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[2003] TASSC 35
procedural. Application for renewal of writ under Supreme Court Rules 2000 (Tas), r107, dismissed; writ not renewed in respect of the fourth and sixth defendants (para 9).
The plaintiff sought extra time to serve two unserved doctors after issuing a writ. The court found there was no evidence of reasonable attempts to serve during the twelve month currency of the writ, no adequate explanation for the delay, and insufficient basis to conclude renewal would be justified or cause no prejudice. The application to renew the writ under r107 was dismissed.
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1,730 words · generated 29/07/2026
The plaintiff, Belinda Bond, commenced proceedings by writ filed 17 May 2002 against the State of Tasmania and five doctors for alleged personal injuries arising from treatment at the Royal Hobart Hospital (para 1). Two of the doctors (the fourth and sixth defendants) were not served within the twelve months the writ remained current. On 14 April 2003 the plaintiff's solicitor first wrote to the Office of the Director of Public Prosecutions advising of the writ and asking whether the Director would accept service on behalf of the defendants (para 3). On 29 April the DPP's office said it would accept service for the State but needed instructions to accept service for the other individual defendants and requested that personal service be withheld while instructions were sought (para 3). Time was approaching the expiry of the writ (16 May 2003), the plaintiff's solicitor warned that personal service would proceed if instructions were not given, and after no response a process server attempted service; on 14 May 2003 personal service on the fourth and sixth defendants could not be effected as those defendants apparently no longer resided in Tasmania (para 3).
1 cited instrument linked from this judgment.
The plaintiff filed an ex parte application on 15 May 2003 seeking renewal of the writ under Supreme Court Rules 2000 (Tas), r107, to enable service on the unserved defendants (para 1). Master S J Holt heard the application on 3 June 2003 and dismissed it (para 9). The essential findings were that the plaintiff had not shown reasonable efforts to serve during the whole twelve month period the writ was current, provided no adequate explanation for the delay, and had offered insufficient evidence to justify renewal, renewal being a discretionary power to be exercised only for good reason (paras 2, 4-7, 8-9).
The court's decision rests on two linked legal propositions. First, r107 confers a discretionary power to renew a writ, but that power is subject to an implied condition that renewal will be granted only for good reason (para 2). Second, established authorities require a plaintiff to serve process promptly, and when reliance is placed on the discretion to renew, the plaintiff must demonstrate reasonable efforts to serve during the entire twelve month currency of the writ (paras 2, 4). The Master explicitly followed and applied the reasoning in National Mutual Life Assoc. v Huddlestone & Taylor (TASSC) that the relevant inquiry is the whole of the twelve month period and that a lengthy period of inaction followed by late attempts normally will not suffice (para 4).
Applying those rules to the facts, the Master found there was no evidence of attempts to serve between issue of the writ (17 May 2002) and 14 April 2003 (para 5). The late steps taken (letter to the DPP, subsequent process server attempt) occurred only when time was nearly exhausted and were insufficient to demonstrate reasonable efforts over the writ period (paras 3, 5). The plaintiff offered no explanation amounting to inadvertence or other compelling reason for the delay: the only identified activity after issue was seeking medical reports from two general practitioners, but there was no evidence when requests were made, when they were answered, or why service had to await those reports (para 7). The application was ex parte and contained only the solicitor's belief that the plaintiff had a strong case; the Master found that assertion insufficient (para 6). The combination of failure to show reasonable efforts, lack of adequate explanation, absence of evidence of defendant avoidance, and the existence of alternative remedies (extension of time under the Limitation Act; the State already served and possibly vicariously liable) weighed against renewal (paras 7-8). Accordingly the Master refused renewal (para 9).
Before this decision the authorities cited in the judgment already established two principles: (1) courts should construe rules granting renewal powers as conditional on good reason (Kleinwort Benson cited at para 2), and (2) plaintiffs have a duty to serve process promptly, with the assessment of reasonable efforts directed to what occurred during the whole twelve month currency (National Mutual Life at para 4, with the High Court and other Victorian authorities cited at para 2). Helman J's observations in the Queensland line of authority (Inprint) were also accepted that a long period of inactivity followed by a brief spurt of attempts will not, without compelling reasons, be sufficient (para 4).
This decision applies those pre-existing principles to its facts and reiterates them for the Tasmanian jurisdiction. The practical effect is a restatement in Tasmania that r107 relief is not a safety valve for plaintiffs who delay: a plaintiff must demonstrate prompt or sustained efforts across the writ period, or a compelling justification for any period of inactivity. The decision underscores that ex parte assertions and unparticularised claims (for example, of a 'strong case') will not substitute for evidentiary proof of attempts or persuasive explanation (paras 6-7). The judgment therefore reinforces the procedural limits on renewal and the emphasis on prompt service.
Para 2: "It is to be implied as a matter of construction of the Rule a condition that the power to renew should only be exercised for good reason."
Para 4: "The duty of a plaintiff who issues a writ is to serve it promptly."
Para 5: "There being no evidence of any attempt to serve the writ between its issue on 17 May 2002 and the letter to the Director of Public Prosecutions on 14 April 2003, I am not persuaded that reasonable efforts to serve the fourth and sixth defendants have been made."
Para 8: "Renewal is not to be ordered as a matter of course."
This decision governs applications under r107 where:
Practitioners should note the particular sensitivity where plaintiffs wait until near the expiry to take any steps; the court will scrutinise the entire twelve month period and require evidence of sustained efforts, not only a late "spurt" of activity. Where defendants are hard to find, or where there was genuine inadvertence, careful affidavit material explaining timings and reasons, and evidence of prior attempts, will be essential to attract renewal (paras 4, 7-8).
This judgment itself primarily applies and follows prior authorities and does not contain information about subsequent treatment by later courts. The Master relied on and followed National Mutual Life Assoc. v Huddlestone & Taylor and other authorities (paras 2, 4). To determine how later Tasmanian or other Australian courts have treated Bond v State of Tasmania & Ors, one would need to conduct a subsequent-citation search in legal databases; that search is outside the content of this judgment and is not performed here. The present decision, however, is firmly rooted in an established line of authority emphasising prompt service and the need to show reasonable efforts during the writ period (paras 2, 4, 8).
From the reasoning in this judgment several practical and doctrinal questions remain for future cases:
The threshold of "reasonable efforts" in specific contexts. The Master applied the whole-period test and rejected a late attempt as insufficient (paras 4-5). What constitutes reasonable efforts where some attempts were made but were intermittent? The judgment affirms the inquiry but leaves granular assessment of what combination and number of attempts suffice for later courts to decide on facts.
The sufficiency of explanations based on obtaining records or expert reports. The plaintiff here said medical reports were sought but gave no particulars; the Master found that inadequate (para 7). Future litigants will need to specify why service could not practicably occur before obtaining particular reports, and courts will need to decide when such explanations are compelling enough to excuse delay.
The proper treatment of ex parte applications asserting no prejudice to defendants. The Master refused to accept such assertions without evidence because defendants had no opportunity to respond (para 6). Future applications might supply evidence addressing prejudice without giving defendants notice; the boundary between acceptable affidavit material and the need for inter partes consideration remains a practical issue.
Interaction with alternative remedies. The judgment notes plaintiffs can seek extension under the Limitation Act and that service on a State defendant (with vicarious liability) changes the practical consequences of failing to serve individuals (para 7). How courts balance the availability of these alternatives when deciding r107 applications may arise in future disputes.
The court's attitude to defendants who have left the jurisdiction. The process server reported that the defendants "no longer reside in Tasmania" (para 3). The judgment does not develop a specific approach to cases where defendants have left the jurisdiction before or after issue, beyond noting difficulty of service can be a ground for renewal; further guidance may be necessary on the evidentiary threshold for proving non-residence and the consequent steps required.
Practitioners preparing r107 renewal applications should therefore prepare detailed, time-stamped evidence of all steps taken to locate and serve defendants, explain any periods of inactivity with documentary support, and anticipate whether inter partes hearing with notice to defendants is preferable to an ex parte application.
CITATION: Bond v State of Tasmania & Ors [2003] TASSC 35
Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Commencement of proceedings; originating process - Renewal of writ - Whether reasonable efforts to serve defendant or other good reason shown.
National Mutual Life Association of Australasia Ltd v Huddlestone and Taylor 1997 TASSC 72 and Battersby v Anglo-American Oil Company Ltd [1945] KB 23 referred to.
Judgment Number: [2003] TASSC 35
BELINDA BOND v STATE OF TASMANIA, DR GERARD JOHN GARTLAN,
DR RUPERT GORDON SHERWOOD, DR WENDY ANN HUGHES,
1 By writ filed 17 May 2002 the plaintiff commenced proceedings against the State of Tasmania and five doctors claiming to have suffered personal injuries arising from treatment which she received at the Royal Hobart Hospital between31 May 1999 and 8 June 1999. The writ has not been served on two of the doctors and by application filed 15 May 2003 the plaintiff seeks renewal to enable the fourth and sixth defendants to be served. A discretionary power to order renewal is contained in the Supreme Court Rules 2000, r107.
2 It is to be implied as a matter of construction of the Rule a condition that the power to renew should only be exercised for good reason: Kleinwort Benson Ltd v Barbrak Ltd [1987] A C 597 at 622; Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1 at 6; and Finlay v Littler [1992] VicRp 59; [1992] 2 VR 181. In the latter case Crockett J said at 186:
"It seems to me that the appellant is required (as he specifically would have been under the old rules) when attempting to show 'good reason', to disclose whether reasonable efforts had been made to serve the defendant. That expression also does not appear in the new rules. But clearly, having regard to the purpose of the rule in seeking to ensure that process should be served promptly, it seems to me that proof of reasonable efforts to serve the defendant should still be treated as a matter of considerable importance ..."
3 The plaintiff has adduced no evidence of attempts to serve the writ prior to 14 April 2003. On that date the plaintiff's solicitor wrote to the Office of the Director of Public Prosecutions advising of the issue of the writ; identifying the defendants and asking whether the Director would accept service on behalf of all or any of the defendants. On 29 April 2003, Counsel at the Office of the Director of Public Prosecutions wrote back advising that service of the writ would be accepted on behalf of the State of Tasmania, but that so far as the other defendants were concerned instructions to accept service needed to be obtained. Counsel requested that personal service be withheld until he had had a chance to obtain instructions. Time was running out as the writ would become ineffective for service on 16 May 2003 and so the solicitor for the plaintiff advised the Director that if instructions were not forthcoming to accept service within ten days the writ would be personally served. There was no response and so the writ was sent to a process server. On 14 May the process server advised that he was unable to effect personal service on the fourth and sixth defendants. It appears that those defendants no longer reside in Tasmania.
4 The position which applies where service is withheld for a lengthy part of the twelve month period allowed for service was set out by Zeeman J in National Mutual Life Association of Australasia Ltd v Huddlestone & Taylor 1997 TASSC 72, where he said at p3 of his reasons:
"Rather, the inquiry is to be directed to the whole of the period of twelve months during which the writ was current or, in the case of an application made before the expiration of the period, the whole of the period since the issue of the writ. The answer to the question whether a plaintiff has made reasonable efforts to serve a defendant is to be found by considering those things (if any) which were done during the whole of that period.
The duty of a plaintiff who issues a writ is to serve it promptly (Battersby v Anglo- American Oil Company Ltd [1945] KB 23, referred to with approval in Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1 and Finlay v Littler [1992] VicRp 59; [1992] 2 VR 181). It is in the context of that duty that the question of whether reasonable efforts to effect service have been made is to be considered. I agree with the views expressed by reference to the equivalent Queensland rule by Helman J in Inprint Ltd v Australian Mutual Providence Society, unreported, Supreme Court of Queensland, 24 April 1995. His Honour said, at 14:
'There is no evidence that the second defendant was avoiding service or that his address was unknown to the plaintiffs. While it is true that some attempts were made to serve the second defendant shortly before the application was made to Derrington J, the long delay that preceded those attempts cannot be ignored. A lengthy period of inaction, followed by a short spurt of activity would not, in the ordinary course of events I think, be regarded as showing that reasonable efforts have been made. But if there were compelling reasons for the delay, that might be another matter.'"
5 There being no evidence of any attempt to serve the writ between its issue on 17 May 2002 and the letter to the Director of Public Prosecutions on 14 April 2003, I am not persuaded that reasonable efforts to serve the fourth and sixth defendants have been made.
6 Reasonable efforts to serve the defendants not having been made, the next question is whether, notwithstanding this, there is good reason to renew the writ. Counsel for the plaintiff says that renewal will not prejudice the defendants. This application has been made ex parte and without the defendants having notice of the application, I am not prepared to accept the assertion that delay causes them no prejudice. The affidavit filed by the plaintiff's solicitor contains the assertion of the solicitor's belief that the plaintiff has a strong case. I have insufficient information to form a view as to whether in fact the plaintiff has a strong case, but even assuming that she does and even if renewal will not cause the defendants prejudice, it is not enough to justify renewal.
7 The plaintiff has not made reasonable efforts to serve the defendants and there are other factors militating against a favourable exercise of the discretion. Those factors being, firstly, that there is no assertion that the delay in service is the result of a mishap or oversight and no assertion that the fourth and sixth defendants have been given notice of the proceedings or brought the delay upon themselves. These were significant factors in the assessment made by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1979) 180 CLR 337 at 350 - 351. Secondly, no adequate explanation for the delay has been given. The only evidence I have is that after the writ issued medical reports were sought from two general practitioners. I do not know what the requests for reports related to; when they were made; when they were answered nor why service needed to await provision of the reports. I am not persuaded that the desire to get the reports provided even a satisfactory reason for the delay let alone a "compelling" reason for the delay using the language of Helman J in Inprint Ltd v Australian Mutual Providence Society (supra). Thirdly, there is nothing to suggest that the plaintiff would suffer serious prejudice if the writ is not renewed. As was the situation in Marsden v Taylor 2000 TASSC 138, the plaintiff if she wishes to pursue the fourth and sixth defendants can apply for an extension of time under the Limitation Act 1974, and in any event, the State of Tasmania has been served within time and the plaintiff asserts that the State of Tasmania is vicariously liable for the negligence, if any, of the fourth and sixth defendants.
8 Renewal is not to be ordered as a matter of course. It must be justified in the context of the policy behind the procedural rule that writs be served within twelve months and in the context of the policy behind the Rule authorising renewal which is there to provide relief in cases of inadvertence; and cases where defendants avoid service or are difficult to serve and in cases where there is otherwise good reason to allow further time for service. A plaintiff who issues a writ has a duty to serve it promptly and it is generally not right that a plaintiff should hold up proceedings whilst the defendant is left ignorant of the fact that the action has been commenced: Battersby v Anglo-American Oil Company Ltd (supra) at 32.
9 I am not persuaded that there is any injustice to the plaintiff in declining renewal. The application will be dismissed.
Bond
State of Tasmania & Ors [2003] TASSC 35
(1979) 180 CLR 337
Application for renewal of writ under Supreme Court Rules 2000 (Tas), r107, dismissed; writ not renewed in respect of the fourth and sixth defendants (para 9).