Rose v Macmahon Contractors Pty Ltd
[2024] WASC 214
•12 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ROSE -v- MACMAHON CONTRACTORS PTY LTD [2024] WASC 214
CORAM: STRK J
HEARD: 11 JUNE 2024
DELIVERED : 11 JUNE 2024
PUBLISHED : 12 JUNE 2024
FILE NO/S: CIV 1656 of 2023
BETWEEN: GREGORY ROSE
Plaintiff
AND
MACMAHON CONTRACTORS PTY LTD
First Defendant
NEWMONT AUSTRALIA PTY LTD
Second Defendant
ROCHE CONTRACTORS PTY LTD
Third Defendant
WESTRAC PTY LTD
Fourth Defendant
Catchwords:
Practice and procedure - Application to extend validity of writ - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 7 r 1(2)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | KA Richards |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | McDermott Richards Lawyers |
| First Defendant | : | In Person |
| Second Defendant | : | In Person |
| Third Defendant | : | In Person |
| Fourth Defendant | : | In Person |
Cases referred to in decision:
Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561
Brealey v Board of Management of Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Chalmers and Partners v Kensit [2008] WASCA 122
Kleinwort Benson Ltd v Barbrak Ltd [1987] 1 AC 597
Lawless v MacKendrick [No 2] [2008] WASC 15
Mighty River International Ltd v Mineral Resources Ltd [2017] WASC 298
Monteleone v Owners of the Old Soap Factory [2007] WASCA 79
T-D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102
Van Leer Australia Pty Ltd v Palace Shipping KK (1980) 180 CLR 337
Victa Ltd v Johnson (1975) 10 SASR 496
STRK J:
(This judgment was delivered extemporaneously on 11 June 2024 and has been edited from the transcript to include complete references and so as to correct infelicities of language.)
This is the plaintiff's application by ex parte motion filed on 5 June 2024 to extend the validity of a writ of summons which was filed on 20 June 2023. By the application, the plaintiff seeks an order that the validity of the writ be extended for service for a period of 12 months until further medical evidence can be received; and that the costs of the application be in the cause.
The application is supported by the affidavit of Karen Ann Richards, a principal of McDermott Richards Lawyers, the solicitor with conduct of the proceeding on behalf of the plaintiff.
Background
The writ of summons filed on 20 June 2023 was indorsed with an indorsement of claim. As noted in the indorsement of claim, the plaintiff's claim is for damages for personal injuries, loss and damage sustained as a consequence of his exposure to silica dust:
(a) between about October 1990 and about June 1993 while employed by the first defendant as a diesel fitter at various mine sites in Western Australia;
(b)between about July 1993 and about February 1996 while employed by the second defendant as a diesel fitter at the Woodcutters Mine in the Northern Territory;
(c)between about March 1996 and about December 1997 while employed by the third defendant as a diesel fitter at the Tanami Gold Mine in the Northern Territory; and
(d)between about June 1998 and about June 1999 while employed by the fourth defendant as a diesel fitter at the Telfar Gold Mine in Western Australia.
As was also noted in the indorsement of claim, the plaintiff was born on 27 December 1967 and at the date the writ was filed was 55 years of age; on about 26 June 2020 the plaintiff was diagnosed with silicosis with progressive massive fibrosis; and the plaintiff claims to have suffered injuries, loss and damage as a result of the negligence and/or breach of statutory duty of the first defendant, and/or second defendant, and/or third defendant, and/or fourth defendant, its' servants or agents.
In her affidavit, Ms Richards deposed that:
(a)the writ was filed on 20 June 2023 in order to preserve the plaintiff's cause of action and for the cause of action not to be defeated by the provisions of the Limitation Act 2005 (WA), in circumstances where the plaintiff's symptoms had not stabilised and further medical evidence was pending;
(b)while the writ was filed on 20 June 2023, it had not been served on any party;
(c)the writ was not served due to the fact that the plaintiff's symptoms had not stabilised and further medical evidence continued to be pending;
(d)on 16 April 2024, Ms Richards spoke with Dr Edwina Biancardi, the plaintiff's treating respiratory and sleep physician at Royal Darwin Hospital, who advised Ms Richards that although Dr Biancardi was not able to provide a written report she could advise that the plaintiff had completed treatment for tuberculosis last year and from a radiological point of view there appeared to have been an improvement in his condition. Dr Biancardi also opined that it is likely that the plaintiff still has silicosis but she will be unable to provide an opinion on or the nature and severity of his condition for another 12 months, following the results of a CT scan later this year or early next year; and
(e)on the basis of this advice received from Dr Biancardi, Ms Richards moved for an order extending the validity of the writ for a period of 12 months to enable the relevant medical evidence to be attained from Dr Biancardi in order to confirm the plaintiff's diagnosis and prognosis.
The application was made ex parte, and counsel confirmed that the application was made without notice to the defendants named in the proceeding.
Applicable principles
Order 7 r 1(1) of the Rules of the Supreme Court 1971 (WA) relevantly provides that for the purpose of service, a writ is valid in the first instance for 12 months beginning with the date of its issue. The order aims to ensure that writs are served because it is undesirable to allow a plaintiff to issue a writ before the expiry of a limitation period and then delay service for an indefinite period; lengthy delays cause difficulties in the ascertainment of the truth; it is wrong that people should be left in ignorance of proceedings that have been taken against them if they are here to be served; it is unfair to require potential defendants to contemplate potential litigation because of the uncertainty and financial and other burdens which would be the result; and the proper administration of the court would be hampered if writs could be issued and then left to lie dormant for indefinite periods.[1]
[1] Brealey v Board of Management of Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 [15], [45], cited in Lexis Nexis, Civil Procedure Western Australia, vol 1 (189-02-21) [7.1.1].
Pursuant to O 7 r 1(2) of the Rules of the Supreme Court, where a writ has not been served on a defendant, the court may by order extend the validity of a writ from time to time for such period, not exceeding 12 months at any one time, beginning on the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the court before that date or such later day (if any) as the court may allow.
There is a wide discretion to order an extension of the validity of a writ for service under O 7 r 1(2), and the discretion is to be exercised as the justice of the case requires.[2]
[2] Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561, 575, cited in Brealey v Board of Management Royal Perth Hospital [52].
The principal factors relevant on an application of this nature include:[3]
(a) the length of delay in service of the writ;
(b) the reason for the delay;
(c) the conduct of the parties; and
(d) any hardship or prejudice caused to the plaintiff by refusing the renewal, or to the defendant by granting it.
[3] See Van Leer Australia Pty Ltd v Palace Shipping KK (1980) 180 CLR 337, 344, 346 citing Victa Ltd v Johnson (1975) 10 SASR 496, 503 - 504; Brealey v Board of Management Royal Perth Hospital [52].
Those factors are not exhaustive nor are they to be treated simply as a check list, as the ultimate question must always be what the interests of justice require in the particular circumstances of the case.[4]
[4] Lawless v MacKendrick [No 2] [2008] WASC 15 [17].
In general, the application to extend the validity of a writ is made ex parte and should be supported by an affidavit, which contains the facts that are relied upon to invite the court to exercise the discretion to extend the writ.[5]
[5] Civil Procedure Western Australia [7.1.5], citing Brealey v Board of Management of Royal Perth Hospital [77].
Despite being an ex parte application, an application to extend the validity of a writ when there has been ineffective service of a stale writ and the purpose of the application is to make the ineffective service of the writ effective, the application should be made on notice to the defendant. Similarly, where the application is made by the plaintiff under O 2 r 1 to seek an order forgiving or curing the irregularity, that application should likewise be on notice.[6] However, such notice does not give the court jurisdiction over the defendant.[7]
[6] Brealey v Board of Management of Royal Perth Hospital [21].
[7] Civil Procedure Western Australia [7.1.5] citing Monteleone v Owners of the Old Soap Factory [2007] WASCA 79 [23].
The relevance of the limitation period to the application to extend the validity of a writ is well settled. As the writ is not a nullity, a defendant does not acquire an absolute right to immunity when a writ issued within the limitation period is not served before it has expired.[8] By its issue, an action is deemed to have been commenced for the purpose of the Limitation Act.[9]
[8] Civil Procedure Western Australia [7.1.4] citing Mighty River International Ltd v Mineral Resources Ltd [2017] WASC 298 [57].
[9] Brealey v Board of Management of Royal Perth Hospital [6].
Although the failure to serve gives the defendant the right to contend that, in its discretion, the court should not renew the writ, renewal out of time (which is needed by reason of non-compliance with rules of the court rather than a disregard of a statute of limitations) cannot properly be described as depriving a defendant of a defence the essence of which is a failure to issue within time.[10] Consequently, the plaintiff's burden in seeking an extension is not increased or reduced by reason of the limitation period expiring.[11]
[10] Van Leer Australia Pty Ltd v Palace Shipping KK (341 - 342).
[11] Mighty River International Ltd v Mineral Resources Ltd [57].
Master Sanderson acknowledged the existence of three categories of cases in T-D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102 at [8]:[12]
(a)Category 1, where the application for extension is made at a time when the writ is still valid and before the relevant period of limitation has expired;
(b)Category 2, where the application for extension is made at a time when the writ is still valid but the relevant period of limitation has expired; and
(c)Category 3, where the application for extension is made at a time when the writ has ceased to be valid and the relevant period of limitation has expired.
[12] Citing Kleinwort Benson Ltd v Barbrak Ltd [1987] 1 AC 597, 615 - 616.
In any application to extend the validity of a writ, a plaintiff should ensure that there is sufficient information before the court to allow it to assess reliably whether the statutory limitation period, which is applicable to the alleged causes of action, had expired as at the date on which the writ became stale.[13]
[13] Chalmers and Partners v Kensit [2008] WASCA 122 [33(b)].
Disposition
As was acknowledged by counsel for the plaintiff, this case is a category 2 case. That is, the application has been made to the court and has been listed for hearing, on a date before the expiry of the writ of summons, and the indorsement of claim reveals that the relevant limitation period has expired.
On the material before me, I am satisfied that the interests of justice require that the validity of the writ be extended. I weighed the following matters in the balance.
First, while the plaintiff was delayed in serving the writ and had made a conscious decision to withhold service, in the circumstances deposed to by Ms Richards, there was not an unreasonable delay on the plaintiff's part. The plaintiff sought further medical evidence in circumstances where his symptoms had not stabilised. An opinion as to the nature and severity of his condition had been sought but was unable to be provided within the 12 months following the writ being filed. Awaiting further test results is a proper explanation for delay in service of the writ.
Secondly, I accept counsel's submission that there would be substantial prejudice to the plaintiff if the validity of the writ were not extended. The indorsement of claim reveals that on about 26 June 2020 the plaintiff was diagnosed with silicosis with progressive massive fibrosis. If the validity of the writ is not extended and the plaintiff has to issue a fresh proceeding, he is liable to be faced with a clearly arguable limitation defence.
Thirdly, as to the prejudice to the defendants if the application were granted, it has, of course, long been recognised that the mere fact of delay can be a cause of prejudice to a party to litigation.[14] In this case, this is exacerbated by the nature of the alleged disease and that the plaintiff alleges exposure to silica dust as early as October 1990. Of course, there can be no criticism of the plaintiff with respect to the effluxion of time between the alleged exposures and diagnosis, and I am not otherwise aware of there being any other particular substantial prejudice to the defendants if the validity of the writ of summons was extended.
[14] As was observed by Newnes J in Lawless v MacKendrick [No 2] [32].
I note that the defendants were not put on notice of the application, which in the circumstances was not required. This was not an application made to extend the validity of the writ when there had been ineffective service of a stale writ, or where the plaintiff also sought an order forgiving or curing an irregularity pursuant to O 2 r 1.
Finally, I am cognisant that if the defendants in the end take issue with the orders made ex parte, after service and the filing of an appearance, relief may be sought pursuant to O 58 r 23 to set aside the ex parte orders extending the validity of the writ.
Conclusion and orders
In the circumstances, I am satisfied that the discretion to extend the period of the validity of the writ for service ought be exercised to further justice being done. It is appropriate and just that pursuant to O 7 r 1(2) of the Rules of the Supreme Court, the validity of the writ filed on 20 June 2023 be extended for a period of 12 months beginning on 20 June 2024. It is also appropriate that the costs of the application be in the cause.
Order 7 r 1(3) provides that before a writ, the validity of which has been extended under this rule, is served, it must be marked with an official stamp showing the period for which the validity of the writ has been extended. Upon the extraction of orders, the plaintiff ought liaise with Central Office to obtain a writ marked with an official stamp as required by sub-rule (3).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SE
Associate to the Judge
12 JUNE 2024
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