| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MONTELEONE -v- BLACK & ORS [2005] WADC 155 CORAM : YEATS DCJ HEARD : 14 APRIL 2005 DELIVERED : 12 AUGUST 2005 FILE NO/S : CIV 3400 of 2002 BETWEEN : DIONETTE PIER MONTELEONE Plaintiff
AND
RICHARD ASH BLACK
First Defendant
ASH INVESTMENTS PTY LTD
Second Defendant
THE OWNERS OF THE OLD SOAP FACTORY
Third Defendant
CITY OF FREMANTLE
Fourth Defendant
DREXEL LONDON (A FIRM)
Fifth Defendant
HALPERN GLICK PTY LTD
Sixth Defendant
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Catchwords:
Procedure - Admissibility of affidavits - Extension of the validity of writ - Delay causing prejudice - Deficiencies in service of writ
Legislation: District Court Rules, O 6 r 11
Rules of the Supreme Court, O 2 r 1, O 3 r 5, O 7 r 1, O7 r 2, O12 r 6
Result: Third defendant's appeal allowed
Second, third, fifth and sixth's defendants' applications to set aside service granted
Plaintiff's application refused Representation:
Counsel:
Plaintiff : Mr J R Criddle
First Defendant : No appearance
Second Defendant : Mr M L Greenland
Third Defendant : Mr C L Hollett
Fourth Defendant : No appearance
Fifth Defendant : Mr P Mendelow
Sixth Defendant : Mr S F Popperwell
Solicitors:
Plaintiff : Bradford & Co
First Defendant : Not applicable
Second Defendant : Greenland Brooksby
Third Defendant : Phillips Fox
Fourth Defendant : Not applicable
Fifth Defendant : Mullins Handcock
Sixth Defendant : Pynt & Partners
Case(s) referred to in judgment(s):
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
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Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Brown v Coccaro (1993) 10 WAR 391
Coyne v Sun Securities Ltd & Commercial Equity Corporation Ltd (1992) 8 WAR 218
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Jackamarra v Krakouer (1998) 195 CLR 516
Kent v Lechmere Financial Corporation & Ors [2002] WASC 75
Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597
Koranna Nominees Pty Ltd & Anor v Roberts & Anor, unreported, FCt SCt of WA; Library 4289; 15 October 1981
Re JL Young Manufacturing Co Ltd [1900] 2 Ch 753
Van Leer Australia Pty Ltd v Palace Shipping KK (1980) 180 CLR 337
Case(s) also cited:
Ramsay v Madgwicks (a firm) [1989] VR 1
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1 YEATS DCJ: This is an appeal by the third defendant from a decision of Deputy Registrar Harman on 3 December 2004 when the learned Deputy Registrar extended the validity of the writ of summons for service.
2 I also have before me a chamber summons on behalf of the third defendant to set aside service of the stale writ, a chamber summons on behalf of the second defendant to set aside service of the stale writ, a chamber summons on behalf of the fifth defendant to set aside the stale and invalid writ, and/or the service thereof, and an application by the sixth defendant to set aside service of the writ or alternatively, to set aside the order extending the validity of the writ. Also before me is the plaintiff's ex parte chambers application seeking to extend the order of Deputy Registrar Harman made on 3 December 2004 extending the validity of the writ. 3 At the hearing of this matter I had originally intended to deal with the third defendant's appeal and then, based on that decision, to hear submissions on the other matters before me. I was asked however to hear submissions from all parties and to deal with all matters. It seems appropriate to do so as I have heard full argument from all parties.
Background 4 This action arises out of an accident that occurred on 31 December 1996 when the plaintiff was among a group of persons standing on a balcony at a unit in North Fremantle when the balcony collapsed. A number of persons injured in that accident (22 plaintiffs) have proceeded in the Supreme Court and their actions are well underway. Exhibit TPH-5 to the further affidavit of Timothy Phillip Heard, an affidavit relied on by the plaintiff, is the case management direction in the Supreme Court for those cases. 5 The history of this matter in the District Court is that the plaintiff issued her writ on 19 December 2002 some 11 days before the limitation period expired. No effort was made to serve the writ and, on 18 December 2003, the validity of the writ for the purposes of service expired (O 7.1(1)). On 17 February 2004 the plaintiff applied for orders that the validity of the writ be extended for such period as this Court deems fit. That application came on before the learned Deputy Registrar and was adjourned to allow the plaintiff to serve the extension application on the six defendants. Service having been effected, the plaintiff's summons to extend the validity of the writ came on for hearing on 3 December 2004 when Deputy Registrar Harman extended the validity of the writ for 14 days from that date.
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6 The plaintiff then proceeded to serve the extended writ but failed to comply with the provisions of O 7 r 1(3). The writ served by the plaintiff was not marked with an official stamp showing the period for which the validity of the writ had been extended.
7 Two defendants, the first and fourth defendants entered unconditional appearances to the writ. The four defendants who appeared before me, that is the second, third, fifth and sixth defendants each entered a conditional appearance, and on 7 December 2004 the third defendant gave notice of appeal against the order of Deputy Registrar Harman extending the validity of the writ. 8 On 5 January 2005 the plaintiff made an ex parte chambers application seeking to extend the order of Deputy Registrar Harman made on 3 December 2004 extending the validity of the writ. 9 In these proceedings the first defendant was the occupier of the unit, the second defendant was the owner of the unit, the third defendant was the body corporate of the strata title for the unit, the fourth defendant was the City of Fremantle, the fifth defendant was a firm of architects and the sixth defendant was an engineering firm.
The third defendant's appeal 10 An appeal from a Registrar to a Judge in chambers under O 6 r 11 of the District Court Rules is a complete review de novo and involves an actual re-hearing of the application. The Judge is required to deal with the matter as if it has come on before her for the first time, although carriage of the matter is by the party appealing. (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26).
Affidavits 11 The plaintiff relied on an affidavit of Timothy Phillip Heard sworn on 17 February 2004 (the first Heard affidavit) in her chambers application seeking to extend the validity of the writ of summons which was heard on 3 December 2004. The appeal from that decision was listed to be heard in the District Court on 21 March 2005 but the hearing was adjourned on the application of the plaintiff seeking to file a second affidavit. The affidavit of Timothy Phillip Heard sworn 23 March 2005 (the second Heard affidavit) was filed on 23 March 2005. 12 During the hearing of the appeal the third defendant submitted that the second Heard affidavit was inadmissible relying on Koranna Nominees Pty Ltd & Anor v Roberts & Anor, unreported, FCt SCt of
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WA; Library 4289; 15 October 1981, Kent v Lechmere Financial Corporation & Ors [2002] WASC 75. Those authorities establish that when a defendant challenges the jurisdiction of the court after entering a conditional appearance and applies to set aside the writ and service of the writ the plaintiff is required to sustain service on the ground or grounds relied upon by him in the affidavit upon which the order is made, and cannot at that stage sustain the service upon some other ground (per Burt CJ Korrana's case at 5: per Pullin JA, Kent v Lechmere at [80]). 13 During the hearing of the appeal I ruled that those authorities did not apply in an appeal from the decision of a Deputy Registrar which required a complete hearing de novo. In Hazart's case Malcolm CJ said at 28: "It is common practice for the Judge in Chambers, … to admit further or additional evidence by affidavit to that which was before the Master or Registrar. If a party has 'taken his stand on the evidence as it stood' before the Master or Registrar, the Judge in Chambers may in his discretion, … refuse to allow him to adduce further evidence." And Malcolm CJ said further in Hazart, p 29: "In my opinion, the discretion in this context is more of a discretion to exclude rather than a discretion to admit additional evidence." I received the second Heard affidavit for the purpose of the appeal but those authorities do have application to the defendants' other applications to set aside service and set aside the writ. 14 The third, fifth and sixth defendants object to various paragraphs of the two Heard affidavits. The third defendant objects to pars 4, 5, 6, 7 and 9 of the first Heard affidavit on the basis that the information stated is not within the personal knowledge of the deponent, and no basis has been provided for the source of the deponents' information or belief. Matters of information or belief which are sworn to in an affidavit without a statement of the source or ground for the information or belief are not admissible (Re JL Young Manufacturing Co Ltd [1900] 2 Ch 753 at 754). I accept the defendants' submissions on the contents of pars 4, 5, 6, 7 and 9 of the first affidavit. No source has been provided by the deponent for the information in those paragraphs, and they are not admissible. I also accept the submission of the sixth defendant that pars 9a and 9b of the first Heard affidavit contain conclusions - not facts - and those subparagraphs are also inadmissible. Not surprisingly, much of the content of those paragraphs is in conflict with attachments provided in the second Heard affidavit, particularly TPH-5, the Order 29A case management directions in the matter proceeding in the Supreme Court. For these reasons I strike out pars 4, 5, 6, 7 and 9 of the first Heard affidavit.
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15 Objection is also taken to pars 7 and 11 of the second Heard affidavit. The inadmissibility of these two paragraphs is less certain. Each speaks of "the plaintiff's instructions" and, although it is not directly stated as to when the plaintiff gave these instructions, I am prepared to infer that she is the source of the instructions. Therefore those two paragraphs are not struck out of the second Heard affidavit.
16 Objection is also taken by the third defendant to par 9 of the second Heard affidavit. That paragraph amounts to hearsay on hearsay and the deponent has failed to identify the source of the information and I am satisfied that par 9 is not admissible. Paragraph 9 is struck out. 17 The plaintiff relies on the affidavit of Carly Sluiter sworn on 5 January 2005. No objection has been taken to that affidavit.
The third defendant's appeal against the decision of the learned Deputy Registrar Harman dated 3 December 2004 18 On 3 December 2004 the learned Deputy Registrar ordered that the validity of the writ of summons be extended for a period of 14 days from the date of the order. It is immediately apparent that the order was not consistent with O 7 r 1(2) which allows the court to make an order extending 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." 19 In this case the plaintiff did not seek to extend the validity of the writ until it had expired, and therefore needed to rely on the provisions of O 2 r 1 or O 3 r 5, but in making the order I accept that the Registrar only had jurisdiction to make an order extending the validity of the writ from 19 December 2003 for a period not exceeding 12 months. The Deputy Registrar was in error in extending the validity of the writ for a period of 14 days from 3 December 2004. 20 It is important that the rules in this area be strictly complied with because the rules provide finite periods for which the validity of an unserved writ may be extended, and finite periods during which an application may be made. Thus when a writ which would otherwise have expired on 18 December 2003 is extended, O 7 r 1(3) requires that it be marked with an official stamp showing the period for which the validity
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has been extended, and that period should begin on the day following that on which the validity of the original writ expired. 21 The principle submission of the third defendant is that the Deputy Registrar was in error in his exercise of discretion when there was no, or no sufficient evidence to justify the exercise of his discretion to extend this writ. The policy of O 7 r 1 was discussed by the Full Court in Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 per Ipp J at 89 and 91: "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." 22 Ipp J noted that the court could rely on O 3 r 5 or O 2 r 1 to prevent manifest unfairness arising from the rigid time limits laid down in O 7 r 1 but when it did so "it must be established that without such remedial relief injustice will occur. The application should only be granted where the justice of the case requires a departure from the policy underlying O 7 r 1". 23 Order 3 r 5 is available to ameliorate the effect of O 7 r 1(2), but in considering whether a remedial order should be made under O 3 r 5 the court will have regard to "the general justice of the case paying regard to all the circumstances" (Brown v Coccaro (1993) 10 WAR 391). This case of course involves not just the renewal of a writ but renewal of a writ after a limitation period has expired. That issue was discussed in Van Leer Australia Pty Ltd v Palace Shipping KK (1980) 180 CLR 337
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per Steven J at 343 – 344 and in Brealey v Board of Management Royal Perth Hospital per Ipp J at [52] and in Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 at 574. In the Bell Group case the court described a category 3 case where the application to extend a writ is made at a time when the writ has ceased to be valid, and the relevant limitation period has expired. In such a case the court is to enquire whether reasonable efforts have been made to serve the defendants, and if they have, normally the writ would be renewed. That was not the case in this case where no effort was made to effect service. In a case such as this one the court has to consider whether other good reasons exist for the extension and the discretion should be exercised "by reference to the general justice of the case taking into account all the relevant circumstances.": Van Leer Australia at par 52. Relevant factors include the length of the delay, whether the delay was caused by mistake, and whether such mistake is excusable, the nature of attempts made at service, and the hardship or prejudice caused to the plaintiff by refusing the renewal, or to the defendant by granting it. (Brealey at [52]). In a Category 3 case the applicant for an extension has an extra difficulty to overcome, in that he must also give a satisfactory explanation for his failure to apply for extension before the validity of the writ expired (Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 per Lord Brandon of Oakbrook at p 623). The court has a wide and unfettered discretion to see that justice is done. 24 In this case the plaintiff has not helped her case by filing a second affidavit. That is because the deponent in the first Heard affidavit deposed to the fact that the delay in service was intentional and arose because "the plaintiff intends to proceed with the action after the results of the pilot case (in the Supreme Court)". In the second Heard affidavit a different explanation is given. In the second Heard affidavit the deponent alleges a mistake, a failure to note in his diary the expiry of the validity of the writ and that he did not become aware until February 2004 that the writ had expired. The affidavits do indicate that the plaintiff appears to have deliberately elected to delay service of the writ for which no explanation has been provided. It is clear that she did not attempt to serve the writ and does not say the writ could not have been served during the period of initial validity. 25 In considering this matter it seems to me that the plaintiff cannot resile from the obvious fact that no attempt was made to serve the defendants at any time during the 12 months following the issue of the writ. That delay was a deliberate delay to await the outcome of the Supreme Court proceedings. Against that prolonged deliberate delay the mistake alleged in the second Heard affidavit is of little weight.
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The real reason for the delay is undoubtedly the wish to await the outcome of proceedings in the Supreme Court. I am satisfied that such a reason is not a good reason, and would not justify the extension of this writ. In Coyne v Sun Securities Ltd & Commercial Equity Corporation Ltd (1992) 8 WAR 218 at 222, Master Adams discussed this very situation. After reviewing the authorities he said this: "On the basis of these authorities I consider that a plaintiff seeking an extension must show a good reason, and that what constitutes 'good reason' depends upon all the circumstances. The general policy of the rules is that it is the duty of a plaintiff who issues a writ to serve it promptly and renewal will certainly not be granted as of course on an application for an extension. … In the present case there has been no difficulty about service, or any oversight, but rather the plaintiff has followed a deliberate tactic of not serving the writ. The reasons advanced for this deliberate tactic are that the plaintiff wishes to await the outcome of these other proceedings to which reference has previously been made, in which he believes liability may be established which will assist him here, and further that the plaintiff does not have sufficient resources to pursue all of these actions at this time. As was said in Ramsay's case, it is not for a party to proceedings but rather for the court to say whether there should be effectively a stay of proceedings. I agree with the view taken in Ramsay's case that ordinarily it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tried, or to await some future development." 26 In Ramsay v Madgwicks (1989) VR1 at 5 Young CJ said this: "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 than 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
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defendant has been avoiding service, or that his address is unknown, and there may well be others, but ordinarily it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tried, or to await some future development. It is for the court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been taken against them if they are here to be served." 27 The plaintiff's submissions on the appeal were not persuasive. I do not accept the submission of the plaintiff that the failure to serve the third defendant was occasioned by an oversight by the plaintiff's solicitors; on the contrary it was a deliberate delay after issue of the writ awaiting the outcome of the Supreme Court actions. The plaintiff submitted that the hearing before the Deputy Registrar was not an ex parte application because the defendants were served with the process and had leave to appear. That submission is plainly wrong. Until the writ had been validly extended and served none of the defendants was a party to any action involving the plaintiff. The third defendant chose to appear at the hearing and took a step to challenge the jurisdiction of the court. The service of process upon the third defendant, and the third defendant's appearance before the learned Magistrate on 3 December 2004 was not in any way a submission to jurisdiction. It was an objection to the jurisdiction. 28 The plaintiff referred me to the case of Jackamarra v Krakouer (1998) 195 CLR 516 per Kirby J at par 66. The principles therein set out by Kirby J relate to applicable principles for procedural time defaults and have no particular relevance to the rules under O 7 and the principles set out by the Full Court in Western Australia in Brealey, Coyne and The Bell Group case. I do not disagree with Kirby J that it is impossible to lay down fixed and binding rules for the exercise of discretions and I do not disagree that one looks to the justice of the case, but, within an application to extend the validity of a writ there are numerous factors including policy factors and the expiry of relevant limitation periods that need to be taken into account. 29 I do agree with the plaintiff that I need to consider the prejudice to the various parties involved. The plaintiff contends that there is no merit in the allegation that the delay caused prejudice to the defendants because the defendants are already in the Supreme Court involved with what the plaintiff calls the test case. That submission is not fully accurate. It is clear that all the plaintiff's cases are proceeding in the Supreme Court. The case management orders in exhibit TPH-5 to the second Heard
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affidavit indicate that whatever evidence is taken at the trial will be evidence in the other cases as well. All of the cases are therefore proceeding in the Supreme Court in reliance on evidence to be taken in one case. It is not a '"test case" as such. 30 In this case the history of this matter shows delay upon delay. The plaintiff waited until the final moment to issue the writ, some 11 days before the limitation period expired. Then the plaintiff made no effort to serve the writ although it would have been a simple matter to do that. Even when the plaintiff recognised in February of 2004 that the writ had expired and needed to be renewed the application was adjourned from March until December of 2004 before it was heard. There is no satisfactory explanation for that delay. Finally, the plaintiff came to the hearing of the appeal on 21 March 2005 and again sought an adjournment because it had not prepared its case in a timely way. 31 The delay in this case was quite deliberate and I believe the prejudice suffered by the third defendant to be obvious. The third defendant is defending actions arising from events in 1996 and has been doing so in the Supreme Court and it was entitled to believe that all of the actions against it were proceeding in the trials going forward in the Supreme Court. It was not until some 18 months after the expiration of the limitation period that notice was received of this writ. Such lengthy delays cause difficulties in the ascertainment of the truth and, as was said by Ipp J in Brealey at [45]: "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." 32 On the other hand prejudice to the plaintiff if the writ is not extended would be self-inflicted (Brealey's case at [68]). Good reason to extend the writ has not been shown and prejudice to the third defendant has been demonstrated. This is a case where my discretion should not be exercised in favour of extending the validity of the writ. Therefore the appeal is allowed and I quash the decision of the learned Deputy Registrar.
Second defendant, third defendant, fifth defendant and sixth defendant applications to set aside service of the stay of writ 33 All four defendants have by chamber summons sought to set aside service of the writ. I accept on the authority of Koranna Nominees case and Kent v Lechmere that in these applications which amount to a challenge to the jurisdiction on the part of each of the defendants the plaintiff is required to sustain service on the ground or grounds relied on
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by her in the affidavit upon which the order was made. Therefore the second Heard affidavit is not received on the hearing of these applications. In its application to extend the validity of the writ the plaintiff has tendered the affidavit of Carly Sluiter, sworn on 5 January 2005. Ms Sluiter, a law clerk employed by Bradford & Co, deposes to the fact that between 7 December 2004 and 14 December 2004 the writ of summons extended by Deputy Registrar Harman for a period of 14 days on 3 December 2004 was served upon all defendants. Ms Sluiter also deposes to the fact that the writ of summons was not marked with an official stamp showing the period for which the validity of the writ had been extended pursuant to O 7 r 1(3) of the Rules of the Supreme Court. The defendants have relied on Ms Sluiter's affidavit and there has been no objection to the Court receiving it on these applications. 34 The plaintiff suggests that different factors apply in the case of the application of each of the defendants because of different circumstances related to the previous involvement of the particular defendant but, ultimately in each case, the plaintiff seeks to be relieved of its obligation to comply with O 7 r 1(3) pursuant to the general discretion to do justice between the parties granted by O 2 r 1. 35 As to the second defendant's case the plaintiff says that the second defendant was given notice of the hearing before the Deputy Registrar on 3 December 2004 and did not attend and, from the bar table Mr Criddle, on behalf of the plaintiff, says that a letter was received saying the second defendant "did not oppose the orders sought". I am unable to locate any affidavit material deposing to those facts and the existence of such a letter. In its submissions the second defendant said it neither opposed nor consented to the extension of the plaintiff's writ by Deputy Registrar Harman on 3 December 2004 and applies to set aside service of the writ on the ground that it fails to comply with O 7 r 1(3). The second defendant contends that the plaintiff's failure to comply with the Rules gives the second defendant a second opportunity. 36 In the third defendant's case the third defendant clearly opposed the extension of the writ and now quite validly, that decision having been quashed, seeks to set aside the service of the writ. Unless I were to accede to the plaintiff's application extending the validity of the writ the third defendant's application to set aside the service of the writ would have to be successful.
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37 The fifth defendant relies on the affidavit of Craig Alistair Bennett, sworn on 18 January 2005 in support of its application to set aside service of the writ. The fifth defendant's solicitors received a letter from the plaintiff's solicitors asking whether they would accept service of the extended writ and they advised the plaintiff's solicitors that their client would not accept service. Accordingly, the writ was served directly on the fifth defendant. The fifth defendant entered a conditional appearance on 7 January 2005. The plaintiff has suggested that because the fifth defendant failed to appear at the hearing before Deputy Registrar Harman that it has waived its rights to apply to set aside the writ. The plaintiff again contends that there is no prejudice to the fifth defendant because having failed to appear at the hearing of the application to extend the validity of the writ, it cannot now demonstrate any particular prejudice. The plaintiff again asked to be relieved of the obligation to comply with O 7 r 1(3) by reason of the general discretion granted to the court by O 2 r 1.
38 Finally, the sixth defendant was served with the application to extend the validity of the writ and counsel appeared on 3 December 2004 and opposed the making of the order. The plaintiff relies on that appearance to demonstrate that the making of the order was not ex parte and therefore the sixth defendant is not entitled to set aside the validity of the writ nor should the sixth defendant be allowed to set aside service as the sixth defendant has not demonstrated any prejudice. 39 I have already dealt with what I consider to be a misconceived submission on the plaintiff's part that the hearing before Deputy Registrar Harman was not an ex parte hearing because notice had been given with leave to appear. I need not repeat my ruling that appearance to oppose the extension of the writ did not amount to a submission to the jurisdiction. The plaintiff has proceeded under a misconception about that. 40 The real issue that I need to consider is the issue of prejudice to these four defendants and the issue of prejudice to the plaintiff. The plaintiff contends that since the first and fourth defendants have entered unconditional appearances that this action is on foot in the District Court and therefore there is no prejudice to these defendants if they are joined in the action as they well could be if the action proceeds. I consider that to be a false conjecture. True it is that there are two defendants now to the plaintiff's action in the District Court, that is, the first defendant and the fourth defendant because they did enter unconditional appearances to the extended writ. Although the writ failed to comply with the Rules, the writ
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was good for every purpose except service, and, by their unconditional appearance, deficiencies in service have been overcome. 41 The real prejudice to these four defendants arises from the fact that they are now eight and a half years from the accident that has given rise to this claim and they had no notice of this claim until more than seven years after the alleged accident. The fact that they are involved in the Supreme Court in the actions of a number of plaintiffs adds to the prejudice that would be caused to them by having a latecomer to that group. They would be brought into an action where this plaintiff could essentially wait to determine how to bring her action against them depending on what happens in the Supreme Court and leave them without knowledge of the case against them pending the outcome of the other cases. That is not a fair outcome for the four defendants. 42 I have already found in my reasons on the appeal that there has been delay on delay by the plaintiff, that the delay was intentional and without good reason. This is a case where it seems to me on a balance of the prejudices involved that the justice of the case requires that the plaintiff should bear the burden of its own decisions and I therefore grant the four chamber applications to set aside service.
Plaintiff's application to extend the validity of the writ 43 My reasons for allowing the appeal of the third defendant provide reasons for refusing the application by the plaintiff to extend the validity of the writ. The justice of the case in my view requires that the plaintiff's application be refused. This is a case where the plaintiff is the author of her own misfortune. Not only is there no good reason shown to extend the writ but the prejudice to the defendants if I were to do that at this late date would be substantial. The plaintiff has her action against two defendants who have entered unconditional appearances.
Application of fifth and sixth defendants 44 As I have set aside service of the writ in relation to each of these defendants there is no reason for me to consider the application of the fifth defendant to set aside the stale and invalid writ or the application of the sixth defendant to set aside the order extending the validity of the writ. 45 These reasons will be circulated to counsel for all parties and I will arrange a hearing in chambers when the appropriate orders can be made. Alternatively, I would be happy to receive a minute of agreed orders for my signature.
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