Rose v Macmahon Contractors Pty Ltd [No 2] - [2025] WASC 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ROSE -v- MACMAHON CONTRACTORS PTY LTD [No 2] [2025] WASC 215
CORAM:   STRK J
HEARD:   30 MAY 2025
DELIVERED          :   30 MAY 2025
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 further extend validity of writ - Turns on own facts

Legislation:

Civil Liability Act 2002 (WA), as amended by the Civil Liability Amendment (Provisional Damages for Dust Diseases) Act 2024, pt 2
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 The Owners of the Old Soap Factory [2007] WASCA 79
Rose v Macmahon Contractors Pty Ltd [2024] WASC 214
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 (1981) 180 CLR 337
Victa Ltd v Johnson (1975) 10 SASR 496

STRK J:

These reasons concern the plaintiff's application by ex parte motion filed on 19 May 2025 to extend the validity of a writ of summons which was filed on 20 June 2023.
By an order made on 11 June 2024, the validity of the writ of summons was extended for a period of 12 months beginning on 20 June 2024: see Rose v Macmahon Contractors Pty Ltd [2024] WASC 214. By the plaintiff's application made on 19 May 2025 the plaintiff sought now an order that the validity of the writ be further extended for service for a period of 12 months so that medical evidence could be received; and that the costs of the application be in the cause.
The application was supported by the affidavit sworn on 19 May 2025 by Karen Ann Richards, a principal of McDermott Richards Lawyers, the solicitor with conduct of the proceeding on behalf of the plaintiff. Ms Richards attached to her affidavit documents marked KAR‑1 to KAR‑4.

Background

In Rose v Macmahon Contractors Pty Ltd at [3] and [4], I described the plaintiff's claim as disclosed in the indorsement of claim, and the plaintiff's diagnosis. I adopt that description for the purposes of this application. These reasons are to be read with my earlier reasons.
In her affidavit sworn on 19 May 2025, 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)on 16 April 2024 Ms Richards had spoken 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 (2023), and from a radiological point of view there appeared to have been an improvement in his condition. Ms Richards reported that Dr Biancardi had also opined that it was likely that the plaintiff still has silicosis but she was unable to provide an opinion on the nature and severity of his condition for another 12 months, following receipt of the results of a CT (computed tomography) scan later in the year (2024) or early next year (2025);
(c)on 11 June 2024 an order was made extending the validity of the writ for 12 months;
(d)while the writ was filed on 20 June 2023, it had not been served on any party;
(e)the writ was not served because the plaintiff's symptoms had not stabilised and further medical evidence continued to be pending;
(f)on 1 May 2025 Ms Richards wrote to Dr Biancardi, who advised that the plaintiff was booked in for a scan on 1 July 2025, and a follow‑up appointment in August 2025 to discuss the results of the scan; and
(g)on the basis of information received from Dr Biancardi and that there was an appointment made for August 2025, by the application an order extending the validity of the writ for a period of 12 months was sought, to enable the plaintiff to complete his scan and attend his upcoming appointment so that the relevant medical evidence could 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. In the course of the hearing, counsel accepted that an extension for less than 12 months would be appropriate in the circumstances.

Applicable principles

In my earlier reasons, I summarised the jurisdiction and power of the court to extend the validity of writs of service. It is appropriate to repeat the same here.
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 (205‑01‑25) [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 (1981) 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, vol 1 (205-01-25) [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 made 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, vol 1 (205-01-25) [7.1.5] citing Monteleone v The 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, vol 1 (205-01-25) [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

This case is a category 2 case. That is, the application was made to the court and was listed for hearing on a date before the expiry of the writ of summons, and the indorsement of claim revealed that the relevant limitation period had appeared to have expired. When the first application to extend the validity of the writ was heard in June 2024, the case was also then within the ambit of category 2.
On the material before me, I was satisfied that the interests of justice required that the validity of the writ again be extended. I weighed the following matters in the balance.
First, I acknowledged that the proceeding was commenced by writ on 20 June 2023, and the plaintiff previously sought and was granted an order extending the validity of the writ for 12 months. The first extension was granted in the circumstances deposed to by Ms Richards in an earlier affidavit (summarised at [5] of Rose v Macmahon Contractors Pty Ltd).
While the plaintiff had delayed in serving the writ and had made a conscious decision to withhold service, in the circumstances deposed to by Ms Richards in her affidavit sworn 19 May 2025, I did not consider there to have been an unreasonable delay on the plaintiff's part. In this regard, I noted Ms Richards' evidence that Dr Biancardi had expressed the opinion as at 16 April 2024 that it was likely the plaintiff still has silicosis but she was then unable to provide an opinion on the nature or severity of his condition without additional scans; that the plaintiff was awaiting further testing and a discussion with his treating physician about the results; and that the necessary appointments had been scheduled in early July 2025 and August 2025. I considered the evidence to ground a proper explanation for delay in service of the writ.
Secondly, since the first application to extend the validity of the writ was heard in June 2024, the Civil Liability Amendment (Provisional Damages for Dust Diseases) Act 2024 (WA) was enacted, the substantive provisions having come into operation on 1 December 2024.[14]
[14] Civil Liability Amendment (Provisional Damages for Dust Diseases) Act, s 2(d); Civil Liability Amendment (Provisional Damages for Dust Diseases) Act 2024 Commencement Proclamation 2024.
As the Explanatory Memorandum provides, among other things, the Civil Liability Amendment (Provisional Damages for Dust Diseases) Act amended the Civil Liability Act 2002 (WA) to introduce a new provisional damages regime, allowing a plaintiff who has suffered personal injury from a dust disease arising out of the inhalation of asbestos or silica dust to seek an award of damages on a provisional basis and later seek a subsequent award of damages under certain circumstances. This is a change from the general 'once and for all' basis on which damages are determined where a plaintiff receives damages in a lump sum without being able to make a further claim should a more serious disease follow.
Section 15AC of the Civil Liability Act (as amended) provides the legal basis for a plaintiff to claim provisional damages in their initial action claiming personal injury damages for a dust disease and reads as follows:[15]
(1) In an action (an initial action) in respect of a dust disease suffered by a plaintiff for which personal injury damages are claimed, the Court may award damages (provisional damages) on a provisional basis for that dust disease.
(2) Despite subsection (1), provisional damages can only be awarded if the initial action is commenced in the Court by an indorsed writ or a writ indorsed with a statement of claim (as the case may be) that —
(a)nominates provisional damages as the remedy required; and
(b)specifies another dust disease (a subsequent dust disease) or more than 1 subsequent dust disease that the plaintiff may develop, wholly or partly as a result of the act or omission giving rise to the cause of action.
[15] As amended by Civil Liability Amendment (Provisional Damages for Dust Diseases) Act, s 5.
It would appear that the plaintiff might avail himself of this option as he claims to suffer from a dust disease (having been diagnosed with silicosis with progressive massive fibrosis on about 26 June 2020);[16] and the transitional provisions make certain accommodations for an action in respect of a dust disease suffered by a plaintiff for which personal injury damages are claimed that has commenced before the proclamation day.[17] Section 15AO of the Civil Liability Act provides that a claim may be amended to specify that provisional damages are the remedy required and to specify one or more than one subsequent dust disease that the plaintiff may develop, wholly or partly as a result of the act or omission giving rise to the cause of action.
[16] Civil Liability Act 2002, s 15AB(a) and s 15AB(b) item 6; indorsement of claim to the writ of summons filed on 20 June 2023, par 5.
[17] Civil Liability Act 2002, s 15AO.
With respect to the Civil Liability Amendment (Provisional Damages for Dust Diseases) Act, Ms Richards acknowledged the amendments made to the Civil Liability Act since the last order extending the validity of the writ was made on 11 June 2024. Counsel also informed the court that advice had been sought from counsel in Western Australia as to the impact of the legislative change on the position of the plaintiff.
While an amendment to the plaintiff's claim may later be sought on behalf of the plaintiff, I did not consider the introduction of a provisional damages regime to be a matter which weighed against the extension of the validity of the writ.
This was not a case where the plaintiff had all necessary information but had been dilatory in prosecuting the action. Rather, he had prudently acted to preserve his claim while further medical evidence was sought and pending, while concurrently seeking legal advice.
Thirdly, I accepted that there would be substantial prejudice to the plaintiff if the validity of the writ were not extended. As discussed in my earlier reasons, 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 were not again extended and the plaintiff had to issue a fresh proceeding, he would likely be faced with a clearly arguable limitation defence.[18]
[18] Rose v Macmahon Contractors Pty Ltd [21].
Fourthly, 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.[19] As discussed in my earlier reasons, 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.[20] Again, I note however that there can be no criticism of the plaintiff with respect to the effluxion of time between the alleged exposures and diagnosis, and I was not otherwise aware of there being any other particular substantial prejudice to the defendants if the validity of the writ of summons were to be extended.
[19] As was observed by Newnes J in Lawless v MacKendrick [No 2] [32].
[20] Rose v Macmahon Contractors Pty Ltd [22].
I noted 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 of the Rules of the Supreme Court.
Finally, I was cognisant that if the defendants in the end took 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 of the Rules of the Supreme Court to set aside the ex parte orders extending the validity of the writ.

Conclusion and orders

In the circumstances, I was 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 was 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 (previously extended for a period of 12 months beginning on 20 June 2024), be further extended. The plaintiff by his application had sought that it be extended for a period of 12 months beginning on 20 June 2025 (the maximum period a writ may be extended at any one time).[21]
[21] Rules of the Supreme Court O 7 r 1(2).

In circumstances where it was anticipated that the plaintiff would obtain a further scan in July 2025 and would attend his treating respiratory and sleep physician in August 2025 (when it was anticipated the results of the scan would be known), I considered an extension of six months to be appropriate and adequate. On the evidence, there would appear to be no justification of an extension of the maximum 12 months. It was also appropriate that the costs of the application be in the cause.
Finally, I note that O 7 r 1(3) of the Rules of the Supreme Court 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 again 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.
KO
Associate to the Honourable Justice Strk
30 MAY 2025