HORGAN -v- MASTER CABINETS (WA) PTY LTD [2024] WASC 272 (30 July 2024)

Background The plaintiff's claim - CIV 1866 of 2023

1. The writ of summons filed on 3 August 2023 by which the proceeding known as CIV 1866 of 2023 was commenced was indorsed with an indorsement of claim.
2. As noted in the indorsement of claim, the plaintiff was born on 2 January 1978, and he currently resides in the State of Western Australia. His claim is for damages for personal injuries, loss and damage sustained as a consequence of his exposure to and inhalation of crystalline silica in the course of his employment with the following companies:

(a) from in or about 2016 to in or about 2020, with Master Cabinets (WA) Pty Ltd (ACN 060 135 828), the first defendant in the proceeding;

(b) from in or about 2013 to in or about 2016, with Millennium Granites Pty Ltd (ACN 161 273 481), the second defendant in the proceeding;

(c) from in or about 2011 to in or about 2012, with Stonewerx Pty Ltd (ACN 149 147 142), a company which is now deregistered;

(d) from in or about 2010 to in or about 2011, with Accent Granite & Kitchens Pty Ltd (ACN 125 330 350), a company which is now deregistered;

(e) from in or about 2001 to in or about 2003, with Moltoni Adams Pty Ltd (ACN 096 615 539), a company which is now deregistered;

(f) from in or about 2000 to in or about 2001, with DrillTorque (Aust) Pty Ltd (ACN 060 314 927), a company which is now deregistered; and

(g) from in or about 1999 to in or about 2000, with Grimwood Davies Pty Ltd (ACN 009 119 500), a company which is now deregistered.

(In the indorsement of claim these companies are described together as the plaintiff's employers.)

1. It is the plaintiff's position that these employment relationships, and associated exposure to crystalline silica, occurred entirely within the State of Western Australia.[1]
2. The indorsement of claim notes that pursuant to s 601AG of the Corporations Act 2001 (Cth), the plaintiff commenced the proceeding against:

(a) AAI Limited (trading as GIO) (ACN 005 297 807), the third defendant in the proceeding, who at all material times issued policies of workers compensation insurance in accordance with Western Australian law to each of Master Cabinets (WA) Pty Ltd (ACN 060 135 828) (the first defendant), Accent Granite & Kitchens Pty Ltd (now deregistered), and Grimwood Davies Pty Ltd (now deregistered); and

(b) Insurance Australia Limited (trading as CGU Insurance) (ACN 000 016 722), the fourth defendant in the proceeding who at all material times issued policies of workers compensation insurance in accordance with Western Australian law, to each of Stonewerx Pty Ltd (now deregistered), and Moltoni Adams Pty Ltd (now deregistered); and

(c) Allianz Australia Insurance Limited (ACN 000 122 850), the fifth defendant in the proceeding, who at all material times issued policies of workers compensation insurance, in accordance with Western Australian law to DrillTorque (Aust) Pty Ltd (now deregistered).

1. In the alternative to the claims against the third, fourth and fifth defendants made pursuant to s 601AG of the Corporations Act (described at [9] above), pursuant to s 601AG of the Corporations Act, the plaintiff sues the Insurance Commission of Western Australia (ABN 29 939 126 359), the sixth defendant in the proceeding, as the entity liable for policies of workers compensation insurance issued in accordance with Western Australian law to each of the plaintiff's employers.
2. As also noted in the indorsement of claim, the plaintiff claims that his exposure to, and inhalation of, crystalline silica has caused him to develop the lung disease silicosis. Further, he claims that as a consequence of his injury, he has suffered loss and damage, and the cause of this was:

(a) the negligence of each of the plaintiff's employers;

(b) the breach of statutory duties by each of the plaintiff's employers; and

(c) the breach of contract by each of the plaintiff's employers.

1. By the proceeding, the plaintiff claims from each of the defendants damages, interest, and costs.

1. The writ of summons filed on 3 August 2023 by which the proceeding known as CIV 1867 of 2023 was commenced was also indorsed with an indorsement of claim.
2. As noted in the indorsement of claim, the plaintiff was born on 2 January 1978, and he currently resides in the State of Western Australia. His claim in the proceeding known as CIV 1867 of 2023 is for damages for personal injuries, loss and damage sustained as a consequence of his exposure to and inhalation of crystalline silica in the course of his employment as a stonemason with the following companies:

(a) from in or about 2016 to in or about 2020, with Master Cabinets (WA) Pty Ltd (ACN 060 135 828);

(b) from in or about 2013 to in or about 2016, with Millennium Granites Pty Ltd (ACN 161 273 481);

(c) from in or about 2011 to in or about 2012, with Stonewerx Pty Ltd (ACN 149 147 142); and

(d) from in or about 2010 to in or about 2011, with Accent Granite & Kitchens Pty Ltd (ACN 125 330 350).

(In the indorsement of claim these companies are described together as the plaintiff's employers.)

1. The plaintiff has joined eight defendants to the proceeding. They are Carsilstone Pty Limited (ACN 104 148 389) as the first defendant, Caesarstone Australia Pty Limited (ACN 121 819 976) as the second defendant, Halifax Vogel Group Pty Limited as the third defendant, Smartstone Australia Pty Ltd (ACN 148 937 008) as the fourth defendant, WK Marble And Granite Pty Ltd (ACN 074 331 981) as the fifth defendant, Laminex Group Pty Limited (ACN 004 093 092) as the sixth defendant, J.H. Wilberforce Pty Ltd as the seventh defendant, and Cosentino Australia Pty Limited (ACN 150 158 277) as the eighth defendant.
2. As also noted in the indorsement of claim, the plaintiff claims that at all material times the defendants, and each of them:

(a) operated businesses which involved manufacturing, and/or importing, and/or supplying, artificial stone products containing crystalline silica (Engineered Stone); and

(b) supplied their Engineered Stone products to clients in the State of Western Australia, including to the plaintiff's employers.

1. The plaintiff claims that throughout the course of his employment with each of the plaintiff's employers, he was exposed to and inhaled crystalline silica emanating from the defendants' Engineered Stone products. Further, the plaintiff claims that exposure to and inhalation of crystalline silica has caused him to develop the silica‑related lung disease silicosis (the Injury).
2. As noted in the indorsement of claim, the plaintiff says that as a consequence of the Injury, the plaintiff has suffered loss and damage. The plaintiff also says that the cause of his Injury, loss, and damage, was first, the negligence of each of the defendants; and secondly, the breach of statutory duties by the plaintiff's employers.
3. It is the plaintiff's position that all of the employment relationships and associated exposure to crystalline silica occurred entirely within the State of Western Australia.[2]
4. By this proceeding, the plaintiff claims from each of the defendants damages, interest, and costs.

1. In the affidavits made by Mr McGinley and filed in each proceeding, Mr McGinley deposed that he had been instructed by the plaintiff as follows.
2. On 5 August 2020 the plaintiff underwent a CT scan at Envision Medical Imaging in Wembley, Western Australia. He was referred for this CT scan as a precaution, as he was known to have a history of occupational silica exposure. This CT scan suggested that the plaintiff had lung changes suspicious for silicosis.
3. Following the CT scan, the plaintiff was referred by his general practitioner to respiratory physician Dr David Manners, who he consulted on 4 September 2020. It was during the consultation with Dr Manners that the plaintiff was informed of his diagnosis of silicosis.
4. Since December 2021, the plaintiff has been under the care of doctors at the Respiratory Department at the Sir Charles Gairdner Hospital, who have regularly reviewed him. The plaintiff is due to be reviewed by the Respiratory Department at the Sir Charles Gairdner Hospital again in October 2024.
5. Since his diagnosis of silicosis on 4 September 2020, the plaintiff has been repeatedly advised by his treating doctors that:

(a) his lung disease of silicosis has not shown signs of progression;

(b) he does not currently demonstrate any significant evidence of impairment from his disease of silicosis; and

(c) his disease of silicosis is at risk of progression in the future.

1. The plaintiff was assessed by the Industrial Diseases Medical Panel of WorkCover WA, which panel was constituted pursuant to s 36 of the Workers' Compensation & Injury Management Act 1981 (WA) (repealed),[3] to determine the questions under s 38 of that Act. On 20 September 2022, the Medical Panel concluded its determination and in summary, certified that the plaintiff was unfit for heavy work because silicosis has adversely affected the worker's ability to undertake physical effort to the extent of 10%.
2. The plaintiff does not currently suffer from significant symptoms or disability from his disease of silicosis, and he continues to be able to work full‑time, and manage his own personal care, and activities of daily living.

1. In the affidavits made by Mr McGinley and filed in each proceeding, Mr McGinley described the history of each proceeding in identical terms.
2. The plaintiff commenced the proceedings by filing writs of summons on 3 August 2023. Mr McGinley deposed that the proceedings were commenced, among other things, to preserve the plaintiff's entitlement to claim damages, in light of the limitation period imposed by the provisions of Limitations Act 2005 (WA).
3. Mr McGinley deposed that the writs had not been served on any of the named defendants. He further deposed that the plaintiff had so far refrained from serving the writs on any defendant so as to allow the plaintiff to undergo further medical reviews, and to determine whether there is any evidence of progression of his diseases. Mr McGinley observed in his affidavits that whether the plaintiff's disease progresses will have a significant impact on each proceeding and the plaintiff's claims for the following heads of damages:

(a) general damages for future pain and suffering (non‑economic loss);

(b) damages for future out-of-pocket expenses, including medical, hospital, and pharmaceutical expenses, as well as the cost of future commercial care and domestic assistance;

(c) damages for future need for gratuitous care and domestic assistance from members of his households (described by Mr McGinley as 'Griffiths v Kerkemeyer [1977] HCA 45 type damages'); and

(d) damages for future loss of earning capacity, if his disease were to progress to a stage where it prevented him from working.

1. Mr McGinley further deposed that the plaintiff seeks to allow as much time as possible to pass, since his initial diagnosis of silicosis, to determine whether there is any evidence of progression of his disease, which could significantly impact his claims for damages.
2. Mr McGinley also deposed to his belief that by the Workers Compensation and Injury Management Bill 2023 (WA), legislative changes had come into effect on 1 July 2024, which included amendments to s 56 the Limitations Act which affects claims for silica‑related diseases, such as silicosis. Mr McGinley further deposed that the plaintiff also seeks more time to determine the effects, if any, these changes have on his entitlement to claim damages for his lung disease of silicosis.

1. Order 7 r 1(1) of the Rules of the Supreme Court 1971 (WA) relevantly 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. The order aims to ensure that writs are served because it is undesirable to allow a plaintiff to issue a writ before the expiry of a limitation period and then delay service for an indefinite period; lengthy delays cause difficulties in the ascertainment of the truth; it is wrong that people should be left in ignorance of proceedings that have been taken against them if they are here to be served; it is unfair to require potential defendants to contemplate potential litigation because of the uncertainty and financial and other burdens which would be the result; and the proper administration of the court would be hampered if writs could be issued and then left to lie dormant for indefinite periods.[4]
2. Pursuant to O 7 r 1(2) of the Rules of the Supreme Court, where a writ has not been served on a defendant, the court may by order extend the validity of a writ from time to time for such period, not exceeding 12 months at any one time, beginning on 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 day (if any) as the court may allow.
3. There is a wide discretion to order an extension of the validity of a writ for service under O 7 r 1(2), and the discretion is to be exercised as the justice of the case requires.[5]
4. The principal factors relevant on an application of this nature include:[6]

(a) the length of delay in service of the writ;

(b) the reason for the delay;

(c) the conduct of the parties; and

(d) any hardship or prejudice caused to the plaintiff by refusing the renewal, or to the defendant by granting it.

1. Those factors are not exhaustive nor are they to be treated simply as a check list, as the ultimate question must always be what the interests of justice require in the particular circumstances of the case.[7]
2. In general, the application to extend the validity of a writ is made ex parte and should be supported by an affidavit, which contains the facts that are relied upon to invite the court to exercise the discretion to extend the writ.[8]
3. Despite being an ex parte application, an application to extend the validity of a 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, 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.[9] However, such notice does not give the court jurisdiction over the defendant.[10]
4. The relevance of the limitation period to the application to extend the validity of a writ is well settled. As the writ is not a nullity, a defendant does not acquire an absolute right to immunity when a writ issued within the limitation period is not served before it has expired.[11] By its issue, an action is deemed to have been commenced for the purpose of the Limitation Act 2005 (WA).[12]
5. Although the failure to serve gives the defendant the right to contend that, in its discretion, the court should not renew the writ, renewal out of time (which is needed by reason of non-compliance with rules of the court rather than a disregard of a statute of limitations) cannot properly be described as depriving a defendant of a defence the essence of which is a failure to issue within time.[13] Consequently, the plaintiff's burden in seeking an extension is not increased or reduced by reason of the limitation period expiring.[14]
6. Master Sanderson acknowledged the existence of three categories of cases in T-D Joint Venture Pty Ltd (in liq) v SGH Energy Corporate Pty Ltd [2016] WASC 102 at [8]:[15]

(a) Category 1, where the application for extension is made at a time when the writ is still valid and before the relevant period of limitation has expired;

(b) Category 2, where the application for extension is made at a time when the writ is still valid but the relevant period of limitation has expired; and

(c) Category 3, 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.

1. In any application to extend the validity of a writ, a plaintiff should ensure that there is sufficient information before the court to allow it to assess reliably whether the statutory limitation period, which is applicable to the alleged causes of action, had expired as at the date on which the writ became stale.[16]

1. On balance, I am satisfied that the interests of justice require that the validity of the writs be extended. In so concluding, I weigh the following matters in the balance.
2. First, counsel for the plaintiff informed the court that each application pressed concerns a category 2 case.[17] That is, the applications have been made and have been listed for hearing on a date before the expiry of the writs of summons, on the basis that the relevant limitation period had expired. However, counsel acknowledged that the proper categorisation of each application was subject to the amendments made to the Limitation Act on 1 July 2024.[18]
3. As was deposed to by Mr McGinley, the plaintiff's applications had been made in circumstances where the impact of the legislative amendments that came into operation on 1 July 2024 with respect to the accrual of a cause of action relating to a personal injury attributable to the inhalation of silica dust had not been fully considered by the plaintiff's solicitors. In the course of the hearing, it was also noted that the Civil Liability Amendment (Provisional Damages for Dust Diseases) Bill 2024 continued to progress through the Parliament of Western Australia.[19]
4. The affidavit evidence filed in support of the applications suggests that the applications may in fact concern category 1 cases, that is, the applications for extension have been made and have been listed for hearing before the expiry of the writs of summons, and before the expiry of the relevant period of limitation.[20] That said, counsel is not in a position to address the impact of the recent legislative amendments.
5. While there is evidence before the court that might allow an assessment to be made, and the plaintiff is represented by solicitors in the proceedings, the plaintiff's representatives have not sufficiently considered the amended Limitation Act so as to form a view as to whether the statutory limitation period, which is applicable to the alleged causes of action, will have expired as at the date on which the writs will become stale.
6. In circumstances where the plaintiff has not had the benefit of important advice, I am satisfied that there would be prejudice to the plaintiff if the validity of the writs were not extended. The recent legislative amendments, and the continued progress of the Civil Liability Amendment (Provisional Damages for Dust Diseases) Bill 2024 through the Parliament of Western Australia, are matters which weigh in favour of extending the validity of the writs.
7. Secondly, while the plaintiff was delayed in serving the writs and has made a conscious decision to withhold service, in the circumstances deposed to by Mr McGinley, there has not been an unreasonable delay on the plaintiff's part. The plaintiff remains under the care of doctors at the Respiratory Department at the Sir Charles Gairdner Hospital, who have regularly reviewed him, and he is due to be reviewed again by the Respiratory Department at the Sir Charles Gairdner Hospital in October 2024. He seeks additional time so as to determine whether there is any evidence of progression of his disease, which could significantly impact his claim for damages. I accept that waiting upon further test results is a proper explanation for delay in service of the writs.
8. Thirdly, as to the prejudice to the defendants if the applications were granted, it has, of course, long been recognised that the mere fact of delay can be a cause of prejudice to a party to litigation.[21] In this case, this is exacerbated by the nature of the alleged disease and that the plaintiff alleges exposure to silica dust as early as 1999 in the proceeding known as CIV 1866 of 2023, and as early as 2010 in the proceeding known as CIV 1867 of 2023. Of course, there can be no criticism of the plaintiff with respect to the effluxion of time between the alleged exposures and diagnosis, and I am not otherwise aware of there being any other particular substantial prejudice to the defendants if the validity of the writ of summons was extended.
9. Indeed, if the applications pressed are in fact category 1 cases, it is difficult to identify the prejudice to the defendants that might arise upon the validity of the writs being extended, as the plaintiff would not be statute barred from commencing fresh proceedings in any event.
10. Fourthly, I note that the defendants were not put on notice of either application, which in the circumstances was not required. These were not applications made to extend the validity of a writ when there had been ineffective service of a stale writ, or where the plaintiff also sought an order forgiving or curing an irregularity pursuant to O 2 r 1 of the Rules of the Supreme Court.
11. Finally, I am cognisant that if the defendants in the end take issue with the orders made ex parte, after service and the filing of an appearance, relief may be sought pursuant to O 58 r 23 of the Rules of the Supreme Court to set aside the ex parte orders extending the validity of the writs.

1. In the circumstances, I am satisfied that the discretion to extend the period of the validity of the writs for service ought be exercised to further justice being done. It is appropriate and just that pursuant to O 7 r 1(2) of the Rules of the Supreme Court, the validity of the writs filed on 3 August 2023 be extended for a period of 12 months beginning on 3 August 2024, particularly in light of the plaintiff's intention to obtain further medical evaluations, and the proposed future conduct of the proceedings as described by counsel.[22] Further, it is also appropriate that the costs of the application be in the cause.
2. Order 7 r 1(3) of the Rules of the Supreme Court provides that 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 extended. Upon the extraction of orders, the plaintiff ought to liaise with Central Office to obtain writs marked with an official stamp as required by sub‑rule (3).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of TJ McGinley sworn 23 July 2024 and filed in CIV 1866 of 2023, par 4.

[2] Affidavit of TJ McGinley sworn 23 July 2024 and filed in CIV 1867 of 2023, par 5.

[3] The Workers' Compensation and Injury Management Act 1981 (WA) was repealed by the Workers Compensation and Injury Management Act 2023 (WA) s 615 (No 21 of 2023) on 1 July 2024.

[4] Brealey v Board of Management of Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 [15], [45], cited in Lexis Nexis, Civil Procedure Western Australia, vol 1 (189-02-21) [7.1.1].

[5] Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561, 575, cited in Brealey v Board of Management Royal Perth Hospital [52].

[6] See Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337, 344, 346, citing Victa Ltd v Johnson (1975) 10 SASR 496, 503 - 504; Brealey v Board of Management Royal Perth Hospital [52].

[7] Lawless v MacKendrick [No 2] [2008] WASC 15 [17].

[8] Civil Procedure Western Australia [7.1.5], citing Brealey v Board of Management of Royal Perth Hospital [77].

[9] Brealey v Board of Management of Royal Perth Hospital [21].

[10] Civil Procedure Western Australia [7.1.5], citing Monteleone v Owners of the Old Soap Factory [2007] WASCA 79 [23].

[11] Civil Procedure Western Australia [7.1.4], citing Mighty River International Ltd v Mineral Resources Ltd [2017] WASC 298 [57].

[12] Brealey v Board of Management of Royal Perth Hospital [6].

[13] Van Leer Australia Pty Ltd v Palace Shipping KK (341 - 342).

[14] Mighty River International Ltd v Mineral Resources Ltd [57].

[15] Citing Kleinwort Benson Ltd v Barbrak Ltd [1987] 1 AC 597, 615 - 616.

[16] Chalmers and Partners v Kensit [2008] WASCA 122 [33(b)].

[18] In this regard, I note that s 56 of the Limitation Act was amended by s 657 of the Workers Compensation and Injury Management Act 2023 (WA).

[20] Particularly when regard is had to the affidavit of TJ McGinley sworn 23 July 2024 and filed in CIV 1866 of 2023, pars 6(d), (e) and (f), TJM 7; and the affidavit of TJ McGinley sworn 23 July 2024 and filed in CIV 1867 of 2023, pars 7(d), (e) and (f), TJM 7.

[21] As was observed by Newnes J in Lawless v MacKendrick [No 2] [32].