Papotto v Atlas [No 3]
[2013] WADC 119
•24 JULY 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PAPOTTO -v- ATLAS [No 3] [2013] WADC 119
CORAM: WAGER DCJ
HEARD: 13 MAY 2013
DELIVERED : 24 JULY 2013
FILE NO/S: CIV 3815 of 2010
BETWEEN: SALVATORE PAPOTTO
Plaintiff
AND
HASAN ATAMAN ATLAS
Defendant
Catchwords:
Practice and procedure - Appeal against decision not to set aside ex parte order to extend the validity of a writ for service - Material non-disclosure at ex parte hearing - Reasons for non-disclosure
Legislation:
Limitations Act 2005 s 13
Rules of the Supreme Court 1971 O 2, O 7 r 1, O 58 r 23
Result:
Appeal dismissed
Representation:
Counsel:
Plaintiff: Ms W F Gillan
Defendant: Mr S F Popperwell
Solicitors:
Plaintiff: DLA Piper Australia
Defendant: Denman Popperwell
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Behbehani v Salem [1989] 1 WLR 723
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Black v City of Melbourne [1963] VR 34
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Brink's Mat Ltd v Elcombe [1988] 3 All ER 188
Carter v State Housing Commission (Unreported, WADC, Library 4646, 5 September 1995)
Esther Investments Pty Ltd v Markalinga Pty Ltd b(1989) 2 WAR 196
Irving v Carbines [1982] VR 861
Ketteman v Hansel Properties Ltd [1987] AC 189
Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 3] [2013] WADC 60
Papotto v The State of Western Australia [2005] WASCA 234
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tucker v Hamdorf [2006] WADC 191
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
Victa Ltd v Johnson (1975) 10 SASR 496
WAGER DCJ: The defendant appeals the decision of Acting Principal Registrar Kingsley not to set aside orders made in respect of the plaintiff's ex parte O 7 r 1 Rules of the Supreme Court 1971 (RSC) application to extend the validity of the plaintiff's writ of summons.
In making the decision not to set aside the order, Acting Principal Registrar Kingsley determined that the solicitor for the plaintiff had been responsible for a material non‑disclosure in respect of the evidence filed in support of the ex parte application, however the acting principal registrar determined that the ex parte order should not be discharged.
The defendant submits that the court should find misleading evidence and non‑disclosed evidence led to the acting principal registrar making the extension order. Had the material that should have been before the court for the ex parte application been before him at the relevant time, the extension application would have been dismissed. The defendant submits that proper exercise of discretion in this case is to discharge the extension order.
The plaintiff submits that on material now known the validity of the writ should have been extended. The inherent power to set aside an ex parte order on the basis of material non-disclosure does not fall to be exercised for punitive reasons but in order to rectify an order being made that cannot be sustained in light of the facts as properly disclosed. The plaintiff submits that in this case the justice of the matter warrants the extension of the validity of the writ.
The appeal is a hearing de novo pursuant to s 15(6) District Court Rules 2005 (DCR).
Background
By an indorsement of claim dated 10 December 2010 the plaintiff Mr Papotto brings proceedings against the defendant Mr Atlas who was his former solicitor. The plaintiff claims that the defendant breached the contractual, tortious and fiduciary duties he owed him.
The defendant had been instructed by the plaintiff in respect of an appeal against the plaintiff's conviction for 22 counts of fraud. Although the appeal ultimately proceeded and was successful (Papotto v The State of Western Australia [2005] WASCA 234), the plaintiff claims that in January 2005 the defendant failed to act on his instructions to make an application for bail pending the hearing of the appeal. Further, the plaintiff claims that when the appeal came on for hearing before the Court of Appeal in May 2005, the appeal books prepared by the defendant were not in a satisfactory state to proceed with the application causing the Court of Appeal to unanimously decide they would not deal with the matter. The appeal was not relisted until 1 November 2005 when the plaintiff had engaged a new solicitor. On that date the Court of Appeal quashed the plaintiff's convictions resulting in his immediate release from custody.
The plaintiff alleges that the defendant's conduct caused him to remain in custody unnecessarily for a period of approximately seven months, for which he claims damages.
Pursuant to s 13 Limitation Act 2005, the limitation period for the plaintiff's claim is six years. The defendant asserts that the limitation period expired in May 2011, however the plaintiff asserts that the date is November 2011. The writ of summons was filed on 9 December 2010. On either calculation it was not statute‑barred at the time of filing and the precise date is not relevant to this determination.
The last date for valid service of the writ of summons pursuant to O 2 RSC was 12 months after the date of filing of the writ of summons.
The ex parte application seeking an extension of time of the validity of the writ was determined on 9 May 2011, the last day for service. The ex parte order made by Acting Principal Registrar Kingsley extended the validity of the writ for six months until 9 June 2012.
Pursuant to O 58 r 23 RSC, the defendant applied to set aside the ex parte order. This application was heard by Acting Principal Registrar Kingsley on 1 August 2012.
Principles applicable to consideration of an order for extension of validity of a writ for service
In Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 Ipp J made the following observations in relation to the policy behind O 7 r 1 RSC:
… 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. As Young CJ (with whom Kaye and Southwell JJ agreed) said in Ramsay v Madgwicks [1989] VR 1 at 5, 'it is not right that people should be left in ignorance of proceedings that have been taken against them if they are here to be served'. Finally, the proper administration of the court would be hampered if writs could be issued and then left to lie dormant for indefinite periods.
Different considerations apply depending on whether the application to extend validity is made before or after the writ becomes stale and whether a limitation defence may have arisen between the time of the issue of the writ and the application. In this case the application was made before the writ became stale but after the limitation period had expired. Accordingly, the plaintiff does not need to show special circumstances for an extension that falls within this category: Irving v Carbines [1982] VR 861, 866.
The application is to renew the validity of the writ for service not to allow a cause of action or a new cause of action. In Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337, 344 Stephen J quoted with approval the decision of Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496:
It follows then that it is incorrect to talk about allowing a cause of action or a new cause of action to be set up after the expiry of the period of limitation. Once the writ is issued within the period, the Statute of Limitations is ousted or rather never comes into operation. It is not the statute, which the court must obey on what it thinks is its proper interpretation, but the rule of court which takes over then. That rule has the discretion built into it and that discretion is to be exercised judicially, indeed, but not fettered by inflexible prescriptions. I would refer to what was said about this in Krawszyk's Case at pp. 79-80:-
'In the first place it is not for the judiciary to impose fetters upon a discretion which the legislature has left at large. There may be considerations, which cannot in reason and justice be ignored, but 'the court cannot be bound by a previous decision to exercise its discretion in a particular way because that would be in effect putting an end to the discretion'.
It is not correct to say that the defendant has acquired an absolute right to immunity when a writ issued within the limitation period is not served within 12 months of its issue and the limitation period has in the meantime expired. What has expired is in reality not the limitation period but the period which would have been the limitation period if no writ had ever been issued. What the failure to serve a writ within 12 months gives the defendant is no more than a right to contend that the Court in the exercise of its discretion should not renew the writ. The efficacy of the writ does not expire absolutely at the end of the 12 months, it only expires if and insofar as the court sees fit not to renew it.
The rule first directs the Court to enquire whether reasonable efforts have been made to serve the defendant. If they have, it seems to me that the court should renew the writ. If not, the Court has to consider whether other good reasons exist for the renewal. I will not attempt an exhaustive category of such reasons. That would probably be impossible and would certainly be undesirable. Prominent, however, among the matters for the consideration of the Court apart from whatever attempts are being made at service, will be the length of the delay, the reasons for the delay, the conduct of the parties and the hardship or prejudice cause to the plaintiff by refusing the renewal or to the defendant by granting it.
Legal principles - reviewing ex parte orders
The legal principles relevant to the review of an ex parte order pursuant to O 58 r 23 RSC were considered in Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561. Sleight DCJ in Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 3] [2013] WADC 60 summarised the relevant principles that emerged from that decision: [4]. I adopt the following summary:
1.An ex parte order is essentially a provisional order in nature. The provisional order is reviewable in light of the evidence and arguments adduced by the other side. However, the review must give respect and weight to the conclusions of the judicial officer making the ex parte order (page 569; see also WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721, 727).
2.A subsequent hearing reviewing an ex parte order, either by the judge who made the original order or by another judge, is not an appeal against the first order. Nor is it an application to reconsider the correctness of the original decision on the material before the judge (page 569).
3.Before a jurisdiction to reconsider an ex parte order is enlivened, it is necessary for the party seeking such a relief to adduce additional evidence or to establish that there was material non‑disclosure by the party who obtained the order. Accordingly, the application rests in every case upon production of further material not before the judge who heard the ex parte application and which throws a new and different light on the situation of the parties. In the absence of material non-disclosure, the applicant must adduce material sufficient to persuade the reviewing judge that had the initial judicial officer appreciated the full facts and circumstances, the decision would have been different (page 570).
4.The role of the reviewing judge is to administer justice. Each case depends on its own facts. The viewing judge will be obliged to take into account the circumstances as they actually existed in light of the further information, on the likely effect of the existing order on the parties and on the administration of justice generally (page 570).
5.Additional caution should be exercised when the order has been carried into effect, particularly where the party who has obtained the order has acted to its detriment in carrying out the terms of the order. However, although this is a factor to take into account it does not prevent a review taking place.
The applicant on an ex parte application is required to make proper inquiries before making the application. The applicant is required to disclose not only material facts known but also additional facts that should have been known had proper inquiry been made: Brink's Mat Ltd v Elcombe [1988] 3 All ER 188.
The evidence received in respect of the ex parte application and the evidence considered in relation to the application to set the order aside need to be considered to determine whether there was non-disclosure, if so whether it was material and whether the non‑disclosure was deliberate or inadvertent.
Evidence considered on the ex parte application before Acting Principal Registrar Kingsley
The ex parte application was supported by two affidavits sworn by Karina Louise Hafford, a lawyer in the employ of Slater and Gordon Solicitors who were the solicitors acting for the plaintiff in these proceedings at the time. The evidence set out in Ms Hafford's affidavit sworn 6 December 2011 was that the defendant forwarded the claim against him in respect of unprofessional conduct when acting for the plaintiff to his professional indemnity insurer Law Mutual. Slater and Gordon were in communications with Law Mutual in relation to the potential resolution of the claim, however the claim was not capable of reaching informal resolution. On 22 November 2011, Ms Hafford wrote to Law Mutual seeking confirmation that service of the writ of summons would be accepted, however Law Mutual advised on 1 December 2011 that they were unable to accept service.
Ms Hafford deposed that she conducted various internet services to locate Mr Atlas and she understood that he was no longer on the roll of practitioners for Western Australia and the business Atlas Legal was no longer in operation. She had instructed her legal assistant to make further attempts to locate the defendant.
In a supplementary affidavit sworn 9 December 2011, Ms Hafford deposed that on 7 December 2011 she located a listing for Atlas Legal and had spoken to Mr Atlas. He identified himself and confirmed that he had been the plaintiff's solicitor. He advised that he was now resident in Victoria and requested that Ms Hafford either request Law Mutual to accept service or provide Law Mutual with his details for contact. Ms Hafford spoke to Ms Durack of Law Mutual on 7 December 2011.
Additional evidence before Acting Principal Registrar Kingsley at the hearing to set aside the order extending the validity of the writ of summons
Additional evidence filed for consideration of the application included:
1.Affidavit of the defendant sworn 30 June 2012 in support of the application to set aside the extension.
2.Affidavit of Ms Hafford sworn 30 July 2012 in opposition to the defendant's application to set aside the extension.
3.Affidavit of the plaintiff sworn 12 November 2012 in response to the defendant's application to set aside the extension.
These affidavits contained the following material that had not been evidence before Acting Principal Registrar Kingsley for consideration in respect of the ex parte application:
1.The plaintiff instructed Slater and Gordon in October 2007.
2.Slater and Gordon asked the plaintiff to try and locate the defendant in 2008.
3.Slater and Gordon conducted a search through the Australian Electoral Commission and identified a listing for the defendant in the ACT in 2008.
4.Slater and Gordon advised the plaintiff that they had located the defendant in the ACT in 2008.
5.Slater and Gordon wrote to the defendant to advise him of the plaintiff's claim in 2008. There was no evidence of follow‑up correspondence. The defendant subsequently denied receiving the correspondence.
6.Slater and Gordon wrote to Law Mutual on 8 April 2010. Law Mutual responded to Slater and Gordon's letter on 9 April 2010.
7.On 21 December 2010 the plaintiff asked Slater and Gordon if the writ had been served. Slater and Gordon did not respond. The plaintiff assumed the writ had been served.
8.Slater and Gordon briefed counsel on the plaintiff's behalf for advice on liability and quantum.
9.In February 2011 a conference with counsel was held.
10.In April 2011 counsel's advice was received.
11.On 22 November 2011 a without prejudice submission was made to Law Mutual on the plaintiff's behalf.
Acting Principal Registrar Kingsley determined that he had not been advised that the plaintiff had engaged Slater and Gordon to act on the plaintiff's behalf in October 2007 nor that Slater and Gordon had asked the plaintiff to make inquiries to see if he could locate the defendant in June 2008 nor that it was the plaintiff's belief that Slater and Gordon had located the defendant residing in the ACT in July 2008. The acting principal registrar determined that the non‑disclosure was a material non‑disclosure and said 'had I been informed of this information it is likely the orders would not have been made' (Papotto v Atlas [18]).
Was the non-disclosure a material non-disclosure and if so, was it deliberate?
Counsel for the plaintiff submits that the history of the plaintiff's claim prior to the issue of the writ in December 2010 is not material non‑disclosure because the acting principal registrar only needed to consider what had occurred after the date the writ issued. I do not accept this submission. The evidence of dealings prior to the issue of the writ is material to the question of delay and the issue of the conduct of the parties.
Evidence of events prior to 9 December 2010 is material and I find that the history of the dealings between Slater and Gordon and the defendant was material to the determination on the ex parte application.
Counsel for the defendant submits that Ms Hafford's explanations for non‑disclosure conflict and therefore should not be accepted. Further, he submits that the non‑disclosure was deliberate.
Ms Hafford in a statement dated 25 February 2013 annexed to the affidavit of Andrew Grech in response to the reasons for decision sworn 25 February 2013 stated:
6.When, on 2 December 2011, I learnt by a letter of the previous day that Law Mutual had declined to accept service, I drafted an application for an extension of time in which to serve the writ which was due to expire on 10th, and had it made returnable on 9th. I was the only person who dealt with this application on behalf of the firm, accept as to its administrative aspects. I did so by reference by what I understood to be Slater and Gordon's complete file which comprised:
(a)a manila folder containing:
(i)a correspondence clip commencing January 2010;
(ii)the writ of summons behind a divider labelled 'Court Documents';
(iii)a fee and retainer agreement behind a divider labelled 'Slater and Gordon Bills';
(iv)disbursement vouchers behind a divider labelled 'Disbursements'; and
(v)various dividers with no documents in them;
(b)a separate lever arch binder containing a collection of documents relating to the subject matter of Mr Papotto's claim; and
(c)a manila folder marked in handwriting 'Duplicates'.
7.I looked at the content of the manila folder carefully enough to ascertain that there were many duplicates of the documents in the lever ache binder but missed a collection of pre-2010 correspondence which had been misfiled there. I assumed that the manila folder contained only duplicates of documents which pre‑dated Slater and Gordon's retainer, that is, they were the subject matter of rather than the product of the retainer. I assumed that for two reasons:
(a)first, the manila folder was labelled 'Duplicates' and it contained many duplicates of the content of the lever arch folders;
(b)secondly, the files that I was used to dealing with at Slater and Gordon adhere to a firm wide standard file organisation protocol specifically designed to allow for review of file operator's files by supervising lawyers and other lawyers as necessary in which all documents which are the product of the retainer are required to be filed in a specific manner. Save to say that to combine correspondence in a manila folder unmarked accept by having 'Duplicates' written on it with duplicates of documents which were the subject matter of the retainer and separated from a properly got together correspondence clip was contrary to the firm's standard file organisational protocol, it is unnecessary to describe that standard format. I did not believe that documents which were the product of our retainer would be found in that manila folder.
8.I did cross-reference the physical file against what I believed to be the firm's complete electronic records in relation to Mr Papotto's claim to ensure that I was not missing any relevant documents. The electronic documents also dated back to January 2010, and I assumed that the firm was retained at about that time. What I looked at were the records on a file management system called Aderant. What I did not know at the time was that electronic documents generated as the product of retainers before January 2010 were not always created in or transferred to Aderant, but were sometimes stored in something called the 'P' drive, and I assumed that this occurred in this case.
This explanation was in potential conflict with her affidavit sworn 30 July 2012 where at par 12 Ms Hafford referred to dealings on the plaintiff's behalf on dates in 2008 and 2010. At pars 13 and 14 she then deposed:
13.I did not consider previous attempts at locating the defendant to be relevant to the application to extend the validity of the writ, on the basis that it was the defendant's current whereabouts that were relevant to service.
14.Further, at the time of the hearing of the application to extend the validity of the writ for service I was aware of the defendant's whereabouts and advised the court of this in the supplementary affidavit.
The statement and affidavit provide the only evidence in relation to the plaintiff's solicitor's explanation. The dates of the documents referred to in Ms Hafford's affidavit sworn 30 July 2012 indicate that she was aware of the documents in the duplicate manila folder prior to applying for the ex parte order. Ms Hafford made a decision that she did not consider the previous attempts at locating the defendant to be relevant.
I find that Ms Hafford chose not to include the undisclosed material in her affidavit in support of the ex parte application, however she omitted it because she did not consider it to be relevant rather than because she was attempting to mislead the court in any way. Although the solicitors for the plaintiff did not intend to mislead the court, they were under an obligation to disclose the material and should have disclosed it: Behbehani v Salem [1989] 1 WLR 723.
Attempts by the plaintiff to serve the defendant in the 12‑month period
Counsel for the defendant submits that the plaintiff made no attempt to locate the defendant for service from the date the writ was issued until 7 December 2011, two days before the expiration of the period for service.
Although counsel for the plaintiff does not dispute that 7 December 2011 is when Ms Hafford first contacted the defendant after the issue of the writ, she submits that Slater and Gordon were communicating with Law Mutual from 9 April 2010. Law Mutual acknowledged being the plaintiff's insurers, although they were not instructed to accept service. Law Mutual had requested that Slater and Gordon engage in discussions in relation to the plaintiff's claim but they did not request that a writ issue immediately noting that the plaintiff would have to be served personally in the event of proceedings being commenced. Following the provision of 'without prejudice' submissions in November 2011, Law Mutual advised the plaintiff's solicitors on 1 December 2011 that they could not accept service because they did not know the whereabouts of the defendant (annexure HAA10 defendant's affidavit sworn 20 June 2012 and annexure CLH1 affidavit of Ms Hafford sworn 6 December 2011).
The plaintiff's solicitors were furthering the claim and communicating with the defendant's insurers. It was an oversight not a deliberate act that the relevant searches were not carried out in 2010 and early 2011.
Ms Hafford located the defendant within the 12‑month period by internet search and she spoke to him on 7 December 2011, however no address for service was provided by him. The defendant deposed that internet searches identified his business and home address, although these searches were not undertaken until June 2011, being six months after the ex parte application. There is no evidence that had an internet search been conducted in 2010 or early 2011, the entries located in June 2011 would have been found.
The plaintiff himself instructed his solicitors to issue a writ and to serve it. He understood that service had been effected in December 2010. He responded promptly to all requests for information from his solicitors.
I am not satisfied that the failure to attempt service prior to the ex parte application was due to a deliberate strategic decision by the plaintiff.
The length of the delay and the reasons for the delay
The writ issued within the limitation period. Although Ms Hafford's affidavit sworn 9 December 2011 in support of the ex parte application gave the impression that there had been ongoing negotiations between Slater and Gordon and Law Mutual, the communication was not ongoing. Law Mutual requested that discussion commence in relation to the plaintiff's claim on 9 April 2010. The plaintiff made a forensic decision to brief counsel and received an opinion on liability and quantum. A formal submission was prepared and forwarded for consideration by Law Mutual in November 2011 which was the plaintiff's only response to the request of 9 April 2010.
The plaintiff's position was that he instructed his solicitors to secure his position during the course of any negotiations with Law Mutual by ensuring that a writ was both issued and served. Details of the formal submission have not been disclosed and, accordingly, it is unclear whether the time taken in its preparation was reasonable. The delay in attempting to locate the defendant was however not reasonable and some efforts should have been made by Slater and Gordon prior to December 2011 in order to attempt service. I accept that the defendant may not have been able to be located in 2010 and early 2011.
The defendant asserts that he was easy to locate because a search of the Victorian records in June 2012 provided business and personal details, the defendant had left Western Australia, moved to the ACT, moved to Victoria and then changed his address in Victoria on one occasion between 2005 and 2011. Although the defendant had been located in ACT in 2008, he moved on two further occasions prior to service being effected. There is no evidence of the type or detail of listing in relation to the defendant in respect of the second address in Victoria prior to June 2012.
The conduct of the parties
The plaintiff has been poorly served by the legal profession. In 2007 he instructed solicitors he believed were competent to act on his behalf in respect of a claim he alleges arises from professional misconduct by his former solicitor. The plaintiff instructed Slater and Gordon to issue a writ in 2010 and believed, as a result of their failure to respond to his inquiry in December 2010, that the writ had been served. He was diligent in responding to any query raised by Slater and Gordon and provided instructions promptly. When asked for assistance in locating the defendant, he provided address details and he subsequently provided an internet address. As the court observed in Carter v State Housing Commission (Unreported, WADC, Library 4646, 5 September 1995):
… Putting the matter in the hands of solicitors is reasonable action by a prospective plaintiff and any delay by the solicitors in proceeding will not generally be visited upon the plaintiff.
I refer also to Black v City of Melbourne [1963] VR 34, 39 where the court held:
It cannot be right to hold that a prospective plaintiff who has acted reasonably in employing a solicitor to attend to his claim can be held not to have reasonable cause for not giving the statutory notice, when the reason for failure to do so is the breach by his solicitor of his duty to act without negligence.
In Tucker v Hamdorf [2006] WADC 191 Commissioner Schoombee, determined an application to extend the validity of a writ of summons. Her Honour commented on the plaintiff's solicitor's oversight and said [44]:
The questions is whether the plaintiff herself should be penalised for the oversight by her solicitors and their delay in bringing the correct application. In the context of an application pursuant to s 47A of the (Limitation Act) or similar statutory provisions requiring notice to be given to the defendant within a certain period of time, it has been held that where a plaintiff has acted reasonably in employing a solicitor to attend to her claim, a subsequent failure by the solicitor to give notice or commence legal proceedings pursuant to the section ought not to be visited upon the plaintiff.
Her Honour also referred to Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 dealing with the delay of an appellant to enter an appeal for hearing. In that case Franklyn J said (202):
Viewing the appellant in isolation, its culpability was no more than the unknowing failure to comply with the rule of procedure. As was said by Barwich CJ in Hall v Nominal Defendant (1996) 117 CLR 423, 435, it is the litigant's failure to make action in time and must be satisfactorily explained, and that no more that in some fields the client must suffer for his solicitor's acts on his behalf 'in this field the litigant is not necessarily … to be saddled with responsibility for that his solicitor does or does not do'. The blamelessness of the client and the responsibility of the solicitor are material considerations and: Sophrone v Nominal Defendant (1957) 96 CLR 469, 474.
I accept that the plaintiff did all that he could to ensure the writ was served in time. He trusted the advice of the solicitors acting for him and trusted that his instructions would be followed.
The hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it
The defendant sets out the circumstances of the legal representation of the plaintiff in the defendant's affidavit sworn 30 June 2012. The defendant does not challenge the primary facts and the findings made on behalf of the Legal Practitioners' Complaints Committee on 18 January 2007 in the State Administrative Tribunal. These include a finding that the defendant was guilty of unsatisfactory conduct by way of conduct occurring in connection with legal practice that falls short of the standard and competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner in the course of acting on behalf of a client in relation to the adequate preparation of appeal books for an appeal in the Court of Criminal Appeal [sic] (annexure HAA2).
It is unlikely that there will be any witnesses in this matter who have to be located or who would be unaware of the subject matter of this action. Memories should not have dimmed with time. The plaintiff's claim is based on the documentation relevant to the Court of Appeal and to the Legal Practitioners' Complaints Committee hearing.
It is conceded that a delay pushing a matter beyond the limitation period will cause a degree of hardship to the defendant because the matter has not been finalised and the ultimate outcome may impact on the defendant's personal and professional life, however this is only one factor to take into account.
Counsel for the defendant submits that in the event that an extension was no longer granted the plaintiff could proceed against Slater and Gordon in respect of their conduct of this matter in lieu of proceeding against the defendant. He submits that in that way the plaintiff would not be significantly prejudiced by not proceeding directly against the defendant. I accept it may be possible for the plaintiff to commence proceedings against Slater and Gordon but I do not accept that to do so in lieu of proceedings against the defendant is the appropriate course. On the evidence relevant to his application the plaintiff's case against the defendant is strong. It is in the interests of justice that proceedings are aired between the parties and not litigated via a third party.
Justice of the case
Counsel for the defendant submits that, consistent with Ketteman v Hansel Properties Ltd [1987] AC 189, 217, 220 and 223 and Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; public resources cannot be wasted and undue delay should not be tolerated.
Case management is of course very important. However, justice is the paramount consideration. In Aon Risk Services Australia Ltd v ANU French CJ referred to the decision of the Full Federal Court in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 with approval. In that case their Honours said [72]:
Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
The plaintiff instructed Slater and Gordon in good faith and did all he could to ensure that a writ issued and that the defendant was served with that writ. It would be unjust to punish the plaintiff in the circumstances of this case by not extending the validity of the writ.
I find that if Acting Principal Registrar Kingsley had been aware of all of the circumstances, including the evidence brought to his attention after making the decision not set aside the order, the acting principal registrar would have and should have made the ex parte order to extend the validity of the writ in the interests of justice in this case.
I am satisfied that, in exercising my discretion, the existing order not to set aside the extension of the validity of the writ is the correct finding. The appeal is dismissed.
I will hear further from the parties in relation to costs.
0
11
2