Mali v Benchmark Healthcare Pty Ltd
[2005] VSC 72
•23 March 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 5838 of 2003
| SARAH MALI AND RAJ MALI | Plaintiffs |
| v | |
| BENCHMARK HEALTHCARE PTY LTD AND DR PETER LEE | Defendants |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 January 2005 | |
DATE OF JUDGMENT: | 23 March 2005 | |
CASE MAY BE CITED AS: | Mali v Benchmark Healthcare | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 72 | |
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Practice and Procedure – Renewal of writ – “Good Reason” – Renewal before expiry – Order made on ex-parte application later set aside - Use of new affidavit on appeal – “Special leave” – RSC rr.5.12, 77.05.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mrs J Morrish QC with Mr J Devery | Clark & Toop |
| For the First Defendant | No appearance for the first defendant | |
| For the Second Defendant | Mr M Richardson (solicitor) | Blake Dawson Waldron |
HIS HONOUR:
On 13 May 2003 the plaintiffs in this proceeding consulted a solicitor, Ms Patricia Toop, seeking advice in respect of psychological injuries they alleged they suffered on 24 and 25 October 2002 when their son was asphyxiated during his birth. They sought advice as to whether they had a claim for damages against the hospital in which Mrs Mali gave birth to their son and against the obstetrician who attended her, the present defendants.
On 16 May 2003 Ms Toop issued a generally endorsed writ on the plaintiffs’ behalf against the defendants. She did this quickly to preserve the plaintiffs’ position because she was fearful of impending legislative change which might affect their ability to obtain a remedy at common law. Ms Toop did not serve the writ but during the rest of 2003 and into 2004 she investigated the plaintiffs’ claims. In April 2004 she became concerned that the writ may become stale and so she made an ex-parte application to Master Wheeler to extend time for its service. She filed an affidavit in support of that application in which she deposed that she was still investigating the facts of the case. On 6 May 2004 Master Wheeler extended the period for service of the writ to 30 November 2004.
On 25 October 2004 the writ was served on each of the defendants. By a summons inter partes returnable before Master Wheeler filed on 4 November 2004 the second defendant sought a number of orders including an order that Master Wheeler’s order of 6 May 2004 extending time for service of the writ be set aside.
After being adjourned once, this summons was eventually heard on 15 December 2004 when Master Wheeler set aside his order of 6 May insofar as it related to the second defendant. The Master also ordered that any appeal against his order be made returnable before the judge in charge of the Major Torts List on 20 December 2004. Why this order was made is nowhere made clear. The Supreme Court Rules regulate appeals from Masters to Judges of the Trial Division and would have done so in this case had the order fixing the return date not been made by Master Wheeler.
The matter came before the Major Torts List on 20 December when Ms Toop appeared but the second defendant did not, his solicitor taking the view (as emerged from correspondence later produced to the Court) that the appeal was irregularly instituted and could not proceed. On that day the matter was adjourned for argument on 17 January 2005.
After argument as to the validity of the institution of the appeal, and a proper concession made by the solicitor for the second defendant that the Court had the widest discretion to make remedial orders to enable the merits of the appeal to be dealt with, the matter was argued on the merits. If such had been needed the Court would have made an order extending all times necessary to enable the matter to proceed on the merits on 17 January.
As this was an appeal from a Master it was a re-hearing de novo on the material before the Master and, by special leave, on any further affidavits sought to be relied upon on the appeal. In this case Ms Toop swore an affidavit specifically for use on the appeal. Application was made by counsel for the plaintiffs to rely upon it, which application was opposed by the second defendant.
The new affidavit of Ms Toop sworn 11 January 2005 purported to be sworn and filed pursuant to leave granted by me on 20 December 2004. No such leave was, or could lawfully have been, given. The second defendant was not present on 20 December. Had leave been given the Court would have acted without having heard one of the parties interested.
Secondly, the affidavit deposes to enquiries made of the County Court Registry as to the number of writs which were extended in that Court over a given period. No attempt was made by counsel for the plaintiffs to justify the relevance of such material. It has nothing to do with this case.
Apart from deposing to what Ms Toop would have done about service had Master Wheeler rejected her initial ex-parte application in May 2004 the rest of the affidavit advances the plaintiffs’ case no further than the material which was before the Master. It is clear that if Master Wheeler had rejected Ms Toop’s original ex-parte application she would have had the option of appealing the Master’s order or of simply serving the writ within time. It still had 10 days to run. It can be readily inferred that a competent solicitor would have taken one or other or perhaps, if necessary, both of such steps had she not obtained an order extending the time for service.
In the circumstances I refused the plaintiffs special leave to rely upon the affidavit of Ms Toop sworn 11 January 2005 on this appeal.
The issues on this appeal
The first issue on this appeal is whether on 6 May 2004, the Court should have extended the time for service of the writ as Master Wheeler did. If this question is answered in the affirmative it will be necessary to examine whether that order should have been revoked on the re-hearing of the application which occurred before Master Wheeler on 15 December 2004.
The material before the Master on 6 May consisted of a generally endorsed writ and Ms Toop’s affidavit of 19 April. Although exiguous, that affidavit clearly deposed to the fact that she had not concluded her enquiries as to the issue of negligence as at the date of that affidavit and needed more time to confirm that her clients had a case which could be made out.
Had Ms Toop served the valid writ within the first 12 months after it was issued without confirming that her clients had a case she would have run the risk that prudence would later dictate that the proceeding be discontinued with costs consequences for them which may well have been significant. Also, the defendants would have been put to the trouble, expense and inconvenience, not to mention the anxiety, of commencing to defend a case which may not be going to proceed. Not all of their costs would be recoverable from the plaintiffs and, in any event, the second defendant, in particular, would never be compensated for his intangible losses.
The power of the Court to extend time for service of the writ is contained in RSC r.5.12. Although earlier rules specifically required that an extension could only be granted for “good reason” judicial decisions on the current rules have imported the same concept even though the requirement is no longer express: Ramsay v Madgwicks (a firm)[1].
[1][1989] VR 1.
Mr Richardson, the second defendant’s solicitor, submitted that no good reason existed for the Master to extend the time for service of the writ. He referred to Soper v Matsukawa[2] and, in particular, to the passage at the end of the judgment of Lush J at 954:
“Throughout the consideration either of an initial ex-parte application or of the review in the presence of both parties of an ex-parte order, I think that the court or judge must keep in mind that the rule places an onus on the plaintiff. No doubt the selection of the factors constituting or relevant to good reason is a matter of discretion, as is also the relative significance to be given to the selected matters.”
[2][1982] VR 948.
Mr Richardson also argued that the plaintiff could have served the writ together with a letter informing the defendants’ solicitors of her position to prevent their having to expend costs until she had made a decision as to whether the claim was going to proceed. He submitted that that was “the sensible way to go”. He referred to Finlay v Littler[3] where Crockett J referred to Ramsay v Madgwicks and noted that in that case the Chief Justice had cited with approval a dictum of Lord Goddard in Battersby v Anglo American Oil Company Ltd[4] as follows:
[3][1992] 2 VR 181 and to the observations of Crockett J at 185.
[4](1945) KB 23 at 32-3.
“We conclude by saying that, even when an application for renewal of a writ is made within 12 months of the date of issue, the jurisdiction given by the rule ought to be exercised with caution. It is the duty of a plaintiff who issues a writ to serve it promptly, and renewal is certainly not to be granted as of course on an application which is necessarily made ex-parte. In every case care should be taken to see that the renewal will not prejudice any right of defence then existing, and in any case it should only be granted where the court is satisfied that good reasons appear to excuse the delay in service, as, indeed, is laid down in the order. The best reason, of course, would be that the defendant has been avoiding service, or that his address is unknown, and there may well be others … .”
Crockett J concluded his reference to Ramsay v Madgwicks by quoting the Chief Justice:
“Of course, all the circumstances of a particular case must be considered before a discretionary judgment is exercised.”
Whilst there is some merit in Mr Richardson’s suggestion that the writ be served under cover of a letter indicating that the matter may not proceed, any cost saving which might be so effected would depend, to some extent at least, on the cooperation of the defendants’ solicitors which might not be forthcoming. In any event such a course would not have eliminated the possibility of the plaintiffs being liable for some of the defendants’ costs if the case did not proceed.
Mr Richardson referred to the fact that if the writ had not been renewed (and, presumably, had not been served) any new writ issued would have been subject to the tort law reforms which were introduced in 2003 which may benefit his client. But this submission, of course, assumes that had the Master rejected Ms Toop’s original application she would have simply allowed the present writ to go stale rather than either appealing his decision, serving the writ or taking both of such steps. I regard the possibility of Ms Toop’s allowing the writ to become stale as so unlikely as not to merit further consideration.
Ms Morrish QC submitted that the course which the plaintiffs’ solicitor took of seeking to ascertain the strength of her clients’ case before serving the writ and the delay that such a course necessarily involved constituted good reason for seeking an extension of time in which to serve it. She referred to the unusual case of Bugden & Anor v Ministry of Defence[5] where the Court of Appeal had to consider the validity of an extension of time for service of a writ granted by a Master in circumstances where he was not asked to make such an order. Lord Denning considered that the plaintiff’s solicitor’s investigation of the plaintiff’s medical situation constituted a good reason for the time for service of the writ being extended. He considered the peculiar circumstance of lack of an application to a Master to be a mere irregularity.
[5][1972] 1 All ER 1.
The question of good cause is not to be determined by the attempted application of fact situations from other cases. It is, of necessity, a matter of judgment depending peculiarly on the circumstances of the particular case. In the instant case the plaintiffs’ solicitor acted appropriately in not serving the writ until she had further investigated the strength of her clients’ case. Similarly, she acted appropriately in commencing the proceeding at the earliest opportunity to preserve her clients’ rights as they then stood. Finally, she acted appropriately in seeking an extension of the writ a sufficient time before it expired to enable her to take other remedial action within time had the extension not been granted. There are no apparent countervailing features of this case which suggest that an extension of the writ ought not have been ordered.
I consider that the material placed before Master Wheeler on 6 May 2004 demonstrated good cause for him to extend time for service of the writ.
I turn then to consider whether, when Master Wheeler reconsidered the matter on 15 December 2004 he was justified in reversing his earlier ex-parte decision.
The material before Master Wheeler in December constituted the affidavit of Ms Toop of 19 April to which reference has already been made together with a further affidavit by Ms Toop of 9 December. No affidavit material was filed on behalf of the second defendant.
Ms Toop’s second affidavit sets out the steps which she took on the plaintiffs’ behalf during 2003 and 2004, culminating with her arranging service of the writ on each of the defendants on 25 October. In effect it summarised the investigations which she undertook and the difficulties which she had in pursuing the plaintiffs’ claim with the experts she had retained.
As there was no evidence placed before the Master on behalf of the second defendant it is extremely difficult to determine upon what basis he revoked his order of 6 May. There appears to have been no question of non-disclosure and no issue as to any particular prejudice suffered by the second defendant other than that to which Mr Richardson referred in his submission (as to the possible benefit of new tort laws) which I have noted. I am satisfied that when the matter came before Master Wheeler on 15 December 2004 good reason still existed for his having extended the time for service of the writ on 6 May 2004. Such good reason still exists. This appeal must be upheld.
Subject to hearing from the parties as to form and on the issue of costs the Court will make the following orders:
(1)That the order of Master Wheeler of 15 December 2004 setting aside his order of 6 May 2004 itself be set aside.
(2)That the second defendant pay the plaintiffs’ costs of the application before Master Wheeler on 15 December 2004, including any costs reserved.
(3)That the second defendant pay the plaintiffs’ costs of this appeal, including any costs reserved.
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