Thornton v Newcrest Mining Ltd [No 3] - [2011] WADC 16

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: THORNTON -v- NEWCREST MINING LTD [No 3] [2011] WADC 16

CORAM: BRADDOCK DCJ

HEARD: 21 JANUARY 2011

DELIVERED : 4 FEBRUARY 2011

FILE NO/S: CIV 1475 of 2008

BETWEEN: MICHAEL EMERY THORNTON
Plaintiff (Appellant)
AND
NEWCREST MINING LTD
First Defendant
DR EDDY BAJROVIC
Second Defendant
DELTA HEALTH PTY LTD
Third Defendant
GEMINI MEDICAL SERVICES PTY LTD
Fourth Defendant

Catchwords:

Practice and procedure - Stale writ - Ex parte application for extension of validity after expiry of writ for service - Discretion - Rules of the Supreme Court 1971, O 3 r 5 - Lack of proper explanation for delay

Legislation:

Nil

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff (Appellant)      :     Mr A R Stewart
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance

Solicitors:

Plaintiff (Appellant)      :     Chapmans
First Defendant             :     Not applicable
Second Defendant         :     Not applicable
Third Defendant           :     Not applicable
Fourth Defendant          :     Not applicable

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

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brealey v The Board of Management of Royal Perth Hospital (1999) 21 WAR 79

BRADDOCK DCJ:

Introduction

Mr Michael Emery Thornton suffered an accident at work on 16 February 2004. He was then employed by Simon Engineering Pty Ltd at a mine site as a rigger. The first defendant in the current action, Newcrest Mining Ltd (Newcrest), was carrying on business at the mine site at Telfer in Western Australia where Mr Thornton was employed, the second defendant Dr Bajrovic, is a medical practitioner who attended Mr Thornton on 20 April 2004 at the premises of the third and/or fourth defendant. Mr Thornton alleges that further injury was caused by the negligence of the second, third and/or fourth defendants, in particular that Dr Bajrovic misdiagnosed his injuries and directed him to undertake certain works and duties which should not have been recommended by a competent independent medical practitioner.
In broad terms Mr Thornton suffered injury when he slipped and twisted his left knee in a muddy area of the mine site. He claims to suffer residual disability being swelling of the left leg, restriction of the movement of the left knee, muscle wasting in the left quadriceps, pain in the knee and an acceleration of degenerative change in the left knee amongst other difficulties.
In May 2007 Mr Thornton settled a claim with Simon Engineering Pty Ltd, a writ was issued on 29 May 2007 and judgment entered on 31 May 2007. Pursuant to that settlement, Mr Thornton was paid some $250,000, exclusive of weekly payments, plus costs.

These proceedings

On 23 June 2008, Mr Thornton issued a second writ based on the same events, against the current defendants and caused it to be served only upon Newcrest. On 4 July 2008, Newcrest filed a defence. On 31 March 2009, Mr Thornton filed further particulars of his claim, then on 19 May 2009 Newcrest sought summary judgment by application in the District Court.
The writ of 23 June 2008 was valid to 22 June 2009 for service. No attempt was made to serve the second, third or fourth defendants in that period.
On 25 August 2009, Newcrest's application for summary judgment succeeded. The plaintiff appealed.
On 15 February 2010, the limitation period in relation to the incident on 16 February 2004 expired. Prior to this time, no application to extend the validity of the writ had been made.
On 30 April 2010, Mazza DCJ dismissed the appeal from the summary judgment order. This decision is currently under appeal.
On 16 August 2010, an application was filed to extend the writ out of time. On 20 October 2010 the application was dismissed by the principal registrar. From this decision Mr Thornton now appeals.
He seeks an order extending the validity of the writ of summons dated 23 June 2008, in support of which he relies upon an affidavit sworn by him on 28 July 2010.
At the time this application was filed, not only had the writ expired for the purposes of service over a year previously, but the limitation period in relation to the accident had also expired by approximately six months.

The appeal

An appeal from a registrar to a judge of this court is by way of new hearing of the matter, pursuant to r 15(6) of the District Court Rules 2005.
An application to extend the validity of a writ for service is an ex parte application, unless there has been a voluntary submission to the jurisdiction by the defendant or defendants.
When the matter came before the principal registrar Mr Thornton relied upon his own affidavit dated 28 July 2010, sworn 2 August 2010.
He deposed to the facts of the filing of the sequential writs, and then stated, at par 6:
I was hoping at the time to obtain the balance of my damages (not paid by Simon Engineering) from the first defendant.
Other than giving the chronology and confirming that an appeal has been lodged to the Court of Appeal from Mazza DCJ's decision, Mr Thornton by way of explanation says only (at par 13):
As a result of the First Defendants application for summary judgment and the extended period of time it has taken to resolve the issue, I have held off serving the Second, Third and Fourth Defendants with the Writ of Summons.

The law

Order 7 r 1(2) of the Rules of the Supreme Court 1971 allows the court to extend the validity of a writ for service, provided the application is made before the writ expires.
Order 2 r 1 and O 3 r 5 of the Rules of the Supreme Court make provision by which irregularity may be remedied, in certain circumstances.
Order 2 - Effect of non‑compliance
1.Non‑compliance with Rules
(1)Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
(2)Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings, or any document, judgment or order therein or exercise its powers under these Rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
(3)The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed.
Order 3 – Time
5. Extension etc. of time
(1)The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these Rules, or by any judgment, order, or direction, to do any act in any proceedings.
(2)The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.
(3)The period within which a person is required by these Rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.
The power conferred by O 3 r 5 is broad and remedial, in order to prevent injustice. Mr Thornton seeks that the validity of the writ be extended pursuant to these powers, and relies upon Brealey v The Board of Management of Royal Perth Hospital (1999) 21 WAR 79 and Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561.
The argument for an extension of time is put on the basis that, at the time of the summary judgment application brought by Newcrest, Mr Thornton was still confident of 'obtaining the balance of his damages' from Newcrest. He argues that there has been further delay and that he now has no choice but to bring this application extending the validity of the writ. He argues, in effect that he held off serving the writ on the second, third and fourth defendants because he thought the matter could be completely resolved with Newcrest. He argues that the holding off of serving the remaining defendants was not a deliberate tactic in an attempt to negate limitation periods, but a decision to avoid 'complicating the proceedings'. In his view, the situation has now changed significantly and it is necessary to keep open the claim against the second, third and fourth defendants, pending the outcome of the Supreme Court appeal. These propositions are put expressly in the written submissions filed on behalf of Mr Thornton on 19 January 2011.

Discussion

In my opinion, neither the plaintiff's feelings of confidence in obtaining damages from Newcrest, nor his considerations of not wishing to complicate proceedings are valid reasons for failing to comply with the rules of the court.
As was said by Justice Ipp in Brealey v The Board of Management of Royal Perth Hospital [45]:
However, when O 2 r 1 is used to remedy an irregularity in connection with the extension, renewal or service of a writ, the broad discretion normally available under that sub-rule must be exercised with care and caution. That is because O 7 r 1 embodies a clear policy which should not be subverted by mechanical resort to O 2 r 1. The policy in question is apparent from the time restrictions laid down by O 7 r 1 in regard to the validity of unserved writs, the finite periods for which the validity of unserved writs may be extended, and the finite periods during which applications may be made for such extensions. The reasons for the policy are obvious. 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 the truth. It is unfair to require potential defendants to contemplate potential litigation indefinitely. The unfairness stems from the uncertainty and concomitant financial and other burdens that would be the consequence. As Young CJ (with whom Kaye and Southwell JJ agreed) said in Ramsay v Madgwicks [1989] VR 1 at 5, 'it is not right that people should be left in ignorance of proceedings that have been taken against them if they are here to be served'. Finally, the proper administration of the court would be hampered if writs could be issued and then left to lie dormant for indefinite periods.
The decisions taken by Mr Thornton, relying only upon his feelings, run directly contrary to this policy and authority.
Furthermore, the 'complication' that might be caused by service and the multiplication of parties, involves potentially the costs of those other parties. This is a normal consequence of litigation, and not one to be circumvented by failure to serve named defendants, contrary to the rules. Mr Thornton was in a position to have realised, at about the time the summary judgment application was served, if not before, that there was a risk he might not be able to proceed against Newcrest, and should have considered the consequences of not serving the writ whilst it was still current.
The consequences to the defendants are significant, given that the period of limitation has now expired. This is a factor in the exercise of the broad discretion under the rules. Justice Ipp also said the following in the Brealey case [53], referring to the facts of that case, but in my view his comments apply equally to this case:
Thus, this case essentially falls into what Lord Brandon, in Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597, termed a 'category (3) case', namely one 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. As Lord Brandon pointed out (at 616), in category (3) cases it is not possible for a plaintiff to serve the writ effectively unless its validity is first retrospectively extended, and therefore:
'[i]n category (3) cases … it can properly be said that, at the time when the application for extension is made, a defendant on whom the writ has not been served has an accrued right of limitation'.
It was for this reason that the House of Lords held in Kleinwort Benson Ltd v Barbrak Ltd that, in category (3) cases, in addition to showing good reason for an extension, an applicant is required to give a satisfactory explanation for its failure to apply for extension before the validity of the writ expired.
In my opinion, no satisfactory explanation has been given by Mr Thornton for his failure to apply for an extension before the writ expired. It is not a situation where there has been an oversight, where a defendant was incapable of being located, or where any other practical difficulty arose in serving the writ within time. The very tenor of Mr Thornton's purported explanation indicates a deliberate decision not to serve the writ within the time for valid service.
It has been accepted that in cases of this kind the mere lapse of time itself generally is to be regarded as prejudicial: Brealey [64]. There has been lengthy delay in this case, as there was in the Brealey case, and in my view it is inevitable that some prejudice must be caused to the unserved defendants were the case to proceed against them. There are potential difficulties in ascertaining the whereabouts of witnesses, particularly bearing in mind that the incident occurred at a mine site in Telfer, and the prospects of such witnesses remembering clearly what occurred must be in doubt.
This application is of necessity ex parte, and no difficulties have been deposed to, but there may well be specific problems for the individual defendants.
In my opinion, this is a case in which the delay of service of the writ was a choice made for perceived advantage, where there was no good reason that the writ should not have been served in time, or extended within time. In all the circumstances of this case, these findings are powerful grounds to refuse the application. The delay is not a short one, no explanation has been given for the particular timing of the filing of this application, and there were a number of occasions in the chronology where timely consideration of the issues should have resulted in the precaution of service upon the other defendants, within the rules.
Accordingly, whilst O 2 r 1 and O 3 r 5 permit the exercise of discretion to prevent injustice, the circumstances of this case do not make out such a manifest injustice to Mr Thornton as to overcome the considerations of prejudice to the defendants. This is all the more so, in circumstances where Mr Thornton has already recovered damages in his first action against his employer, which is the reason why Mazza DCJ saw fit to dismiss the second action, brought by this writ, against Newcrest.
Accordingly, I dismiss the appeal.