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…

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.

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Details

Case: [2025] WASC 215
Decision Date: 30 MAY 2025

CaseChat Overview and Summary

In the case of Rose v Macmahon Contractors Pty Ltd [No 2], the plaintiff sought to extend the validity of a writ, which was due to expire, to continue with her legal action against the defendant. The plaintiff, Rose, was pursuing claims against Macmahon Contractors for alleged breaches of duty of care in relation to her husband's death at work. The Federal Court was tasked with deciding whether the plaintiff's application to extend the writ's validity should be granted, considering the unique circumstances of the case.

The legal issues before the court included whether the plaintiff's application was made in accordance with the relevant rules of court, and whether the delay in filing the application was reasonable and justifiable. The court also had to consider whether the plaintiff's case had prospects of success, and whether the extension would cause any prejudice to the defendant. The court's decision hinged on the specific facts of the case and the applicable procedural rules.

The court found that the plaintiff had acted promptly in seeking to extend the writ's validity, and the delay was due to circumstances beyond her control. The judge held that the plaintiff had made out a prima facie case, and that the extension would not cause prejudice to the defendant. The court was satisfied that the plaintiff had prospects of success on the merits of her claim. Consequently, the application was granted, and the writ's validity was extended to allow the plaintiff to continue with her action against the defendant.

No further orders were made beyond the granting of the application to extend the writ's validity.

Orders