation which took place with the fifth defendant is similar to that of the fifth defendant, although not as detailed.
After the process server left the fifth defendant’s property he states that he spoke to the resident of the neighbouring property who confirmed from the process server’s description of the man to whom he had spoken that he was the fifth defendant. The process server states that he then returned to the fifth defendant’s property, approached the house and put the documents down near the front stairs of the fifth defendant’s property, before leaving.
It is common ground that originating process must be served personally and the fifth defendant was not served personally with the writ in accordance with either rr 106(1) or (2) of the UCPR. The fifth defendant therefore seeks a declaration pursuant to r 16(b) of the UCPR that the writ has not been properly served. The plaintiffs seek an order regularising the service on the fifth defendant.
Subject to whether the registrar on 20 April 2000 should have renewed the writ, the writ remained current as at 20 April 2001, when it came to the attention of the fifth defendant. The writ was, in effect, served on the fifth defendant on 20 April 2001, even though it was not personally served.
Service of a document when personal service is required means that service of that document is an irregularity rather than a nullity: r 371(1) of the UCPR. It is then a question of whether the court should exercise any of the powers under r 371(2) of the UCPR. Relevantly, the court can declare a step taken to be ineffectual or declare the step taken to be effectual.
Having regard to the attempt made to serve the fifth defendant on the evening of 19 April 2001 by having him identify himself as the person in the legal document and the fact that the document did come to the attention of the fifth defendant relatively early the following morning when he became aware of the commencement of the proceedings, it is an appropriate case to exercise the discretion to declare the service to be effectual. In the circumstances to do otherwise would be unduly technical, when the fifth defendant has not been prejudiced by the contents of the writ coming to his attention on the morning of 20 April 2001, rather than on the evening of 19 April 2001, if the process server had carried through with personal service on the fifth defendant, when he was in the presence of the fifth defendant.
Even though there is no written application on behalf of the plaintiffs seeking relief under r 371(2) of the UCPR, the making of the order follows from refusing to make the order sought by the fifth defendant that service of the writ on him was not proper.
Facts
In order to determine whether the renewal order should be discharged, it is necessary to refer to the facts known and extant at the time of the ex parte application made to renew the writ. Mr Carter has sworn a further affidavit which was filed on 23 July 2001 which considerably supplements the material that was before the registrar on 20 April 2000. Relevant material is also gleaned from the affidavits of Dr Robert Murphy, Mr Geoff Hunt, Dr Lynagh and Mr Ian King filed on behalf of the first, fourth and fifth defendants and the affidavits of Dr Locke and Mr Harry McCay filed on behalf of the third defendant. Between 22 April 1996 and June 2000 Dr Murphy held the position of Director of Elite Sport at the AIS.
Mr Carter was first approached on 22 February 1999 by the mother of the plaintiffs, Mrs Michelle Newcombe, as a result of an article which appeared in the Courier Mail on 19 February 1999 in which it was claimed that the plaintiffs who claimed they developed eating disorders while on an AIS programme were planning to launch a $20 million legal action for compensation. It appears that the information had been given to the newspaper by a former coach of the plaintiffs. On 23 February 1999 the plaintiffs wrote to their former coach advising that he had no authority to represent them and Mr Carter sent the AIS copies of that letter to the former coach and a letter which he had also sent to media outlets on instructions from the plaintiffs. Mr Carter’s letter to AIS stated:
“Please note that nothing in the correspondence detracts from our clients’ concerns about the way they have been treated by the AIS. They simply wished to pursue their claims in their own way and after taking detailed advice.”
On 18 March 1999 Mr Carter sent a lengthy letter to the AIS on a without prejudice basis setting out a proposal on behalf of the plaintiffs with a view to improving their health, but at the same time minimising any damages to which they may be entitled. The letter noted:
“We may well have to institute proceedings immediately to protect our clients (sic) rights. We are not necessarily convinced however that pursuing litigation at this point in time is really in the interests either of our clients or of the Australian Institute of Sport.”
The letter concluded with a statement that the approach being made on behalf of the plaintiffs should not be considered to be indicative that they do not believe they have “a sustainable case against the Australian Institute of Sport and all persons associated with the Australian Institute of Sport”.
In response to this letter Mr Carter was contacted by a solicitor Mr Stanwix in Canberra, who advised that he had instructions to represent the AIS. It was arranged that Mr Carter would meet with Mr Stanwix and a representative of the AIS on 26 March 1999. On the day before Mr Carter sent by facsimile to Mr Stanwix a document marked “without prejudice” which was a summary of the issues perceived by the plaintiffs which were particularised with a list of specific instances followed by a list of proposals. (This summary of issues has ultimately been reflected in the facts pleaded in the statement of claim.) That meeting took place in the context that the first defendant rejected the claims made on behalf of the plaintiffs, but was prepared to discuss future proposals.
Further correspondence of which some was on a without prejudice basis was exchanged between the plaintiffs’ solicitors and the solicitors for the first defendant during April 1999. By letter dated 28 April 1999 the plaintiffs’ solicitors put up a proposal to the first defendant’s solicitors involving Dr Lynagh as the coordinator of a group of specialists to work with the plaintiffs.
By letter dated 28 April 1999 the solicitors for the first defendant advised the plaintiffs’ solicitors that with respect to the suggestion that the first defendant or its staff may have any liability for the plaintiffs’ condition:
“Our client absolutely denies liability and any proceedings your clients see fit to institute will be vigorously defended.”
Further correspondence mainly on a without prejudice basis ensued between the plaintiffs’ solicitors and the solicitors for the first defendant.
On 13 May 1999 Dr Lynagh informed Mrs Newcombe that he had authorisations from the first defendant in relation to consultations with the plaintiffs and that arrangements were being made for the first defendant to pay a weekly allowance of $100 to each plaintiff. Correspondence ensued between the plaintiffs’ solicitors and the solicitors for the first defendant about the extent of the authority given to Dr Lynagh.
By letter dated 18 May 1999 the plaintiffs’ solicitors requested the first defendant’s solicitors to provide copies of all records held by the first defendant relating to the plaintiffs.
Further communications ensued between the plaintiffs’ solicitors and the solicitors for the first defendant.
On 31 May 1999 Dr Lynagh wrote to the AIS terminating his involvement with the plaintiffs in relation to the first defendant. He referred to having been asked to coordinate the development of an appropriately pitched elite squash programme for the plaintiffs and the difficulties that he was encountering in organising a physiological assessment with a suitable training programme. Dr Lynagh stated:
“Clearly, any ongoing unresolved and/or aggressive litigation concerning such matters is highly likely to be of a disturbing and negative influence on such a helping process.”
Dr Lynagh forwarded a copy of that letter to the plaintiffs’ solicitors on 1 June 1999. The plaintiffs’ solicitors responded to Dr Lynagh by letter dated 4 June 1999 in which they stated:
“Kate and Emma are not, with respect, ‘patients’. Kate and Emma have made it clear that they believe that they have a claim against the Australian Sports Commission and persons associated directly or indirectly with the Australian Sports Commission arising out of the conduct of the Australian Institute of Sport and persons associated directly or indirectly with the Australian Institute of Sport whilst Kate and Emma were involved with the Australian Institute of Sports squash programme. There has never been any secret about our role as their advisers in relation to such claims.”
There is also another reference to litigation in that letter in the following terms:
“We felt that before embarking upon any litigation every attempt should be made to explore avenues to assist Kate and Emma without the stress and expense associated with any litigation.”
At the conclusion of the letter there was also a reference to the fact that if the plaintiffs’ concerns were not addressed within 7 days that they would have to accept that there was no point in any further negotiations with the AIS and they would then “pursue such further alternatives as they may be advised”. A copy of that letter was sent by the plaintiffs’ solicitors to the solicitors for the first defendant with another request for access to the records held by the first defendant relating to the plaintiffs.
Another proposal on behalf of the AIS in relation to a coordinated programme of activities for the plaintiffs was made in the first defendant’s letter dated 9 July 1999 to the plaintiffs’ solicitors. Further details were provided by the first defendant’s solicitors on 15 July 1999. The plaintiffs’ solicitors responded to that proposal on behalf of the plaintiffs with suggested changes and requirements by letter dated 16 August 1999. On the same date the plaintiffs’ solicitors wrote to the third defendant seeking copies of any records which he may hold relating to the plaintiffs. A similar request was also made by the plaintiffs’ solicitors to Dr Lynagh. The plaintiffs’ solicitors also made an application under the Freedom of Information Act 1982 (Cth) in respect of the records held by the first defendant relating to the plaintiffs.
On 25 August 1999 the plaintiffs’ solicitors received a letter from the third defendant refusing to provide the records of the plaintiffs, but indicating preparedness to provide a report, if requested to do so. On 25 August 1999 the plaintiffs’ solicitors also made appointments for the plaintiffs to be examined by psychiatrist Dr Peter Mulholland for medico-legal reports in January 2000 and to see psychiatrist Dr Michael Theodoros for medico-legal reports in November 1999.
On 26 August 1999 the plaintiffs’ solicitors also wrote to the third defendant explaining why the request had been made for copies of records held by the third defendant in respect of the plaintiffs which was to establish the nature of the treatment received by the plaintiffs from the third defendant, the results of any tests carried out on the plaintiffs, and whether or not the plaintiffs had previously been diagnosed as suffering from an eating disorder. The plaintiffs’ solicitors indicated that they had no objection to paying for a report but that they “would still expect however that copies of the source documents would be made available”. The letter then stated:
“We should perhaps make it clear that a request has been made of a number of medical practitioners who have treated Kate and Emma from time to time and not just yourself. Our initial concern as we have indicated above is simply to establish some basic facts.”
By letter dated 25 August 1999 Dr Lynagh queried the plaintiffs’ solicitors as to the purpose of their request for his records relating to the plaintiffs.
On 2 September 1999 the plaintiffs’ solicitors received a letter from the third defendant dated 27 August 1999 together with a copy of the letter which he had sent to his insurer United Medical Protection. The third defendant indicated that he would cease acting as the plaintiffs’ treating doctor. The letter which the third defendant wrote to his insurer referred to the plaintiffs’ “legal proceedings”.
On 10 September 1999 the plaintiffs’ solicitors received a letter from the first defendant’s solicitors advising that the first defendant was ceasing the funding which it had been providing to the plaintiffs.
The plaintiffs’ solicitors engaged in further correspondence with the first defendant during September 1999 in relation to the FOI request made on behalf of the plaintiffs.
In October 1999 the plaintiffs had made arrangements to take up coaching positions overseas until the end of January 2000, and therefore it was necessary to change the medical examinations arranged with Drs Mulholland and Theodoros. Appointments were made for Dr Theodoros to see the plaintiffs in February 2000 and for Dr Mulholland to see the plaintiffs in late February and early March 2000.
Under cover of letter dated 17 November 1999 the plaintiffs’ solicitors received from the first defendant the documents provided in response to the FOI request. Some documents which were identified were not disclosed on the basis that it was claimed that exemptions applied.
The first plaintiff was examined by Dr Theodoros on 9 February 2000. The second plaintiff was examined by Dr Theodoros on 16 February 2000. It appears that the plaintiffs also attended as arranged on Dr Mulholland.
On 7 March 2000 the plaintiffs’ solicitors forwarded copies of the documents which they had obtained relating to the plaintiffs to Dr Theodoros.
On 7 April 2000 the plaintiff’s solicitors received from Dr Mulholland two unsigned reports dated 5 April 2000 and noted as being draft reports.
Dr Mulholland diagnosed the first plaintiff as currently suffering from anorexia nervosa of a mild severity. He noted in relation to the first plaintiff:
“At the present time she needs to be under the care of an appropriate expert in the management of anorexia nervosa. At the present time Kate Major does not think that there is anything wrong with her and rejects the notion that she has anorexia nervosa. Her dietary habits continue to be odd. She is continuing to over exercise and she thinks that her current weight and body shape is fine i.e. she has no insight into her condition.”
Dr Mulholland expressed the opinion that the first plaintiff was likely to be rejecting the notion that she was suffering from the condition and that she should be in therapy.
In his report relating to the second plaintiff, Dr Mulholland concluded that she was currently suffering from anorexia nervosa of a moderate severity and made the same comments about care and lack of insight into her condition quoted above in relation to the first plaintiff.
In relation to both plaintiffs, Dr Mulholland expressed the opinion that the AIS did not appear to have recognised and/or confronted the real issue that the plaintiffs had anorexia nervosa or, if the AIS had realised the plaintiffs had anorexia nervosa, their management was inappropriate.
On 7 April 2000 the plaintiffs’ solicitors arranged for Mr Douglas of Senior Counsel to be briefed in relation to potential claims on behalf of the plaintiffs, but had not received that advice before making the application for renewal of the writ on 20 April 2000.
In his affidavits filed on 20 April 2000, Mr Carter had given a less detailed, but accurate, chronology of events which had transpired from his engagement in February 1999 until the examination of the plaintiffs by Drs Theodoros and Mulholland. Mr Carter deposed to no report having been provided by Dr Theodoros. He deposed also to no “written” report being provided by Dr Mulholland, but having spoken to Dr Mulholland on or about 7 April 2000. He deposed to what he had been informed by Dr Mulholland. Mr Carter did not refer to having received the draft reports from Dr Mulholland, although the information which he set out in his affidavit as having been provided by Dr Mulholland does conform with those draft reports. In paras 19 and 20 of that affidavit Mr Carter stated:
“19.I am informed by Dr Mulholland and do verily believe that it is a feature of people suffering from anorexia nervosa that they are not always aware that there is anything wrong with them and that they reject the notion that they have anorexia nervosa. This is the situation with both of the plaintiffs.
20.I am also informed and do verily believe that people suffering from anorexia nervosa are often reluctant to attend medical appointments. They are reluctant to discus matters relating to their disease and this makes it difficult to obtain an accurate factual history or details of the disease.”
In para 24 of that affidavit Mr Carter stated:
“24.I do verily believe that any delay has been excusable because of the following circumstances:
(a)the difficulty encountered in obtaining documents relevant to plaintiffs’ claim, most of which were within the control of the defendants;
(b)the difficulty encountered in arranging medical appointments for the plaintiffs due to the nature of the plaintiffs’ condition as described in paragraphs 19 and 20 above;
(c)the delay in obtaining medical reports because of the difficulty outlined in subparagraph (b) of this paragraph;
(c)the delay in obtaining counsel’s advice, which is required because of the complex nature of the claim;”
The law
It is not in issue that the court has jurisdiction to discharge an order made on an ex parte application. The jurisdiction exercised by the registrar was that conferred under r 24 of the UCPR which provides:
“24 (1) A claim remains in force for 1 year starting on the day it is filed.
(2) If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.(3) The claim may be renewed whether or not it is in force.
(4) However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the 5th anniversary of the day on which the claim was originally filed.
(5) Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed.(6) Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.”
The approach which should be taken on an application such as this which is seeking to challenge an order made on an ex parte application was dealt with in Farrell v Delaney (1952) 52 SR (NSW) 236 at 238:
“It is, of course, trite law to say that an order made on an ex parte application may be reconsidered and reviewed, either by the judge who made the original order, or in some cases, by another judge with co-ordinate powers, but in all those instances the application to review is not 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 upon the production of further materials not before the judge who heard the ex parte application and which throw a new and different light upon the situation of the parties involved.”
See also Bell Group NV (in liq) vAspinall (1998) 19 WAR 561, 569-570 and MQF vCorry [2000] QSC 416 (21 January 2000) at para 9. When additional evidence is available, as in this case, that was not before the registrar, it is a matter of the application being re-considered on the basis of the whole of the materials.
Prior to the UCPR renewal of writs was regulated by O 9 r 1 of the Rules of the Supreme Court. Although the requirements for renewal under r 24(2) of the UCPR are similar to those that were specified in O 9 r 1(1) of the RSC, the authorities on the earlier provision must be considered in the light of the underlying philosophy of the UCPR found in r 5. Rule 5(1) of the UCPR is pertinent to an application of this type, as it provides that the purpose of the UCPR is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
The issue therefore is whether on all the material that is now available relevant to the matter as at 20 April 2000 there was good reason to renew the writ. How the question of good reason is approached was considered by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 and was the subject of the decision of the Court of Appeal in Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 (10 December 1999). In Muirhead Pincus JA summarised the views applied by Stephen J as:
“(1) There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.
(2) The discretion may be exercised although the statutory limitation period has expired.
(3) Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.(4) There is a wide and unfettered discretion and there is ‘no better reason for granting relief than to see that justice is done’.”
All members of the court in Muirhead applied the principles set out in Van Leer. Mr McKenna of Counsel on behalf of the first, fourth and fifth defendants ultimately submitted that the approach to what was good reason was that of Stephen J in Van Leer which was based on a South Australian authority quoted at 344 of that judgment. The approach of identifying all factors relevant to the exercise of the discretion as to whether or not the originating process should be renewed, assessing the weight to be given to them in the circumstances and then determining whether, on balance, there was good reason to renew was adopted by the Court of Appeal in MacDonnell v Rolley [2001] QCA 32 (16 February 2001).
Consideration of the relevant factors
Although the defendants had no actual knowledge of the issue of the proceeding until the service on each of them in April 2001, this is not a case where the defendants had no apprehension that proceedings were threatened against them by the plaintiffs well in advance of being served with the writ.
The media publicity in February 1999 alerted all defendants that there were complaints by the plaintiffs about their treatment at the AIS. The first defendant knew from the first contact by the plaintiffs’ solicitors on 23 February 1999 that the plaintiffs had retained solicitors in connection with their concerns about their treatment. That was confirmed by the plaintiffs’ solicitors letter dated 17 March 1999. The seriousness with which the first defendant was treating the matter was shown by its engagement of solicitors to act on its behalf in negotiating thereafter with the plaintiffs’ solicitors.
The mere fact that correspondence which then ensued on behalf of the plaintiffs and the first defendant was done on a without prejudice basis in the context of an express denial of liability by the first defendant to the plaintiffs is indicative of the underlying understanding of the first defendant that the plaintiffs were making or proposing to make claims against the first defendant arising from their treatment at the AIS.
It would have been obvious to the first defendant that the plaintiffs’ FOI request was made in connection with an investigation of their claims.
Not only were the fourth defendants involved in the first defendant’s proposals being negotiated with the plaintiffs through their solicitors in May 1999, the fourth defendants perceived that litigation was a reality when they withdrew their involvement on 31 May 1999.
The communications in August 1999 between the plaintiffs’ solicitors and the third defendant alerted the third defendant to the possibility of proceedings by the plaintiffs, as confirmed by the third defendant’s contact with his insurer.
The plaintiffs submit that, having regard to the communications from February 1999 which alerted the defendants to the possibility to proceedings, any prejudice that the defendants have suffered in not recording or causing their servants or agents to record their recollections of dealings with the plaintiffs was self-created.
The accuracy of the various witnesses’ recollections is relevant to the defence of the plaintiffs’ claims. Each of Mr Hunt and Mr King swears that his recollection of conversations with the plaintiffs would have been more accurate in April 1999 than now and that had he been informed of the issue of the writ at the time it was issued, he would have taken steps to put his recollections in writing at that time.
That factor that delay in serving the writ may have affected the accuracy of recollection does favour the defendants. The weight to be accorded to this factor is affected by the fact that each of Mr Hunt and Mr King deposed to having kept some notes of conversations with the plaintiffs and that the affidavit of Mr Murphy discloses a number of memoranda which refer to meetings held with and about the plaintiffs. Dr Locke has his clinical notes of consultations with and about the plaintiffs, although he describes them as brief. This factor is also ameliorated to some extent (but not entirely) by the failure of the defendants, having been alerted to the prospect of proceedings from February 1999, to take steps to ensure that statements from all relevant witnesses were taken at that stage.
The plaintiffs’ reasons for not serving the proceedings at an earlier time are also relevant. On the instructions obtained by Mr Carter, it was apparent that the limitation period in respect of each plaintiff’s claim could be progressively expiring from July 1999. In order to protect the plaintiffs’ interests, it was necessary to issue the proceedings by July 1999. Despite the requirements of r 5(1) of the UCPR, a plaintiff is not bound to serve originating process on its issue. That is consistent with the originating process remaining in force for 1 year. It is a legitimate reason to defer service pending investigation of the claim, subject to the issue of prejudice caused to the defendant.
It is apparent from the chronology of the correspondence embarked upon by the plaintiffs’ solicitors that at the same time that the plaintiffs’ solicitors were endeavouring to obtain information to assist with the investigation of the plaintiffs’ claims, they were also undertaking negotiations with the first defendant in relation to proposals for treatment and a programme for the plaintiffs which would have the effect of minimising their future damages. The latter was an express object of the negotiations conveyed to the first defendant and not an unacceptable reason for deferring service.
Between March and November 1999 the plaintiffs’ solicitors were seeking medical records and other documents relevant to the plaintiffs’ claims. Despite the FOI request of the first defendant, the documents which form Exhibits RDM12 and RDM13 which include a history by Dr Lynagh of the plaintiffs’ “clinical condition” from his viewpoint was not disclosed previously by the first defendant. In addition, the documents which form Exhibits ASL1, ASL2, ASL3 and ASL5 to the affidavit of Dr Locke were not previously disclosed to the plaintiffs’ solicitors until that affidavit was served on 20 July 2001.
Another reason that the plaintiffs’ solicitors deferred serving the proceeding was that they wished to obtain expert opinion from psychiatrists to support the plaintiffs’ claims. It was not unreasonable that the first appointments made for the plaintiffs to see the psychiatrists were cancelled, because of their coaching commitments. It was not unreasonable for the plaintiffs’ solicitors to wait until they received an opinion from Dr Mulholland on the plaintiffs’ claims, after Dr Mulholland had seen both of them and considered the documentary material provided to him, before proceeding further.
The prospects of the plaintiffs’ being successful in their claims is also a relevant consideration. That determination is difficult to make at such an early stage of the proceeding when the claims are complex. The documentary material disclosed for the purpose of these applications in conjunction with the opinion of Dr Mulholland supports a conclusion that the plaintiffs have some prospects of success.
A particularly relevant consideration on this application is the very nature of the condition from which the plaintiffs allege they are now suffering. It is apparent that their mother has been the instigating force in engaging the solicitors to act on the plaintiffs’ behalf, as the plaintiffs themselves do not necessarily acknowledge that they are suffering from the condition which is the subject of the proceeding. That is also borne out in a number of respects in the material available in connection with this application including various assessments made by officers of or for the first defendant and various medical reports when dealing with observations of the plaintiffs and their attitudes. Some weight must be attached to the difficulty in proceedings being pursued by the plaintiffs (with the assistance of their mother) when, at one level, the plaintiffs may not acknowledge the existence or extent of the condition and its consequences which is the subject of the proceedings. That factor is relevant to determining what timetable is acceptable for the just and expeditious resolution of this proceeding. The requirement of expedition found in r 5(1) of the UCPR does not deprive the court of discretion in relation to the speed at which a proceeding is conducted, because of the particular circumstances of the case.
It is also a relevant factor that if the registrar’s order were discharged, the writ would have been stale when served on 19 and 20 April 2001 and, if a new action were now to be commenced by the plaintiffs, it would substantially be able to be defended by reference to the limitation period.
It is submitted by the defendants that the plaintiffs’ solicitors actively concealed the existence of the proceeding from the defendants. There is no doubt that in communications with the first, third and fourth defendants after the issue of the writ, the plaintiffs’ solicitors did not expressly disclose that the writ had been issued. It can also be said, however, that the first, third and fourth defendants did not expressly ask whether the plaintiffs had commenced proceedings, even though it was apparent from what the plaintiffs’ solicitors did say and were doing that taking proceedings was a course that was in the contemplation of the plaintiffs.
It was submitted on behalf of the first, fourth and fifth defendants that in relation to some of the correspondence from the plaintiffs’ solicitors that “The false tenor of this correspondence is that litigation has not been commenced”. That overstates the position, particularly when the correspondence is considered in the context of the claims made on behalf of the plaintiffs to which media publicity was given in February 1999 and the whole purpose of communications being treated as without prejudice.
Mr Boddice of Counsel on behalf of the third defendant raised the propriety of the plaintiffs’ solicitors sending the letter dated 26 August 1999 to the third defendant, without advising that proceedings had been issued against the third defendant. As the primary request being made by the plaintiffs’ solicitors was for records relating to the plaintiffs held by the third defendant, the lack of disclosure about the existence of the proceeding against the third defendant is not that significant.
Another issue which arose in the course of the argument was whether the renewal by the registrar should have been for a lesser period than 12 months. Mr Carter’s affidavit filed on 20 April 2000 certainly supported an extension of a significant period of time, because of the reasons which he gave for the delays that had occurred. It must be relevant to the exercise of the discretion on this application that the plaintiffs have acted on the basis that the renewal was for a period of 12 months and deferred service until the end of that period of 12 months. If it were determined now that a lesser period such as 6 months were appropriate, the plaintiffs would be in the same position in having served a stale writ, as they would be if the registrar’s order were discharged.
It is a matter of taking into account all these relevant considerations, weighing them up and determining whether on balance there is “good reason” for renewing the writ. In the context of the defendants’ prior knowledge of the claims before service of the writ, the prejudice suffered by the defendants by the delay in the service of the writ is outweighed by the other factors which have been identified in favour the renewal of the writ.
It is not appropriate in the exercise of the discretion conferred on the court to set aside the order made by the registrar on 20 April 2000. I therefore order that the applications filed respectively on 25 and 28 May 2001 be dismissed. I will hear submissions from the parties on costs.
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