O'Meara v Foley
[2022] VSCA 200
•16 September 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0060 |
| FRANK O’MEARA | Applicant |
| v | |
| JOHN FOLEY | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 16 September 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 200 |
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PRACTICE AND PROCEDURE – Application for extension of time within which to seek leave to appeal – Application for leave to appeal against order refusing to extend period of validity of writ – Application for leave to appeal against order refusing to reinstate proceeding – Applicant not showing any basis for the grant of orders reinstating the proceeding and extending the period of validity of the writ – Applicant’s proposed grounds of appeal not reasonably arguable – Proposed appeal not having any real prospect of success – Futile to grant extension of time – Delay not adequately explained – Application for extension of time refused.
County Court Civil Procedure Rules 2018, rr 5.12, 34A.15 and 34A.16, Limitation of Actions Act 1958, ss 5(1AAA) and 23B, Supreme Court (General Civil Procedure) Rules 2015, rr 64.15(1) and (2).
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337, Howard v Power [2013] VSC 198 and Deak-Fabrikant v Grech [2016] VSCA 118 applied.
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| Representation | |||
| Applicant: | Self-represented | ||
| Respondent: | Self-represented | ||
| Solicitors | |||
| Applicant: | |||
| Respondent: | |||
BEACH JA:
On 26 August 2019, the applicant commenced a proceeding in the County Court claiming damages for defamation from the respondent. In his statement of claim endorsed on the writ, the applicant alleges that the respondent defamed him on or about 28 August 2018 when the respondent spoke certain words to a number of people at the Dunes Country Club and when he sent an email to ‘unknown persons’. The applicant alleges that the spoken words and the email each give rise to imputations that he steals golf clubs, and that he sells stolen golf clubs to fellow players.
Rule 5.12(1) of the County Court Civil Procedure Rules 2018 (‘the CC Rules’) provides that a writ shall be valid for service for one year after the day it is filed. Rule 5.12(2) provides that where a writ has not been served on a defendant, the County Court may from time to time extend the period of validity for a further period of no more than one year.
Rule 34A.15 of the CC Rules provides that a proceeding shall stand dismissed as against any defendant at the expiration of three months after the period of the validity for service of the writ, or any extension of that period expires, if at that time the defendant has not filed an appearance and judgment has not been entered or given against the defendant. Rule 34A.16 provides that the County Court may reinstate any proceeding that stands dismissed by reason of Rule 34A.15.
The applicant did not serve his writ on the respondent. On 16 November 2021, more than two years after the filing of the writ, the applicant filed a summons in the County Court seeking that his proceeding be reinstated pursuant to Rule 34A.16, and that the period of validity of the writ for service be extended pursuant to Rule 5.12 for a further three months from the date of the order reinstating the proceeding (‘the reinstatement application’).
On 26 November 2021, the reinstatement application came on for hearing before her Honour Judge Clayton. The applicant was represented by counsel, and the respondent appeared for himself. After hearing argument, her Honour dismissed the reinstatement application. In the authenticated order, under the heading ‘Other Matters’, her Honour recorded her reasons for dismissing the reinstatement application.
On 21 July 2022, almost seven months after the reinstatement application was dismissed, the applicant filed an application in this Court seeking an extension of time to apply for leave to appeal the order made in the County Court on 26 November 2021 (‘the extension of time application’). In the extension of time application, the applicant identifies the following grounds upon which that application is made as follows:
1.As a self-represented litigant I was unsure of the legal procedures.
2.Computer problems — I lost relevant data and [was] unable to process data from my word processing application on my iPad for about four weeks.
In an affidavit sworn four months earlier (on 19 March 2022) in support of his later filed application for an extension of time (‘the extension of time affidavit’), the applicant deposes to the two grounds referred to in his application (in identical terms to those contained in his application) being the grounds on which he seeks an extension of time in this Court. No further reasons or explanatory details are provided in the extension of time affidavit.
On 9 September 2022, pursuant to Rule 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the SC Rules’), the Registrar referred the extension of time application to a single judge of appeal for determination. This is the determination of that application.[1]
[1]For completeness, I record that, as the single judge of appeal to whom the matter has been referred, I did not consider that it was either necessary or desirable to have an oral hearing to deal with the extension of time application: see Rule 64.15(2) of the SC Rules.
The reinstatement application
The reinstatement application was supported by an affidavit sworn by the applicant on 22 November 2021 (‘the reinstatement affidavit’). In the reinstatement affidavit, the applicant deposed that:
•He was 82 years old, a member of the Rosebud Country Club for 45 years, and has known and associated with a group of players, including the respondent and a retired priest.
•On or about 28 August 2018, the applicant received from the respondent the email about which complaint is made in the applicant’s statement of claim.
•The ‘allegations’ contained in the email are not true.
•On 2 October 2018, the applicant’s solicitor, Michael Morehead emailed a letter of demand to the respondent. The letter of demand sought information; an undertaking that the respondent would not repeat or republish certain defamatory statements; a written apology in terms to be agreed by the applicant; and compensation, ‘including in respect of the legal fees reasonably incurred in resolving this damage to [the applicant’s] reputation in the sum of $10,000’.
•Later the same day, the respondent emailed a reply to Mr Morehead’s letter. The reply (exhibited to the reinstatement affidavit) expressed the respondent’s flabbergastation at the contents of the letter of demand; queried whether the applicant’s state of health ‘may have something to do with this ridiculous paranoia’; said that the respondent had the highest regard for the applicant; and asserted that the respondent was on an invalid pension for depression and did not know from where he would be able to get $10,000.
•On 24 January 2019, Mr Morehead replied to the respondent’s email, noting that the respondent had ‘totally failed to provide the requested information or make the requested undertakings within a reasonable time’.
•In February 2019, the respondent sent a series of emails to Mr Morehead (exhibited to the reinstatement affidavit), which the applicant contended contained defamatory statements. As the applicant put it, ‘I was called a cretin, a kook, moronic, and a nutter off the planet. (kook emails)’.
•On 26 August 2019, Mr Morehead filed the writ in this proceeding in the County Court.
•The writ has not been served on the respondent.
•On 7 December 2020, the County Court ‘issued a warning notice that the proceeding was at risk of being dismissed’.
•On 14 December 2020, the applicant instructed Mr Morehead ‘to apply to reinstate and to follow the requirements of the warning notice and file the necessary papers by 6 January 2021’. Attempts to contact the barrister who had drawn the statement of claim, Justin Castelan, were unsuccessful.
•On 24 March 2021, the proceeding was dismissed by the County Court.
•On 13 April 2021, Mr Morehead entered into an agreement with another barrister, Nicholas Modrzewski, to prepare the reinstatement application. At the same time, Mr Morehead briefed Mr Modrzewski to appear at the hearing of reinstatement application.
•The applicant was subsequently told by Mr Morehead that Mr Modrzewski returned the brief on 7 July 2021.
•On 11 August 2021, Mr Morehead told the applicant that Mr Castelan [who had presumably been briefed sometime between January and August 2021] had returned the brief.
•The applicant was of the view that ‘there [had] been a breach of the legal rules applicable to barristers and solicitors’. While the applicant deposed to not having considered this in detail, he noted that ‘the rules state that a barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgment called for during the case independently after the forensic judgment called for during the case [sic] after the appropriate consideration of the clients [sic] and the instructing solicitor [sic] wishes where practicable’. The applicant also noted that a solicitor ‘must follow a client’s lawful, proper and competent instructions’; and ‘must ensure completion of the legal service unless the law practice terminates the engagement for just cause and on reasonable notice’.
•At some unspecified date [probably in August 2021] Mr Morehead ceased to act for the applicant.
•The applicant believed that his enquiries into the whereabouts of a person he referred to as ‘the priest’ was ‘the catalyst for the defamatory statements’.
•The kook emails constituted good reason to extend the validity of the writ, as did the other matters referred to in the reinstatement affidavit, including the ‘possible serious breach of the legal rules relating to barristers and solicitors’.
•The applicant would suffer hardship if the validity of the writ was not extended and the proceeding was not reinstated.
•The applicant was confident that the respondent was aware of the writ.
Before dealing with the judge’s reasons for refusing the reinstatement application, the following points should be noted:
(1)The email the subject of the applicant’s complaint in the statement of claim commences, ‘Hi Frank: I couldn’t help but notice your new limousine …’, suggesting that the email was in fact sent by the respondent to the applicant. Moreover, in the respondent’s email of 2 October 2018 which responded to the applicant’s solicitor’s letter of demand, the respondent asserted that the email was a ‘personal email’, sent to the applicant, which was ‘totally personal and private’ and which had not been shown to anyone except the applicant.
(2)The applicant commenced his proceeding in the County Court one day before the expiration of the 12-month time limit set out in s 5(1AAA) of the Limitation of Actions Act 1958.
(3)Notwithstanding the County Court’s ‘warning notice’ issued on 7 December 2020, the dismissal of the proceeding on 24 March 2021, and the briefing of counsel to prepare the reinstatement application in April 2021, the reinstatement application was not filed in the County Court until 16 November 2021.
In refusing the reinstatement application, the judge summarised relevant parts of the reinstatement affidavit, noting that after Mr Morehead ceased acting for the applicant, the applicant retained new solicitors in November 2021.
The judge said that there was no explanation in the material as to why the writ was not served within time, other than the applicant’s personal desire to include what he considered to be additional defamatory statements. Additionally, there was no suggestion that the applicant was unable to serve the writ, or that the respondent had avoided service. Her Honour observed that the applicant was represented by lawyers who had provided him with advice about his prospects of success, the limitation period and the validity of the writ.
The judge did not accept that the kook emails were an acceptable reason for the applicant’s failure to serve the writ. She also said that what the applicant considered to be a breach of legal rules applicable to barristers and solicitors did not provide any explanation as to why the writ was not served within time.
The judge said that the affidavit material did not provide any basis upon which she could be satisfied that there was good reason why the proceeding should be reinstated, or why the validity of the writ should be extended. After referring to the expiry of the limitation period,[2] the discretion that a court has to extend that period,[3] the prejudice that would be suffered to the applicant if the writ was not reinstated and the prejudice the respondent would suffer if the matter was reinstated, the judge said that she was not persuaded that it was appropriate for her to exercise her discretion to extend the validity of the writ.
[2]See s 5(1AAA) of the Limitation of Actions Act.
[3]See s 23B of the Limitation of Actions Act.
The proposed application for leave to appeal
In addition to the extension of time application and the extension of time affidavit, the applicant has (pending the determination of the extension of time application) sought to file his application for leave to appeal and a written case in support.
The proposed application for leave to appeal identifies seven proposed grounds of appeal. In his first proposed ground of appeal, the applicant complains about the judge not referring to emails sent by the respondent to the applicant’s solicitor, on 23 and 24 November 2021, ‘about [the applicant’s] character including that he lied in his affidavit and that he should face criminal prosecution’. In failing to refer to these emails, the applicant contended that the judge ‘failed to provide “general justice” to [the applicant]’.
In proposed grounds 2 to 7, the applicant cavils with statements made by the judge in paras U, V, N, P, I and M of the ‘Other Matters’ section of her Honour’s orders in which, as I have already said, she recorded her reasons for dismissing the reinstatement application. In respect of each matter the applicant asserts that the judge ‘did not afford “general justice” to [the applicant]’. Assertions are also made that the judge did not consider (or did not fully consider) various critical matters.
More specifically, and by way of example, in proposed ground 2, the applicant asserts that the judge erred when she said:
U. The plaintiff [applicant] says that if the proceeding is not reinstated he will suffer great prejudice as he will be unable to pursue this matter.
The applicant contends in proposed ground 2:
I never said in my affidavit of 22 November 2021 ‘the plaintiff says that if the proceeding is not reinstated he will suffer great injustice as he will be unable to pursue this matter’.
While it is true that the applicant did not use the precise words set out in paragraph U of the judge’s authenticated order, at paragraph 25 of the reinstatement affidavit, the applicant said:
The plaintiff will suffer hardship if the writ is not reinstated and the validity of the writ is not extended. The plaintiff knows he has lost the support of his family … and may lose his 47 year membership of his golf club through the defamation emails and incidents prior to the Email, My reputation and enjoyment of sport has been severely damaged and continues to be damaged. The reinstatement and extension of the writ will give me some hope for the future.[4]
[4]As typed in the reinstatement affidavit, and replacing five words with an ellipsis.
A number of the applicant’s proposed grounds of appeal appear to be no more than an assertion that the judge was wrong because the applicant says so. For example, proposed ground 4 asserts:
The judicial officer in N of her reasons said that the kook emails did not provide a good reason for the failure to serve the writ on time.
The judicial officer erred as [the applicant] said in [paragraph] 21 of his affidavit that the kook emails are a good reason ‘to extend the validity of the writ’.
The gravamen of proposed ground 4 appears to be that the judge failed to consider the applicant’s assertion in the reinstatement affidavit that, in his view, ‘the kook emails would constitute a “good reason” to extend the validity of the writ’.[5] The point the applicant seeks to make is not further elucidated in his proposed written case. In the proposed written case, in relation to each proposed ground of appeal, the applicant has merely repeated the text already set out in the proposed application for leave to appeal. No additional argument is advanced in respect of any proposed ground of appeal in the proposed written case, save for a reference to the judgment of Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK.[6]
[5]Paragraph 21 of the reinstatement affidavit.
[6](1981) 180 CLR 337 (‘Van Leer’).
Should an extension of time be granted?
The factors that are relevant to the exercise of this Court’s discretion to extend time for the filing of an application for leave to appeal include the length of the delay, the reasons for the delay, the prospects of the application to appeal succeeding and the extent of any prejudice to the respondent.[7] In the present case, it is the lack of any prospects of success on the application for leave to appeal which is determinative of the application for an extension of time.
[7]Deak-Fabrikant v Grech [2016] VSCA 118, [34].
The relevant principles on an application to extend the validity for service of a writ are well known. They were helpfully summarised by Derham AsJ in Howard v Power.[8] Omitting his Honour’s references to the authorities which support the propositions as summarised by his Honour,[9] his Honour said:
[8][2013] VSC 198 (‘Howard’).
[9]Dagnell v Freedman & Co [1993] 2 All ER 161; Battersby v Anglo-American Oil Co Ltd [1945] KB 23; Ramsay v Madgwicks [1989] VR 1; Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; Soper v Matsukawa [1982] VR 948; Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597; Finlay v Littler [1992] 2 VR 181; Tyson v Morgan [2000] 1 Qd R 100; Van Leer (1981) 180 CLR 337; Victa Ltd v Johnson (1975) 10 SASR 496.
(a)Although the power conferred by Rule 5.12[10] is wholly discretionary, a judge has to approach the exercise of the discretion in accordance with established principles.
[10]While Derham AsJ was dealing with r 5.12 of the SC Rules, that rule is relevantly identical to r 5.12 of the CC Rules.
(b)The jurisdiction given by the rule ought to be exercised with caution.
(c) It is the duty of a plaintiff to serve a writ promptly.
(d)An application to extend time for service is not granted as a matter of course.
(e)The first question to consider is whether the plaintiff has taken reasonable steps to serve the writ. If not, it then becomes necessary to consider whether there was ‘some other good reason’ for making the order to extend time for service of the writ.
(f)The plaintiff carries the onus of showing that there is a good reason for extending the time to serve the writ; the applicant’s burden is no greater if the limitation period has expired between the date of issue of the writ and the date on which the application is made.
(g)Whether there is good reason depends on all the circumstances of the case; and it is not possible to define or circumscribe the scope of the expression ‘good reason’.
(h)Where the application is made after the period for service has expired, the reason must be one of substance.
(i)The selection of relevant factors to establish that there is a good reason for making the order, and the significance to be given to each of the factors, are matters of discretion.
(j)The fact that the plaintiff decides not to serve the writ whilst some other case is tried, or to await some future development, is generally not a good reason to justify extending time for service. 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 commenced against them if they are there to be served.
(k)It is a relevant factor against the exercise of the discretion that the renewal of the writ might deprive the defendant of a limitation defence where the plaintiff has been aware that the passage of time might be dangerous.
(l)It is a relevant factor against the exercise of the discretion that the defendant was unaware of and had no reason to expect that a writ had been issued against them.
(m)The lapse of time is itself generally to be regarded as prejudicial to the defendant. In this contest, the relevant delay is to be measured from the time at which the plaintiff’s cause of action arose.
(n)Any delay in making the application to extend the time for service of the writ is a relevant factor against the exercise of the discretion; delay preceding (as well as following) the issue of the writ is material.
(o)The expiration of the limitation period will not in itself constitute a good reason for extending the validity of the writ, although it is relevant.
(p)It may be appropriate to have regard to the balance of hardship.[11]
[11]Howard [2013] VSC 198, [10]. See also, Jabiru Satellite Ltd v Societe Generale [2021] VSC 544, [52] (per Delaney J).
As Derham AsJ went on to say, the Australian cases in this area differ from the English cases as to the effect of a limitation defence arising after the issue of a writ but before the application to extend the validity of the writ.[12] His Honour observed that this difference was traced by Stephen J in Van Leer, before saying:
His Honour [Stephen J] preferred the approach of the Australian and Canadian courts. He quoted with approval what Bray CJ said in Victa. Bray CJ 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.[13]
[12]Ibid [11].
[13]Ibid (citations omitted).
Notwithstanding the applicant’s attempts to explain in the reinstatement affidavit why the writ was not served within time, the primary judge was plainly correct when she concluded that there was, in truth, no explanation in the material why the writ was not served within the 12-month period of its validity for service.
The judge was also plainly correct when she said (notwithstanding the contents of the reinstatement affidavit) that the kook emails were not an acceptable reason for the applicant’s failure to serve the writ. The kook emails were sent some months prior to the commencement of the County Court proceeding. In the circumstances, they could not constitute any acceptable explanation for the subsequent filing of the writ which the applicant then permitted to become stale.
The judge’s decisions not to extend the validity of the writ and not to reinstate the applicant’s proceeding were interlocutory discretionary decisions on matters of practice and procedure. As has been said before, there is a strong presumption in favour of the correctness of such decisions.[14] That said, it is not necessary to rely on any such presumption in the present case, because, on its face, the primary judge’s decision was plainly correct. The writ was filed the day before the limitation period expired; no attempt was made to serve it; no good reason was given by the applicant for exercising the discretion in his favour and extending the validity of the writ; and no satisfactory explanation was given which adequately explained all of the delay which occurred up to the filing of the reinstatement application. On the material, and applying the relevant principles, her Honour could have come to no other conclusion than that the applicant had not established any basis for extending the validity of the writ or for reinstating his proceeding.
[14]See generally Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627; In Re the Will of FB Gilbert (1946) 46 SR(NSW) 318, 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177.
None of the applicant’s proposed grounds of appeal is reasonably arguable. There is no basis for contending that the judge made any of the errors referred to in the applicant’s proposed grounds of appeal; nor any basis for contending that the judge failed to have regard to any relevant matter; nor any basis for contending that the judge ‘did not afford “general justice” to [the applicant]’. Thus, the applicant’s proposed appeal has no real prospect of success. Therefore, even if he had filed his application for leave to appeal within time, this Court would have been required to refuse leave to appeal.[15] It follows that it would be futile to grant the applicant the extension of time he seeks. Accordingly, the application for an extension of time within which to apply for leave to appeal must be refused.
[15]See s 14C of the Supreme Court Act 1986.
For completeness, I would note that the applicant’s reasons for his delay in filing his application for leave to appeal to this Court were, in any event, inadequate. To assert simply that one is a self-represented litigant ‘unsure of the legal procedures’ who had suffered from an unspecified computer problem during an unspecified period was hardly an adequate explanation for the length of delay that has occurred in this case.
Conclusion
The application for an extension of time within which to apply for leave to appeal the order made in the County Court on 26 November 2021is refused.
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