Rose v Macmahon Contractors Pty Ltd - [2024] WASC 214

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…

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 Rose v Macmahon Contractors Pty Ltd

Details

AGLC: Rose v Macmahon Contractors Pty Ltd [2024] WASC 214
Case: [2024] WASC 214
Decision Date: 12 JUNE 2024

CaseChat Overview and Summary

In the case of Rose v Macmahon Contractors Pty Ltd, the plaintiff sought to extend the validity of a writ in relation to a personal injury claim. The plaintiff, Rose, alleged that she suffered injuries due to the negligence of the defendant, Macmahon Contractors Pty Ltd. The dispute was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiff's application to extend the validity of the writ should be granted. This hinged on whether the plaintiff had a bona fide intention to prosecute the claim within the original limitation period and whether there were substantial grounds to justify the extension.

The court examined the principles of practice and procedure relevant to extending the validity of a writ. It considered whether the plaintiff had acted with due diligence and whether there were exceptional circumstances that warranted the extension. The court acknowledged that the decision to extend the validity of a writ was discretionary and turned on its own facts. The plaintiff's history of attempting to prosecute the claim, the reasons for the delay, and the prospects of success were all factors considered in the decision. Ultimately, the court determined that the plaintiff had not demonstrated sufficient grounds to warrant an extension of the writ's validity.

Based on the court's reasoning, it was decided that the plaintiff's application to extend the validity of the writ should be dismissed. The court found that the plaintiff had not acted with the requisite diligence and had not provided compelling reasons for the delay. Consequently, the writ remained invalid, and the plaintiff's claim was statute-barred. The court emphasised that while it sympathised with the plaintiff's situation, it could not extend the writ's validity without clear justification.

Orders