Remess v Webberly - [2010] TASSC 63

[2010] TASSC 63

COURT: SUPREME COURT OF TASMANIA

CITATION: Remess v Webberly [2010] TASSC 63

PARTIES:  REMESS, Jonathon Gordon
  v
  WEBBERLY, Mark

FILE NO:  913/2007
DELIVERED ON:  22 December 2010
DELIVERED AT:  Hobart
HEARING DATE:  15 December 2010
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under rules of court – Commencement of proceedings; originating process – Renewal of writ – Whether reasonable efforts made to serve defendant or other good reason shown

Supreme Court Rules 2000 (Tas), r107.
Aust Dig Procedure [266]

REPRESENTATION:

Counsel:
             Plaintiff:  T D Cox
             Defendant:  A J Denehey
Solicitors:
             Plaintiff:  Hilliard & Associates
             Defendant:  Murdoch Clarke

Judgment Number: [2010] TASSC 63
Number of paragraphs: 13

Serial No 63/2010
File No 913/2007

JONATHON GORDON REMESS v MARK WEBBERLY

REASONS FOR JUDGMENT HOLT AsJ

22 December 2010

On 19 December 2007 the plaintiff, through his solicitor, issued a writ claiming damages for personal injury sustained in a motor vehicle accident on 20 December 2004. The writ has not been served. It is no longer effective for service. The Supreme Court Rules 2000, r107, relevantly provides that a writ is in force for six months from the date of issue. The rule goes on to provide that on the application of a plaintiff made whilst the writ is in force the Court or a judge may order renewal for such period as the Court or a judge thinks fit. Rule 52 provides that the Court or a judge may enlarge the period for doing any act or taking any proceeding allowed by the rules notwithstanding that the application is made after the expiration of the period originally allowed.

By application filed 13 October 2010 the plaintiff has applied for the following orders:

"1That the period within which the applicant may apply to renew the writ dated 19 December 2007 be extended;
2That the writ dated 19 December 2007 be renewed for a period of six (6) months."

Although, in order to succeed, the plaintiff requires both a favourable exercise of the discretion to enlarge time and a favourable exercise of the discretion to renew the writ the two go together. If renewal is not appropriate the occasion to enlarge time would not arise. If the justice of the case requires renewal, then it follows that an enlargement of time for the bringing of the application ought also be granted. See National Mutual Life Association of Australasia Ltd v Huddlestone & Anor (1997) TASSC 73.

The principles applicable to a renewal application are well established. I set out below a list derived from the following decisions. National Mutual Life Association of Australasia Ltd v Huddlestone & Anor (supra), Marsden v Taylor [2000] TASSC 138, Woodcock v State of Tasmania [2003] TASSC 81 and Jadwan Pty Ltd v Porter(No 2) [2004] TASSC 126.

● The power to renew should only be exercised for good reason.
●Proof of reasonable efforts to serve the defendant is a matter of considerable importance. A failure…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Remess v Webberly

Details

AGLC: Remess v Webberly [2010] TASSC 63
Case: [2010] TASSC 63
Decision Date: 22 December 2010

CaseChat Overview and Summary

In the matter of Remess versus Webberly, the dispute before the court was whether the plaintiff had made reasonable efforts to serve the defendant in accordance with the Supreme Court Rules of Tasmania. The plaintiff, Remess, sought to renew a writ that had not been served on the defendant, Webberly, within the prescribed time limit. The legal issues to be determined were whether the plaintiff had made reasonable efforts to serve the writ and whether there was a good reason for the failure to do so within the stipulated period. The court considered the evidence presented regarding the plaintiff's attempts to serve the writ and the reasons for the delay. It was established that the plaintiff had made reasonable efforts to locate the defendant and that there was a valid reason for the delay in service. The court found in favour of the plaintiff, allowing the renewal of the writ. The court acknowledged the plaintiff's efforts to serve the writ and the good reason for the delay, concluding that the plaintiff was entitled to the relief sought. As a result, the writ was renewed, allowing the proceedings to continue.

Orders