Pino v Thermomix in Australia Pty Ltd
[2017] WADC 98
•11 AUGUST 2017
PINO -v- THERMOMIX IN AUSTRALIA PTY LTD [2017] WADC 98
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 98 | |
| Case No: | CIV:2794/2015 | 30 MAY 2017 | |
| Coram: | REGISTRAR KINGSLEY | 11/08/17 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| PDF Version |
| Parties: | JOSEPHINE PINO THERMOMIX IN AUSTRALIA PTY LTD |
Catchwords: | Practice Application to extend the validity of the writ Plaintiff's claim now statute barred |
Legislation: | Nil |
Case References: | Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 Brown v Coccaro (1993) 10 WAR 391 Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
THERMOMIX IN AUSTRALIA PTY LTD
Defendant
Catchwords:
Practice - Application to extend the validity of the writ - Plaintiff's claim now statute barred
Legislation:
Nil
Result:
Application granted
Representation:
Counsel:
Plaintiff : Mr C M Slater
Defendant : Mr T J Palmer
Solicitors:
Plaintiff : Morgan Alteruthemeyer
Defendant : Morfett Legal
Case(s) referred to in judgment(s):
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158
Brown v Coccaro (1993) 10 WAR 391
Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
1 REGISTRAR KINGSLEY: The plaintiff issued an endorsed writ on 3 August 2015. The endorsed writ pleaded that in or about June 2008 the plaintiff agreed with the defendant to provide services to the defendant as a Group Leader pursuant to a Group Leader Agreement (the Agreement). By the Agreement the defendant would pay the plaintiff a commission for sales of a kitchen appliance. The plaintiff would engage consultants who were recruited and trained by the plaintiff. The endorsement goes on to say that in or about November 2010 the defendant wrongly terminated the Agreement, and in April 2011 the defendant constructively terminated the plaintiff's engagement with the defendant.
2 Additionally, the writ goes on to claim that, without her consent or licence, the defendant published recipes to customers and potential customers in breach of the plaintiff's copyright in those recipes. The additional claim by the plaintiff is for damages pursuant to the Copyright Act 1968.
3 On 5 August 2016, as no document had been filed in the case for the preceding 12 months, the court issued a notice that the case had been placed on the inactive cases list. The notice provided that pursuant to r 44G(1) District Court Rules 2005 (DCR) a case that is on the inactive cases list for six continuous months is taken to have been dismissed for want of prosecution.
4 On 30 January 2017 the plaintiff applied by way of ex parte chamber summons (the ex parte application) for orders that the action be removed from the inactive cases list, the validity of the writ be extended until 3 August 2017 and that the plaintiff have leave to serve the writ on or before 3 August 2017. The ex parte application was supported by the affidavit of Stefan Otto Alteruthemeyer sworn 30 January 2017.
5 On 1 February 2017, four days before the dismissal for want of prosecution, the principal registrar made orders removing the action from the inactive cases list, extending the validity of the writ until 3 March 2017 and ordering the plaintiff to serve the writ of summons by that date.
6 The writ was served on 22 February 2017. The defendant then entered a conditional appearance.
7 By an application dated 17 March 2017 (the set aside application) the defendant, pursuant to O 58 r 23 Rules of the Supreme Court 1971 (RSC) sought orders that the orders extending the validity of the writ and time for service be set aside.
8 The set aside application is supported by the affidavits of Matthew Jonathon Tennant sworn 17 March 2017, and 26 April 2017. The set aside application was opposed by the plaintiff, and an affidavit sworn by Stefan Otto Alteruthemeyer on 24 April 2017, and an affidavit sworn by the plaintiff on 7 April 2017 were filed.
9 In his January 2017 affidavit, Alteruthemyer deposes that the writ was not served so that the outcome of a similar action in the District Court CIV 2165 of 2014 Higgins v Thermomix in Australia Ltd (the Higgins action) could be known. Alteruthemyer in his affidavit annexes a notice in the Higgins action pursuant to O 9A RSC giving notice to the defendant of four interested non-parties, one of whom in the plaintiff. Order 9A is crafted to give notice to another party to the case or persons who are providing funding or other financial assistance, and who exercise direct or indirect control or influence over the way the action is being conducted.
10 Annexed to Alteruthemeyer's 24 April 2017 affidavit is a copy of a letter dated 30 October 2014 sent from the plaintiff's solicitors to the directors of Thermomix. After reciting the basis of the plaintiff's potential claim the letter of 30 October 2014 ends:
We are now acting for a number of former Group Leaders who will await the outcome of the action that has been commenced by Elizabeth Higgins before proceeding with their claims. This letter serves as notice of the demand. Particulars of our client's claim will be provided once the issue of liability is settled.
11 The set aside application was heard on 28 April 2017 by Deputy Registrar Hewitt. The deputy registrar set aside the orders made by the principal registrar. The deputy registrar then, in effect, revived the ex parte application by ordering that that application be heard by another registrar.
12 The ex parte application was relisted before me. By way of preliminary argument, defendant's counsel submitted the ex parte application was spent and a fresh application was required. After hearing submissions from the plaintiff's counsel I determined that the ex parte application had been spent and there was nothing formally before me. Thereupon plaintiff's counsel made an oral application in terms of the ex parte application (the oral application), and I allowed that oral application to proceed.
13 The application for an extension of the validity of the writ is made pursuant to O 7 r 1 RSC. That rule provides, for the purpose of service, a writ is valid in the first instance for 12 months beginning at the date of its issue. Order 7 r 1(2) RSC provides that where a writ has not been served on a defendant the court may, by order, extend the validity of 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.
14 In Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158 Ipp J explained that the discretion to extend the validity of the writ should be exercised by reference to the general justice of the case taking into account relevant circumstances which would include not only the provision of limitations but the relative hardship to which a grant or refusal of renewal would impose upon the parties. Relevant factors included the length of delay, whether the delay was caused by mistake, and whether such a mistake is excusable, the nature of attempts made at service, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting the extension to the validity of the writ. Ipp J in Brealey commented [45]:
… 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. …
15 It is relevant to note that the plaintiff's endorsed claim provides that, in or about November 2010 the defendant wrongly terminated the Agreement and, in April 2011 the defendant constructively terminated the plaintiff's engagement with the defendant. However, the prayer for relief only claims damages for termination of the Agreement. The endorsed claim also states that between 2003 and June 2011 the plaintiff composed recipes, and the defendant published those recipes without the consent or license of the plaintiff. The plaintiff claims damages pursuant to the Copyright Act 1968.
16 The limitation period for a claim for breach of contract is six years from the breach. The limitation period for the termination of the Agreement therefore expired in November 2016. For claims under the Copyright Act the limitation period is six years from the infringement. As the period of infringement is between 2003 and June 2011, some claims had expired before the writ was filed, and the limitation period for other claims continued to expire during the period for which the writ was stale.
17 The limitation issue is important because the plaintiff cannot effectively serve the writ until it is retrospectively extended. The effect of the renewal has an impact on the defendant's limitation of rights.
18 The action is now a category 3 case - see Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597. A category 3 case is where the writ has gone stale, and the limitation period has expired. Lord Brandon stated that what was required to justify an extension in a category 3 case is 'good reason'. Whilst Lord Brandon commented that it is not possible to define or circumscribe the scope of the expression 'good reason', in a category 3 case the applicant for extension has an extra difficulty to overcome; they must give a satisfactory explanation of their failure to apply for an extension before the validity of the writ has expired.
19 In Western Australia it is suggested the appropriate test is the 'interests of justice' (Brown v Coccaro (1993) 10 WAR 391), but as noted by the court in Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561 the difference between 'good reason' and the 'interests of justice' is a semantic distinction.
20 Defendant's counsel referred to Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 where the plaintiff sought to serve a writ some four months after the expiry of the initial extension of validity, and after the relevant limitation period had expired. The court was of the opinion that the plaintiff had made a calculated decision not to incur costs whilst it thought there were good prospects of recovery against another defendant within jurisdiction. In considering whether the writ should be renewed, Stephen J took into account the long delay in serving the defendant but noted, notwithstanding the seriously prejudicial consequence whenever renewal of a writ is in question after a limitation period has run its course, the prejudice was self-inflicted in the sense the defendant has done nothing to induce delay in service or to encourage a belief that the claim against it might be settled without recourse to litigation. Stephen J refused to renew the writ.
21 In this matter, whilst the delay is not considerable, there is no evidence of any notice being given to the defendant that the writ had been issued. Certainly the plaintiff's solicitors wrote to the defendant in October 2014 putting them on notice of the claim. However, the letter merely says that they act for a number of former Group Leaders who will await the outcome of an action that had been commenced by Elizabeth Higgins in this court before proceeding with their claim. The plaintiff's solicitor then proceeded with the claim by filing a writ on 3 August 2015.
22 It would appear the defendant had no notice of the issuance of the writ. Further, there was a deliberate decision on the part of the plaintiff's solicitor not to serve the writ. There would appear to be no practical difficulties in service.
23 The plaintiff has issued a writ without notice to the defendant until it sought to effect service. In the meantime the defendant has accrued limitation rights. The plaintiff will suffer considerable prejudice through the loss of a substantial part of her claim. It can be said that loss is self-inflicted.
24 Tennant, in his March 2017 affidavit for the defendant, deposes that in 2014 the defendant's email servers were decommissioned. The defendant has been unable to locate relevant emails. However the decommissioning of the server occurred in 2014, before the issue of the writ. Tennant, goes on to depose that the claim by the plaintiff is different in content to the claim made by Higgins in this court. Further Tennant deposes that an employee of the defendant has conducted extensive searches for relevant documentation, but has been unable to locate particular documents. Tennant also deposes that a witness for the defendant left the defendants employ in June 2016.
25 Tennant, in his April affidavit deposes that the information technology provider for the defendant has been unable to restore emails on the decommissioned server, although it appears screenshots of relevant emails may be possible.
26 The court has a wide discretion, which should be applied to see that justice is done. There is some evidence as to why the writ was not served. The plaintiff gave notice to the defendant of a potential claim, and by the O 9A RSC Notice, alerted the defendant of the plaintiff’s interest in the proceedings. The defendant has difficulties in accessing emails, but that issue pre-dates the issue of the writ. One employee has resigned and there are difficulties in accessing documents.
27 There is real prejudice on both sides – the plaintiff’s claim will be statute barred if the application is refused, and the defendant will lose a limitation defence, for parts of the claim, if the application is granted. In my opinion, the balance of hardship is greater on the plaintiff’s side. That being the case I will allow the oral application.
28 I will hear counsel on the form of orders, and on costs.
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