Maxwell v Richter

[2011] VCC 1484

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

GENERAL DIVISION

Case No. CI-10-01125

DAVID ALAN MAXWELL	Plaintiff
v
RALPH PATRICK RICHTER	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2011
DATE OF RULING:	13 September 2011 (Revised)
CASE MAY BE CITED AS:	Maxwell v Richter
MEDIUM NEUTRAL CITATION:	[2011] VCC 1484

RULING

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Catchwords: PRACTICE AND PROCEDURE – ex parte order extending the validity of a writ – further ex parte order for substituted service – application pursuant to order 46.08 to set aside ex parte orders – hearing on the merits – relevant considerations to the making of an order extending the validity of a writ – relevant considerations to the making of an order for substituted service

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E Makowski	Arnold Thomas Becker
For the Defendant	Mr A Sanbach	J A Fillmore & Co
HIS HONOUR:

Introduction

1          By a Summons filed 29 August 2011, the defendant seeks to have two ex parte orders set aside and for the substance of the applications to be reheard.

2          Mr E Makowski of counsel appeared for the plaintiff/respondent, and Mr A Sandbach of counsel appeared for the defendant/applicant.

The Ex Parte Orders

3          The plaintiff alleges that on or about 28 April 2007, he was assaulted by the defendant, who repeatedly struck him to the face and the head.

4          The plaintiff engaged and retained Arnold Thomas & Becker, solicitors. Armed with instructions from the plaintiff, a writ was filed with a statement of claim on 18 March 2010 pleading an assault and consequent injury suffered by the plaintiff as a result of the assault.

5          The relevant limitation period under the Limitation of Actions Act 1958 is three years. The writ was filed about forty-one days short of the limitation period.

6          An ex parte application was made to the Court to extend the period of the validity of the Writ until 15 August 2011. The application was supported by an affidavit of Ms Lily Boskovski, solicitor for the plaintiff, sworn on 1 February 2011.

7          The ex parte application was referred to a Judge of the Court, who granted the application. The date of the authenticated order is 7 February 2011.

8          A second ex parte application was made to the Court for an order for substituted service. The application was supported by an affidavit of Ms Boskovski sworn on 11 August 2011.

9          The ex parte application was referred to a Judge of the Court, who granted the application. The date of the authenticated order is 11 August 2011.

10        The defendant swore an affidavit on 29 August 2011. He found the Writ in the letterbox of his residence at 22 Heard Avenue, Plenty. He did not say when it was he found the Writ in his letterbox, but it must have been somewhere between the date when the order for substituted service was made and the date upon which he swore his affidavit.

The Application

11        The relief sought in the Summons is for both ex parte orders to be set aside pursuant to Rule 46.08(b), or alternatively, by the exercise by the Court of what Mr Sandbach submitted was the inherent jurisdiction of the Court to regulate its own proceedings.

12        Rule 46.08(b) is in the following terms:

"The Court may set aside or vary an order which affects a person where

the application for the order—

(a) was made on notice to that person, but the person did not attend

the hearing of the application; or

(b) was not made on notice to that person."

13        Mr Makowski did not argue to the contrary that Rule 46.08(b) applies to the facts and circumstances relevant to the making of the two ex parte orders.[1] I am satisfied that the Court has the jurisdiction to entertain the relief sought in Summons.

[1]             The commentary in Volume 1 of Williams ‘Civil Procedure’ at pages 4698-4699 makes it clear that Rule 46.08(b) has particular relevance to an order when made ex parte.

The Order Extending The Period of Validity

14        The source of the power to make an order extending the period of the validity of a writ is found in Rule 5.12. It is in the following terms:

"(1)	A writ or an originating motion shall be valid for service for one year after the day it is filed.
(2)	Where a writ or an originating motion has not been served on a defendant, the Court may from time to time by order extend the period of validity for such period from the day of the order as the Court directs, being not more than one year from that day.
(3)	An order may be made under paragraph (2) before or after expiry.
(4)	The plaintiff may apply under paragraph (2) without notice to the defendant, but if the Court considers that the defendant ought to be heard the Court shall adjourn the further hearing and direct the plaintiff to give notice to the defendant by summons or otherwise."

15        The application was made to the Court without notice to the defendant and in accordance with an accepted practice in the Court that the application be made by affidavit.

16        The procedure which I must adopt is to permit the defendant to rely on the grounds and arguments which the defendant would have been entitled to urge upon the Court if the application had been made by Summons and not ex parte.[2]

[2]             McNamara v Cameron (1890) 16 VLR 108 at 110 and Savcor Pty Ltd v Catholic Protection International APS [2005] VSCA 213 at paragraph 21

17        In Ramsay v Madgwicks (a firm),[3] Young CJ held that the test to be applied is the same as in the former Rule 8.01. The former Rule specifically referred to the Court being satisfied “that reasonable efforts have been made to serve [the] defendant, or for other good reason” as the test to be applied in determining whether to extend the time for service of a writ.[4]

[3] [1989] VR 1

[4]             Followed in Protec Pacific Pty Ltd v Steuler Industriewerke GmbH [2007] VSC 93, per Hansen J

18        In Savcor Pty Ltd,[5] Gillard AJA reviewed a number of authorities and then observed that those authorities established the following general propositions:

[5]             supra

"(i)	It is the duty of the plaintiff to serve the writ promptly.
(ii)	There must be a good reason for the grant of an extension and if the application is made after the period has expired the reason must be one of substance.
(iii)	It is not possible and indeed is unwise to attempt to define the circumstances which amount to a good reason. It is trite observation but not very helpful that whether or not it is a good reason must depend upon all the circumstances of the particular case. As a general proposition difficulty serving the writ within the 12 months’ period will usually establish a good reason. By way of example where the defendant is evading service, his whereabouts are unknown or some other difficulty is experienced in serving the defendant.
(iv)	By reference to decided cases it is possible to compile a list of the circumstances which constitute a good reason. The cases also provide examples where the circumstances have not been a good reason to extend the period of validity. For example, it is not a good reason that negotiations are continuing between the parties, or legal aid has not been granted and the plaintiff is waiting for the grant. There are cases which say that the latter proposition is not a good reason. But in Waddon v Whitecroft-Scovill Ltd it was said delay caused by the authorities to grant aid may be a good reason. Other examples which have not found favour are difficulty tracing witnesses or obtaining evidence.
(v)	The Australian cases differ from the English cases as to the effect of a limitation defence arising after the issue of a wait but before the application to extend the validity of the writ. The difference is traced by Stephen J in Van Leek Australia Pty Ltd v. Palace Shipping K.K., supra at pp.245-247. His Honour preferred the approach of the Australian and Canadian courts. He quoted with approval what Bray, C.J. said in Victa Ltd v Johnson. Bray, C.J. stated that there was no rule that a defendant acquired an absolute right to immunity when a writ issued within the limitation period is not served and in the meantime the period expires. The English cases had stated a test that if the limitation period had expired it was only in exceptional circumstances that the writ would be renewed. This is not the Australian position."[6]

[6]             at paragraph 41

19        Ms Boskovski swore that there were a number of reasons why the Writ had not been served promptly. In summary, those reasons were:

• An application to Law Aid had been made on 23 July 2009. The volume of material which she had to deal with in making the application delayed Law Aid from finally granting aid until 28 July 2010.

• Medical material was required from hospitals and counsellors relevant to understanding the plaintiff’s long history of psychiatric injury and schizophrenia. A significant volume of material was obtained from his treating hospital on 17 January 2011.

• An appointment was organised with Dr Weissman, psychiatrist, for the purpose of the conduct an impairment assessment. The appointment was for 7 March 2011. At the time when the application to extend the validity of the Writ was made, the plaintiff had not obtained a report from Dr Weissman.

• Lastly, it was the preferred position of the plaintiff to obtain all the material and be in a position to assess his claim before serving the Writ and possibly/probably incurring costs if the material disclosed that his case should be discontinued.

20        Mr Sandbach made a withering attack upon Ms Boskovski's affidavit, essentially submitting that it did not contain sufficient material upon which the Court could seriously entertain an application to extend the validity of the Writ.

21        Furthermore, Mr Sandbach submitted that what the plaintiff had done was simply sit on his hands until just before the limitation period ran its course, then he issued the Writ and then sought an extension of the validity of the Writ for leave to avoid the consequence of facing the limitation defence and the inevitable necessity to seek an extension of time.

22        In support of that submission, Mr Sandbach referred me to Pell v Hodges[7] in which Handley AJA concluded that the plaintiff, in that case, had not decided whether she wanted to proceed with her claim, and on what basis. The plaintiff essentially wanted more time to decide whether she would proceed with her case. His Honour made the following general observation:

"In these circumstances delay within the limitation period is also relevant to the exercise of the discretion to extend time for service of proceedings. A plaintiff who issues proceedings just before the limitation period and only then has the merits of the case investigated should not have any expectation of obtaining an extension of time to enable investigations to continue. There should also be no expectation that time spent in this way after the statement of claim has been issued, especially after it has become stale, will be accepted as an adequate explanation for such delays. Her case is not improved if investigations were carried out with reasonable diligence, but proved negative."[8]

[7] [2007] NSWCA 234

[8]             paragraph 44

23        My reference to Handley AJA making a general observation is derived from the particular subject matter of the proceeding before him which was a medical negligence claim. His Honour referred to the fact that the practice in New South Wales affected a truncation of the period within which a statement of claim is valid for service, which was twelve months generally, but four months in a medical negligence claim. This led his Honour to observe that the difference between general personal injury claims and medical negligence claims was that in a medical negligence claim the allegations affected the defendant both personally and his/her professional reputation and hence the shorter period within which to serve the statement of claim.[9]

[9]             at paragraph 44-45

24        Although the general proposition enunciated by Handley AJA must resonate in an application to extend the validity of a writ, it cannot be fatal to the plaintiff's application just because the writ is issued a short time prior to the limitation period expiring.

25        Furthermore, Gillard AJA made a very pertinent observation, describing it as trite, that whether an order should be made extending the validity of a writ depends upon all the circumstances of the particular case.

26        I see no good reason why I should not accept the unchallenged evidence of Ms Boskovski that an application for Law Aid was made for the purpose of funding the plaintiff's case, and that it was necessary for her to digest the hospital and counselling material in order to assemble a basis upon which the plaintiff could seek an expert opinion to determine whether the plaintiff could prove that he had suffered injury as a consequence of the alleged assault.

27        Mr Sandbach also relied upon prejudice, submitting that the effluxion of time would prejudice the defendant's capacity to arm himself with the evidence necessary to defend the plaintiff's proceeding. However, the highest which the defendant put prejudice was that he has taken no steps to preserve evidence, refresh his recollection of the assaults, or notify witnesses that their recollections of the assault might be required.

28        The statement is appallingly general and utterly uninformative. Firstly, the plaintiff does not say what evidence he has failed to preserve, and indeed, whether he had any evidence in the first place to preserve. Secondly, he does not say what memory he has of the incident, and therefore, what memory he needs to refresh, and the basis upon which he says (if indeed he is saying this) that he cannot refresh his memory of the occasion when the assault alleged by the plaintiff occurred. Thirdly, he does not identify any witnesses to the assault nor any difficulty he has had in identifying those witnesses and procuring their co-operation in support of his defence.

29        Mr Sandbach referred me to Brisbane South Regional Health Authority v Taylor.[10] While there can be no doubt that there are very good policy considerations behind the enactment of limitation periods, the fact remains that the relevance of that authority is left somewhat up in the air because of the lack of clarity in the defendant's affidavit of the matters which he says constitute prejudice.

[10] (1996) 186 CLR 541, and in particular the oft quoted observations of McHugh J regarding the policy behind the enactment of limitation periods.

30        Mr Makowski referred me to the affidavit of Ms Boskovski sworn 8 September 2011 which exhibits a certified extract of the Magistrates’ Court sitting at Frankston which records that the defendant was charged with one count of recklessly causing injury. The learned Magistrate, without proceeding to conviction, placed the defendant on a community-based order for twelve months on condition that he perform 60 hours of unpaid community work over the twelve- month period.

31 Section 92(2) of the Evidence Act 2008 provides that the plaintiff can use the admissions made by the defendant, and the evidence adduced in the Magistrates’ Court, relevant to his conviction as evidence against the defendant. The effect of this is that the prejudice referred to by Mr Sandbach pales to a significant degree. It is potentially not open to the defendant to deny the allegations made by the plaintiff where the admissions made by him and the evidence adduced are consistent with the allegations made by the plaintiff in this proceeding.

32        The conclusion I have reached is that the plaintiff gave instructions to his solicitors, who set about investigating the substance of his claim. I infer that he needed financial assistance in order to bring his claim to pay for disbursements, such as paying the cost of hospital, counselling and expert reports, hence the application to Law Aid.

33        I do not read the reasoning of Gillard AJA to say that in every case that waiting for legal aid is not a good reason, and indeed, he cited an authority for the proposition that it may be a good reason. Furthermore, his Honour did not say that because the effect of an extension of the validity of the writ would deprive the defendant of the limitation defence, that it is for the plaintiff to show some exceptional circumstances for the purpose of having the validity of the writ extended. On the contrary, his Honour observed that not to be the Australian position.

34        In weighing up the reasons advanced by the plaintiff in support of the application to extend the validity of the writ against the considerations which Mr Sandbach took me to, I am of the view that the affidavit of Ms Boskovski sworn in support of that application does depose to good reasons to have the Court extend the validity of the Writ.

Service

35        Mr Sandbach made two attacks upon the order for substituted service. The first is that the evidence did not support a basis upon which an order for substituted service can be made; and secondly, that the authenticated order is not an order for substituted service in its terms.

36        The affidavit of Ms Boskovski sworn 11 August 2011 exhibits an affidavit of attempted service sworn by Ms Magdaline Gialeli, process server, on 11 August 2011. She deposes to making attempts on Sunday, 31 July 2011 at 5:20 pm; Wednesday, 3 August 2011 at 10:25 am; Monday, 8 August 2011 at 5:55 pm and Wednesday, 10 August 2011 at 8:30 pm. Mr Sandbach also made a withering attack upon the inefficiency of the process server, essentially submitting that it was no wonder that service could not be effected because the process server attempted service on occasions when it was unlikely that a businessman would be at home.

37        The criticism of the attempts made by the process server I think are without merit. Firstly, an attempt was made on a Sunday and then on two further occasions after 5 pm when one might expect someone to be home. However, it needs to be seen in the context of the reasons why service could not be effected. The defendant's property is secured by high fences with locked electronic gates with an intercom system. The process server used the intercom system but obtained no response. She was otherwise unable to make any observation within the gates of the property.

38        Whether the attempts at service are sufficient or not, warranting an order for substituted service depends upon the facts and circumstances of each individual case.

39        Rule 6.10 permits a writ to be served by substituted service where the Court considers that it is impracticable to serve a document in the manner required by the Rules, that is, personally in this case. In Williams,[11] the commentary to Rule 6.10 suggests that an inability to serve promptly is an insufficient ground. There must be evidence of difficulty in serving the document personally, showing that service in the manner prescribed is impracticable.[12] The standard is one of reasonableness in determining whether an order for substituted service should be made.

[11]           supra

[12]           pages 2496-2497

40        The defendant, in his affidavit, says that he has lived at the address where service was attempted at all relevant times, and indeed, since 1995. He added that service could have been effected upon him at his business premises; however, he only refers to a website and not an actual address of his business premises. It is unclear to me whether he has a business premises or not, and whether the plaintiff knew of his business premises or not, and whether that would have permitted the plaintiff to serve the defendant at some alternative address.

41        I am satisfied that the attempted service was reasonable. I am satisfied that the process server attempted service in circumstances where one would expect four occasions would be sufficient to actually serve a person. The difficulty facing the process server was that ordinarily knocking on a front door will enable a process server to confront the person to be served or someone with whom the document can be left. In this case, the process server was prevented from approaching the premises beyond the front gates because of the high fences and security gates.

42        Mr Sandbach attacked the order made by the Judge. The order is peculiar, because it is quite apparent that the solicitor for the plaintiff submitted a draft order to the Judge which simply lifted the relief sought from some other source which was applied slavishly to the draft order. The order reads:

"On the grounds stated in the supporting affidavit, the plaintiff seeks the following orders pursuant to Order 6.10 of the County Court Civil Procedure Rules 2008:

1    That service of a sealed copy of the Writ together with the Statement of Claim CI-10-01125 filed on 18 March 2010, by placing the same and the defendant’s letterbox, addressed to the defendant at 22 heard Avenue, Plenty in the State of Victoria shall be good and sufficient service.

2    Such further or other orders as the Court deems fit."

43        The preamble seems to me to be entirely appropriate, because it identifies the evidence which was considered in the making of the order and also the relevant Rule. What follows is the order which is explained by the preamble. Order numbered 1 is an entirely appropriate order, although clumsily drafted. It identifies what is to be served, upon whom it is to be served, and how it is to be served. It is difficult for me to appreciate what else an effective order requires. Order numbered 2 should not have been made, because it is irrelevant, but that does not derogate from the preamble and order numbered 1.

Conclusion

44        For the reasons set out above, I order that the Summons be dismissed and that the defendant pay the plaintiff's costs to be taxed in default of agreement.

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