Marsden v Taylor - [2000] TASSC 138

[2000] TASSC 138

CITATION: Marsden v Taylor [2000] TASSC 138

PARTIES:  MARSDEN, Donald
  v
  TAYLOR, Andrea Georgina

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 11/2000
DELIVERED ON:  29 September 2000
DELIVERED AT:  Hobart
HEARING DATE:  1 September 2000
JUDGMENT OF:  Crawford, Evans and Blow JJ

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Commencement of proceedings; originating process - Renewal of writ - Whether reasonable efforts made to serve defendant or other good reason shown.
Rules of the Supreme Court 1965 (Tas), O8, r1(1).

Verdich v McKechnie [1981] Tas R 91; National Mutual Life Association of Australasia Ltd v Huddlestone 72/1997, referred to.
Aust Dig Procedure [266]

REPRESENTATION:

Counsel:
           Appellant:  A J Denehey
           Respondent:  G L Sealy and J L Walters
Solicitors:
           Appellant:  Murdoch Clarke
           Respondent:  Piggott Wood & Baker

Judgment Number: [2000] TASSC 138
Number of paragraphs: 21

Serial No 138/2000
File No FCA 11/2000

DONALD MARSDEN v ANDREA GEORGINA TAYLOR

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
EVANS J
BLOW J
29 September 2000

Orders of the Court

Appeal allowed.

Order renewing writ set aside.

Interlocutory application filed 3 September 1999 seeking renewal of the writ dismissed.

Leave given to the first defendant to withdraw his appearance.

Serial No 138/2000
File No FCA 11/2000

DONALD MARSDEN v ANDREA GEORGINA TAYLOR

REASONS FOR JUDGMENT FULL COURT
CRAWFORD J 29 September 2000

The appeal is from an order made by a judge which renewed the respondent's writ for six months.

The respondent filed the writ on 3 September 1998. She named the appellant as the first defendant and also sued three other defendants namely Lisa Turner, Robert Linacre and the State of Tasmania. The endorsement of claim stated that "the Plaintiff's claim against you is for damages for personal injuries, loss and expense suffered by the Plaintiff at the Royal Hobart Hospital in Tasmania as a result of the negligence and/or breach of contract by the Defendants between the 6th of September 1995 and the 1st of September 1998".

The application to renew the writ was governed by the Rules of the Supreme Court 1965, which were not replaced by the Supreme Court Rules 2000 until the latter came into operation on 1 May 2000. Under the Rules of the Supreme Court 1965, O8, r1(1), no writ was in force for more than 12 months from the date upon which it was filed, including that date. If a defendant had not been served, the subrule permitted the plaintiff, before the expiration of the 12 month period, to apply to the Court or a judge for leave to renew the writ. The subrule continued by providing that "the Court or a judge, if satisfied that reasonable efforts been [sic] made to serve such defendants, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal, inclusive of such date, and so…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marsden v Taylor

Details

AGLC: Marsden v Taylor [2000] TASSC 138
Case: [2000] TASSC 138
Decision Date: 29 September 2000

CaseChat Overview and Summary

In this case, the appeal was brought by Donald Marsden against Andrea Georgina Taylor. The dispute revolved around the renewal of a writ in a lawsuit filed by Taylor against Marsden and others. The writ, which was originally filed on 3 September 1998, had a limitation period of 12 months, after which it would become stale unless renewed. Taylor sought to renew the writ for another six months, starting from 3 September 1999, but Marsden contested this renewal. The case was heard by the Supreme Court of Tasmania's Full Court.

The primary legal issue before the court was whether the judge who granted the renewal of the writ acted within their discretion and whether there was sufficient evidence to support such a decision. The court had to consider if reasonable efforts were made to serve the writ on Marsden and if there was any other good reason for the renewal. Marsden argued that the judge made an error in granting the renewal without adequate evidence to support it.

The court found that the learned judge erred in granting the renewal of the writ. The evidence provided by Taylor's counsel, Mr Warmbrunn, was insufficient to justify the renewal. The affidavit did not demonstrate reasonable efforts to serve the writ on Marsden, as only one attempt was made on the last day before the writ became stale. Furthermore, there was no evidence to show that there was any other good reason for the renewal. The court concluded that the renewal should not have been granted based on the available evidence.

The Full Court set aside the order renewing the writ, dismissed Taylor's application for renewal, and granted Marsden leave to withdraw his appearance. The judges agreed that the dismissal of the interlocutory application would likely leave Taylor in a worse position than before, but they reasoned that this outcome was fair given the lack of sufficient evidence to support the renewal of the writ. The judges also noted that it remained open to Taylor to issue a fresh writ against Marsden and apply for an extension of time under the Limitation Act 1974, s5(3).

Orders