Stinton v Amaca Pty Ltd
[2014] VSC 150
•7 April 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 01738
| EDWARD STINTON | Plaintiff |
| v | |
| AMACA PTY LTD (FORMERLY JAMES HARDY & COY PTY LTD) | Defendant |
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JUDGE: | DERHAM AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2014 | |
DATE OF JUDGMENT: | 7 April 2014 | |
CASE MAY BE CITED AS: | Stinton v Amaca Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 150 | |
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PRACTICE AND PROCEDURE — Extending validity of writ — Writ issued in respect of claim for damages for personal injuries, being mesothelioma — Service of writ delayed whilst claim investigated — Plaintiff died after issue of writ and before service — Deceased left Will appointing son as executor and trustee — Unexplained delay in applying for probate of Will — Claim survives for benefit of Plaintiff’s estate under s 29 Administration and Probate Act 1958 — Validity of writ extended to enable probate to be obtained and personal representative substituted pursuant to r 9.09 of the Supreme Court (General Civil Procedure) Rules 2005.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M. McGarvie, solicitor | Slater & Gordon Limited |
| For the Defendant | No appearance |
HIS HONOUR:
Introduction
The plaintiff applies pursuant to r 5.12 of the Supreme Court (General Civil Procedure) Rules 2005 (“Rules”) to extend the validity of the writ for service.[1]
[1]The summons is ex parte and was filed on 4 April 2014.
The writ was issued on 9 April 2013 with the general endorsement claiming damages for personal injuries, being mesothelioma diagnosed in approximately February 2013, and suffered as a consequence of the negligent exposure of the plaintiff to asbestos dust, particles and fibres through the use of asbestos products manufactured and/or supplied by the defendant.
Background
The application is supported by the affidavit of Maria McGarvie, a lawyer employed by the plaintiff’s solicitors. She deposes that:
(a) On 25 March 2013 she took instructions from the plaintiff at his home in the Northern Territory;
(b) The plaintiff was born on 28 August 1936 in Birmingham, UK, and migrated to Australia in August 1967. He died on 13 May 2013;
(c) The plaintiff had been employed all his life in the building industry and instructed that he had been exposed to asbestos cement building materials over the course of his employment;
(d) The solicitors for the plaintiff issued the generally endorsed writ, as I have said, on 9 April 2013 as a matter of urgency to protect the plaintiff’s rights to claim general damages. The writ was not served on the defendant during the deceased’s lifetime because investigations were still being conducted to support the claim;
(e) At the time of death the deceased was married to Vilma Stinton and was living with her. He had two sons from that marriage, Mr Carl Stinton and Mr Mark Stinton. The plaintiff has previously been married and has two children from his first marriage;
(f) The deceased prepared a Will shortly before he died, executed on 8 May 2013, appointing his youngest son Mr Mark Stinton as the executor and sole beneficiary;
(g) Because of the timing of the execution of the Will and the nature of the content of it, Ms McGarvie advised Mr Mark Stinton that she would be unable to take further instructions from him regarding the future of any claim by the estate until probate had been obtained. Mr Mark Stinton having been advised of the limited period for the validity for service of the writ, agreed to obtain probate but has not yet done so;
(h) Ms McGarvie contacted Mr Mark Stinton on 3 April 2014 to enquire as to the progress of the application for probate. She was told that it had still not been obtained but that it would be obtained as a matter of urgency;
(i) Thus, to protect the estate’s entitlement to damages, Ms McGarvie requested the extension of the validity of the writ for service for six months and swore that given the nature of the claim and the type and experience of the defendant, she does not believe that it would be prejudiced by an extension of the period of validity of the writ for service.
Applicable Law
Under s 29(2A) of the Administration and Probate Act 1958, the damages recoverable for the benefit of the estate in this case include damages for the plaintiff’s pain or suffering, any bodily or mental harm suffered and the curtailment of the plaintiff’s expectation of life. The circumstances entitling the maintenance of those damages claims are set out in s 29(2A) as follows:
(2A) Where —
(a)A cause of action survives under subsection (1) for the benefit of the estate of a deceased person; and
(b)The death of that person is from a dust-related condition which has been caused by the act or omission which gives rise to the cause of action; and
(c)proceedings in respect of that cause of action were commenced by that person before his or her death and were pending at his or her death —
the damages recoverable for the benefit of the estate of that person shall include damages for all or any of the following —
(d) that person’s pain or suffering;
(e) any bodily or mental harm suffered by that person;
(f) the curtailment of that person’s expectation of life.
By r 9.09 of the Rules it is provided that:
(1)Where a party to a proceeding dies, but the cause of action survives, or where a party becomes bankrupt, the proceeding shall not abate by reason of the death or bankruptcy, but may be carried on in accordance with paragraph (2);
(2)Where at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order that the other person be added as a party to the proceeding or made a party in substitution for the original party and that the proceeding be carried on as so constituted;
(3)Unless the Court otherwise directs, the person on whose application an order is made under paragraph (2) shall serve the order on every party to the proceeding and on every person who ceases to be a party or becomes a party as plaintiff by virtue of the order, and in the case of a person who becomes a defendant, shall serve that person personally with the order and with the writ or other originating process sealed in accordance with Rule 5.11;
(4)A person upon whom originating process is served in accordance with paragraph (3) shall file an appearance in the proceeding within such time as the Court directs;
(5)Where an order is made without notice to a person on whom the order is served, an application by that person to set aside or vary the order shall be made within 10 days after service.
The notes to Williams, Civil Procedure Victoria at 9.09.32 state:
Where a party dies and the cause of action continues, an order substituting the personal representative of the deceased as party should be obtained before any further step is taken in the proceeding. Thus, if the plaintiff has died before service of the writ, the writ should not be served on the defendant until an order for substitution of the personal representative is made. See Fielding v Rigby [1993] 4 All ER 294; Wintle v Conaust (Vic) Pty Ltd [2001] VSC 315.
The principles applicable to the exercise of the Court’s discretion under s 5.12(2) are well settled. I have previously summarised many of them in the decision Howard v Power.[2]
[2][2013] VSC 198, [9]–[11].
It is clear that in order to exercise the discretion the plaintiff must establish either that reasonable efforts have been made to serve the defendant or there is “other good reason” to extend the validity of the writ. An application to extend time for service is not granted as a matter of course. The plaintiff carries the onus of showing that there is good reason for the extension. And whether there is a good reason depends on all the circumstances of the case.
It is well established that the taking of time to investigate the strength of the plaintiff’s case is a good reason in ordinary circumstances: See Bugden and Anor v Ministry of Defence,[3] and Mali v Benchmark Healthcare.[4]
[3][1972] 1 All ER 1.
[4][2005] VSC 72.
Consideration
Insofar as the delay in the service of the writ is occasioned by the need to investigate the strength of the plaintiff’s case, I consider there is clearly good reason for the extension.
However, it emerges from the affidavit of Ms McGarvie that since the death of the plaintiff on 13 May 2013, there has been no further investigation pending the grant of probate to his executor. There is no explanation of the delay of the plaintiff’s executor obtaining probate of his Will.
The question of whether or not other good reason is shown is not to be determined by attempting to apply factual situations from other cases. It is a matter of judgment depending peculiarly on the circumstances of the particular case.
The solicitor for the plaintiff has acted appropriately in issuing the writ as soon as it was possible to preserve the right of the plaintiff and his estate to damages under s 29(2A) of the Administration and Probate Act 1958. Similarly, the plaintiff’s solicitors have acted appropriately in pursuing the executor so as to ensure he makes application for probate of the deceased’s Will. There is, however, an absence of explanation for the inaction between the death of the deceased and the enquiry made by Ms McGarvie of Mr Mark Stinton on 3 April 2014. There may be many matters that explain the delay of Mr Mark Stinton and which would justify extending the validity of the writ.
Where, as here, the plaintiff has died before service of the writ, it is clear that the writ should not be served on the defendant until an order for substitution of the personal representative is made. Further, I accept the evidence of the solicitor for the plaintiff that there is no particular prejudice to the defendant, and none is likely having regard to the nature of the claim and the notorious situation that these claims are usually ones that arose many years ago and require extensive investigations.
Conclusion
In these circumstances, it seems to me that it is appropriate to extend the validity of the writ for a short period to enable two things. First, the application for probate to be made. Secondly, for an explanation for the delay in making application for probate to be given. If probate is not obtained, then good reason, or some explanation, for that will need to be given. It then may be appropriate for the next application, if any, to be on notice to the defendant.
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