Practice and procedure - Application for extension of time of validity of writ - Appeal from decision of deputy registrar refusing to extend validity of writ - Turns on own facts

District Court Rules 2005, r 15

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561

Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79

Brown v Coccaro (1993) 10 WAR 391

Chalmers & Partners v Kensit [2008] WASCA 122

City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Simonsen v Legge [2010] WASCA 238

Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185

1 DAVIS DCJ: This appeal was brought, ex parte, from a decision of Deputy Registrar Hewitt made on 30 May 2013 refusing the plaintiff's application for leave to extend the validity of the writ filed in this action.

2 On 17 April 2014 I allowed the appeal and extended the validity of the writ. I said I would provide written reasons for my decision, particularly because the orders I made were ex parte and are therefore amenable to review pursuant to O 58 r 23 of the Rules of the Supreme Court 1971 (RSC). These are my reasons.

3 The appeal from the deputy registrar's decision was not brought until 7 September 2013. It should have been brought within 10 days of the decision, so no later than 9 June 2013: see the District Court Rules 2005 (DCR) r 15(2). An extension of time to bring this appeal is therefore required. Both the application to extend time and the appeal were heard together.

4 Pursuant to DCR r 15(6) an appeal from a registrar is a new hearing. The matter is to be decided afresh or de novo, and it is not necessary for the plaintiff to demonstrate any error of law or principle in the decision of the deputy registrar. Further because it is a hearing de novo, the court may exercise its discretion to admit additional evidence: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 - 29.

5 In support of the extension of time within which to appeal and further in support of the appeal I received an affidavit sworn by the plaintiff on 24 October 2013 and two other affidavits from a legal practitioner employed by the plaintiff's solicitors, Marilyn Buttaccio, sworn 12 November 2013 and 11 April 2014.

6 On 17 June 2001 the plaintiff, who was then aged 13, was electrocuted when he was playing in the yard surrounding his parent's home. A Foxtel television service via a satellite dish on the roof had just been installed in the home. It is alleged that the sub-contractor who undertook the Foxtel installation placed a screw through some existing electrical cabling and this caused the roof and a downpipe to become 'live'. The plaintiff was electrocuted when he came into contact with the live downpipe and as a result sustained some injuries, in particular an injury which still persists to his right shoulder.

7 The solicitors for the plaintiff issued the writ in this action on 12 June 2012, the day before the expiration of the limitation period which then applied to the plaintiff's claim under the Limitation Act 1935 (WA) s 40 (six years from the time he reached the age of 18).

1. Foxtel Management Pty Ltd;
2. Foxtel Cable Television Pty Ltd;
3. BSA Ltd; and
4. Damien Christopher Enever - the sub-contractor who actually carried out the Foxtel installation.

9 RSC O 7 r 1(1) provides that for the purpose of service, a writ is valid in the first instance for 12 months beginning with the date of its issue.

10 Foxtel Management Pty Ltd and Foxtel Cable Television Pty Ltd, the first and second defendants, were served before the expiry of that 12-month period, on 11 June 2013. However the action against those two defendants has since been struck out, pursuant to RSC O 22 r 1.

11 The third defendant, BSA Ltd, has not been served. During the course of the appeal hearing I was advised that the action against that defendant would not be proceeded with.

12 It is the plaintiff's intention only to proceed with the action against the fourth defendant, the sub-contractor, Damien Christopher Enever. He has not been served.

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, as may be specified in the order, if an application is made to the court before that date or such later date (if any) as the Court may allow.

14 Before the expiry of the validity of the writ, an application by a notice of motion dated 27 May 2013 was made on behalf of the plaintiff for an extension of time for service of the writ. The notice of motion sought an order that the time for the service of the writ issued 12 June 2012 be extended to 31 December 2013.

15 The application was dismissed by Deputy Registrar Hewitt on 30 May 2013. The decision was made on the papers and no reasons for the decision were given.

Principles on an application for an extension of time for appealing

16 I have the discretion to extend the time within which the plaintiff has to bring his appeal: DCR r 15(2). The grant of an extension of time is not automatic. The object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459; Simonsen v Legge [2010] WASCA 238 [8].

17 The Court of Appeal in Simonsen v Legge set out that there are generally four major factors to be considered when a party's appeal is out of time and that party seeks to extend the time for filing a notice of appeal:

(iii) the prospects of the applicant succeeding in the appeal; and

(iv) the extent of any prejudice to the respondent.

18 Other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of the litigant's lawyers with which the litigant should not be saddled: Simonsen v Legge; City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33].

19 In relation to the first factor of the length of the delay, the delay in bringing this appeal is a period of a little under three months. That is not, in my view, an unduly long delay.

20 The explanation for the delay in filing the appeal relates to the plaintiff's personal circumstances, which are set out in the affidavits of both the plaintiff and Ms Buttaccio. Before the writ was issued the plaintiff relied heavily on his parents, in particular his mother, to assist him in pursuing his claim. However he experienced a number of personal problems over the previous 12 to 18 months.

21 I am satisfied from reading both the plaintiff's affidavit and also the medical reports which are annexed to the first affidavit of Ms Buttaccio (sworn 12 November 2013) that the plaintiff has experienced ongoing problems with his right shoulder as a result of the electrocution in 2001. It is apparent also from the medical reports that the difficulties he has with his shoulder has impacted on his ability to work. He is qualified as a carpenter and joiner but has not been working because of the symptoms in his right arm. This has led to a very low or depressed mood. The position is summarised in a report dated 27 July 2011 from Dr Peter L Silbert, neurologist, who stated the following:

Jae has a combination of mechanical pain in the right shoulder, neuropathic discomfort in the right shoulder girdle region, and symptoms that suggest thoracic outlet syndrome on the right. In addition he has symptoms that would be consistent with serotinergic deficiency, and for a man of this age it is probably an agitated depression. He obviously has a lot of worries about the future.

22 The plaintiff's personal problems caused him to become estranged from his family, with his own mother taking out a restraining order against him. When the relationship with his mother broke down he lost contact not only with her, but with his lawyers.

23 After leaving the family home the plaintiff adopted a transient lifestyle. The plaintiff has deposed that between the middle of 2012 and 2013 he lived at a variety of residences in various places in the State and did not keep his solicitors informed of his whereabouts.

24 He eventually made contact again with his family and upon doing so then re-made contact with his solicitors in August 2013.

25 It is apparent from his affidavit that the plaintiff was aware of his claim and the issue of the writ, but did not realise that there was an issue with the limitation period or his proceedings. He has deposed that he has since become aware that his lawyers were trying to contact him, however, no-one in his immediate family was speaking to him or knew of his address and as a result it was very difficult to forward messages through to him.

26 The plaintiff's solicitors actually applied for an extension of time for the validity of the writ during a period when they were not able to obtain instructions from the plaintiff. When that application was refused by Deputy Registrar Hewitt, I can understand that the plaintiff's solicitors would not want to incur the costs of an appeal from that decision without particular instructions from the plaintiff. There is evidence in the first affidavit of Ms Buttaccio that costs were an issue for the plaintiff, including the costs of undergoing tests such as MRI scans. The writ was filed without filing fees after the plaintiff completed an application for financial hardship.

27 In all the circumstances I am satisfied that there is a reasonable explanation for the late filing of the appeal. I am also satisfied that the delay in filing the appeal was not intentional.

28 In relation to the third major factor which I must consider, the time for appealing will not be extended unless the proposed appeal has some prospect of success. The converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the prospect of success is a factor which is to be taken into account, together with all other relevant factors: Simonsen v Legge; City of Canning v Avon Capital Estates (Australia) Ltd [17]. In looking at the prospects of success of the appeal I must look at the relevant principles on an application to extend the validity of a writ, and then consider the merits of the appeal, which I have undertaken in the following part of my reasons.

29 In terms of the fourth factor I must consider, prejudice to the fourth defendant is a matter which will be canvassed when I look at the merits of the appeal, because prejudice to a defendant is a relevant factor to consider on an application to extend the validity of the writ.

30 Having regard to all of the factors I have discussed above, I consider that the deciding factor is the third factor, namely the prospects of success of the appeal. It is true that it is not the law that an extension of time should be granted whenever an applicant demonstrates an arguable case, or even a strongly arguable case: Simonsen v Legge; City of Canning v Avon Capital Estates (Australia) Ltd [16]. However, in the particular circumstances of this case, having regard to the other factors I have discussed, this is in my view a situation where the extension of time within which to appeal should be granted if there is merit in the appeal. This is the matter to which I now turn.

Principles on the extension of the validity of a writ

31 In Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 [45] Ipp J (with whom Malcolm CJ generally agreed) explained the policy behind RSC O 7 r 1 in relation to the validity of unserved writs as follows:

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] VicRp 1; [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 infinite periods.

32 An application to extend the validity of the writ for service under O 7 r 1 can be made even after the 12-month period to effect service has expired by virtue of RSC O 3 r 5, which gives the court the power to extend time generally: Brown v Coccaro (1993) 10 WAR 391.

33 It has been said that the power conferred by O 7 r 1 is a wide and unfettered discretion to be applied to ensure that justice is done in all the circumstances: Brealey v Board of Management Royal Perth Hospital [52]; Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561, 575.

34 There are, however, a number of factors which need to be considered when determining whether or not to extend the validity of a writ. The factors include the provisions of any limitation statute which applies to the plaintiff's cause of action and the relative hardships which a grant or refusal of renewal of the writ would impose upon the parties: Brealey [52]. Other factors were discussed in Chalmers & Partners v Kensit [2008] WASCA 122 [32] and [33] (Buss JA with Murray AJA agreeing) and summarised in Civil Procedure Western Australia at [7.1.8].

35 Relevantly to the circumstances of this case, the factors which I must consider are as follows:

(a) Has the statutory limitation period applicable to the plaintiff's cause of action expired as at the date when the writ became stale?

(b) Has the plaintiff given notice to the fourth defendant regarding the particulars of the claim?

(c) Did the plaintiff apply promptly for an extension of the validity of the writ?

(d) Did the plaintiff in deciding not to serve the writ until the last moment, choose to live by technicalities and should the plaintiff thus be taken to have accepted the risk of dying by them if the time limit imposed by O 7 r 1(2) has not been observed?

(e) Did the plaintiff make productive use of the 12-month period to investigate whether he had a reasonable cause of action against the fourth defendant?

(f) Is there a satisfactory explanation for the delay in serving the writ?

(g) What is the prejudice to be suffered by the plaintiff if the validity of the writ were not to be extended, and is that prejudice self-inflicted?

(h) Would the fourth defendant suffer any prejudice if the validity of the writ is extended?

36 The prejudice to the fourth defendant may be general, in the sense of the inevitable effect of a long delay on the memory of witnesses, or specific such as a loss of access to witnesses or records: see Brealey v Board of Management Royal Perth Hospital [64] - [67].

Evidence relevant to the discretionary factors in this case

37 The first affidavit of Ms Buttaccio explains that initially, after receiving instructions from the plaintiff and his parents together in July 2001, she put Foxtel on notice of the claim. Through correspondence with Foxtel Management Pty Ltd it was learned that the installation of the Foxtel service was contracted to the third defendant BSA Ltd, which in turn sub-contracted the work to the fourth defendant. Ms Buttaccio was advised by the insurers for Foxtel that QBE was the insurer for the fourth defendant and she commenced dealing with QBE in October 2001.

38 It is apparent from Ms Buttaccio's affidavit evidence that from 30 October 2001 to the present she has corresponded with QBE, the insurer for the fourth defendant, concerning the plaintiff's claim. In Ms Buttaccio's second affidavit sworn 11 April 2014 she has annexed a facsimile letter she sent to QBE dated 30 October 2001 (Annexure MB2). I am satisfied that by this facsimile QBE was provided with adequate details of the plaintiff's claim and the basis upon which it is alleged that the fourth defendant is liable for that claim. QBE was also advised of the fact that investigations had been carried out by each of Foxtel and Western Power.

39 QBE sent a facsimile dated 8 November 2001 (Annexure MB1 to the first affidavit of Ms Buttaccio) to the plaintiff's solicitors as follows.

We confirm we are the insurers of Enever who carried out the dish installation.

As advised in our discussion this date;

1. If the injuries to Jae Seaton are such that a modest settlement is appropriate, it may be possible to adjust the matter informally
2. We cannot see any liability to Kade Seaton or to his father, given his father was aware the downpipe was live
3. We see liability attaching to the electrician who installed the cabling which was punctured and/or Seaton Snr as owner of the premises.

We not you shall seek instructions concerning the relevant medical situation in respect to Jae Seaton and submit to us.

(The reference to Kade Seaton and his father refers to claims made by the plaintiff's brother and father.)

40 The response from QBE indicates that it has had sufficient notice in order to carry out its own investigations and enquiries.

41 In 2003 the plaintiff received medical advice that he needed surgery on his right arm and accordingly Ms Buttaccio sent a facsimile to a representative of QBE to inform QBE of the plaintiff's pending surgery. Subsequently on 22 January 2004 she wrote to QBE and asked it to meet the costs of that surgery. QBE responded by letter dated 6 February 2004 (Annexure MB5 to the second affidavit of Ms Buttaccio) stating that it had a policy not to make interim payments on claims. The letter also made it clear that QBE reserved its position in respect to liability attaching to the electrician who installed the cabling at the premises and/or the plaintiff's father as owner of the premises.

42 It is apparent from Ms Buttaccio's affidavit evidence that since 2004 she has been forwarding copies of medical reports to do with the plaintiff's treatment and progress to QBE.

43 Ms Buttaccio has deposed in her first affidavit that when she was aware that the limitation period was about to expire, in May 2012, she wrote to the insurers for the first and second defendants and also QBE to advise that a writ of summons would be filed. The insurer for the first two defendants advised that it would accept service. QBE on the other hand indicated it would not accept service on behalf of the fourth defendant.

44 QBE responded with the contact details for the fourth defendant, however, those details were out of date. Ms Buttaccio has deposed (par 60 of her first affidavit) to the fact that she performed a series of searches to try and locate the fourth defendant, including electoral roll and telephone index searches of individuals with the same name as the fourth defendant. She found two people with the same name living in Lake Clifton and Mundaring but she 'had no way of telling which of these parties (if any) were the Fourth Defendant'.

45 After the writ was filed, Ms Buttaccio has deposed (first affidavit par 63 and par 64) that she was anticipating that the plaintiff would continue with medical reviews.

46 On 22 November 2012 QBE made a query about the progress of the matter. It was following contact on 3 December 2012 with the plaintiff's mother (by another solicitor at the firm) that Ms Buttaccio became aware that the plaintiff and his mother were no longer on speaking terms. The plaintiff's mother advised the plaintiff's solicitors that she was not aware of the plaintiff's contact details.

47 The plaintiff did not contact Ms Buttaccio again until 7 August 2013.

48 Ms Buttacio has deposed subsequently in her first affidavit (par 67) that in May 2012 (although I believe this is a typographical error and it should refer to May 2013) when she was aware that the period for serving the writ was due to expire, she did not want to serve the writ without instructions and so instructed another solicitor in the firm to prepare an application to extend time for service of the writ. This was the application which was dismissed by the deputy registrar on 30 May 2013.

49 After the refusal of the application, service of the writ on the first two defendants was effected on 11 June 2013. Ms Buttaccio has deposed that she determined that it was necessary to do this to protect the plaintiff's claim, since he had never instructed her to cease acting. The explanation given by Ms Buttaccio as to why, in these circumstances, she did not effect service on the fourth defendant (first affidavit par 69) is that 'QBE had indicated that they would not accept service on behalf of the Fourth Defendant and my understanding was that there was difficulty in ascertaining where the Fourth Defendant actually was'.

50 After the commencement of this appeal, the plaintiff's solicitors wrote to QBE by letter of 4 October 2013 outlining what had happened regarding the issue of the writ, the problems with service and enclosing a copy of the writ. The plaintiff's solicitors asked whether QBE would be prepared to accept service of the writ outside time. QBE responded by a brief email on 7 October 2013 stating 'QBE will not accept service of the writ'.

Factors relevant to the exercise of discretion to extend the validity of the writ

51 In the particular circumstances of this case these are the factors which are in favour of an extension to the validity of the writ:

(a) The statutory limitation period has expired. In this case I am satisfied from the material before me that the statutory limitation period which applies to the plaintiff's cause of action has expired and did expire shortly after the writ was issued in June 2012;

(b) The insurer for the fourth defendant, QBE, has been given particulars of the plaintiff's claim, particularly by the facsimile letter from the plaintiff's solicitors dated 30 October 2001. QBE is also in possession of medical reports relating to the plaintiff's injuries and treatment;

(c) The application for an extension of the validity of the writ was made before the expiry of 12 months from the date of issue of the writ;

(d) The plaintiff had, prior to the issue of the writ, investigated his cause of action against the fourth defendant. I have already mentioned the details in the plaintiff's solicitor's facsimile letter of 30 October 2001 to QBE. Additionally, among the materials provided to me is an 'Electrical Shock/Accident Report Form' issued by the Office of Energy following a Western Power inspection carried out on 19 June 2001;

(e) Because of the plaintiff's particular personal circumstances as I have outlined in [20] - [23] above, I do not consider this to be a case in which the plaintiff has really decided to choose to live by technicalities and therefore must have accepted the risk of dying by them because of the failure to observe the time limits imposed by RSC O7 r 1(2). It could not be said there was a conscious or deliberate decision by him to delay service of the writ;

(f) There will be a significant prejudice suffered by the plaintiff if the validity of the writ is not extended. He will lose his cause of action entirely. I am not satisfied that the prejudice is wholly self-inflicted. To some extent the position in which the plaintiff now finds himself is due, at least in part, to the injuries and his state of mind resulting from the accident in 2001.

52 The factors which are against the extension are:

(a) While there has been some explanation from Ms Buttaccio concerning the delay in serving the writ on the fourth defendant, in my view this explanation is not entirely satisfactory, for reasons which I set out below;

(b) It is the case that the fourth defendant will suffer prejudice, at least general prejudice, by reason of the fact that there has been a delay now between the date of the accident in 2001 to the present day of almost 13 years. Against the general prejudice I should take into account that particulars of the claim have provided to the fourth defendant's insurer, QBE, and QBE was presumably able to undertake investigations in relation to the claim very soon after the claim was made in 2001. It is also relevant, in my view, that QBE has indicated in its correspondence of 8 November 2001 and by its conduct subsequently (continuing to receive medical reports and inquiring as to the progress of the matter) that the plaintiff's claim might be settled: see Brealey v Board of Management Royal Perth Hospital [60].

53 I need to expand further upon my view that the explanations given for the delay in serving the writ on the fourth defendant are not satisfactory.

54 First, the fact that the plaintiff was still undergoing medical reviews is not a good reason for not serving the writ: Brealey v Board of Management Royal Perth Hospital [67].

55 Secondly, while there is evidence that from mid-2012 the plaintiff was not able to be contacted, as Ms Buttaccio herself deposed, she nonetheless took certain steps to protect the plaintiff's claim even though she could not obtain instructions from the plaintiff. I find it difficult to reconcile the statements made by Ms Buttaccio in her affidavit par 67 that she did not want to serve the writ without instructions, but then (presumably without instructions from the plaintiff) she proceeded to ask another solicitor to prepare an application to extend time for service of the writ. After that application had been dismissed and again, without instructions from the plaintiff, Ms Buttacio determined it was necessary to protect the plaintiff's claim by serving the writ on the first and second defendants.

56 Thirdly, it has not been explained why the plaintiff's solicitors did not follow up with further investigations after identifying two people in Lake Clifton and Mundaring who had the same name as the fourth defendant, and then why service was not attempted on those two people before the expiry of the writ. Whether or not one of these two people was in fact the fourth defendant was readily ascertainable by a telephone call, a letter, or by attempting service of the writ on them. While costs would have been incurred in that attempted service, the costs of service must have been anticipated at the time of the issue of the writ. In any event, those costs would not have been great and certainly not of the magnitude of the costs which would be involved in an appeal (as I have discussed in [26] above).

57 Against this, however, I must take into account that as I have found in [51](e) above, I do not consider this to be a case in which the plaintiff has deliberately chosen to live and die by technicalities. Rather the failure to further investigate the whereabouts of the fourth defendant or to attempt service of the writ on the two people found with his name is due to either confused decision making or inaction on the part of his solicitors.

58 Of course, the plaintiff's solicitors are his agent. In some circumstances, the neglect or inaction of a party's solicitors may be visited upon that party. Nevertheless, the absence of fault on the part of the client always will be relevant, and might be a significant factor when the justice of the case is an important consideration: Skahill v Kestral Holdings Pty Ltd (in liq) [2000] WASCA 185 [10]; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 199.

59 In my view this is a situation where the justice of the case is an important consideration and the decisions or inactions of his solicitors concerning the service of the writ on the fourth defendant ought not to be visited upon the plaintiff.

60 After assessing the factors which are in favour of an extension of the validity of the writ, I find that these outweigh those factors which are against the extension.

61 I am satisfied that if I do not extend the validity of the writ, an injustice to the plaintiff will occur which exceeds any injustice to the defendant if the validity of the writ is extended.

62 I have therefore concluded that the interests of justice, including the balance of hardship between the parties, do require the exercise of my remedial discretion to extend the validity of the writ for a further period to allow service on the fourth defendant.

63 I am satisfied that I should grant to the plaintiff an extension of time within which to appeal in this matter, and allow the plaintiff's appeal from the deputy registrar's dismissal in May 2013 of the application to extend the validity of the writ.

64 I am of the view that the justice of the case requires that the validity of the writ for service be extended by 12 months until 11 June 2014. That is the maximum extension I can grant having regard to the date when the writ was first issued.