Strother v Cockburn Cement Limited

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STROTHER -v- COCKBURN CEMENT LIMITED [2006] WADC 15

CORAM: EATON DCJ

HEARD: 17 FEBRUARY 2006

DELIVERED : 24 FEBRUARY 2006

FILE NO/S: CIV 914 of 2002

BETWEEN: PETER RAYMOND STROTHER
Plaintiff/Appellant
AND
COCKBURN CEMENT LIMITED
Defendant

Catchwords:

Practice and procedure - Appeal from Registrar - Failure to serve writ - Application to extend validity of writ

Legislation:

District Court Rules 2005

Rules of the Supreme Court 1971

Result:

Appeals dismissed

Representation:

Counsel:

Plaintiff/Appellant : Mr L Gandini
Defendant: No appearance

Solicitors:

Plaintiff/Appellant : Chapmans
Defendant: Not on record

Case(s) referred to in judgment(s):

Australian Securities and Investments Commission v Edensor Nominees Ltd (2001) 204 CLR 559
Brealey v Board of Management Royal Perth Hospital [1999] 21 WAR 79
Fell v The Master, etc of Christ College, Cambridge and two other defendants (1787) 2 Bro CC 279; 29 ER. 153
Pike & Ors v Michael Nairn & Co Ltd [1960] Ch.553
Pioneer Concrete (North Coast) Pty Ltd v Bennett [1972] Qd R 544
Tucker v Walker [1920] VLR 385

Case(s) also cited:

Jackamarra v Krakour (1998) 195 CLR 516

EATON DCJ: By Notice of Appeal filed on 15 November 2005 the plaintiff sought to appeal from the orders of Principal Registrar Gething made on 16 June 2005 and those of Deputy Registrar Hewitt made on 22 July 2005. He sought an extension of time to enable him to appeal against those orders, to set aside those orders and an order as to costs. There was no appearance by the defendant at the hearing of the appeal.
The history of this matter is that by Writ of Summons filed on 15 April 2002 the appellant sued the defendant seeking, by indorsement of claim, damages for personal injuries caused to him as the result of the alleged negligence, breach of contract or breach of statutory duty of the defendant said to have occurred during a period commencing on or about 15 August 1996 and concluding on or about 24 February 1998. It seems that the appellant was, at the time the writ was issued, still in the employ of the defendant. The writ was not served. That action is No 914 of 2002.
On 30 January 2004 the appellant filed a further writ of summons in this Court commencing a further action against the defendant, that writ being accompanied by an indorsement of claim seeking damages for personal injuries caused to the appellant by the defendant as a result of the negligence, breach of contract or breach of statutory duty of the defendant during a period commencing on or about 23 August 1997 and concluding on or about 24 February 1998. On the same day the appellant filed a chamber summons which was initially given the same file number as the second of the two writs, that being No 202 of 2004. The appellant, by that summons, sought an order that he have leave to extend time to serve "the writ". In due course that application came before Acting Registrar Christo. On 21 September 2004 he ordered that the time allowed to serve the writ be extended to 29 October 2004. That was clearly a reference to the first writ. Both the appellant and the defendant appeared before Acting Registrar Christo through their respective counsel.
On 27 September 2004 the defendant filed a notice of appeal seeking to set aside the orders made by Acting Registrar Christo and in lieu thereof seeking orders that the appellant's application be dismissed with costs.
By letter of 27 October 2004 the appellant's solicitors wrote to the defendant in these terms:
"Please find enclosed herewith by way of service our client's Writ. Please note that the plaintiff does not require a memorandum of appearance to be filed in response at this point in time as the Writ is being served to comply with orders of the Court made 21^st September 2004. In the event the plaintiff wishes to progress his action, he will consent to an extension of the time for the filing and service of a memorandum of appearance."
In an affidavit sworn on 13 July 2005 Leonard Gandini, solicitor for the appellant, said that it wasn't apparent from the letter whether the enclosed writ was that filed in No 914 of 2002 or whether it was that filed in No 202 of 2004. He assumed that it was the former but conceded the possibility that it was the latter and that the appellant was not then in a position to conclusively prove service of the writ in the former.
The defendant's appeal was eventually heard by Commissioner Stavrianou on 16 March 2005. Both parties were represented before him. It was immediately apparent that the defendant had not entered an appearance in No 914 of 2002 and yet was appealing the decision of Acting Registrar Christo in that action. The point was made before the learned Commissioner that applications for an extension of time within which to serve a writ are normally made ex parte as there has been no service. Counsel for the defendant before the learned Commissioner made it clear that it had been served with the application to extend the time for service. The learned Commissioner was concerned that he should not hear the appeal in circumstances where there was neither an appearance nor a conditional appearance filed by the defendant. The matter was adjourned with costs reserved.
On 30 March 2005 a summons issued to the appellant calling upon him to show cause why the writ in No 914 of 2002 should not be struck out pursuant to O 7, r 4 of the Rules of the Supreme Court 1971. That rule provides that if at any time after six months after a writ is issued it appears to the Court that no affidavit of service of the writ has been filed by the plaintiff and no appearance has been entered to the writ the Court may issue a summons to the plaintiff to show cause why the writ should not be struck out. That summons was heard by Principal Registrar Gething. It was clear to him that the writ which had issued on 9 April 2002 was not the subject of an affidavit of service and that there was no appearance to it. Giving reasons for doing so, Principal Registrar Gething concluded that the defendant had not by its conduct in filing a notice of appeal waived any irregularities or submitted to the jurisdiction of the Court. In fact, in noting that the appellant's application for an extension of time within which to serve the writ was originally filed in the second action rather than the first, Principal Registrar Gething concluded that the defendant had been drawn into an appearance in chambers as a result of confusion. Principal Registrar Gething concluded also that the appellant should be given a further opportunity to put his house in order. He ordered that:
"Unless within 14 days the plaintiff file and serve an application to extend the validity of the writ the plaintiff's writ in this action be and hereby is struck out."
That was, of course, a springing order. It followed that the appellant was required to file and serve an application to extend the validity of its writ on or before 30 June 2005.
On 30 June 2005 the appellant filed an application by chamber summons seeking an order that the time allowed to serve the writ in the first action be extended to 29 July 2005 or some other date as the Court thought fit. The application came before Deputy Registrar Hewitt in Chambers on 14 July 2005 and was adjourned by him to 22 July 2005. On that day Deputy Registrar Hewitt dismissed the appellant's application.
The appellant now appeals from the orders of both Principal Registrar Gething and Deputy Registrar Hewitt.
Insofar as they relate to the order of Principal Registrar Gething the grounds of appeal are that he wrongly applied the test in Brealey v Board of Management Royal Perth Hospital [1999] 21 WAR 79 because the Principal Registrar had before him on 16 June 2005 sufficient evidentiary material to support the plaintiff's view that the defendant had "appeared" in these proceedings and that the evidence before the Principal Registrar supported the conclusion that the steps taken by the defendant amounted to a "submission to the jurisdiction".
Insofar as the appeal related to the order made by Deputy Registrar Hewitt the appellant asserts that the learned Deputy Registrar took into account irrelevant matters and failed to take into account relevant matters. The appellant particularised that complaint by alleging that the learned Deputy Registrar deemed it relevant that there was another action (No 202 of 2004) between the parties when such matter was irrelevant and that the learned Deputy Registrar deemed it relevant that the appellant had not then obtained or sought to obtain a percentage determination from Workcover when such matter was irrelevant.
I have before me a transcript of the proceedings before Commissioner Stavrianou on 16 March 2005, a transcript of the proceedings before Principal Registrar Gething on 16 June 2005 and a copy of the draft judgment of the Principal Registrar delivered extempore on 16 June 2005. I have no transcript of the hearing before Deputy Registrar Hewitt.
On 21 October 2005 the appellant swore an affidavit in support of his application to extend the time to apply for leave to appeal from the decisions of Principal Registrar Gething and Deputy Registrar Hewitt.
The Rules of the Supreme Court 1971 provide that every action in court must be commenced by writ. Issue of a writ takes place upon it being sealed by the proper court officer. For the purpose of service a writ is valid in the first instance for 12 months beginning with the date of its issue. Where a writ has not been served on a defendant the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire if an application to the Court is made before that day or such later day (if any) as the Court may allow. By O 7, r 4 if at any time after six months after a writ is issued it appears to the Court that no affidavit of service of the writ has been filed by the plaintiff and no appearance has been entered to the writ the Court may issue a summons to the plaintiff to show cause why the writ should not be struck out. If at the hearing of that summons the Court is not satisfied that the writ has not been served for good reason the Court may either strike out the writ or make directions as to service of or the time for serving the writ. On being struck out a writ ceases to be valid.
The appellant seeks to overturn the orders of Principal Registrar Gething made on 16 June 2005 and the orders of Deputy Registrar Hewitt made on 22 July 2005, respectively. The former was made in response to a summons to the appellant to show cause why the writ in action No 914 of 2002 should not be struck out. It is clear that the two pre‑conditions for that summons had been satisfied in that there was not and is not an affidavit of service of the writ filed by the appellant and no appearance has been entered to it. The question then for the Principal Registrar was whether he was satisfied that the writ had not been served for good reason. If not so satisfied the Principal Registrar had a discretion to strike it out or make directions as to service of or the time for serving the writ. In this case he did the latter. He concluded that the plaintiff had failed to show cause why the writ should not be struck out. Counsel for the appellant before the Principal Registrar submitted that the absence of a memorandum of appearance filed by the defendant was no more than an irregularity because the defendant had, through its solicitors "appeared and taken an active involvement in the action." He conceded that there was nothing before the Principal Registrar to demonstrate that the writ in action No 914 of 2002 had ever been served on the defendant. The proposition advanced by counsel for the appellant was that a defendant in an action could, in theory, file a memorandum of appearance notwithstanding that it had never been served with or received the writ by which the action was commenced. Given that there was no memorandum of appearance filed by the defendant counsel for the appellant argued before the Principal Registrar that the defendant had appeared, nevertheless, by its conduct.
Counsel for the appellant before me submits that the relevant law is that set out in Brealey v Board of Management Royal Perth Hospital. The appellant relies upon the following passage in the judgment of Ipp J (at p 87):
"In determining whether steps taken by a party in the course of proceedings amount to a submission to jurisdiction, the question to be considered is whether the steps were necessary or useful to any action taken by the party other than in objecting to the jurisdiction. A step that is not consistent with or relevant to the challenge to the jurisdiction, will usually be a submission to that jurisdiction. The Court must consider the matter objectively and, where the steps relied on are the actions of a solicitor, they must be considered in the context of all the relevant circumstances: …"
The jurisdiction of a court has two aspects to it. The first is the power of the Court to entertain an action, petition or other proceedings and the second is the district or limits within which the judgments or orders of a court can be enforced or executed. In Australian Securities and Investments Commission v Edensor Nominees Ltd (2001) 204 CLR 559 at [2] Gleeson CJ, Gaudron and Gummow JJ said:
"It is convenient to begin with the word 'jurisdiction'. This is a 'generic term' (Baxter v Commissions of Taxation (NSW) (1907) 4 CLR 108 at 1142) generally signifying authority to adjudicate. It is used in various senses. The jurisdiction of a court to hear and determine a personal action and to grant relief may depend upon no more than effective service of that court's process upon the defendant within the territorial bounds of its competence or pursuant to the exercise of 'long‑arm' jurisdiction; or it may depend upon the proceeding being with respect to a particular subject matter (Flaherty v Grgis (1987) 162 CLR 574 at 598; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 517 at [13]‑[14])."
The civil jurisdiction of the District Court of Western Australia is set out in s 50 of the District Court of Western Australia Act 1969. Section 50(2) of that Act provides that the District Court has the same jurisdiction to hear and determine all personal actions making a claim for damages in respect of the death of or bodily injury to a person as the Supreme Court and that it may exercise all the powers and authorities of that Court in that regard. Clearly the appellant's writ of summons in No 914 of 2002 falls within that jurisdiction. The territorial jurisdiction is, as with the Supreme Court of Western Australia, the State of Western Australia. Equally clearly, the defendant in No 914 of 2002 was at the time of commencement of the action and still is within the jurisdiction. There is no question in this case, of service outside the jurisdiction. No challenge, therefore, could be mounted by the defendant to the jurisdiction of the District Court of Western Australia in any sense. It follows, in my view, that it is not apposite to speak of submission to the jurisdiction. If there were a challenge to the jurisdiction of the Court the defendant might have entered a conditional appearance pursuant to O 12, r 6 which provides that a defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process or the notice thereof or the service of the originating process or notice thereof on the ground of any informality or irregularity which renders the originating process or the service thereof invalid.
The appellant contends, in his written submissions:
"that there is a straightforward error of law involved in this matter, or alternatively, the defendant has clearly submitted to the jurisdiction of the Court and that their appeal filed 27 September 2004 ought to be dismissed, with the subsequent orders of the Court by Principal Registrar Gething dated 16^th June 2005 and Deputy Registrar Hewitt dated 22^nd July 2005 being similarly dismissed."
Earlier in those written submissions the appellant contends, firstly, that the writ in No 914 of 2002 was served by regular post on 27 October 2004 thus complying with the orders made by Acting Registrar Christo on 21 September 2004 and, secondly, that no memorandum of appearance has been filed by the defendant in response to the writ served on or about 27 October 2004. I fail to see how that submission can be made in circumstances where the appellant's solicitors are unable to say whether the writ in No 914 of 202 has been served by post. Having regard to the content of the affidavit of Mr Gandini sworn 13 July 2005 the submission that the writ in No 914 of 2002 has been served is somewhat hollow. There is certainly no affidavit of service to that effect. The appellant being unable to say whether it has served the writ, it cannot be said that there is any informality or irregularity rendering service of the writ invalid. Quite correctly, before the Principal Registrar, Mr Melville, counsel for the appellant said:
"To the best of my recollection there is no material before you to demonstrate that the writ in 914 of 2002 was ever served on the defendant."
In the present case there is neither an appearance nor a conditional appearance. Order 12, r 1 provides that a defendant to an action may enter an appearance in an action and defend it by a solicitor or in person. A defendant is obliged to enter an appearance in the central office. An appearance is entered by properly completing a memorandum of appearance as defined by the rules. Order 12, r 2 provides that a memorandum of appearance is a request to the Registrar to enter an appearance for the defendant specified in the memorandum. A memorandum of appearance must be in form No 6 and both the memorandum of appearance and a copy thereof required for entering an appearance must be signed by the solicitor by whom the defendant appears or, if the defendant appears in person, by the defendant. A memorandum of appearance must specify an address for service. On receiving the requisite documents the proper officer must in all cases affix to the copy of the memorandum of appearance an official stamp showing the date on which he received those documents, enter the appearance in the cause book and then return the copy of the memorandum to the person entering the appearance and the copy memorandum so stamped will then be a certificate that the appearance was entered on the day indicated on the official stamp. A defendant is required then to give notice of his or her appearance to the plaintiff's solicitor.
There is clearly a distinction between doing an act which might amount to a submission to jurisdiction and doing an act which amounts to the entry of an appearance. There is no issue in this case as to jurisdiction. The question is whether an appearance has been entered. The appellant says that an appearance has been entered by conduct. Order 12 sets out the mode of entering an appearance. There has been no compliance with O 12. Can it be said that the defendant has entered an appearance by conduct other than that stipulated by O 12? If a defendant served with a writ desires to prevent judgment being entered against him they must enter an appearance. As a general rule a defendant cannot take any steps or make any application in an action without first entering an appearance.
Given that the rules stipulate the mode of entering an appearance it is not, in my view, open to contend that a defendant who has not complied with the provisions of O 12 can be said to have nevertheless entered an appearance by conduct which is not in compliance with O 12.

Service of a writ is not a necessary pre‑condition to the entry of appearance. A defendant who has knowledge of a writ which has issued may enter an appearance voluntarily notwithstanding that it has not been served upon them. That is sometimes referred to as an "appearance gratis". (See Tucker v Walker [1920] VLR 385 at 386). In Pioneer Concrete (North Coast) Pty Ltd v Bennett [1972] Qd R 544 at 550 Skerman J said (referring to the Rules of the Supreme Court of Queensland) said:
"There is nothing in any of the rules of O 12 as I read them to suggest that the right to appear conferred is limited to cases where there has been previous service of the writ…I have not found any reported Queensland decision in which this particular point has been considered, though of course it is well established that the effect of an ordinary unconditional appearance is a waiver of irregularity, if any, as well as a submission to the jurisdiction of the Court. However there are English authorities to the effect that a defendant to a bill, though not served with process may appear gratis."
He referred to Fell v The Master, etc of Christ College, Cambridge and two other defendants (1787) 2 Bro CC 279; 29 ER. 153. Skerman J referred also to Cross J in Pike & Ors v Michael Nairn & Co Ltd [1960] Ch.553 at 560:
"The service of the process of the Court is made necessary in the interests of the defendant so that orders may not be made behind his back. A defendant, therefore, has always been able to waive the necessity of service and to enter an appearance to the writ as soon as he hears that it has been issued against him, although it has not been served on him…"
Skerman J, in the matter before him, held that when the defendants became aware of the issue of the writ in which they had been named as defendants they could waive the necessity of service and were entitled to appear in conjunction with another defendant who had been served and to enter an appearance by the same firm of solicitors.
Clearly there is a distinction between appearing in the sense of attending a court in a matter on behalf of a party and entering an appearance in accordance with O 12 of the Rules. In this case the defendant did appear on the hearing of the appellant's chamber summons to extend time for service of the writ filed on 30 January 2004. That was the result of confusion. The appellant had filed his second writ and the application on the same day. Both were given the action No 202 of 2004. It seems that the appellant had intended to apply in No 914 of 2002. He could have done so ex parte. Acting Registrar Christo made orders in terms of the amended application on 21 September 2004. On 27 September 2004 the defendant filed a notice of appeal against the order of Acting Registrar Christo, that document also being erroneously marked as being in action No 202 of 2004. My understanding of the effect of the rules of the Supreme Court is that, in general, a defendant cannot take any step in a proceeding without entering an appearance. (See "Civil Procedure Western Australia", Vol 1 at par 12.1.3). The authors of that publication add:
"However, in cases in which a party needs to be heard urgently before there has been time for the entry of an appearance, it is common for the Court to permit him or her to participate in the proceedings upon the undertaking by his or her counsel that the party will enter an appearance at the earliest possible time."
That passage exemplifies the distinction between an appearance in the sense of appearing before the Court in a matter and entry of an appearance as contemplated by O 12.
In this matter O 7, r 4 gave rise to the summons to show cause issued to the appellant because it was clear that more than six months had elapsed since the writ had issued and that there had been no affidavit of service filed by the plaintiff and no appearance entered to it. It is not open, in my view, to the appellant to argue that the appellant had entered an appearance by conduct other than that prescribed by O 12. It may be that Acting Registrar Christo allowed the defendant to be represented at the hearing before him of the appellant's application for an extension of time within which to serve the writ in No 914 of 2002. Such an application would, as already mentioned, ordinarily be heard ex parte. The defendant's appearance resulted from confusion. There has been no entry of appearance. The subsequent filing of the Notice of Appeal was incompetent in the absence of an appearance. It could have been struck out. The fact of its filing does not and cannot, of itself, amount to an entry of appearance in compliance with O 12. Commissioner Stavrianou was correct when he raised query as to how the defendant could pursue the appeal in the absence of an entry of appearance.
Returning to the summons issued by the Court under O 7, r 4 it is clear that the Principal Registrar, being not satisfied that the writ had not been served for good reason, made directions as to the time for service of the writ.
It was not necessary for the Principal Registrar to consider whether the defendant's conduct was of such a nature that an inference could properly be drawn therefrom that there had been a waiver of any irregularity relating to the service of the writ. The fact is that there had not, at that stage, even been a purported service of the writ. It is clear that by letter of 27 October 2004 the appellant did forward a writ to the defendant. Mr Gandini in his affidavit of 13 July 2005 was unable to say whether the writ which accompanied that letter was the writ in No 914 of 2002 or No 202 of 2004. In any event, Principal Registrar Gething concluded that the defendant had not entered an appearance by its conduct. He concluded that the real issue between the parties was whether or not the validity of the writ should be extended and rather than strike it out, made what was, in effect, a springing order giving the appellant 14 days within which to make application for an extension of time within which to serve the writ.
I would grant an extension of time to allow the appeal to be brought but would dismiss the appeal against the decision of Principal Registrar Gething given on 16 June 2005.
The notice of appeal filed on 15 November 2005 was accompanied by a further affidavit of Peter Raymond Strother sworn 21 October 2005. That affidavit appears to be directed towards his application for an extension of time within which to appeal. He says that on 4 August 2005 he instructed his solicitor to lodge an appeal and that they replied on the following day by letter confirming his instructions and requesting a cheque for $163.50 to cover fees associated with the application to extend time and to appeal. He says that he forwarded the requisite cheque by 9 August 2005. He deposes further that on 13 September 2005 the application for an extension of time within which to serve the writ and a draft notice of appeal were prepared and subsequently rejected by the Registry because of a requirement for there to be two separate cheques rather than one.
The District Court Rules2005 came into effect on 30 May 2005 and, by virtue of the transitional provisions (Rule 73), apply to No 914 of 2002. Rule 15(2) provides than an appeal from a Registrar to a Judge must be commenced within 10 days after the date of the decision or such longer period as the Judge or Registrar may allow. Accordingly, the appeal against the decision of Principal Registrar Gething should have been filed on or before 26 June 2005 and the appeal against the decision of Deputy Registrar Hewitt should have been filed on or before 1 August 2005. The notice of appeal against both was in fact filed on 15 November 2005.
The affidavit of Mr Strother referred to deposes to his solicitors having written to him by letter of 25 July 2005 to advise the outcome of the proceedings on 22 July 2005 and requesting instructions to appeal. He does not depose to any advice as to the outcome of the summons to show cause before Principal Registrar Gething. It is not clear whether Mr Strother was advised as to the time within which an appeal from a registrar's decision must be commenced. He gave instructions to lodge an appeal on 4 August 2005 by which time the time limitation with respect to both decisions had expired. He provided a cheque dated 9 August 2005 to cover the relevant fees to his solicitors. There is no explanation for the delay which then occurred between 9 August 2005 and 13 September 2005, a period of some five weeks, when it is said that the application and draft notice of appeal were "prepared and subsequently rejected by the Registry". The chamber summons attaching a draft notice of appeal and seeking an extension of time within which to appeal was eventually filed on 30 September 2005 some two and a half weeks later.
On 30 June 2005 the appellant by chamber summons applied for leave to extend the time to serve the writ in action 914 of 2002 seeking an extension until 29 July 2005 or some other date as the Court thought fit. The application came initially before Deputy Registrar Hewitt on 14 July 205 and was adjourned by him until 22 July 2005 when it was dismissed. Mr Melville appeared for the appellant on both occasions. It seems that there was no appearance by the defendant on either occasion.
The application before Deputy Registrar Hewitt was made pursuant to O 7, r 1(2) which provides that where a writ has not been served on a defendant the Court may by the order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time as it thinks fit.
The application before Registrar Hewitt appears to have been supported by an affidavit sworn by Mr Strother on 28 June 2005 and by an affidavit of one David Alan Fort sworn 29 June 2005. Mr Strother deposed, inter alia, to the fact that if the time to serve the writ is not extended then he could not rely, by way of a cause of action, on accidents suffered by him on 15 August 1996, 18 August 1996, 24 August 1996 and 15 August 1997 by reason of the expiry of the relevant limitation period. He indicated that if his application to extend the time within which the writ might be served be granted his solicitors would make application to consolidate the two actions being No 914 of 2002 and No 202 of 2004 into one. The affidavit of Mr Fort effectively exhibited various documents and affidavits previously filed.
An appeal from a Registrar to a Judge is to be by way of a new hearing of the matter that was before the Registrar. I have considered the material that was before the Registrar. The authors of "Civil Procedure Western Australia", Vol 1 at par 7.1.1 make it clear that the policy of O 7 is that writs should be served for the reason that it is undesirable to allow a plaintiff to issue a writ before the expiry of a limitation period and then to delay service for an indefinite period. Lengthy delays cause difficulties in the ascertainment of truth. It is the case, in this matter, that the writ filed on 15 April 2002 is yet to be served some three years and ten months later. That is by any measure an extraordinary state of affairs.
Presumably, in anticipation that all causes of action the subject of the writ in No 914 of 2002 had become statute barred the appellant issued a writ in almost identical terms in No 202 of 2004. The first of the two writs was allowed to become stale but was valid for all purposes other than service. It was incumbent upon the appellant to apply under O 7, r 1 to extend its validity. The filing of the second writ duplicating in part the causes of action and the relief sought in the first was, in all the circumstances, in my view an abuse of process and might well have been amenable to a strike‑out application. I am told that the second action is proceeding in accordance with the rules and is approximately at the stage where the parties are giving discovery.
Strict compliance with O 7, r 1(2) would have, on my reading of that rule, defeated the appellant. That is why the appellant, in his chamber summons filed 30 June 2005 relied upon O 2, r 1 and/or O 3, r 5. In Brealey v Board of Management Royal Perth Hospital Ipp J considered both provisions of the Rules. He concluded (at p 90) that the general discretion under O 2, r 1 should only be exercised with due regard to the policy evinced by O 7, r 1. He said:
"This Court has held that O 3, r 5 may be used to ameliorate the effect of that part of O 7, r 1(2) which empowers the Court to extend the validity of a writ, after the period of its validity has expired, only for a period not exceeding 12 months at a time (that is to say on any one application) beginning on the day next following the day of its expiry."
He concluded that O3, r 5 is "a remedial provision which confers on a Court a broad power to relieve against injustice". He went on to say:
"Order 3, r 5 enables the Court to prevent manifest unfairness arising from the literal construction of O 7, r 1(2). An example of such unfairness would be where delay, resulting in the writ becoming stale after the expiry of the limitation period, was caused by the Court and not the plaintiff. In considering whether a remedial order should be made under O 3, r 5 the Court will have regard to 'the general justice of the case, paying regard to all the circumstances'."
According to Mr Gandini in his affidavit sworn 13 July 2005 the appellant wrote a letter to the defendant dated 27 October 2004 purporting to serve a writ. He says that by letter of 20 May 2005 his firm forwarded to the solicitors for the defendant a copy of a statement of claim clearly said to be in No 914 of 2002. That, said Mr Gandini, was returned to his office with the advice that the defendant's solicitors were not prepared to accept service of it. On 30 March 2005 the summons issued by the Court required that the appellant show cause under O 7, r 4. That was dealt with on 16 June 2005.
The letter of 27 July 2004 referred to by Mr Gandini in his affidavit appears to be the only attempt made by the appellant to serve the writ in No 914 of 2002. That was some two and a half years after issue of the writ. In his affidavit sworn 30 March 2004 the appellant, Mr Strother, said:
"I did not serve my writ in time because this was overlooked by my solicitors."
There is little offered by the appellant in his affidavits or by those of his solicitors or persons in their employ who have sworn affidavits in this matter to explain the very significant delays that have occurred. Although there is no affidavit from the defendant before me and no appearance on behalf of the defendant before me I can infer by reason of the fact that the writ of summons filed on 15 April 2002 sought to rely on causes of action that arose as early as August 1996 that there is likely to be some prejudice to the defendant if the action commenced then is allowed to continue. I am conscious of the fact that the writ in No 202 of 2004 was issued on 30 January 2004 and that that action is ongoing. In Brealey v Board of Management Royal Perth Hospital Malcolm CJ said [at p 85]:
"In the end result, I agree with Ipp J that the length of the delay in service of the writ and the failure of the appellant to provide any satisfactory explanation for the failure either to serve the writ or to make a timely application to renew the validity of it, in circumstances where there could be significant prejudice to the defendant, constituted powerful reasons for not making an order in favour of the appellant either under O 7, r 1 or O 2, r 1."
The same applies, in my view, to O 3, r 5. The apparent persistent reliance by the appellant's solicitors upon the contention that the defendant had, by its appearance before Deputy Registrar Christo and the subsequent filing of a notice of appeal, thereby submitted to jurisdiction thus obviating the need to serve the writ may well have been a factor in this matter. The initial delay was said, however, to be an oversight by the appellant's solicitors. One would have thought that the appellant's solicitors might thereafter effect service of the writ and file an affidavit to that effect. That was not done. It is said that Deputy Registrar Hewitt took into account irrelevant material being the appellant's failure to obtain a percentage determination from Workcover. That factor plays no part in the exercise of my discretion having heard the matter anew. It is, however, relevant that the appellant does have an action on foot which is currently progressing, arising out of events subsequent to those events which would be statute barred had it not been for the issue of the writ in No 914 of 2002. Having regard to all of the circumstances and the policy that lies behind O 7 I have concluded that the application made by the appellant on 30 June 2005 should have been dismissed. I grant an extension of time to enable the appeal to be brought. It follows from the foregoing that the appeal against the decision of Deputy Registrar Hewitt is also dismissed.

[2006] WADC 15

24 February 2006