Welsh v Bhlaw Pty Ltd
[2018] VSC 547
•19 September 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S CI 2016 00757
| DONNA RAE WELSH | Plaintiff |
| v | |
| BHLAW PTY LTD TRADING AS BELBRIDGE HAGUE | First Defendant |
| ROBERT NEIL MEERS | Second Defendant |
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JUDICIAL OFFICER: | Clayton JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 September 2018 |
DATE OF JUDGMENT: | 19 September 2018 |
CASE MAY BE CITED AS: | Welsh v BHLAW Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 547 |
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PRACTICE AND PROCEDURE – Extension of the validity of a Writ.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Simpson | Henry Carus & Associates |
| There was no appearance for or on behalf of the Defendants |
JUDICIAL REGISTRAR:
This case has a most unfortunate history. Ms Welsh worked at the Sunicrust factory, making bread. She was employed, at different times, by two labour hire companies.
In January 2004 she lifted a ‘heavy dolly’ at work and suffered back pain. On 25 April 2004 Ms Welsh attended the Wodonga Hospital because of her back pain. After a few days off, she returned to work on much the same duties. She had further treatment from a work doctor in May 2006 and another visit to Wodonga Hospital in August 2006. In March 2007 she was retrenched from her work. She started a new job and in October 2008 had further pain which forced her to stop working. She underwent surgery in December 2008 and further surgery in May 2011. At some point after this operation she was able to return to some limited part-time shop work.
I do not know when Ms Welsh first consulted the first defendant, Belbridge Hague, a firm of solicitors, but they were retained by 16 July 2008 when she instructed a Mr Binnie of that firm to lodge a permanent impairment claim to investigate the possibility of obtaining a serious injury certificate.[1] On 11 March 2011 Ms Welsh, through Belbridge Hague, issued proceedings against two of her former employers, both labour hire companies, for various statutory entitlements under the Accident Compensation Act 1985 (Vic). Todd Legal took over the conduct of Ms Welsh’s claim in January 2012.
[1]Welsh v Adecco & Ors [2017] VSC 44 [4].
That proceeding was heard in the County Court of Victoria over a number of days in 2012 and 2013, and a decision was handed down by Bowman J on 26 May 2014. Ms Welsh was successful in that claim.
On 21 July 2015 Ms Welsh, through Todd Legal, issued proceedings in this Court against the two labour hire companies and the owner and occupier of the Sunicrust premises at which she worked, seeking damages for injuries she alleged she sustained as a result of the heavy and repetitive duties required by her work (‘the workers compensation proceeding.’)
The workers compensation proceeding was the subject of an application by the plaintiff pursuant to s23A of the Limitation of Actions Act 1958 (Vic) for an extension of the limitation period. All three defendants opposed the application.
It was common ground amongst the parties to that application that the limitation period for Ms Welsh’s claim expired in or about January 2010, being six years from the ‘heavy dolly’ incident.
The application was heard by T Forrest J on 12 and 13 December 2016. In his decision, handed down on 14 February 2017, he includes a very detailed chronology which I do not intend to replicate here.[2] The application was unsuccessful, which resulted in Ms Welsh’s workers compensation proceeding being statute barred.
[2][2017] VSC 44.
Meanwhile, on 29 February 2016 Ms Welsh had issued, through Todd Legal, a writ against Belbridge Hague and Mr Robert Meers, the sole director of Belbridge Hague (‘the professional liability proceeding’). That writ contained a general endorsement that claimed:
The Plaintiff instructed the Defendants to provide legal advice in respect of entitlements arising from injuries sustained in the course of her employment with the labour hire companies Adecco Industrial Pty Ltd and Ready Workforce (A Division of Chandler Macleod) Pty Ltd at the Sunicrust Bakery, 60 Chapple Street Wodonga.
The Defendants were negligent in the provision of that advice and in failing to institute proceedings within the limitation period required under the Limitation of Actions Act 1958 (Vic) to protect the Plaintiffs common law rights arising from injuries sustained in the course of the said employment.
The plaintiff claims damages.
Further or in the alternative the Plaintiff suffered a loss as a result of the breach of contract between the Plaintiff and Defendants.
That writ expired on 28 February 2017.
At some point in late February 2017 Todd Legal told Ms Welsh that it had a possible conflict of interest in continuing to represent her in her claim against Belbridge Hague. Ms Welsh contacted Henry Carus and Associates (‘Henry Carus’) on 22 February 2017 to inquire about alternative legal representation.
On 24 February 2017 Ms Kim Todd of Todd Legal wrote to Ms Welsh and informed her that Todd Legal was unable to continue to act for her ‘following the decision of His Honour Judge (sic) Forrest…as you may have rights against Todd Legal’.
Ms Todd told Ms Welsh that a writ had been filed on 29 February 2016 against Belbridge Hague and Mr Meers, which would go stale on 28 February 2017. Ms Welsh was told that:
It is critical that you urgently (ie: today or Monday morning) obtain independent legal advice in connection with the Writ, its service and generally.
She was further told:
Although I am unable to give you legal advice, on the balance it is in your interest to serve the Writ no later than Monday by hand delivering two copies to the office of Belbridge Hague (BH Law) office and asking to see Mr Meers and handing him a copy. If you intend to serve this Writ it must be done on Monday before 4pm.
I pause here to again note that Ms Welsh was very poorly served by her solicitors. I do not consider it acceptable professional conduct to inform a client at the eleventh hour that her writ is about to expire and she must urgently seek alternative legal advice or risk losing her entitlement to make a claim.
Although Henry Carus had contact with Ms Welsh on 22 February 2017, it was not until 17 March 2017 that they obtained an authority from Ms Welsh to acquire her file from Todd Legal, and not until 1 May 2017 that the file transfer request was sent to Todd Legal.
On 9 June 2017 Henry Carus obtained Ms Welsh’s file from Todd Legal.
On 10 September 2018 Henry Carus filed a Notice of Change of Practitioner with this Court.
On 12 September 2018 Henry Carus filed a summons seeking, amongst other orders, an order that ‘the Plaintiff have leave to extend the period of time for the validity of the Writ to not more than 21 days from the making of an order extending such time’.[3]
[3]Summons filed on behalf of the Plaintiff filed 13 September 2018 [3].
Between the first contact Ms Welsh made with Henry Carus on 22 February 2017 and the date of bringing this application on 12 September 2018, more than 18 months have passed.
None of the three firms of solicitors engaged by Ms Welsh have behaved in a manner in keeping with their obligations under the Civil Procedure Act 2010 (Vic) (‘the CPA’). However, whilst all her solicitors have caused delay, at this stage, it is the first delay that has had the most significant consequence. Belbridge Hague’s failure to institute proceedings in time caused Ms Welsh’s workers compensation proceedings to become statute barred. We do not yet know whether any of the other delays have a legal consequence for Ms Welsh.
If Ms Welsh’s cause of action against Belbridge Hague accrued in January 2010, then Todd Legal had six years from January 2010 in which to issue the professional liability proceedings. Todd Legal did not issue proceedings within this time and Ms Welsh’s professional liability proceeding may have already been out of time when it was issued. If Ms Welsh is out of time to claim against Belbridge Hague, she may have a professional negligence claim against Todd Legal.
However, Ms Welsh may argue that her cause of action against Belbridge Hague accrued from the date she became aware that she would be unable to pursue her workers compensation claim. That date was 14 February 2017, when T Forrest J’s decision was handed down. If that argument is correct, she is not out of time in her claim against Belbridge Hague.
This is not a case where the limitation period expires in the time between the writ being issued and the writ expiring.
If Ms Welsh was already out of time against Belbridge Hague on 29 February 2016, when the professional liability writ was filed, then the fact that the writ has now expired is of little relevance. If she was to file and serve a new writ she would face the same defence from Belbridge Hague, which is that her claim is statute barred. Alternatively, if her cause of action against Belbridge Hague did not accrue until after the decision of T Forrest J in the workers compensation proceeding, then she is not out of time and extending the validity of the writ will not have any prejudicial effect on Belbridge Hague. In either circumstance, not extending the validity of the writ would simply result in Ms Welsh having to file and serve a new writ which would impose additional costs on her.
Having regard to all the circumstances of the case, including the fact that Belbridge Hague is a firm of solicitors with obligations to this Court, the fact that extending the validity of the writ does not preclude Belbridge Hague from pursuing a defence that Ms Welsh is statute barred, and having regard to the overarching obligations of this Court pursuant to section 7 of the CPA, I am satisfied that it is in the interests of justice to extend the validity of the writ until 31 October 2018.
Whilst I make no criticism of Henry Carus for not serving the writ within the very few days between being first consulted by Ms Welsh and the writ going stale, I do consider that there has been an unacceptably long time between Ms Welsh retaining Henry Carus and the making of this application. The brief explanation in the Affidavit of Ms King, that it has taken a long time for Henry Carus to review Ms Welsh’s file and determine what steps to take,[4] is unsatisfactory and not in compliance with obligations under s 25 of the CPA to act promptly and minimise delay.
[4]Affidavit in Support of Jessica King sworn 7 September 2018 [15].
I note that this matter has been issued in the Personal Injury List, but should rightly be in the Professional Liability List and will consequently be transferred to that list for management.
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