Procedure - Supreme Court procedure - Service of a stale writ - Application to extend validity of writ - Appeal against orders refusing extension - Operation of O 2 r 1 in conjunction with O 7 r 1 considered - Order 2 r 1 gives the Court broad discretion to remedy irregularities - Exercise of discretion subject to policy in O 7 r 1 that writs should be served timeously - Must establish that in relevant circumstances an injustice will occur if O 2 r 1 remedy not granted - Order 7 r 1(2) applies to service of a valid writ - Validity of writ may be extended against one defendant and not another - Mere extension of validity does not alone retrospectively validate service of stale writ - Appellant gave no good reason for delay - Failure of natural justice by Judge making decision without hearing counsel - Appeal dismissed

Procedure - Supreme Court procedure - Conduct of solicitor - General principles - Turns on own facts

Supreme Court Rules, O 2 r 1, O 3 r 5, O 6 r 8, O 7 r 1, O 7 r 3

Respondent (Second Defendant) : Mr G T W Tannin & Ms K E McDonald

Respondent (Second Defendant) : State Crown Solicitor

Brokenshire v Bacon [1895] 1 VLR 273

Craine v Colonial Mutual Fire Insurance Company Ltd [1920] HCA 64; (1920) 28 CLR 305

Hampden v Wallis [1884] 26 Ch D 746

In Re The Melbourne Democratic Club [1901] 27 VLR 88

Ray v The Justices of Melbourne [1891] VicLawRp 45; [1891] 17 VLR 186

Re Alcock (1875) 1 CPD 68; 33 LT 352

Singh (Joginder) v Duport Harper Foundries Ltd [1994] 1 WLR 769

1 MALCOLM CJ: In my opinion this appeal should be dismissed for the reasons to be published by Ipp J with which I am in general agreement.

2 The only point upon which I wish to add some comments concerns the relationship between the provisions relating to the effect of non-compliance with the Rules of the Supreme Court 1971 contained in O 2 and the provisions of O 7 relating to the validity of a writ for the purposes of service.

"For the purposes of service, a writ (other than a concurrent writ) is valid in the first instance for 12 months beginning with the date of its issue ..."

4 In this case the writ was issued on 21 February 1997. It had not been served on either Mr Hardcastle as first defendant or the respondent as second defendant within the 12 month period which expired on 20 February 1998. The writ was served on the respondent on 27 February 1998. This was a week after the writ had ceased to be valid for the purposes of service.

5 Mr Hardcastle's solicitors informed the appellant's solicitors on 27 February 1998 that they would not accept service of the writ and returned it. The respondent referred the writ to its solicitors. They took the position that because the writ was stale when served the respondent had not "accepted service" of it. The solicitors informed the appellant's solicitors by letter dated 3 March 1998 that the writ was stale and the respondent had not accepted service of it.

6 In my opinion the position was that, at the time of service, by reason of O 7 r (1) the writ was invalid for the purposes of service. It follows that, unless that invalidity for such purposes could be rectified with retrospective effect, the purported service was of no legal effect. In my opinion, unless something more appears, that will remain the position, notwithstanding that the writ was good for all purposes other than service after the expiration of the period of 12 months: In re Kerly, Son & Verden [1901] 1 Ch 467 at 468 per Stirling LJ. Thus, for example, the action will be deemed to have been commenced for the purposes of any relevant provision of the Limitation Act 1935.

7 On the application of the appellant an order was made by a District Court Deputy Registrar on 12 March 1998 extending "the validity of the writ" for three months from the date of expiry. The writ was then served on Mr Hardcastle but was not served on the respondent. The appellant's solicitors appear to have taken the view that once the validity of the writ for the purposes of service was retrospectively extended until 20 March 1998, the purported service of the writ on the respondent on 27 February 1998 became effective retrospectively.

8 As appears from the reasons to be published by Ipp J, on 20 August 1998 a District Court Registrar set aside the order of the Deputy Registrar so far as it applied to Mr Hardcastle, but dismissed an application by the respondent to set aside the order. The respondent's appeal to the learned Judge of the District Court against that order was upheld. Her Honour set aside the order made on 12 March 1998 by the Deputy Registrar.

9 In the course of the appeal, the appellant sought by way of alternative relief, an order pursuant to O 2 r 1 of the Rules of the Supreme Court that the Court further extend the time for service of the writ until 27 February 1998. It was contended that the failure to extend the validity of the writ under O 7 r 1 should be treated as an irregularity rather than a matter of validity, in the sense that the purported service on 27 February 1998 should not be treated as a nullity. The irregularity was said to consist of "serving the stale writ and failing to re-serve the writ after its validity had been extended". The learned District Court Judge dismissed this application.

10 In the three decisions of the Court of Appeal in England referred to by Ipp J it has been held that the failure to extend the validity of a writ or other originating process is an irregularity which can be remedied under O 2 r 1 of the English Rules of the Supreme Court, which is in substantially the same terms as our O 2 r 1. A stale writ is not a nullity but only invalid for the purposes of service: Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337. That case involved the application of O 8 r 1(1) of the High Court Rules 1952 (Cth) which provided that a writ issued out of the High Court remained in force for only 12 months, unless renewed for a further six months upon application made before the expiration of the 12 months. By r 1(2) it was provided that the Court may order renewal if satisfied that reasonable efforts had been made to serve the defendant, or for other good reason. The rule also provided for further applications from time to time during the currency of the renewed writ. In that case the application for renewal was made well after the expiration of the six months' period of first renewal. Stephen J at 339 decided that in such a case O 60 r 6, which provided for extensions of time even where the application for extension was not made until after the time had expired, enabled the time to be extended to enable the application for renewal to be made.

11 In Van Leer, although the limitation period of one year under the Hague Rules had expired, Stephen J both extended the time for making the application and ordered renewal. In doing so he approved the decision of Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496 in which the Chief Justice said at 503:

"It follows then that it is incorrect to talk about allowing a cause of action or a new cause of action to be set up after the expiry of the period of limitation. Once the writ is issued within the period, the Statute of Limitations is ousted or rather never comes into operation. It is not the statute, which the court must obey on what it thinks is its proper interpretation, but the rule of court which takes over then. That rule has the discretion built into it and that discretion is to be exercised judicially, indeed, but not fettered by inflexible prescriptions ..."

12 The approach adopted in Victa Ltd had earlier been independently adopted by this Court in McLeod v The Western Australian Trustee Executor and Agency Co Ltd (1951) 53 WALR 4. In that case, the respondent had issued a writ on 4 August 1942 claiming unpaid rent. The writ was not served within 12 months. Order VIII r 1 of the Rules of the Supreme Court was in the same terms as the High Court rule considered in Van Leer. Order LXIV r 7 provided for an extension of time even though the application was made after the relevant time had expired. Dwyer CJ made an order under O LXIV r 7, extending the time for making the application and ordered the renewal of the writ. An appeal from that decision was dismissed. Walker J at 14 preferred the more liberal approach adopted by the Court of Appeal in England in Holman v George Elliott & Co Ltd [1944] 1 KB 591 to that adopted in Battersby v Anglo-American Oil Co Ltd [1945] KB 23. In the latter case Lord Goddard, delivering the judgment of the court, said at 32 of Holman's case:

"That is a decision of this Court, but in our opinion it is in conflict with earlier cases also decided in the Court of Appeal. Accordingly, in conformity with the decision of the Full Court in Young v British Aeroplane Co ([1944] KB 591, 594) we are at liberty to disregard it, and, in our opinion, we ought to follow the earlier decisions."

13 These earlier decisions held that a writ should not be renewed if the limitation period had expired since the issue of the writ. See, for example, Doyle v Kaufman (1877) 3 QBD 7 and 340 (CA); and Mabro v Eagle Star and British Dominions Insurance Co [1932] 1 KB 485 are examples of such decisions.

14 As has been made clear by Van Leer, the commencement of the action by the issue of the writ prior to the expiration of the relevant limitation period as was the case in Van Leer itself. In that case, Stephen J adopted the approach followed in South Australia in Victa Ltd (supra) which was similar to the approach adopted in Ontario in Simpson v Saskatchewan Government Insurance Office (1967) 65 DLR (2d) 324 at 329-332 per Culliton CJ. In the latter case the court was regarded as having a wide discretion to renew a writ after its expiry, notwithstanding that, in the meantime, time had run against the cause of action under a statute of limitation. Culliton CJ made the point at 332, which was accepted by Stephen J, that if the writ was first issued within the time limitation:

"... any defence based upon the time limitation is gone forever in respect of that writ. If the writ is not served within the period limited, it is not a nullity ..."

15 The Chief Justice also went on to say at 332 that the words in the rule "for other good reason" and "for any such cause" should be given "a broad and liberal interpretation" and gave the court "a wide and unfettered discretion". In my opinion, the exercise of the discretion is to prevent injustice and does not exist to indulge mere delay on the part of the plaintiff or the plaintiff's solictors, which is inadequately explained. In this respect I agree with Ipp J regarding the policy reasons which lie behind O 7 r 1 and which should govern its application, as stated in his reasons, including, in particular, the approach adopted in Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1 at 5. As Lord Bingham MR said in Ward-Lee v Lineham [1993] 1 WLR 754 at 762, while O 2 r 1 gives the court jurisdiction to "treat the failure to extend the writ as an irregularity and to waive it accordingly", the wide discretion conferred by that rule must be exercised having full regard to the policy reflected in O 7 r 1. In this respect the approach to be adopted should take into account the comments of Slade LJ (with whom Stephenson and May LJJ agreed) in Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874 at 885, while bearing in mind the cautionary note expressed by Neill LJ in Boocock v Hilton International Co [1993] 1 WLR 1065.

16 In the context of the interaction between O 2 r 1 and O 7 r 1(2) Slade LJ said in Leal v Dunlop Bio-Processes International Ltd (supra) at 885:

"It would have been an improper exercise of the Registrar's discretion under Ord 2 r1 [the equivalent of O 2 r 1], to make good the irregular service of the writ retroactively in this case, where he could not properly have renewed the writ under O 6 r 8 [the equivalent of O 7 r 1]."

17 I agree with Ipp J that this case was a "category (3) case" as defined by Lord Brandon in Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 at 616. His Lordship considered that in such a case it is not possible for a plaintiff to serve the writ "effectively" unless its validity is first retrospectively extended. For that purpose the plaintiff will be required to give a satisfactory explanation for failure to apply for an extension before the validity of the writ expired for the purposes of service.

18 In this case there was a purported service of the writ after it had become stale, namely, after it had ceased to be valid for the purposes of service by the operation of O 7 r 1(1). This gave rise to a question of the effect of the opening words in O 7 r 1(2), "Where a writ has not been served on a defendant ...", which condition the power of the Court to extend the validity of the writ. In the course of argument two different views were expressed regarding the answer to this question. Ipp J has concluded that the words refer to a valid writ. I take that to be in the sense of a writ which is valid for the purposes of service, as distinct from a stale writ which is invalid for the purposes of service. If I have understood the conclusion correctly, I agree with it. However, this conclusion does not deny the power of the Court to extend the period of validity so that the purported service, which would otherwise be ineffective, becomes effective as a result of the renewal of the validity of the writ with retrospective effect from the date of the expiry of the previous period of validity. It would also be necessary for the irregularity involved in the service of the writ without the official stamp required by O 7 r 3 to be cured under O 2 r 1.

19 It follows that I do not agree with Anderson J that O 7 lays down the procedure to be followed only when a writ has not been served at all. I do, however, agree with Anderson J that service of a stale writ is not a nullity, but an irregularity: Sheldon v Brown Bayley's Steel Works Ltd and Dawnay's Ltd [1953] 2 QB 393 per Lord Denning MR at 402. At the time of such service the writ was invalid for the purposes of service, but was otherwise a valid writ. The irregularity could be waived by the defendant so served entering an appearance without objection. Alternatively, the defendant could enter a conditional appearance under O 12 r 6 and apply to have the service set aside as irregular.

20 With respect I do not agree with Anderson J that service of a stale writ is "effective service", although irregular, unless and until the service is set aside. It does not become effective service unless and until the defendant or the Court waives the irregularity. The service of a writ when the writ was invalid for the purposes of service is necessarily ineffective by reason of the irregularity, but that irregularity can be waived. The irregularity could also be corrected under O 2 r 1, but, as has been seen, only if it would be proper at the relevant time to make an order extending the validity of the writ under O 7 r 1(2).

21 Where a plaintiff seeks to deal with the matter under O 7 r 1(2), by making an application to extend the validity of the writ when there has been ineffective service of a stale writ, and the purpose of the application is to make the ineffective service of the writ effective, the application should not be entertained ex parte, but should be made on notice to the defendant. Similarly, where the application is made by the plaintiff under O 2 r 1 to seek an order forgiving or curing the irregularity, that application should likewise be on notice.

22 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 would be significant prejudice to the respondent, constituted powerful reasons for not making an order in favour of the appellant either under O 7 r 1 or O 2 r 1.

23 IPP J: This appeal concerns various questions relating to O 7 r 1 and O 2 r 1. These arise in consequence of the appellant attempting to serve a writ of summons after the twelve month period of validity prescribed by O 7 r 1(1) had expired and, in the alternative, attempting to obtain orders extending the validity of the writ.

24 The writ of summons was issued out of the District Court. By the endorsement of claim attached to the writ, the appellant claimed damages for personal injuries arising from medical advice and services provided to her by Dr P H Hardcastle (as the first defendant) and the respondent (as the second defendant). The advice and services concerned "surgery performed by [Dr Hardcastle] on or about 5 March 1991 and 8 September 1992 at Royal Perth Rehabilitation Hospital, which hospital is managed by the [respondent]". The appellant's injuries were alleged to have occurred "as a consequence of the negligence of and/or breach of contract by [Dr Hardcastle] and the appellant, their servants or agents".

25 The writ was issued on 21 February 1997, only 12 days before the cause of action based on the surgery performed on 5 March 1991 expired. In terms of O 7 r 1(1), "for the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 12 months beginning with the date of its issue". This meant that, for the purpose of service, the period of validity of the writ expired on 20 February 1998. But the appellant continued to be tardy in taking steps to prosecute her claim and did not attempt to serve the writ prior to its expiry date.

26 Eventually, on 26 February 1998, more than a year later, the appellant served the stale writ on Dr Hardcastle's solicitors, who, on 27 February 1998, advised the appellant's solicitors that they would not accept service and returned the writ. On the same date the stale writ was served on the respondent. On 3 March 1998 the respondent's solicitors wrote to the appellant's solicitors advising that the writ was stale and that the respondent did not accept service thereof.

27 On 6 March 1998 the appellant filed a notice of motion applying ex parte for an extension to the validity of the writ. According to an affidavit by the appellant's solicitor (sworn on 6 March 1998 and filed in support of that application) the writ was not served at an earlier date as investigations into the negligence of the defendants had not been completed. The solicitor stated further:

"Moreover, [the appellant] has continued to have surgery since the date of issue of the writ, and continues to be under medical attention in relation to the injuries she received allegedly as a result of the negligence. Her injuries have not settled to the point where the claim may be initiated and prosecuted."

Nevertheless, the solicitor went on to say that the writ could be served "forthwith", if time were to be extended "for a day or so after the date of this application".

28 On 12 March 1998 Deputy Registrar Wallace of the District Court ordered that "the validity of the writ of summons filed herein be extended as against the defendant for a further three months from the due date of expiry". All the parties appear thereafter to have treated the order as extending the validity of the writ as against both defendants (ie both Dr Hardcastle and the respondent).

29 On 8 April 1998 the appellant served the validated writ on the solicitors for Dr Hardcastle, who, on 15 April 1998, filed a conditional appearance. The appellant did not serve the validated writ on the respondent, apparently because she formed the view that, once the validity of the writ was retrospectively extended (by the order of 12 March 1998) until 20 May 1998, the service of the writ on 27 February 1998 also became effective, retrospectively.

30 On 29 April 1998 Dr Hardcastle issued a chamber summons to set aside the order of Deputy Registrar Wallace made on 12 March 1998. The hearing of the chamber summons took place on 20 May 1998. The appellant's solicitor and the solicitor for Dr Hardcastle were present in the Deputy Registrar's chambers. Also present was Ms Bolitho, an articled clerk employed by the Crown Solicitor who was acting for the respondent. Ms Bolitho had been instructed by a senior solicitor in the office of the Crown Solicitor to attend the Registrar's chambers "and simply say that [she] was there on a 'watching brief' as the Board of Management of [the respondent] had not been served with a copy of the writ".

31 What in fact was said by Ms Bolitho on 20 May 1998 to the Deputy Registrar to explain her presence in his chambers is not entirely clear. She testified that, although she could not remember the exact words she used, she "advised the Deputy Registrar that I was present on a 'watching brief'." Mr J R C Gordon, the solicitor acting for the appellant, stated "the parties were informed and I verily believe that the learned Registrar noted the attendance of the solicitor for [the respondent] at the return of [Dr Hardcastle's] summons as an appearance". Mr Gordon stated further that Ms Bolitho "appeared at the summons and announced an appearance in the summons". What Mr Gordon meant by "an appearance in the summons" is not clear (that being a conclusion as to what was said) and an account of the precise words that were uttered was not provided to the Court. A note made by the Deputy Registrar at the time is inconclusive and does not shed light on the issue.

32 At the conclusion of the hearing on 20 May 1998, Dr Hardcastle's chamber summons was adjourned to a special appointment and an order was made relating to the filing of further affidavits by the appellant.

33 On 20 July 1998 the respondent issued a chamber summons claiming similar relief to that claimed by Dr Hardcastle (ie. setting aside the order of Deputy Registrar Wallace extending the validity of the writ and the service of the stale writ that had been effected on 27 February 1998).

34 On 10 August 1998 the chamber Deputy Registrar Hewitt heard the summonses issued by Dr Hardcastle and the respondent. He upheld Dr Hardcastle's application but dismissed the application by the respondent. The respondent appealed against the dismissal of its application and that appeal was heard by French DCJ. Her Honour upheld the respondent's appeal and set aside the order made on 12 March 1998 by Deputy Registrar Wallace extending the validity of the writ and the service of the stale writ.

35 In the course of the appeal, the appellant (in the alternative) sought an order pursuant to O 2 r 1 further extending time for the service of the writ. It was submitted that the Court should correct what was submitted to be an irregularity "consisting of serving the stale writ and failing to re-serve the writ after its validity had been extended". This application was not upheld.

36 The appellant appeals against the abovementioned decisions of French DCJ. A multitude of grounds of appeal are relied upon. This practice, which involves restating the same point in several different ways and in no particular order, is confusing, and unnecessary, and is to be discouraged. The plethora of complaints made in the notice of appeal can be condensed to three. These are the contentions that the learned Judge erred:

1. By failing to find that the conduct of Ms Bolitho at the hearing of the chamber summons on 20 May 1998 constituted a submission by the respondent to the jurisdiction of the District Court, or a waiver by the respondent of the irregularity constituted by the service on the respondent of the stale writ.

2. By failing to uphold the appellant's application to extend the validity of the writ for a further period to enable her to re-serve the writ.

3. By failing to accord the appellant procedural fairness in the appeal.

37 It is convenient to deal with the last ground first. The failure to accord the appellant procedural fairness, it was said, occurred in the following way. Counsel for the appellant before the learned Judge proposed to deal firstly with the argument relating to submission to the jurisdiction. Her Honour requested him, however, to first address the question whether the order made by Deputy Registrar Wallace on 12 March 1998, extending the validity of the writ, should be set aside. Counsel acceded to this request. Counsel then returned to the question whether there had been a submission to jurisdiction and her Honour stated: "I don't think there would be any need to hear you in relation to that point". In consequence, counsel made no submissions on this issue. The learned Judge reserved her decision and delivered a judgment in which she rejected the submissions made by the appellant on both questions. She thereby determined that there had been no submission to jurisdiction without hearing argument from counsel for the appellant on the question. The learned Judge erred in this respect. It follows that the appellant's argument that the respondent submitted to the jurisdiction of the Court is to be heard afresh by this Court. I turn firstly to that question.

38 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: Akai Pty Ltd v People's Insurance Company Ltd [1998] 1 Lloyd's Rep 90 at 97, Rein v Stein (1892) 66 LT 469 at 471, Williams and Glyn's Bank PLC v Astro Dinamico Compania Naviera SA [1984] 1 Lloyd's Rep 453; [1984] 1 WLR 438, Adams v Cape Industries Ltd [1990] Ch 433 at 459.

39 In applying these principles to the facts of the present case, the following matters are particularly relevant. On 3 March 1998 the respondent's solicitors informed the appellant's solicitors that "the writ is stale and my client has not accepted service of the stale writ". By 3 March 1998, therefore, the appellant's solicitors knew that the respondent contended that the purported service of the writ on it (that took place on 27 February 1998) was invalid because the twelve-month period of validity under O 7 r 1(1) had expired. The hearing on 20 May 1998 was the return of Dr Hardcastle's chamber summons; it was not a chamber summons to which the respondent was a party and no relief was thereby sought for or against the respondent. Further, the chamber summons did not concern the merits of the appellant's cause of action, but only challenged the validity of the writ and the service thereof on Dr Hardcastle. The legal representative of Dr Hardcastle who attended on his behalf did not deal with the merits of the appellant's claim. At the hearing itself, no relief was sought against the respondent and no relief was sought by it. The only orders made were procedural directions concerning the further hearing of Dr Hardcastle's challenge to the order extending the validity of the writ.

40 In the circumstances, irrespective of what may have been said by Ms Bolitho in the proceedings on that day, she was at the hearing merely as an observer. The respondent was obviously curious to know what would take place at that hearing and it is plainly for that reason that Ms Bolitho attended. Additionally, there is the factual dispute as to whether Ms Bolitho expressly stated words to the effect that she was appearing on a watching brief. Certainly, there is no evidence that she did anything to suggest that the Court should proceed to consider the merits of the matter. She was there against the background of the respondent having made it clear that it challenged the service of the writ upon it, and, in my view, it must have been obvious to all that Ms Bolitho, an articled clerk, was present at the hearing before the Deputy Registrar merely to ascertain what would transpire in the course of Dr Hardcastle's application to set aside Deputy Registrar Wallace's order. In my opinion, the relevant circumstances, when viewed objectively, do not amount to a submission by the respondent to the jurisdiction of the District Court.

41 The argument that, by Ms Bolitho's aforesaid conduct, the respondent waived any irregularity relating to the service of the writ falls to be determined by reference to similar considerations: see Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215. Accordingly, for the same reasons as those expressed in regard to the argument that there was a submission to jurisdiction, I would reject the argument that there was a waiver of any irregularity in service.

42 I now turn to the argument that the learned Judge should have upheld the appellant's fresh application to extend the validity of the writ (made under O 2 r 1) so that it could be re-served by the appellant. The argument raises several issues concerning O 2 r 1(1) and O 7 r 1 and I shall set out these rules in full.

(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 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.".

"(1) For the purpose of service, a writ ... is valid in the first instance for 12 months beginning with the date of its issue ...

(2) 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 day or such later day (if any) as the Court may allow.

(3) Before a writ the validity of which has been extended under this rule, is served it must be marked with an official stamp showing the period for which the validity of the writ has been so extended.

(4) Where the validity of a writ is extended by order made under this rule, the order shall operate in relation to any other writ (whether original or concurrent) issued in the same action which has not been served so as to extend the validity of that other writ until the exploration of the period specified in the order."

44 The question whether O 7 is a compendious code, dealing with all matters concerning the duration, extension and renewal of writs, was debated in argument. Such a proposition was upheld in Bernstein v Jackson [1982] 1 WLR 1082, but this decision no longer represents the law in England: see Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874, Ward-Lee v Lineham [1993] 1 WLR 754 and Boocock v Hilton International Co [1993] 1 WLR 1065. The gravamen of the reasoning of the Court of Appeal in the latter three cases is that the failure to extend the validity of a writ is an irregularity that can be remedied under O 2 r 1 (the English equivalent of O 2 r 1). The persuasive authority of these cases is powerful. Taking into account, in addition, the general remedial nature of O 2 r 1 and the fact that a stale writ is not a nullity (Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337), I consider that O 2 r 1 gives the court jurisdiction to "treat the failure to extend the writ as an irregularity and to waive it accordingly" (per Sir Thomas Bingham MR in Ward-Lee v Lineham at 762).

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] 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 indefinite periods.

46 It was presumably for reasons of this kind that in Leal v Dunlop Bio-Processes International Ltd Slade LJ (with whom Stephenson and May LJJ agreed on this issue) said (at 885):

"It would have been an improper exercise of the Registrar's discretion under Ord 2 r 1 [the equivalent of O 2 r 1], to make good the irregular service of the writ retroactively in this case, where he could not properly have renewed the writ under O 6 r 8 [the equivalent of O 7 r 1]. When seeking the indulgence of the Court under Ord 2 r 1, in circumstances such as the present, a plaintiff cannot, in my opinion, expect the Court to exercise its discretion more favourably than it would be prepared to exercise it on an application under Ord 6 r 8. If you cannot properly enter through the front door of Ord 6 r 8, you should not be allowed to enter through the back door of Ord 2 r 1. "

In Boocock v Hilton International Co, however, Neill LJ (at 1075), while expressing support generally for the proposition that the Court should not readily exercise its discretion under (the English) Ord 2 r 1 where it would not do so under Ord 6 r 8, observed that:

"It is always necessary to remember, however, that guidance which is given relating to the exercise of a general discretion has to be applied with caution. If a general discretion is circumscribed by binding rules it ceases to be a general discretion."

I would adopt the approach of Neill LJ on this question which, with respect, is consistent with principle. However, the general discretion under O 2 r 1 should only be exercised with due regard to the policy evinced by O 7 r 1.

47 In considering how the discretion under O 2 r 1 may be exercised so as to grant remedial relief in regard to the time restrictions under O 7 r 1(2), it is helpful to bear in mind the not dissimilar relationship between O 3 r 5 and O 7 r 1(2).

"(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 proceeding.

(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 exploration of that period."

49 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: Brown v Coccaro (1993) 10 WAR 391. In that case it was held that there is power under O 3 r 5 to make an order extending the validity of a writ when application is made more than 12 months after the last date on which the writ was valid for service. In my reasons (with which Wallwork J agreed) I noted (at 398) that this construction was consistent with the purpose of O 3 r 5 which is "a remedial provision which confers on a Court a broad power to relieve against injustice": per Wilson J in FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 284. 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": Brown v Coccaro (at 395).

50 In my view, in the same way, O 2 r 1 enables the Court to prevent manifest unfairness arising from the need to adhere rigidly to the time limits laid down by O 7 r 1(2). But before power under O 2 r 1 may be so exercised, it must be established that, without such remedial relief, injustice will occur. The application should only be granted when the justice of the case requires a departure from the policy underlying O 7 r 1.

51 I turn now to the other considerations governing the exercise of discretion under O 7 r 1 (that is, apart from the limitations provided by the time limits). These are presently relevant as, if it would not be appropriate to exercise a remedial discretion under O 7 r 1, it would be inappropriate, in any event, to exercise such a discretion under O 2 r 1.

52 In Van Leer Australia Pty Ltd v Palace Shipping KK it was held that the discretion to renew a writ after a limitation period has expired should be exercised by reference to the general justice of the case taking into account all the relevant circumstances. These would include not only the provisions of any limitation statute applicable but also the relative hardships which a grant or refusal of renewal would impose upon the parties. Relevant factors include the length of the delay, whether the delay was caused by mistake and whether such mistake is excusable, the nature of attempts made at service, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it. This approach was adopted in Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561, the Court observing (at 575) that, under O 7 r 1(2), it has a wide and unfettered discretion to see that justice is done.

53 In the present case there is a particular aspect of the facts that has a significant bearing on the exercise of this broad discretion. Firstly, on 6 March 1998, when the appellant filed her application to extend the validity of the writ, the writ was stale and the limitation period relating to the surgery performed on 5 March 1991 had expired. Secondly, on 12 December 1998, when the appellant again sought an order from French DCJ, extending the validity of the writ, the limitation period relating to the surgery performed on 8 September 1992 had also expired. 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.

54 In Van Leer Australia Pty Ltd v Palace Shipping KK Stephen J accepted that the fact that a plaintiff applies to extend the validity of a writ after the limitation period has expired is of "considerable relevance" to the application, but it is not determinative. Rather, it is but a factor in considering the general justice of the case. Adopting the same approach, I would regard a satisfactory explanation for a failure by the plaintiff to apply for extension before the validity of the writ expired to be of considerable significance to the application, but the absence of such an explanation would not necessarily be fatal.

55 Three other points need to be made concerning O 7 r 1(2) before considering the facts relevant to the issues that arise.

56 Firstly, during the course of argument, there was some discussion as to the effect of the opening words of O 7 r 1(2), namely, "where a writ has not been served on a defendant". In my view these words are to be construed to refer to a valid writ, so that, by O 7 r 1(2), where a stale writ has been served, the Court may extend the validity of the writ. I see no rationale for limiting the court's remedial power to extend the validity of the writ to only those cases where no attempt has been made to serve an invalid writ.

57 Secondly, there was some discussion as to whether, in an action where there is more than one defendant and the writ has not been validly served, the validity of the writ can be extended as regards one defendant but not the others. In BP Australia Ltd v Western Field Tanker; unreported, SCt of WA; Library No 6325; 13 June 1986 Master Seaman QC (as he then was) expressed the view that there was no power under O 7 r 1 to make such an order. With respect, however, I am unable to agree. Order 7 itself assumes that there is a dichotomous or schizoid quality about the validity of writs. In my view, once a writ may be invalid, for the purpose of service, but otherwise valid, I cannot see why it cannot be invalid, for the purpose of service, as regards one defendant, but valid for that purpose as regards others.

58 Thirdly, as I have mentioned, the appellant appears, at least for a time, to have been under the impression that the mere extension of the validity of a writ has the automatic consequence that a prior service of the writ, effected when the writ was stale, is itself retrospectively validated. This proposition is incorrect. Order 7 r 3 provides that before an extended writ is served "it must be marked with an official stamp showing the period for which the validity of the writ has been so extended". This sub-rule therefore assumes that there is a need for an extended writ to be served afresh (marked with an official stamp, as stipulated) and assumes that service of a stale writ is of no effect. The inference is that, while under O 7 r 1 a writ may be retrospectively validated, O 7 does not empower the Court to validate retrospectively the service of a stale writ. In Kleinwort Benson Ltd v Barbrak Ltd Lord Brandon observed (at 616) that, "[i]n category (3) cases ... it is not possible for the plaintiff to serve the writ effectively unless its validity is first retrospectively extended". Nevertheless, it seems to me that, as the service of a writ that is invalid for the purposes of service is an irregularity, the broad remedial powers available under O 2 r 1 would enable a court, in an appropriate case (and subject to the criterion that without remedial relief injustice will occur), to cure that irregularity. However, an order retrospectively validating a stale writ would not automatically have the effect of validating a service of the stale writ. The circumstances and consequences of the retrospective validation of the irregular service might be quite different from those applicable to the retrospective validation of the writ. For the irregular service to be validated, a specific order to that effect would be required.

59 I turn now to the factual matters relevant to the exercise of discretion under O 2 r 1, taken in conjunction with O 7 r 1(2).

60 The main prejudice the appellant would suffer, were the validity of the writ not extended so that it could be re-served, is said to be the loss of her cause of action. The significance of this kind of prejudice, in a category (3) case, is however substantially less than in instances where prejudice does not result from the appellant's own deliberate inaction, coupled with the intended and known consequences of the provisions of O 7 r 1. In Van Leer Australia Pty Ltd v Palace Shipping KK the defendant had an accrued right of limitation at the time when the notice of the writ was served. Nevertheless, the plaintiff submitted that regard should be had to the prejudice it would suffer, caused by the loss of its cause of action, if the renewal of the writ were to be set aside. Stephen J noted in this regard:

"But this seriously prejudicial consequence will be present whenever renewal of a writ is in question after a limitation period has run its course; and in the present case the prejudice is self-inflicted in the sense that [the defendant] did nothing to induce delay and service or to encourage a belief that the claim against it might be settled without recourse to litigation."

61 Senior counsel for the appellant also relied on the fact that between 12 March and 17 December 1998 the order made by Deputy Registrar Wallace extending the validity of the writ was in force (the order made by Deputy Registrar Wallace being first set aside by order of French DCJ on the last-mentioned date). It was submitted that during that period the appellant was entitled to rely on the effectiveness of Deputy Registrar Wallace's order. This, it was said, explains her failure, prior to the expiry of the limitation period, to commence a fresh action by issuing a new writ in relation to the surgery that was performed on 8 September 1992. The fact that, in these circumstances, the limitation period (applicable to the cause of action based on the 8 September 1992 surgery) expired on 17 December 1998 was said to be significant when determining whether justice required the validity of the writ to be extended afresh. Reference was made to Bell Group NV (In Liq) v Aspinall where the Court said (at 578):

"As at 5 December 1996, the appellant had issued proceedings within the limitation period and no limitation right had accrued in favour of the respondents. The appellant sought and obtained an order which the rules contemplate and which was regular on its face. Had it not obtained the order, the appellant could have taken other steps in an effort to preserve its rights against the respondents. It did not need to do so because it was protected by the order it had obtained. The effect of the order made in December 1997 was to reverse that position raising the probability that the defendants would plead a limitation defence. This, for all practical purposes, would destroy the right of the appellant to have the substance of its dispute with the respondents resolved by the courts."

62 In this case, however, as I have mentioned, the appellant did not serve the validated writ on the respondent, and such service was necessary as the retrospective validation of the writ did not make the service of the stale writ effective. Thus, without service of a valid writ, the appellant had no rights to preserve - even during the period between 12 March and 17 December 1998. The facts are therefore fundamentally different from those Bell Group NV (In Liq) v Aspinall. The comments of the Court in that case concern a fundamentally different factual situation; they do not apply to the present case. As the appellant failed to protect her position in regard to the operation of 18 September 1992 by serving a validated writ at the appropriate time, no rights had accrued to her that were capable of being prejudiced by any reliance on the validity of the writ between the dates in question.

63 As regards the prejudice that the respondent would suffer, were an extension to be granted, it is noteworthy that no affidavit was filed by it in this respect. It relied, substantially, on the prejudice Dr Hardcastle alleged he would suffer should the writ be extended as against him, and also on the general inference to be drawn from the extensive delay that occurred in this case.

64 It has often been accepted that, in cases of this kind, the mere lapse of time is itself generally to be regarded as prejudicial, see, for example, Ramsay v Madgwicks (at 7). There has been lengthy delay on the part of the appellant and in my view it is inevitable that it must cause at least some prejudice to the respondent. Apart from the difficulties of ascertaining the whereabouts of the several persons who may be able to give relevant evidence in the case, the prospects of those persons remembering the relevant facts with clarity must be questionable.

65 The specific prejudice relied on by Dr Hardcastle concerned mainly difficulties he would have in obtaining the requisite evidence to defend himself. Dr Hardcastle did not have a file in relation to the treatment he rendered the appellant. According to him, all records were kept by the respondent. He asserted that it would be difficult to trace the registrar, resident medical officer, physiotherapist and nursing staff who treated the appellant at the relevant time. Dr Hardcastle asserted, in particular, that it would be difficult to trace the resident medical officer who obtained the consent of the appellant to the operation. This is an important feature of the case as one of the allegations raised by the appellant is that she did not give informed consent to the operation undertaken in 1991.

66 According to Dr Hardcastle, on 23 April 1998 he spoke to the chief radiographer at Royal Perth (Rehabilitation) Hospital who advised him that the critical CT scans of the appellant's spine immediately after the operation in March 1991 "showing the screw positions" are missing. Those CT scans are vital to the preparation of the respondent's defence. According to Dr Hardcastle, "so long after the event it is now impossible to track where those CT scans are. Without these CT scans it will be difficult to obtain expert comment on the procedure". The weight to be attached to Dr Hardcastle's inability to find the CT scans is difficult to measure in the light of the omission of the respondent to make any independent allegations about this matter. It is not apparent whether any other investigations might reveal these CT scans. Additionally, by letter dated 2 August 1993, the respondent advised the appellant that, apart from her discharge summaries, "all other information [relating to her treatment] is available from Sir Charles Gairdner Hospital. Unfortunately we do not have this information here". This suggests that the CT scans might be at the Sir Charles Gairdner Hospital. The absence of any direct evidence from the respondent on this issue gives rise to the inference that it has not carried out investigations concerning the records relating to the respondent's treatment and the CT scans in particular. Accordingly, it is not possible to come to any conclusion as to prejudice arising out of the CT scans that are presently missing.

67 Importantly, the appellant has not given a satisfactory explanation for her failure to apply timeously for an extension. French DCJ said in this regard:

"The [appellant] chose to delay the service of the writ because she saw some advantage to her case in doing so. There is no reason why the writ could not have been served and an application for an adjournment of stay of the usual programming of interlocutory steps to be obtained. This is a simple step and unlikely to incur significant costs. The fact that the [appellant's] problems with her back had not resolved so that the extent of her damage could not be estimated is also no cogent reason not to serve the writ in the circumstances of this case. Although the [appellant] has deposed to the fact that she was preoccupied with her health problems rather than with legal proceedings this is at odds with the nature and content of her correspondence with the [respondent] prior to making a formal complaint to the Medical Board. Her letters indicate that she was keeping a diary of all of the things that happened to her while she was in hospital and while she was under [Dr Hardcastle's] care and treatment. Her correspondence suggests that she was at all times being quite vigilant in relation to details and progress of her treatment and what her rights were in relation to her medical treatment. In these circumstances I do not consider that the validity of the writ should be extended. Although some of the affidavit evidence from the [appellant's] solicitors and the chronology of events in this matter suggest that the failure to serve the writ just prior to the end of the 12 month period was an oversight this was not disclosed in the affidavit filed in support of the ex parte motion to extend when it came before Registrar Wallace. Nonetheless the affidavits clearly indicate that the initial decision to postpone the service of the writ was a deliberate one."

In my opinion, in all the circumstances of this case, these findings are powerful grounds to refuse the application. Considerations of this kind have so influenced the court in cases such as Ramsay v Madgwicks and Van Leer Australia Pty Ltd v Palace Shipping KK.

68 In the present case the delay on the part of the appellant involved a very considerable period. The appellant has failed to give a satisfactory explanation for that delay. It was quite deliberate, there being no question of mishap or oversight. The prejudice suffered by the appellant were the validity of the writ not to be extended would be self-inflicted. Were the validity of the writ to be extended the prejudice the respondent would suffer would not be insignificant. In my opinion, good reason to exercise the discretion under O 7 r 1 has not been shown and I am not persuaded that the interests of justice require the exercise of a remedial discretion under O 2 r 1. I would dismiss the appeal.

69 ANDERSON J: The issues relating to service are complicated because wrong procedures were followed at the outset due to what, I think, were two misconceptions. The first misconception was that a defendant can refuse to accept service of a "stale" writ. The second was that the court can exercise the power under O 7 r 1(2) to extend the validity of a stale writ when the writ has already been served on the defendant.

70 This writ was issued on 21 February 1997 against the surgeon Mr Hardcastle as first defendant and the Board of Management of Royal Perth Hospital (that is the respondent) as second defendant. The writ was not served on either defendant within the 12 months prescribed by O 7 r 1(1). The 12 months expired on 20 February 1998. Without making any application for a renewal of the writ, the plaintiff's solicitors caused the writ to be served on the respondent on 27 February 1998, that is, seven days after it had become stale.

71 The respondent sent the writ to its solicitors, who wrote to the appellant's solicitors informing them to the effect that, because the writ was stale when served, the respondent had not "accepted service" of it. In other words, because the writ was more than a year old, the respondent intended to simply ignore it.

72 Implicit in this approach must be the proposition that service of a stale writ (and perhaps also the writ itself) is a nullity. That this idea underlay the respondent's approach appears from par 5 of the affidavit of the respondent's solicitor, Ms Williams, sworn on 9 September 1998 in which she deposes:

"On 3 March 1998 I wrote to the plaintiff's solicitors advising that the writ purportedly served on the Board at Royal Perth Hospital on 27 February 1998 was dated 21 February 1997 and, therefore, was out of time for service prescribed by the Rules of the Supreme Court. I advised that the writ was stale and that the Board had not accepted service of the stale writ."

73 It is, however, well settled that neither a stale writ, nor service of it, is a "nullity". The only quality lacking in the stale writ is that of not being in force for the purpose of service. It is still a writ. Sheldon v Brown Bayley's Steel Works Ltd and Dawnay's Ltd [1953] 2 QB 393, per Singleton LJ at 400 and Denning LJ at 402; Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337, at 341. And it can still be served. Service of a stale writ is not a nullity. As Lord Denning said in Sheldon v Brown Bayley's Steel Works Ltd and Dawnay's Ltd (loc cit):

"... The service of the writ after the 12 months was not a nullity but an irregularity ..."

74 Therefore, it was not open to the respondent in this case to refuse to accept service. The respondent should have entered a conditional appearance as provided for in O 12 r 6 and should have applied to the court under O 2 r 1(2) to set aside the service of the writ on the ground of the irregularity. The court would then exercise the discretion conferred by O 2 r 1(2) to either set the service aside or not.

75 Personal service had not been effected on Mr Hardcastle, although I think his solicitors had been sent a copy of the writ at about the same time as it was served on the respondent. It was, therefore, appropriate for the appellant's solicitors to apply for an order extending the validity of the writ for the purpose of service upon Mr Hardcastle. An ex parte application was made to that effect, but it seems the appellant's solicitors had the idea that the application, if granted, would also have the effect of curing the irregular service on the respondent. Insofar as the application was intended to have that effect, it was, in my opinion, misconceived.

76 Order 7 lays down the procedure to be followed only when a writ has not yet been served. It enables the plaintiff to renew the writ so that, when it is served, it will not be open to the objection that it is stale. This is made very clear by the opening words of O 7 r 1(2), which are:

"(2) Where a writ has not been served on a defendant (my emphasis), the Court may by order extend the validity of the writ ..."

It is also made clear by other provisions of O 7 as to how an extended writ is to be specially endorsed for service.

77 It is my experience of practice in this Court and the District Court, that applications for renewal under O 7 r 1(2) are made ex parte and are invariably supported by an affidavit giving reasons why service has not been effected. That this is the practice here and elsewhere is confirmed by Seaman, "Civil Procedure", par 7.1.2 and by the case cited in that work, Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1, especially at 6.

78 This time-honoured procedure, especially the ex parte aspect of it, would seem quite inappropriate to a case in which service (albeit irregular service) has already been effected on the defendant. Anyway, as I have said, I am of the opinion that the introductory words in O 7 r 1(2) preclude its operation where service of the writ has already been effected. In my opinion, where a stale writ has been served and the irregularity is not waived by, for instance, the entry of an unconditional appearance, the procedure to be followed is that which is laid down in O 2 r 1(2) and O 12 r 6.

79 The appellant's ex parte notice of motion to renew the writ was filed on 6 March 1998. The affidavit in support, sworn by the appellant's solicitor, Mr Gordon, is in common form purporting to give reasons why the writ had not been served. It contains the following paragraphs:

"3. A writ was issued on behalf of the plaintiff to protect her rights under the Limitation Act as a result of the 6 year period being about to expire. However, investigations into her claim and the potential negligence had not been completed. Moreover, she has continued to have surgery since the date of issue of the writ, and continues to be under medical attention in relation to the injuries she received allegedly as a result of the negligence. Her injuries have not settled to the point where the claim may be initiated and prosecuted.

4. However, as a result of the effluxion of the 12 month period for service of the writ, it is necessary to seek an extension of time for a further period of three months in order to continue our inquiries into aspects of our client's claim. Should the Court not see fit to extend time, the writ can be served forthwith, if time is extended for a day or so after the date of this application."

80 The affidavit concluded with the following sentence:

6. "... In all the circumstances, leave of this Honourable Court is sought to renew the writ for a further period in order to complete investigations and serve the writ upon the appropriate defendants."

81 On this ex parte application, supported by that affidavit, Deputy Registrar Wallace made an order on 12 March 1998 extending the writ for a further three months. At that stage, as I have mentioned, the writ had not been personally served on the first defendant, Mr Hardcastle. Personal service of the extended writ was effected on Mr Hardcastle on 8 April 1998, and he filed a conditional appearance and an application to set aside the order of 12 March 1998 whereby the writ had been extended as against him. There was no attempt to re-serve the writ on the respondent (second defendant). Some confusion appears to have arisen at this point also, as between the solicitors. If the matter had proceeded in an orthodox manner, there would have been no occasion to re-serve the writ on the respondent. On my understanding of the Rules, in the light of the cases above mentioned, the service of the stale writ was effective service, although irregular, unless and until the service was set aside. The consequence of the irregularity was not that the service was a nullity, but that the court might, in the exercise of its discretion under O 2 r 1(2), set the service aside. This appears not to have been the approach that was taken. Instead, the solicitors got into an argument as to whether the order made on 12 March 1998 had a retroactive effect upon the validity of the service on the respondent.

82 Finally, on 20 July 1998, the respondent's solicitors did what I think should have been done in the first place. They filed a conditional appearance under O 12 r 6(2) and an application under O 2 r 1(2) seeking an order that the service of the writ on the respondent be set aside "on the grounds of irregularity which renders the service invalid". Curiously, they also sought to set aside the order of the Deputy Registrar extending the validity of the writ.

83 These applications came before Deputy Registrar Hewitt, who granted Mr Hardcastle's application to set aside the order extending the validity of the writ. He did so on discretionary grounds. Deputy Registrar Hewitt then considered the respondent's application to set aside the extension order. He came to the conclusion it was not necessary to set aside the extension as against the respondent because the writ had been served on the respondent before the order was made for its extension. He put it as follows:

"The writ was served before the extension of time was granted and as a consequence I take the view that the extension of time was quite irrelevant to the second defendant."

84 In my opinion, the Deputy Registrar was quite correct. The case stood or fell on the Deputy Registrar's determination not as to whether the writ ought to have been renewed as against the respondent but whether the irregular service, that is, the service on 27 February of the stale writ, ought to be set aside. And this is the issue which the Deputy Registrar proceeded to consider. As I understand his reasons, he took the view that the irregularity had been waived. There is no doubt that such an irregularity can be waived - Sheldon v Brown Bayley's Steel Works Ltd and Dawnay's Ltd (supra). Deputy Registrar Hewitt considered that the appearance of the articled clerk, Ms Bolitho, in Registrar's Chambers on 20 May 1998 on a preliminary hearing of the first defendant's application to set aside the order for the extension of the writ constituted a waiver. Those events are related by Ipp J and I do not repeat them. The Deputy Registrar said in his judgment:

"I take the view that [Ms Bolitho's] level of involvement by the second defendant deprived it of the right to file a conditional appearance. The second defendant chose to come to court and chose to appear at the bar table before the court and chose to inform the court of certain things."

He therefore dismissed the application and the result was that the action could proceed against the respondent but not against the first defendant, Mr Hardcastle.

85 For the reasons given by Ipp J, I do not consider that the conduct of Ms Bolitho (or of the respondent through Ms Bolitho) constituted a waiver. I take the test to be as it was expressed by Smith J in Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215, at 220, when he said:

"Although it is not easy to reconcile all the relevant decisions, the weight of authority appears to me to support the view that, in order to constitute a waiver in a case such as this, there must at least be words or conduct of such a nature that an inference can properly be drawn therefrom that the party alleged to have waived the objection does not intend to rely upon it."

86 I do not consider that the conduct of Ms Bolitho was sufficient to warrant an inference that it was the intention of the respondent not to rely on irregularities in the service of the writ upon the respondent.

87 The appellant appealed against the Deputy Registrar's order setting aside the order extending the writ in relation to service on Mr Hardcastle and the respondent appealed against (a) the Deputy Registrar's dismissal of the respondent's application to set aside service of the writ on it and (b) the Deputy Registrar's refusal to set aside the renewal of the writ as against it. The appeals were heard by French DCJ in the District Court. Her Honour dismissed the appellant's appeal in the proceedings against Mr Hardcastle, that is the appeal against the Deputy Registrar's order setting aside the extention of the writ as against Mr Hardcastle. Her Honour concluded that there had been a proper exercise of discretion by the Deputy Registrar in setting aside the extension as against Mr Hardcastle. Her Honour allowed the respondent's appeal and ordered that the order of Deputy Registrar Wallace of 12 March 1998 extending the validity of the writ as against the respondent be set aside and ordered that service of the writ on the respondent be set aside. In so doing, her Honour dealt very shortly with the respondent's appeal against the Deputy Registrar's refusal to set aside service of the writ on the respondent. As I understand her Honour's reasons, she allowed that appeal, mainly on the ground that once the Deputy Registrar had set aside the renewal of the writ it followed that there had been (as her Honour put it) "no effective service of the writ on the second defendant". The appellant now appeals to this Court.

88 In my respectful opinion, her Honour erred in treating the setting aside of the order for renewal of the writ as obviating the need to consider whether the irregular service on the respondent (service of the stale writ) ought to be set aside. The case should have been approached on the basis that service had been effected on the respondent; the question being whether a proper exercise of discretion required that service to be set aside or the irregularity forgiven under O 2 r 1(2). In the result, there was not a proper consideration of that question and this Court must now consider it. In my opinion, a proper exercise of discretion required that the irregular service be set aside. In reaching that conclusion, I adopt with respect the reasoning of Ipp J.