PAVLOSKI v Kaefer Integrated Services Pty Ltd
[2007] WADC 90
•10 May 2007 typed from tape and edited by Judge
PAVLOSKI -v- KAEFER INTEGRATED SERVICES PTY LTD & ANOR [2007] WADC 90
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 90 | |
| Case No: | CIV:1102/2005 | 10 MAY 2007 | |
| Coram: | MARTINO DCJ | 10/05/07 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Validity of writ extended | ||
| PDF Version |
| Parties: | MILAN PAVLOSKI KAEFER INTEGRATED SERVICES PTY LTD KAEFER PRODUCTS PTY LTD |
Catchwords: | Practice and Procedure Application for extension of validity of writ |
Legislation: | Nil |
Case References: | Bell Group NV v Aspinall (1998) 19 WAR 561 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
KAEFER INTEGRATED SERVICES PTY LTD
First Defendant
KAEFER PRODUCTS PTY LTD
Second Defendant
Catchwords:
Practice and Procedure - Application for extension of validity of writ
Legislation:
Nil
(Page 2)
Result:
Validity of writ extended
Representation:
Counsel:
Plaintiff : Mr J R Criddle
First Defendant : Mr T W McPhee
Second Defendant : Mr T W McPhee
Solicitors:
Plaintiff : Bradford & Co
First Defendant : Michell Sillar McPhee
Second Defendant : Michell Sillar McPhee
Case(s) referred to in judgment(s):
Bell Group NV v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
(Page 3)
1 MARTINO DCJ: The matter before me is an appeal against a decision of Deputy Registrar Hewitt on 5 December 2006 refusing an extension of the validity of the writ of summons with which this action was commenced. The notice of appeal was filed on 8 December 2006, so that is three days after the decision appealed from, but not served until the 15th. So it was not commenced, as that word is taken to mean by r 15 of the District Court Rules 2005, within the 10 days that is limited.
2 The reason for that is that when the notice of appeal was filed it was accepted by the District Court; it was not then available immediately for collection. It was made available for collection sometime after that. I do not know precisely when, but the outside clerk of the plaintiff's solicitors did not collect it until the 15th, and then it was served.
3 In all the circumstances, having regard to the period with which we are concerned here for which time needs to be extended, and the reason for the delay and the fact that the appeal was filed on 8 December 2006, I am satisfied that it is appropriate for me to extend the time for commencement of the appeal, and I so order.
4 The appeal, it is now clearly established, is a hearing afresh of the application for the extension of the original writ. The facts before me show that the plaintiff alleges he was involved in an industrial accident on 20 May 1999, and that he was employed by the first defendant and/or the second defendant. The writ of summons was issued on 19 May 2005.
5 Then I think the affidavit of Frank William Taylor sworn 2 June 2006 is of critical importance because that affidavit is by the person who was in May 2006 the company secretary of both the first and second defendants. It shows that on 10 May 2006 the writ of summons which was purported to be the service copy of the writ of summons was handed to him.
6 The affidavits of the plaintiff show that what happened was that the writ of summons, as far as the second defendant was concerned, was delivered to the incorrect address, which as I say is set out in the affidavit of Mr Taylor. What happened was that it was delivered to the principal place of business and not the registered office. It was therefore not valid service, and for that reason subsequently, following a conditional appearance by the second defendant and an application to set aside service, the service was set aside. That resulted in this application to extend the validity of the writ.
(Page 4)
7 The reason why I regard the affidavit of Mr Taylor as of great significance is that it shows, first of all, that the plaintiff did endeavour to serve the writ on the second defendant within the time in which the writ was valid. Secondly, it shows that the writ of summons came to the attention of the company secretary on that day, 10 May, and while the position remains that the service was not proper service, the fact that it came to the attention of the company secretary on that day is in my view relevant in the exercise of my discretion.
8 I have been referred to authorities such as Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337, Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 and Bell Group NV v Aspinall (1998) 19 WAR 561.
9 It is clear that I do have a discretion. It is to be exercised bearing in mind all relevant circumstances. The fact that the limitation period has expired is relevant but not conclusive. The case management principles set out in the rules are also relevant, and prejudice to each party is also relevant.
10 Delay itself causes a prejudice, and I bear that in mind. I also bear in mind that if I extend the validity of the writ, then the second defendant is prejudiced in that, whereas it otherwise has an absolute defence to the claim by reason of expiration to the limitation period, it loses that defence. On the other hand, if I do not extend the validity of the writ, the plaintiff also suffers prejudice in that he is barred from pursuing the claim against the second defendant, and I bear that in mind.
11 I also bear in mind that there has been no fault on the part of the second defendant. While it did insist on what could be described as a right for proper service, it was entitled to do that. It did nothing to mislead the plaintiff.
12 Having regard to all of those circumstances, and to the broad nature of my discretion and in view of the facts set out, which I take from Mr Taylor's affidavit to which I have referred, in all the circumstances where the second defendant did receive notice of the writ within time, it is my view that notwithstanding the errors that have occurred by the plaintiff's solicitors, who should have done an up to date search on the second defendant before purporting to serve or attempting to serve the writ, the justice of the case warrants me exercising my discretion to extent the validity of the writ, and I would order the validity of the writ be extended for a period of one month.
(Page 5)
13 In relation to costs it is my view that there has been fault on the part of the plaintiff's solicitors, that these problems could have been prevented if a proper search had been carried out before service. While I have decided that the fault does not preclude the plaintiff being given the opportunity to continue with his action, in my view it is relevant in the exercise of my discretion as to costs.
14 This is a fresh hearing before me of the original application for the extension of time, and that application was brought about by reason of that fault on the plaintiff's solicitor's part. It is my view that the appropriate exercise of my discretion is to make no further order as to costs and to make it clear that the orders for costs that have previously been made should continue to stand.
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