Prior & Prior v Jesberg, Jesberg & South East Queensland Electricity Board

[1998] QSC 174

IN THE SUPREME COURT

OF QUEENSLAND  No. 1266 of 1997

Brisbane

[Prior & Prior v Jesberg, Jesberg & South East Queensland Electricity Board]

BETWEEN:

RHONDA MARGARET PRIOR

First Plaintiff

AND:

TAMARA MAREE PRIOR an infant by RHONDA MARGARET PRIOR, her next friend

Second Plaintiff

AND:

TERRANCE JOHN JESBERG and LORRAINE JUNE JESBERG trading as “JESBERG ELECTRICAL”

First Defendants

AND:

SOUTH EAST QUEENSLAND ELECTRICITY BOARD

Second Defendant

REASONS FOR JUDGMENT - HELMAN J.

Judgment delivered 2 September 1998

1. This is an application by the plaintiffs pursuant to Order 9 Rule 1 of the Rules of the Supreme Court for leave to renew the writ of summons in this action.  The writ was issued on 12 February 1997 and is therefore no longer in force.  Order 9 Rule 1 is as follows:

   “(1) Original writs of summons shall be in force for 12 months from the day of the date thereof, including the day of such date, and no longer; but if any defendant therein named has not been served within that time, the plaintiff may, before the expiration of the 12 months or within such further time (if any) as the Court or a Judge may allow, apply to the Court or a Judge for leave to renew the writ; and the Court or Judge, if satisfied that reasonable efforts have been made to serve such defendant, or for other good reason, may order that the original or concurrent writ of summons be renewed for 12 months from the date of such renewal, inclusive of such date, and so from time to time during the currency of the renewed writ.

   ...

   (3) A writ of summons so renewed shall remain in force and be available to prevent the operation of any statute whereby the time for the commencement of the action may be limited, and for all other purposes, from the date of the issuing of the original writ.”

   2. The action arises from the death of Mr Desmond Prior, the husband of the first plaintiff and father of the second plaintiff. At the time of his death Mr Prior was twenty-nine years old and was employed as a sales clerk. The first plaintiff is now thirty-two years old and the second plaintiff is six years old. On 13 February 1994 Mr Prior was painting the front of a house in Camp Hill, Brisbane when he touched an inadequately insulated power supply cable. He was electrocuted. The plaintiffs allege that the Jesbergs had carried out electrical work - re-wiring - at the house before the incident. The second defendant supplied the power to the house. As I understand the plaintiffs’ case it will be that responsibility for Mr Prior’s death lies with either the Jesbergs or the second defendant or with both the Jesbergs and the second defendant. The plaintiffs sue as Mr Prior’s dependants, under Division 5 of Part 4 of the Supreme Court Act 1995. They claim damages for negligence and breach of statutory duty. Against the Jesbergs the cause of action relied on is negligence. Against the second defendant the case will be one of breach of statutory duty: the plaintiffs will rely on provisions of the Electricity Act 1976 and certain regulations made under it. Mr Zillman, who appeared for the plaintiffs, referred me to Regulation 28(1)(b) of the Electricity Regulations 1977, but that was repealed in 1989.  Regulation 32(1)(b) of the Electricity Regulations 1989, which was in force at the time of Mr Prior’s death, was however in substance the same.

   3.          Following Mr Prior’s death, the first plaintiff retained her brother-in-law, Mr Mark Creedon, as solicitor for the Lord Campbell’s Act claim.  Whenever the first plaintiff enquired as to the progress of the action Mr Creedon assured her that it was proceeding and that she could expect to receive a settlement of the claim “shortly”.  Mr Creedon’s file came into the hands of her present solicitor, Mr Michael Hefford, at some time after mid-April this year.  There was nothing in it to show that the writ had been served.  Mr Creedon’s name has been struck from the roll of solicitors.

   4.          On the evidence it appears that no efforts whatever were made to serve the defendants before the writ became stale.  On 6 July 1998 the defendant Terrance Jesberg and the second defendant were served with the summons before me - which was filed on 2 July 1998 for hearing on 21 July 1998 - and a supporting affidavit of Mr Hefford.  A further affidavit of Mr Hefford was served on the solicitors for those defendants on 20 July 1998.  After a brief hearing on 21 July 1998 the application was adjourned to 23 July 1998 to enable the plaintiffs to supplement the evidence relied on.  There is no evidence that any defendant was given any notice of the plaintiffs’ claim until the papers relating to this application were served on Mr Jesberg and the second defendant.  It is possible that they had some notice of the circumstances of Mr Prior’s death, because a coroner’s inquest into the cause and circumstances of his death was held on 13 October 1994, but there is nothing before me concerning any part the defendants may have played in the inquest.  The only evidence before me is that there was an inquest, that Mr Creedon briefed counsel to appear at it, and that the coroner found that Mr Prior died by electrocution.

   5.          At the hearing of this application none of the defendants appeared.  Solicitors retained on behalf of the Jesbergs, however, wrote to Mr Hefford on 20 July 1998 as follows:

   “RE:   PRIOR vs TERRY JESBERG & SEQEB

   We refer to your recent telephone conversation with the writer.

   We note that whilst we have been served with the material for tomorrow morning’s application there was no requirement that service of the material be effected on the First Defendant.

   Kindly note that there will be no appearance on behalf of the First Defendant at the application.  We trust that you will bring this letter to the attention of the Court.

   We would also be grateful if you could advise us of the outcome of the application.”

   The evidence shows that counsel had been retained on behalf of the second defendant but the second defendant also decided not to appear at the hearing.  In an affidavit sworn by Mr Hefford and filed by leave on 23 July 1998 the following appears:

   “12.  I am informed by my employee, Mr Sara and verily believe; that when this application was before the Court on 21^st July, 1998, Mr Peter Lane of Counsel advised Mr Hugh Zillman of Counsel that he had been instructed on behalf of the Second Defendant and that he would not be appearing on the Summons.”

   I should mention here that on 21 July 1998 Mr Zillman told me that Mr Lane advised him that morning that it was not the intention of the second defendant to appear and put any matters before the Court.  Mr Zillman said that Mr Lane also told him that there was no question of prejudice raised by his client.  I do not think it appropriate that I act on what Mr Zillman told me from the bar table, although I hasten to add I do not for a moment doubt his veracity.  It appears to me that I can and should act only on what appears in Mr Hefford’s affidavit, which does not go as far as what Mr Zillman told me. 

   6.          I am not satisfied that reasonable efforts have been made to serve any of the defendants, but that does not conclude the matter.  There remains the question whether there is “other good reason” for renewing the writ.  Speaking of an application under Order 9 Rule 1, Gibbs J. said in Jones v. Jebras and Hill [1968] Qd. R. 13 at pp. 22-23:

   “Whether the application is made before or after the expiration of the twelve months, the duty that falls on the judge who hears it is to determine whether he is satisfied that reasonable efforts have been made to serve the defendant or that for other good reason the writ should be renewed.”

   The applicant bears the onus of establishing that at least one of the bases for renewal has been made out (ibid, p. 23). 

   7.          In Van Leer Australia Pty Ltd v. Palace Shipping KK & Anor (1981) 180 C.L.R. 337 at p. 344, Stephen J. quoted with approval the following passage from Victa Limited v. Johnson [1975] 10 S.A.S.R. 496 at p. 504 in which Bray C.J. said, concerning a rule of court not - so far as is relevant to the issues on this application - materially different from Order 9 Rule 1:

   “The rule first directs the Court to inquire 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, amongst the matters for the consideration of the Court, apart from whatever attempts have been 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 caused to the plaintiff by refusing the renewal or to the defendant by granting it.”

   Those words conveniently summarize the approach that has been adopted in Queensland to applications of this sort, as in Dempsey v. Dorber [1990] 1 Qd. R. 418 and in Traj v. The Cannery Board [1990] 1 Qd. R. 494. The latter case concerned Rules 52 and 53 of the District Courts Rules, but the same ground is covered, in almost identical language, in Order 9 Rule 1: ibid, at p. 496 per Connolly J., with whom Carter and Moynihan JJ. agreed.

   8.          The jurisdiction under Order 9 Rule 1 is not exercised to punish or caution; the essential question is whether there is good reason for making an order: Dempsey v. Dorber at p. 422 per Connolly J.

   9.          The plaintiffs are in no way personally responsible for the delay, but the first plaintiff will undoubtedly suffer hardship if leave to renew the writ is refused because the period of limitation applying to her claim has expired.  (But as the remedy provided to dependants under Lord Campbell’s Act exists for the benefit of dependants individually, the expiration of the period of limitation applying to the first plaintiff’s claim has not affected the second plaintiff’s claim: see a recent discussion in King v. Green [1994] 1 Qd. R. 389.)

   10.       Turning to the question of possible prejudice to the defendants, one observes first the absence of any evidence of notice to the defendants of the claim until the papers relating to this application were served on Mr Jesberg and the second defendant.  On applications of this kind notice of claim to a defendant or the defendant’s insurer has been regarded as a relevant matter.  Clearly enough such notice goes some way towards alleviating any prejudice which could be suffered by a defendant to a stale claim: see Van Leer Australia Pty Ltd v. Palace Shipping KK & Anor at p. 350. Jones v. Jebras and Hill and Dempsey v. Dorber are reported examples of cases in which notice of a claim has been a factor leading to a decision to renew a writ.

   11.       There is, however, no evidence of actual prejudice to the defendants arising from the delay in beginning and prosecuting the plaintiffs’ claim promptly.  From the expiration of a limitation period some prejudice to a fair trial may be presumed: Brisbane South Regional Health Authority v. Taylor (1996) 186 C.L.R. 541 at p. 555 per McHugh J., with whom Dawson J. agreed. But it is still open to the Court to exercise its discretion in favour of the plaintiff in a case like this if justice is best served by doing so. In deciding that question I conclude that the delay has not been so great nor the factual issues likely to be affected by the delay such as to cause more than a minimum of prejudice to the defendants. A little under four and a half years elapsed between Mr Prior’s death and the notice of the claim given to the defendants. It seems unlikely that there would be any substantial issue as to the immediate cause of Mr Prior’s death, in view of the coroner’s finding. It would follow from that that there is unlikely to be an issue as to the absence of adequate insulation on the supply cable at the relevant time. The factual issues will then come down to: what work was undertaken by the Jesbergs, whether the work they undertook required or resulted in their doing anything to the cable, what the second defendant may have done or omitted to do to the cable, and the quantum of damages. It is reasonable to conclude that records will be held by the defendants concerning the issues arising from the allegations of their responsibility for the state of the cable, and that the memories of any persons concerned will not have faded to such an extent as unduly to prejudice the defendants. In the circumstances it is difficult to see that the defendants could suffer any relevant prejudice on the quantum issue. Apart from those considerations there is the circumstance that no defendant, even though given adequate opportunity to assert that actual prejudice will be suffered if the plaintiffs’ application is granted, has sought to do so. All defendants have consulted legal advisers and have notified the plaintiffs’ representatives of their decision not to resist the application. While the onus remains with the plaintiff to persuade the Court that there is good reason to grant the application that circumstance cannot be treated as without significance.

   12.       This case is by no means the strongest one for the exercise of the discretion provided for in Order 9 Rule 1 in favour of a plaintiff, but I nonetheless conclude that, taking all of the considerations I have mentioned into account, I should extend the time within which application may be made for leave to renew the writ and order that leave be granted to renew the writ.  I shall invite further submissions on the form of the order for leave and costs.