Rayney v Reynolds
[2016] WASC 219
•19 JULY 2016
RAYNEY -v- REYNOLDS [2016] WASC 219
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 219 | |
| 19/07/2016 | |||
| Case No: | CIV:1827/2015 | 14 JULY 2016 | |
| Coram: | CHANEY J | 14/07/16 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Validity of writ extended | ||
| B | |||
| PDF Version |
| Parties: | LLOYD PATRICK RAYNEY MARK REYNOLDS |
Catchwords: | Practice and procedure Extension of validity of writ Test to be applied No new principles |
Legislation: | Defamation Act 2005 (WA), s 14(2) Limitation Act 2005 (WA), s 15 Rules of the Supreme Court 1971 (WA), O 7 r 1 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MARK REYNOLDS
Defendant
Catchwords:
Practice and procedure - Extension of validity of writ - Test to be applied - No new principles
Legislation:
Defamation Act 2005 (WA), s 14(2)
Limitation Act 2005 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 7 r 1
Result:
Validity of writ extended
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
Defendant : No appearance
Solicitors:
Plaintiff : In person
Defendant : Not applicable
Case(s) referred to in judgment(s):
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158
Chalmers and Partners v Kensit [2008] WASCA 122
- CHANEY J:
(This judgment was delivered extemporaneously on Thursday 14 July 2016 and has been edited from transcript.)
1 This matter comes before me as an application for an extension of the validity of a writ which was issued on 2 June 2015. The claim revealed by the endorsement to the writ is a claim for defamation, which is said to have occurred on 3 June 2014 and involves, on its face, a serious imputation.
2 The defendant is a senior investigating forensic officer with the Western Australia Police who was involved in the forensic examination for the purpose of what is known as the Dargan Inquiry, which was an inquiry into the death of the wife of the plaintiff.
3 The writ was issued one day prior to the expiry of the limitation period prescribed by s 15 of the Limitation Act 2005 (WA). The writ was not then served, although attempts, which I will mention in a moment, were undertaken on 31 May 2016 and 1 June 2016 to effect service.
4 The plaintiff, in an affidavit filed in support of his application, identifies several reasons why it was that he chose to defer service of the writ. Those reasons include that, leading up to a trial between 28 April 2015 and 7 May 2015, his attention was devoted to the defence of the charges dealt with in that trial under the Telecommunications (Interception and Access) Act 1979 (Cth), which charges were ultimately dismissed in the District Court on 7 May 2015.
5 Thereafter, the plaintiff says that he was aware that in May 2015 the Commissioner for the Western Australia Police had announced a cold case review of the investigation into the death of Mrs Rayney and that he was concerned that service of the writ in these proceedings might negatively impact on that cold case review. For that reason, he held off service.
6 Thirdly, the plaintiff explains that in the absence of an assurance that he was no longer a person of interest in relation to the cold case review, notwithstanding his acquittal on charges of murdering his wife some considerable time earlier, there remained a possibility during the cold case review, or as a result of the cold case review, of further prosecution against him. It is said on his behalf that that caused a concern that the service of these proceedings against a person who was centrally involved in the original investigation might potentially prejudice his defence of any further prosecution were one to be brought, especially having regard to the nature of the alleged defamatory imputation.
7 Finally, it is said that from June 2015 (that is, around the time of the issue of the writ) up until the present time, in one form or another, the plaintiff has been engaged in proceedings in relation to his practicing certificate which have consumed his resources and time, and provided a basis upon which he did not wish to pursue the present action.
8 The plaintiff was well aware of the time limits associated with the commencement of proceedings in relation to defamation, and the time within which a writ remained valid and was required to be served. He left it very much to the last moment, but on 31 May 2016 attempts were made to effect service, both personally on the defendant and on solicitors who had represented the defendant during the period between July and August 2014 in relation to the alleged defamatory remarks and who had provided a response to a concerns notice which had been served on the defendant by the plaintiff pursuant to s 14(2) of the Defamation Act 2005 (WA).
9 Those attempts to have the solicitors accept service were unsuccessful as they declined to accept service on behalf of the defendant. It is not clear on the materials before me whether or not the solicitors made contact with the defendant in the brief time between 31 May 2016 and 1 June 2016 when these attempts were made, but, in any event, they declined to accept service no doubt because they lacked instructions to do so.
10 The plaintiff also attempted to effect personal service on the defendant by use of a process server. The process server appears to have been instructed on 31 May 2016 or, at least, it was on that day that she picked up the writ from solicitors who have been assisting Mr Rayney in relation to this matter (although are not the solicitors on the record). Later that afternoon, she telephoned a person on a mobile number and that person identified himself as the defendant. There was a discussion between the process server and that person, who, I think it can be reasonably inferred, was the defendant, and it was suggested by that person that the process server should attend the defendant's workplace the following day (that is, on 1 June 2016) after 9.00 am, at which time service could be effected. The process server duly attended in accordance with that arrangement, but, after several attempts to telephone the defendant, she was told by another person in the defendant's workplace that the defendant was not expected to be in the office all day. The process server then made further enquiries, which confirmed that the defendant was not in the premises. She left several messages on the mobile number on which she had spoken to the person who identified himself as the defendant, but those messages were not responded to.
11 Validity of the writ expired on 2 June 2016, and this application to extend the validity of the writ was lodged on 12 July 2016. Order 7 r 1(2) of the Rules of the Supreme Court 1971 (WA) requires an application for extension of time to be made before the expiry of the writ, although it permits the court to allow a later date for an application. Clearly this application is brought on the basis that the court ought permit the later application.
12 The principles which are to be applied were explained by Ipp J in Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158, and have been reaffirmed in various cases since then. In Brealey, his Honour said:
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 [45].
13 It is clear from that case and from other cases that the ultimate test comes down to the requirement for justice to be done, and there is an unfettered discretion in relation to the decision to be made under O 7 r 1. In this case, on the basis of the papers that have been filed, there are a number of considerations which seem to be relevant and need to be borne in mind.
14 Those which favour the grant of an extension include that the limitation period has expired, so that, if the extension of the validity of the writ is not granted, then the defendant will be, in all probability, and subject to the limited and perhaps remote possibility of an extension of time to commence proceedings, permanently deprived of a remedy in relation to what he asserts is a serious defamation.
15 A second factor is that the evidence filed in support of this application reveals that the defendant was notified in detail of the claims which form the subject of the action shortly after the alleged defamation occurred, and received a notice from the plaintiff which precisely set out the alleged defamation. The defendant, during that time, was represented by solicitors and so it can be taken that he was well aware of the case which was foreshadowed at that stage to be brought against him.
16 Furthermore, the affidavit of Mr Rayney reveals that, at the time of the issue of the writ, its issue received a degree of publicity in this state, and it is reasonable to infer that the defendant would have been aware that proceedings had in fact been commenced against him. So it is not the case that this writ, and its contents, will come out of the blue.
17 Thirdly, and I think significantly, attempts at service were made within the period of the validity of the writ, albeit at the last moment. In that context, there is evidence to suggest that the defendant intentionally avoided service and it can be inferred on the materials that have been filed, and by reason of the earlier correspondence between solicitors in relation to these allegations and the publicity that attended the issue of the writ, that, when he was contacted by the process server, the defendant would have been well aware of the nature of the document that was sought to be served.
18 Finally, there is an explanation put forward for the delay which, whilst it might not be thought to be an explanation which displaces the conclusion that this was very much a positive decision by the plaintiff to leave the matter to the last moment, is an explanation which is not unreasonable given the myriad of issues which the plaintiff faced in related contexts.
19 Against that, there are factors to be considered in relation to the defendant's position. One of those is, of course, a factor which I have mentioned as an aspect of the reasons for an extension, namely that the limitation period on the issue of the writ has now expired. Therefore, the defendant, if the validity of the writ is extended and it is served, will be deprived of the benefit of a limitation defence in relation to any fresh proceedings that might subsequently be commenced.
20 Secondly, there is the prejudice of simply having proceedings of this nature hanging over the head of the defendant for an extended period in a context where the Limitation Act provides a relatively short limitation period which carries with it the underlying policy that defamation is a cause of action which should be prosecuted quickly and resolved early.
21 There are other factors that favour the defendant of the type referred to by Buss J in Chalmers and Partners v Kensit [2008] WASCA 122, where his Honour enumerated the factors which militated against an extension of the validity of the writ in that case. They included the fact that the plaintiff, in deciding not to serve the writ until the last moment, chose to live by technicalities and therefore must be taken to have accepted the risk of dying by them if he failed to observe the time limits, and that any prejudice that might be suffered by the plaintiff if the validity of the writ is not extended would be self-inflicted [33].
22 So I recognise that there are competing factors on both sides.
23 In relation to the question of extension of the validity of the writ, during oral submissions the counsel for the plaintiff suggested that all that is being sought is a short period of a matter of weeks in which service can be effected and noted the plaintiff's deposition that, if the validity of the writ is extended, he intends to prosecute the action diligently.
24 In those circumstances, I have decided that the appropriate course is to grant a short extension of the validity of the writ. On balance, I consider that the factors favouring extension outweigh the factors against extension. I am influenced in that conclusion significantly by the fact that, on the face of the material before me, the plaintiff has endeavoured to serve the writ within time. He was entitled, if he wished, to delay service within that period. Attempts were made and it is reasonable, on the basis of the material presently before the court, to conclude that the defendant has avoided service, albeit at the last moment. To the extent, therefore, that he has been deprived of the potential limitation defence, he has, on the face of it, engineered that position himself, and in those circumstances that factor carries less weight than it might otherwise do.
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