Monteleone v The Owners of the Old Soap Factory - [2007] WASCA 79

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: MONTELEONE -v- THE OWNERS OF THE OLD SOAP FACTORY & ORS [2007] WASCA 79

CORAM: STEYTLER P
McLURE JA

HEARD: 1 FEBRUARY 2007

DELIVERED : 18 APRIL 2007

FILE NO/S: CACV 5 of 2006

BETWEEN: DIONETTE PIER MONTELEONE
Appellant
AND
THE OWNERS OF THE OLD SOAP FACTORY (STRATA TITLE PLAN 11175)
First Respondent
ASH INVESTMENTS PTY LTD
Second Respondent
DREXEL LONDON (A FIRM)
Third Respondent
HALPERN GLICK PTY LTD
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
Citation  :MONTELEONE -v- BLACK & ORS [2005] WADC 155
File No  :CIV 3400 of 2002

Catchwords:

Practice and procedure - Extension of validity of writ - Failure to comply with O 7 r 3 - Whether hearing ex parte - Scope of O 2 - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 2 r 1, O 2 r 2, O 7 r 1, O 12 r 6, O 58 r 23

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr J R Criddle
First Respondent           :     Mr C L Hollett
Second Respondent       :     Mr M L Greenland
Third Respondent         :     Mr P Mendelow
Fourth Respondent        :     Mr P Popperwell

Solicitors:

Appellant:     Bradford & Co
First Respondent           :     DLA Phillips Fox
Second Respondent       :     Greenland Brooksby
Third Respondent         :     Jackson McDonald
Fourth Respondent        :     Pynt & Partners

Case(s) referred to in judgment(s):

Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Capewell v Seltino Pty Ltd [1986] 2 Qd R 2
Coyne v Sun Securities Ltd (1992) 8 WAR 218
Gove v Black [2006] WASC 298
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
House v The King (1936) 55 CLR 499
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Laurie v Carroll (1958) 98 CLR 310
Lovell v Lovell (1950) 81 CLR 513
Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513
Van Leer Australia Pty Ltd v Palace Shipping KK (1980) 180 CLR 337

STEYTLER P: I agree with McLure JA.
McLURE JA: The appellant applies for leave to appeal and if leave is granted to appeal from interlocutory orders made by Yeats DCJ setting aside service on the third respondent of the appellant's writ of summons and dismissing her application to extend an order made on 3 December 2004 extending the validity of the writ.
On 19 December 2002 the appellant commenced an action for personal injuries in the District Court against six defendants arising out of the collapse of a balcony at a unit in North Fremantle on 31 December 1996. A number of other persons (22) injured in the balcony collapse had earlier commenced proceedings in the Supreme Court. The defendants were the same in the District Court action and the Supreme Court actions. Judgment in the Supreme Court actions had been handed down (Gove v Black [2006] WASC 298) at the time of the hearing of this application for leave. The plaintiffs in the Supreme Court action established liability against two defendants, the City of Fremantle (the fourth defendant in the District Court action) and a firm of architects, Drexel London (the fifth defendant in the District Court action and the third respondent in the appeal).
The appellant commenced the District Court action some 11 days before the limitation period expired. No effort was made to serve the writ on the defendants and on 18 December 2003 the validity of the writ for the purposes of service expired. On 17 February 2004 the appellant applied pursuant to O 7 r 1(2) of the Rules of the Supreme Court 1971 (WA) ("Rules") for an order extending the validity of the writ. In the absence of a conflict or inconsistency between the District Court Rules 1996 (WA), the Rules apply to any case in the District Court. That application came on for hearing before a Deputy Registrar and was adjourned to allow the appellant to serve the extension application on the defendants. After service had been effected, the appellant's summons to extend the validity of the writ came on for hearing on 3 December 2004. Deputy Registrar Harman extended the validity of the writ for 14 days from that date.
The appellant then served the extended writ on the defendants but the writ failed to comply with the provisions of O 7 r 1(3) of the Rules because it was not marked with an official stamp showing the period for which the validity of the writ had been extended.

The first and fourth defendants in the District Court action entered unconditional appearances to the writ. The other four defendants (the second, third, fifth and sixth defendants being the second respondent, first respondent, third respondent and fourth respondent respectively) each entered a conditional appearance and applied to set aside service of the writ and for other orders. The first respondent (third defendant) had attended the hearing and made submissions to the Deputy Registrar on the appellant's application to extend the validity of the writ. As a result it also appealed from the decision of the Deputy Registrar.
The appeal, the applications to set aside service and the appellant's application to further extend the validity of the writ were heard together by Yeats DCJ. On 12 August 2005 the learned primary Judge allowed the appeal, set aside the order of Deputy Registrar Harman extending the validity of the writ for service on the third defendant, set aside the service of the writ on the first, second, third and fourth respondents and dismissed the appellant's application for a further extension of the validity of the writ.
The appellant applied for leave to appeal from all the orders made by the primary Judge. However, the appellant's applications against the second and fourth respondents were settled prior to the hearing. The appellant's application against the first respondent was adjourned to enable the parties to obtain instructions on settlement. The only application that proceeded was against the third respondent.
Order 7 of the Rules concerns the duration and renewal of writs. Rules 1 and 2 of O 7 are relevant and materially provide:
"1. Duration and renewal of writ
(1)For the purpose of service, a writ … is valid in the first instance for 12 months beginning with the date of its issue …
(2)Where a writ has not been served on a defendant, the Court may by order extend 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.
(3)Before a writ, the validity of which has been extended under this Rule, is served it must be marked with an official stamp showing the period for which the validity of the writ has been so extended.
…
2.Evidence of extension of validity of writ
The production of a writ purporting to be marked with the official stamp showing the period for which the validity of the writ has been extended shall be sufficient evidence of the validity of the writ having been so extended, and of the commencement of the action as of the date of the original writ, for all purposes."
The appellant originally confined herself to one ground of appeal in the following terms:
"1.The Learned Judge erred in law in setting aside service of the Writ on the [third] Respondent by reason of the Appellant's failure to comply with O 7 r 1(3) when:
i)The Third Respondent was served with the application to extend the validity of the Writ and the notice of hearing of the application;
ii)[deleted];
iii)The Learned Judge erred in finding that the application to extend the validity of the Writ proceeded ex parte;
iv)The Third Respondent was served with the Writ together with the order of Deputy Registrar Harman extending the validity of the Writ and was thereby provided with the information required to have been endorsed on the Writ in accordance with O 7 r 1(3);
v)The Appellant should have been relieved of the technical failure to comply with the requirements of O 7 r 1(3) pursuant to O 2 r 1 to do justice between the parties with the consequence that the Third Respondent's application to set aside service of the Writ should have been dismissed."
At the hearing the appellant obtained leave to add a further ground of appeal in terms that the primary Judge erred in taking into account the prejudice alleged to have been suffered by the third respondent in determining its application to set aside service of the writ for failure to comply with O 7 r 1(3).
There was disagreement as to the scope of the relief sought by the third respondent and the matters considered and determined by the primary Judge. The orders sought by the third respondent were as follows:
"1The Plaintiff's Writ of Summons dated 19 December 2002 ("the Writ"), purportedly served on the [third respondent] on 14 December 2004, be set aside pursuant to and for failure to comply with Order 7 Rule 1, alternatively be set aside as against the [third respondent] for such failure; and/or
2Service of the Writ on the [third respondent] be set aside pursuant to and for failure to comply with Order 7 Rule 1; and
3The Plaintiff's chamber summons dated 17 February 2004 insofar as it relates to the [third respondent] be dismissed … "
Thus, the third respondent applied to set aside the writ, set aside the service of the writ and for dismissal of the appellant's original application for an extension of the writ. Although not stated expressly, it is implicit in the proposed orders that the third respondent was challenging the extension order made by Deputy Registrar Harman.
The appellant contended that the primary Judge confined her consideration and determination of the third respondent's application to the appellant's failure to comply with O 7 r 1(3) of the Rules. Ground of appeal 2 is based on that assumption.
The third respondent, with the leave of the Court, relied on an amended notice of contention and cross‑appeal claiming that if the primary Judge erred in not condoning the appellant's failure to comply with O 7 r 1(3), she should have set aside the order extending the validity of the writ and the writ on the grounds that:
"1.1the Writ was not served by 18 December 2003 and became stale;
1.2the appellant's application dated 17 February 2004 to extend the validity of the Writ should have been refused;
1.3there was no, or no sufficient evidence justifying an exercise of discretion in favour of granting an order extending the validity of the Writ;
1.4the appellant did not offer any, or any legitimate explanation for her failure to make the application to extend before the validity of the Writ expired;
1.5the appellant did not attempt to serve the Writ during the period of initial validity and proffered no reasonable explanation in support of such failure;
1.6no regard should be had to any prejudice the appellant may suffer in losing her cause of action because there is no evidence that the prejudice is anything other than self‑inflicted …
1.7there have been lengthy delays on the part of the appellant and it is inevitable that this must cause some prejudice to the third respondent;
1.8the appellant did not give any explanation for her failure to timeously:
(a)bring the application to extend;
(b)comply with the 2 March 2004 order of [Deputy Registrar Hewitt];
(c)have the application to extend re‑listed after complying with the 2 March 2004 order …
and in all the circumstances demonstrated disregard for the Rules of Court, the interest of the third respondent and the attainment of justice."

The Primary Judge's Reasons

The primary Judge commenced by considering the first respondent's appeal from the decision of the Deputy Registrar. Such an appeal involves a review de novo: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26. After referring to the relevant authorities (including Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 and Van Leer Australia Pty Ltd v Palace Shipping KK (1980) 180 CLR 337) the primary Judge concluded on the basis of the evidence before her that the failure to serve the writ was not occasioned by an oversight by the appellant's solicitors but was a deliberate decision to delay the issue of the writ to await the outcome of the Supreme Court actions and that the discretion should not be exercised in favour of extending the validity of the writ. The primary Judge referred to the history of delay as follows (at [30] ‑ [31]):
"In this case the history of this matter shows delay upon delay. The [appellant] waited until the final moment to issue the writ, some 11 days before the limitation period expired. Then the [appellant] made no effort to serve the writ although it would have been a simple matter to do that. Even when the [appellant] 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 [appellant] 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.
The delay in this case was quite deliberate and I believe the prejudice suffered by the [first respondent] to be obvious. The [first respondent] 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.'"
The primary Judge recognised that the appellant's claim would be statute barred if the writ was not extended. She described the prejudice to the appellant as being self‑inflicted. In the course of her reasons in relation to the appeal, the primary Judge dealt with the appellant's submission that the hearing before the Deputy Registrar was not ex parte because the respondents were served with the process and had leave to appear. The primary Judge said (at [27]):
"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 primary Judge then went on to consider the respondents' applications to set aside service of the writ and noted that the appellant sought to be relieved of her obligations 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. Her Honour then addressed the merits. She said (at [40] ‑ [42]):
"The real issue that I need to consider is the issue of prejudice to these four [respondents] and the issue of prejudice to the [appellant]. The [appellant] 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 [respondents] 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 [appellant'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 was good for every purpose except service, and, by their unconditional appearance, deficiencies in service have been overcome.
The real prejudice to these four [respondents] 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 [appellant] 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 [respondents].
I have already found in my reasons on the appeal that there has been delay on delay by the [appellant], 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 [appellant] should bear the burden of its own decisions and I therefore grant the four chamber applications to set aside service."
The appellant relies on the primary Judge's reasons at [44] in support of the submission that service was set aside solely on the basis of the appellant's failure to comply with O 7 r 1(3) of the Rules. The primary Judge said at [44]:
"As I have set aside service of the writ in relation to each of these [respondents] there is no reason for me to consider the application of the [third respondent] to set aside the stale and invalid writ or the application of the [fourth respondent] to set aside the order extending the validity of the writ."
As I read the reasons, the primary Judge in considering whether to waive or condone the irregularity occasioned by the failure to comply with O 7 r 1(3) took into account the reasons for and the effect of the delay in service of the writ on the third respondent, which considerations were also relevant to the merits of extending the validity of the writ. This is a matter to which I will return.
The first and primary ground on which the appellant relies is that the hearing before Deputy Registrar Harman on 3 December 2004 was not ex parte because the third respondent had been served with the application for an extension of the validity of the writ and the writ. That had the consequence, according to the appellant, that the third respondent could not apply to set aside the order made by the Deputy Registrar under O 58 r 23 of the Rules (which provides that the Court may set aside any order which has been made ex parte) and, there being no appeal by the third respondent from the decision, the application was incompetent. The third respondent relied on O 12 r 6 as the primary basis for its application. The appellant contended that O 12 r 6 had no application.

Whether Hearing Ex Parte

Order 12 r 6(1) materially provides:
"A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof, on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this Rule."
The appellant contended that no jurisdictional issue arose on the facts in this case. No authority was cited for this proposition or the assertion that the proceedings before the Deputy Registrar were not ex parte. The term jurisdiction in O 12 r 6 is used in the sense of "authority to decide". A court's jurisdiction, in the sense of authority to decide, derives from the fact of service of the originating process: John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 521 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Laurie v Carroll (1958) 98 CLR 310 at 323, 324. That basic principle explains why in the circumstances of this case the appellant's extension application against the third respondent heard by Deputy Registrar Harman could only be an ex parte application. In the absence of voluntary submission to jurisdiction or waiver, a court has no jurisdiction over a defendant unless and until the originating process is served. The appellant could not effect valid service of the invalid writ unless and until the validity of the writ had been extended: Brealey. A court cannot give itself jurisdiction over a defendant simply by ordering a plaintiff to serve the defendant with notice of the application. The third respondent had not submitted itself to the jurisdiction of the Court or waived the requirement for service of the writ in which event the order made by the Deputy Registrar was made ex parte.

However, where service is effected after an order extending the validity of the writ has been made, O 12 r 6 has no application unless, as in this case, there is another irregularity that rendered service of the originating process invalid, being the failure to comply with O 7 r 1(3) of the Rules. A conditional appearance may be entered as of right where a defendant relies on any circumstances that show the Court has no jurisdiction to entertain the action, including the circumstance that the alleged service was insufficient: Capewell v Seltino Pty Ltd [1986] 2 Qd R 2 at 15. In any event, because the hearing before the Deputy Registrar was an ex parte application, O 58 r 23 applied to entitle the appellant to apply to set aside the order made by the Deputy Registrar extending the validity of the writ.

The Scope and Effect of O 2 of the Rules

An understanding of the scope of O 2 and its relationship with O 7 is necessary to explain why failure to comply with O 7 r 1(3) is an irregularity that renders service of an originating process invalid and to identify the relevant considerations in the exercise of the discretion relating to irregularities. Order 2 r 1(1) and (2) materially provide:
"(1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
(2)Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit."
Order 2 r 2(1) provides that an application to set aside for irregularity any proceedings or any step taken in any proceedings shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
On one reading of O 2 it might be thought that because an irregularity does not nullify the proceedings or any step in the proceedings, an irregular step is valid unless and until the "innocent" party obtains an order under O 2 r 2. However, the English equivalent of O 2 has been construed to mean that the irregularity stands until excused and a party who has taken a step in the proceedings that does not comply with the rules may not rely upon it because its remains irregular inter partes until the matter has been brought before the Court and the Court has decided in which way to exercise its discretion: Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513 at 520, 523.
In Metroinvest the plaintiffs commenced proceedings against the defendant insurer for loss to property caused by fire. The plaintiffs obtained judgment by consent on liability. Mutual discovery was ordered to take place in preparation for the assessment of damages. The plaintiffs failed to give full discovery and were ordered to file a supplementary list. Prior to receipt of the supplementary list, the defendant made a payment into Court on the last available date before the commencement of the assessment of damages. The plaintiffs' solicitors gave notice that the plaintiffs accepted the sum paid into Court, however the notice did not comply with the prescribed form.
Later on the same day, by inspecting documents in the possession of a third party, the defendant was alerted to the fact that the value of the property before the fire may have been less than the amount paid into Court. There was evidence that if the documents belatedly listed in the supplementary list had been discovered at the proper time, it was unlikely the defendant would have paid the money into Court. Both parties applied for an order to take the money out of Court. The official referee found for the defendant on the ground that the plaintiffs' acceptance was not valid and regular and that in the circumstances of the case it would be unjust to permit the plaintiffs to take the money out. Both parties relied on O 2 of the English court rules which is in the same terms as O 2 of the West Australian Rules. The plaintiffs contended that until the opposing party had applied under O 2 r 2 and the Court had properly granted the application, the irregular step or document remained valid inter partes. After surveying the history of the rule, the Court of Appeal rejected that construction. Cumming‑Bruce LJ said (at 520):
"As I construe Ord. 2, r. 1, from the moment a step in proceedings is tainted by irregularity through failure to comply with the rules, the irregular step or document remains irregular inter partes until the matter has been brought before the court and the court has decided in which way to exercise the jurisdiction conferred by Ord. 2, r. 1(2). Ord. 2, r. 2 does not restrict the power of the court in the sense of restricting its jurisdiction, and does not have the effect of suspending the irregularity until the application under Ord. 2, r. 2 is made. The purpose and effect of Ord. 2, r. 2 is to prescribe the procedure if and when an opposite party decides to apply so that the court on recognising the irregularity, may exercise its powers under rule 1(2) by taking the action of killing or curing the irregular proceeding."
Slade LJ agreed. He continued (at 522):
"Where, in the course of proceedings, the court finds that a failure of the nature referred to Ord. 2, r. 1(1) has occurred, which has not been waived by the other party either expressly or by implication, it is given by Ord. 2, r. 1(2) a choice of courses to pursue at its own discretion, whether or not an application under Ord. 2, r. 2 is before it. In such a situation, in the exercise of its discretion under rule 1(2), it may either adopt the more draconian course of setting aside wholly or in part the proceedings in which the failure occurred, or … make a dispensing order waiving the relevant irregularity."
The plaintiffs in Metroinvest also contended that in the exercise of the discretion under O 2 r 1(2) the Court should confine its consideration to the prejudice caused by the irregularity and not to what was described as "extraneous circumstances". It was accepted that the defendant had not suffered any prejudice as a direct consequence of the irregularity. The defendant knew perfectly well what the plaintiffs were doing and intended to do. The Court rejected the construction contended for by the plaintiffs saying O 2 r 1(2) was framed so as to give the Court the widest possible power in order to do justice between the parties.
Although she did not say so expressly, the primary Judge approached the determination of the application to set aside service in accordance with Metroinvest. In particular, she regarded the irregularity arising from the failure to comply with O 7 r 1(3) as invalidating service on the third respondent unless the irregularity was waived or condoned under O 2 r 1(2). In those circumstances there was no need to set aside the order made by the Deputy Registrar because unless the irregularity was waived and service validated, the extension order was spent as the validity of the writ was only extended for 14 days from 3 December 2004. Furthermore, in deciding whether to waive the irregularity and validate service, the primary Judge took into account the reasons for and the effect of the long delay in serving the writ which are also relevant considerations relating to the appropriateness of extending the validity of the writ.
The appellant did not challenge the correctness of the approach to O 2 r 1(2) taken by the primary Judge or the correctness of Metroinvest on which it was based. Indeed neither party referred the Court to that case. However, it is consistent with the majority decision of this Court in Brealey which considered the relationship between O 2 and O 7 of the Rules. It is necessary to refer to the somewhat complicated facts of Brealey. The appellant had purported to serve an invalid writ on the respondent. The writ had expired some days before it was served. The appellant sought and obtained an order extending the validity of the writ for three months from the date of expiry. However, the appellant did not serve the extended writ on the respondent in the mistaken view that its prior service had been retrospectively validated. Instead of making a fresh application under O 7 to extend the validity of the writ the appellant in the course of the appeal sought by way of alternative relief an order pursuant to O 2 r 1 that the Court further extend the time for service of the writ. A question considered by the Full Court was whether the appellant could rely on O 2 rather than O 7 to regularise her position. The majority (Malcolm CJ and Ipp J) held that:
(a) a stale writ is not a nullity but is invalid for the purpose of service;
(b)failure to extend the validity of a writ is an irregularity which can be remedied under O 2 r 1. In reaching this conclusion the majority relied on English authority as to the scope of O 2 (which was also relied on in Metroinvest);
(c)service of a stale writ is necessarily ineffective by reason of the irregularity;
(d)service of an invalid writ can be waived or corrected under O 2 r 1 but only if it would be proper at the relevant time to make an order extending the validity of the writ under O 7 r 1(2);
(e)having regard to the requirement in O 7 r 1(3) that before an extended writ is served it must be marked with an official stamp showing the period for which the validity of the writ has been so extended, O 7 does not empower the Court to validate retrospectively the service of a stale writ.
It follows from Brealey that (1) service of a stale writ or service of an extended writ without a stamp is invalid for the purpose of service; and (2) the fact that it is an irregularity to which O 2 r 1 applies does not alter that position (which would only be so if Metroinvest is correct). No party challenged the correctness of Brealey. That being the case, the primary Judge asked herself the correct question which was whether the irregularity resulting in the invalid service of the extended writ should be waived or condoned.
As previously noted, the primary Judge took into account the reasons for, and the effect of the delay and the consequences to the appellant in refusing to waive the irregularity. They are the same matters relevant to the grant of an extension of the validity of the writ. The second ground of appeal is narrowly confined; it is contended that the primary Judge erred in taking into account the prejudice to the third respondent. As developed in oral submissions, the complaint was not that the prejudice was an irrelevant consideration but rather that the primary Judge placed too much weight on the prejudice to the third respondent. Thus this Court is not called upon to determine the correctness of the primary Judge's approach to the scope of the discretion in O 2 which involved taking into account considerations beyond those related to the irregularity itself (in line with Metroinvest) or any issue of comity (for want of a better word) between the decision of the Deputy Registrar and that of the primary Judge. As to these matters, the similarity to the approach taken in Brealey should be noted. Notwithstanding an earlier extension order that had not been validly acted on, the Full Court in Brealey upheld the refusal to waive the irregularity by reference to the merits of extending the validity of the writ for the purpose of service.
Returning to the substance of the second ground of appeal as explained in oral submissions. In order to succeed in an appeal from a discretionary decision an appellant must establish that the primary judge has expressly or impliedly made a material error of fact or law: House v The King (1936) 55 CLR 499 at 505. Failure to give adequate weight, or giving too much weight, to a relevant consideration does not give rise to a relevant error unless the failure really amounts to a failure to exercise the discretion actually entrusted to the Court: Lovell v Lovell (1950) 81 CLR 513 at 519. There is no arguable error of that nature in this case. The failure to serve the third respondent did occasion prejudice. The third respondent was entitled to act on the basis that it was aware of all claims arising out of the balcony collapse and to conduct its investigations and defences accordingly. It had lost the opportunity to make timely investigations into the nature and extent of the appellant's alleged soft tissue injuries. It had lost the opportunity to apply to remove the District Court action into the Supreme Court to be dealt with together with the other actions. The appellant has offered to be bound by the results of the proceedings in the Supreme Court. However, there are broader public interest issues at stake. The appellant's deliberate strategy was to take all the benefits and none of the costs (financial and otherwise) of involvement in the Supreme Court litigation against the third respondent. Such conduct is not in the interests of the fair and efficient administration of justice and should not be condoned.
The appellant did not contend that the primary Judge's decision was not open on the material before the primary Judge. However, it will be apparent from the above reasons that in my view the decision was open on the material before the primary Judge and on the authorities (Van Leer, Brealey, and Coyne v Sun Securities Ltd (1992) 8 WAR 218).
I would refuse leave to appeal on ground 1, grant leave to appeal on ground 2 but dismiss the appeal. In those circumstances it is unnecessary to determine the matters arising on the amended notice of contention and cross‑appeal.