Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734

Australian Commercial Research & Development Ltd v ANZ McCaughan Merchant Bank Limited [1990] 1 Qd R 101

Bernstein v Jackson [1982] 1 WLR 1082

Bingham v England, unreported; FCt SCt of WA; Library No 960152; 22 March 1996

Boocock v Hilton International Co [1993] 4 All ER 19

Brown v Coccaro (1993) 10 WAR 391

Carmel Exporters (Sales) Ltd v Sea-Land Services Inc (1981) 1 WLR 1068

Collector of Customs v Agfa-Gavaert Ltd, unreported; HCA; 10 December 1996

Deutsche Bundesbahn v Bernt, unreported; SCt of WA (Master White); Library No 8508; 25 September 1990

Fielding v Rigby [1993] 4 All ER 294

General Finance Ltd v Hugall, unreported; SCt of WA (Master Bredmeyer); Library No 940493; 9 September 1994

Geneva Finance Limited v Judge, unreported; SCt of WA (Master Adams); Library No 950586; 24 October 1995

Golden Ocean Assurance Ltd v Martin [1990] 2 Lloyd's Rep 215

Hubbard Association of Scientologists International v Anderson (No 2) [1972] VicRp 66; [1972] VR 577

Irving v Carbines [1982] VicRp 86; [1982] VR 861

Joseph v Joseph [1966] 3 All ER 486

Leal v Dunlop Bio-Processes International Ltd [1984] 1 WLR 874

Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513

National Mutual Life Association of Australia Ltd v Huddlestone, unreported; FCt SCt of Tasmania; 27 June 1997

Oliver v Total Corrosion Control Pty Ltd, unreported; Dist Ct of WA (Reynolds C); Library No D980061; 13 March 1998

Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444

Pontin v Wood [1962] 1 QB 594

re Pritchard decd [1963] 1 Ch 502

Rust v Barnes (1980) 2 NSWLR 726

Smalley v Robey & Co Ltd [1962] QB 577

Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337

I have had the advantage of reading in draft the reasons to be published by Franklyn J, with which I am generally in agreement. I desire, however, to make some additional observations of my own.

This case reveals a consistent failure from the time of commencement of the action to observe the Supreme Court Rules. The alleged assault, it would seem, occurred on 20 October 1990, the date which appears in the statement of claim. The proceedings were commenced against the first and second defendants in the District Court on 6 October 1992. Another company was subsequently substituted for the first defendant. The writ of summons contained an indorsement of claim which was inadequate. It did not indicate any basis upon which the defendants were said to be liable for the assault. It gives the date of the assault as being 21 October 1990.

The statement of claim was filed on 22 February 1993. It described the first and second defendants as carrying on business under the style "Tarantellas Nite Club". Although he was not initially named as a defendant, the respondent was identified in the statement of claim as having been the person who assaulted the appellant and to have been at that time either an employee of the first and second defendants or their invitee. Notwithstanding the cause of action being specified in the indorsement of claim as assault, the statement of claim itself was based upon the defendants' negligence.

By a Chamber summons filed on 7 October 1993, the appellant sought leave to join the respondent as a third defendant and further sought leave to file and serve an amended statement of claim in the terms of a minute filed therewith. The appropriate order under O18 r6 is an order joining a person as a defendant. Clearly, the joining of the respondent as a party required an amendment to the writ of summons, including the indorsement of claim, although no attempt appears to have been made to satisfy this requirement.

On 20 October 1993, the leave sought by the appellant was granted by the Principal Registrar. For reasons which remain unexplained, that order was not extracted until 14 February 1996. By the amendments then attempted to be made to the statement of claim, the claim in negligence was abandoned and, instead, a claim based on assault was substituted, it being claimed that the respondent had assaulted the appellant in purported fulfilment of his duties as a doorman, and that the original defendants were vicariously liable for his actions.

It is suggested that the statement of claim, amended pursuant to the order of the Registrar on 20 October 1993, was filed on 14 December 1993, but the document before us shows a new first defendant, Mossbury Holdings Pty Ltd, in place of the original first defendant, Lanham Holdings Pty Ltd. That amendment appears to have been premature, Mossbury Holdings Pty Ltd only having been substituted on 10 January 1994. Whether the writ was then amended does not appear. Mossbury Holdings Pty Ltd was added pursuant to O18 r6. On this occasion, it was not merely sought to obtain leave to add it as a party.

The defence of the original defendants was filed on 31 March 1994, notwithstanding that, by that time, Mossbury Holdings Pty Ltd would appear to have been substituted for Lanham Holdings Pty Ltd.

On 20 October 1994, the period of four years, prescribed in s38(1)(b) of the Limitation Act 1935 for commencing an action for assault after the accrual of the cause of action, expired, although the appellant's advisers seem to have continued under the misapprehension that the limitation period was six years.

On 29 January 1996, the respondent was served with copies of the Chamber summons filed on 7 October 1993, a minute of the proposed amended statement of claim filed on the same day, the Chamber summons filed on 14 December 1993 seeking leave to re-amend the statement of claim, a minute of the proposed re-amended statement of claim filed on 14 December 1993 and the defence of the first and second defendants filed on 31 March 1994. The respondent was not served with the writ, nor was he served with a copy of the statement of claim as amended - a minute of the proposed re-amended statement of claim apparently being thought to suffice. Neither of the relevant orders was served on him. Indeed, as indicated above, the order giving leave to join the respondent had not at that time been extracted. Whether or not the second order had been extracted has not been made known to us.

On the face of it, there does not appear to have been any order made under O18 r6 for joining the respondent as a party. In any event, the requirements of O18 r8(4) do not appear to have been met, in that the writ has not been amended (or extended) and served upon the respondent and the respondent has not therefore formally become a party to the action. No consideration appears to have been directed by the appellant's advisers to the necessity for amending the writ or to the mode of amendment required where amendments have been authorised under O21 - see r9. Nor does any attention appear to have been paid to O21 r8, which provides that, where the court makes an order under O21 giving any party leave to amend a writ or pleading, then, if that party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, of a period of 14 days after the order was made, the order shall cease to have effect, without prejudice, however, to the power of the court to extend the period. The only relevant order granted the appellant leave to join the respondent and leave to amend the statement of claim. The appellant has made no application for an extension of time, other than in the orders he is seeking in his notice of appeal herein.

In Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 , Mahoney JA discussed the distinction between an order making an amendment to a statement of claim and an order granting leave to amend a statement of claim, which is the form of the order in this case. He also discussed the rule in New South Wales equivalent to our O21 r8. At 743-744, he said:

"Under the old practice at law, although an order took effect from the date on which it was made, it might be treated as abandoned if the steps required by the law in relation to, for example, the entry of it, were not taken within a reasonable time. See [Chitty's Archbold Practice (1862) 11th ed at 1594]. A similar position might arise where the order made is not an order that the pleading or document be amended but an order that a party have leave to amend it. The court may order either that an amendment be made or that a party have leave to make an amendment. A distinction between these two forms of order has long been accepted. At law, both forms of order were recognised and provided for in the practice books : see eg, Chitty's Forms (1862) 11th ed at 215 et seq, 852 et seq. A party who obtains leave to amend might act on the leave or might abandon it at his option. If he acted on it, the order remained in effect : Chitty's Archbold Practice (at 1548). In equity, the procedure ordinarily involved the grant of leave to amend but orders that pleadings be amended were recognised : see [Seton on Judgments and Orders (1912) 7th ed at 48].

The distinction between an order making an amendment and an order granting leave to amend is preserved in the present rules ...."

Just prior to this case, in Fernance v Nominal Defendant (1989) 17 NSWLR 710, Gleeson CJ, at 723, had been concerned with s81 of the Supreme Court Act 1970 (NSW), a provision which is in similar terms to our O2 r1. He said:

"The first difficulty with this submission, and with any attempt to rely on section 81 in the present case, is that there was no "failure to comply with the requirements of [the] Act or of the rules" but merely a failure by the plaintiff to take advantage of an opportunity, limited in point of time, created by the consent order. That order, pursuant to statute, extended by a certain time the limitation period in relation to the plaintiff's claim against Mrs Vaneck and, in effect, gave the plaintiff leave to propound that claim within the specified time. That leave was not taken up."

In my opinion, O2 r1 does not prevail over O21 r8 and accordingly the appellant requires an extension of time; but I can see no justification for granting an extension.

The respondent was, on the material before us, unaware of these proceedings until long after the expiration of the limitation period. There is no suggestion that there was any particular difficulty in locating him. As already indicated, he appears never to have been served with the writ and he has not therefore formally been joined in the action as a party. There are very considerable unexplained delays, and it may be accepted that the respondent will have difficulty in securing witnesses at this stage. He claims that there were numerous witnesses whom he could have approached to testify as to the drunken and aggressive behaviour of the appellant on the night and as to the circumstances in which he received his injuries. As the matter is now over six years old, he claims to have no chance of recollecting the names of the witnesses or alternatively of locating them. Even if he were able to locate them, it is unlikely that their recollection of events after such a long period of time would be reliable. See generally Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, per McHugh J at 550-555.

In my opinion, the learned Judge in the District Court was right in dismissing the appeal from the Deputy Registrar's "declaration" that the respondent has not been joined as a third defendant to the action. How that order came to be made on the motion before him is not apparent from the papers before us, but it is noted that the Deputy Registrar had sought the assistance of counsel in formulating the order, and no issue has been raised in relation to it. The proper order would have been under O2 r2 to set aside the proceedings against the respondent, and that I take to be the practical effect of the Deputy Registrar's order. In the circumstances, there is no point in drawing attention to any more flaws in these deeply flawed proceedings. What is clear above all else is that the respondent was never joined as a party and the position cannot be salvaged by any appeal to O2 r1. I would dismiss this appeal.

The appellant, by leave, appeals against the decision of a Judge of the District Court given 6 June 1997, dismissing an appeal by the appellant against a decision of the Deputy Registrar of the District Court given 21 March 1997 on the respondent's application whereby the Deputy Registrar declared that the respondent had not been joined as a third party to District Court action no 6233 of 1997, and ordered that service of an order dated 20 October 1993 joining the third defendant to that action be set aside, that leave to extend time to serve that order be refused and that the appellant pay the respondent's costs of the application. In lieu the appellant sought orders from the learned District Court Judge on appeal as follows:

"(i) that the validity of the Order of the Principal Registrar made 20 October 1993 be extended to 15 December 1993 or such time as this Honourable Court shall think fit;

(ii) that pursuant to Order 2 Rule 1 RSC, the Amended Statement of Claim filed herein on 14 December 1993 do stand as the Writ of Summons and Statement of Claim as against the Respondent (Third Defendant);

(iii) there be a declaration that service of the Minute of Proposed Amended Statement of Claim on the Respondent (Third Defendant) on or about 29 January 1996, together with service of the extracted Order of Principal Registrar Harding made 20 October 1993 on the Respondent (Third Defendant) in or about February 1996, be valid service of originating process;

(iv) such other orders or consequential relief as this Honourable Court shall think fit."

The appeal book does not disclose the grounds of appeal to the learned District Court Judge. The grounds of appeal relied on before this Court are as follows:

"1. The learned Judge erred in failing to apply Order 2 Rule 1 RSC to the circumstances of this case. The learned Judge ought to have found that in the circumstances of this case, there was purported commencement of proceedings by the Appellant (Plaintiff) against the Respondent (Third Defendant);

2. Had his Honour correctly applied Order 2 Rule 1 RSC to the circumstances of this case, his Honour ought then to have exercised the Court's discretion in favour of the Appellant (Plaintiff), as;

(a) the Respondent (Third Defendant) had actual knowledge of the impending proceedings against him, and the basis for the same;

(b) the Respondent (Third Defendant) was 'served' with a detailed Amended Statement of Claim prior to the 6 year limitation period expiring, and had sought and obtained legal advise;

(c) the Respondent (Third Defendant) waited until after expiry of the 6 year limitation period before applying to set aside proceedings by way of Notice of Motion;

(d) the Respondent (Third Defendant) had pleaded guilty to the assault which was the subject of the Appellant's (Plaintiff's) cause of action;

(f) the Respondent (Third Defendant) had neither adduced any evidence of prejudice either at the first hearing before the learned Deputy Registrar nor at the de novo hearing of the appeal before the learned District Court Judge, in circumstances where there was at least an evidential burden upon the Respondent (Third Defendant) to do so;

(g) the balance of convenience and/or prejudice in the circumstances of this case favoured the Appellant (Plaintiff);

(h) the Respondent (Third Defendant) may very well be joined in the proceedings by either the First and/or Second Defendant in the action, pursuant to the provisions of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947."

The background to this appeal as revealed by the papers is as follows. On 6 October 1992 the appellant issued a writ out of the District Court against Lanham Holdings Pty Ltd ("Lanham") as first defendant and Maria Delores Faria and Jose Manuel Faria as second defendants, the writ being generally endorsed as follows:

"The plaintiff's claim is for damages sustained as a result of an assault which occurred at the Tarantella Nite Club, 5 Mouat Street, Fremantle on Sunday 21 October 1990 together with interest thereon and costs".

On 26 February 1993 a Statement of Claim was issued in the proceedings. In summary it alleged, inter alia, the first and second defendants to have been carrying on the business of the Tarantella Nite Club on 20 October 1990, the respondent to have been then employed by them, or alternatively to have been their invitee and the appellant to have been there and then assaulted by the respondent, as a result suffering personal injuries. On 20 October 1993, on the application of the appellant as plaintiff in the action, the following orders were made by the Principal Registrar of the District Court:

"1. The plaintiff to have leave to join [the respondent] as third defendant in this action.

2. The plaintiff do have leave to file and serve an amended statement of claim in the terms of the minute filed 7 October 1993.

The minute there referred to was a minute of Proposed Amended Statement of Claim, providing for amendments to the Statement of Claim issued on 26 February 1993 by adding the respondent thereto as third defendant and alleging him, as third defendant, to have been employed by the first and second defendants at the nightclub at the time of the assault, to have assaulted the appellant in the course of that employment causing him personal injuries, and, on 5 December 1991 at the Albany Court of Petty Sessions, to have pleaded guilty to a charge of unlawfully assaulting the appellant and doing him bodily harm on the occasion of the alleged assault. Damages were claimed against the first, second and third defendants. It is common ground that, following the grant of such leave, nothing was done to amend the writ by the addition thereto of the respondent as third defendant. An Amended Statement of Claim in purported accordance with the leave granted was filed on 14 December 1993, and so almost two months after grant of the leave. It is not in dispute that O21 r8 of the Rules of the Supreme Court, which provides as follows, applies to proceedings in the District Court and that the Statement of Claim was not amended within the time required thereby.

"8. Where the Court makes an order under this Order giving any party leave to amend a writ, pleading or other document, then, if that party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in that order or, if no period is so specified, of a period of 14 days after the order was made, the order shall cease to have effect, without prejudice, however, to the power of the Court to extend the period."

It follows and is not disputed that the leave granted on 20 October 1993 to join the third defendant and amend, file and serve the "Amended" Statement of Claim had ceased to have effect well before that Statement of Claim was filed on 14 December 1993. The result was that the purported amendments to the Statement of Claim were not made pursuant to the leave granted, the respondent had not been joined as third defendant and there was no valid amendment to the Statement of Claim.

By application also dated 14 December 1993 (the same day as the filing of the "Amended" Statement of Claim) listed for hearing on 10 January 1994, the appellant applied under O18 r6 of the Rules of the Supreme Court (applicable in the District Court) and to "re-amend" the Statement of Claim in terms of a minute filed with the application. The Minute was in the form of a "Proposed Re-Amended Statement of Claim". That amendment was allowed on 10 January 1994. The effect of the re-amendment was to substitute Mossbury Holdings Pty Ltd ("Mossbury") as first defendant in lieu of Lanham with consequential amendments, but to otherwise leave the Statement of Claim in the form for which leave had been given on 20 October 1993 and so showing the respondent as third defendant and containing allegations against him despite the orders granting leave having ceased to have effect. The appeal papers do not contain a copy of the orders then made but the reasons for decision of 26 March 1997 of the Deputy Registrar reveal that the further amendments sought were allowed and an order made dispensing with "further filing and service of the Re-amended Statement of Claim". There had been no service or attempted service or notice of any sort to the respondent at that stage of the orders of 20 October or of the purported "Amended" Statement of Claim and it seems that he was then unaware even of the existence of the action. A defence dated 31 March 1994 was subsequently filed by the first and second defendants, the first defendant named therein, curiously, being still shown as "Lanham", even though the content of the defence refers to the "Re-amended Statement of Claim". That defence alleged the third defendant to have been employed at the relevant time by "New Breed Security (WA)". Appellant's counsel concedes that none of the amendments effected on 10 January 1994 concern the respondent and that the respondent was "erroneously" named in the Re-amended Statement of Claim as third defendant. It is apparent that in making the orders of 10 January 1993 the learned Registrar was wrongly of the belief that the respondent had been properly joined and served as third defendant with the "Amended Statement of Claim".

An affidavit dated 17 December 1996 filed in the District Court on behalf of the appellant deposes that "it appears that" some further amendments were made to the "Re-amended Statement of Claim" on 10 January 1994, that there were subsequent interlocutory proceedings, that on 27 February 1995, on the application of the first and second defendants, some portions of the Re-amended Statement of Claim were struck out and that in October 1995 settlement negotiations were commenced between the appellant and the first and second defendants. No particulars of any of those proceedings appear in the appeal papers. It is not in dispute that to that point of time no attempt had been made to serve the respondent with any process in the action whatsoever. The affidavit also reveals that as a result of queries by the solicitors for the first and second defendants in the course of the negotiations, the undermentioned documents were sent by the appellant's solicitors to the respondent at Karratha by letter dated 19 January 1996, purportedly "by way of service", with notice that judgment by default would be entered if no appearance were entered within 10 days of such "service". Further, that on 29 January 1996 the same documents were personally served on the respondent at Karratha. The documents were:

"(a) Chamber Summons for Leave to Join Third Defendant and to Amend Statement of Claim dated 6 October 1993 and filed 7 October 1993;

(b) Minute of Proposed Amended Statement of Claim dated 6 October 1993 and filed 7 October 1993;

(c) Chamber Summons Pursuant to Order 18, Rule 6 and for Leave to Re-Amend Statement of Claim dated 14 December 1993 and filed 14 December 1993;

(d) Minute of Proposed Re-Amended Statement of Claim dated 14 December 1993 and filed 14 December 1993;

(e) Defence of the First and Second Defendants filed 31 March 1994;"

An affidavit of personal service on 29 January 1996 of such documents was filed in the District Court on 5 February 1996. It is significant that no order or document purporting to record the making of any order made in the proceedings to that date, nor any purported "Amended" or "Re-amended" Statement of Claim was sent to or served on the respondent and, it seems, none of the orders obtained had been extracted. Nor was there any service or purported service of the writ. Further it is not in dispute that the writ had not been renewed to permit valid service (were it otherwise open) thereof on the respondent (Rules of the Supreme Court, O7).

An affidavit of 17 December 1996 sworn by one Anna Carr, a solicitor in the office of the appellant's solicitors, refers to a telephone discussion with the respondent on 30 January 1996 which suggested that at the relevant time the respondent's employer may have been a company, "New Breed Security", and that he proposed to try and get Legal Aid and would defend the action.

An affidavit sworn by the respondent on 19 November 1996 deposes that on receipt of the above documents he assumed the requisite orders had been made and instructed his solicitors to contact the appellant's solicitors. This was done by telephone, followed by a letter dated 7 February 1996 whereby an extract of the order of 20 October 1993 was requested, the letter advising that, on receipt of that extract, "I will be entering an appearance on behalf of Mr Mayne". On 14 February 1996 the appellant's solicitors extracted the order of 20 October 1993 and forwarded the same to the respondent's solicitors by letter dated 26 February 1996. Again they requested that an appearance be filed. By letter of 15 March 1996 the respondent's solicitor pointed to the delay between 20 October 1993 and 19 January 1996 in any action being taken to serve the respondent with "any documentation" and requested details of all proceedings and documents filed since 20 October 1993, together with reasons for the delay "before deciding whether or not to enter an Appearance". The letter also referred to the possibility of prejudice due to the delay. Seven months later, by letter dated 17 October 1996, the appellant's solicitors replied to that letter by enclosing copies of an affidavit of "service" sworn 20 January 1996 of the documents sent to the appellant's solicitors by post and an affidavit by the appellant of 10 June 1995 verifying a list of documents and advised that application had been made to join "your client's employer on the basis that they (sic) were vicariously responsible for his actions". The letter also enclosed Chamber Summons seeking leave to join "the Fourth and Fifth Defendants", a Minute of "Proposed Further Amended Re-amended Statement of Claim" and an affidavit of the writer of the letter in support, all said to have been filed on 17 October 1996, together with an application to the Supreme Court pursuant to O81G of the Rules of the Supreme Court to "re-register the employer" filed 17 October 1996 and an affidavit of the writer in support, filed 17 October 1996. None of those documents appear in the appeal papers and no information is given as to who might be the Fourth and Fifth defendants there referred to. The letter seems to suggest that they are the respondent's employers said to be "vicariously responsible for his actions". That, however, does not sit happily with the statement of claim as originally issued and subsequently purportedly amended and re-amended which continues to name, it seems, the first and second defendants as the respondent's employers vicariously responsible for his actions. Other documents reveal that the application under O81G of the Rules of the Supreme Court was to re-register "New Breed Entertainment Security Pty Ltd" and that it was re-registered on 27 November 1996. Again it is noted that no copy of the writ or of any order or advice as to the content of any order made in the proceedings was sent to the respondent's solicitors with the letter of 17 October 1996. There is a further request for an appearance within 14 days. On 23 October 1996 the respondent's solicitors advised the appellant's solicitors by telephone that the respondent was taking "the point of delay" in service of the orders of 20 October 1993. There was discussion as to the filing of a conditional appearance, the appellant's solicitors threatening to enter a default judgment were that not done. They were informed by the respondent's solicitors that the appellant's claim at that time was statute barred. It is not now in dispute that the claim became statute barred on 20 October 1994. On 31 October 1996 the appellant's solicitor advised that default judgment would be entered if a conditional appearance was not entered within seven days. A conditional appearance dated 13 November 1996 was filed and served on 14 November 1996. On 22 November 1996 the respondent filed notice of motion to set aside service of the order of 20 October 1993 and seeking an order that leave to extend the time to serve that order be refused. That, it seems, was the application dealt with by the learned Deputy Registrar. The appellant's submissions suggest that it is claimed that service of the order of 20 October 1993 was effected when it was sent to the respondent's solicitors on his request in February 1996. The respondent's application appears to accept that to be the case.

On 6 June 1997 the first and second defendants (the first defendant still being named as Lanham) filed a contribution notice against the respondent as third defendant. As the learned Deputy Registrar, on 21 March 1996, had effectively set aside the order of 20 October 1993 and the appeal to the District Court had been dismissed on 6 June 1997, that notice is of no effect.

The learned Judge on appeal, consistently with the reasons and conclusion of the Deputy Registrar, held that to join the respondent as third party to the action pursuant to the leave to do so granted on 20 October 1993 required amendment to the writ of summons as the originating process. That by reason of the provisions of O21 r8 this had to be done within 14 days of 20 October 1993 in default of which the order granting leave ceased to have effect. He consequently held that the purported amendment of the Statement of Claim on 14 December 1993 by adding the respondent as a third defendant "had no legal support" and that was so despite the fact that the purportedly Amended Statement of Claim formed part of the court file. He rejected the appellant's submission that that situation was capable of remedy by virtue of the operation of O2 r1, holding that rule to contemplate and apply to proceedings validly commenced, that it was illogical to conclude that the court could have jurisdiction when valid proceedings were not on foot and that valid proceedings had at no time been instituted by the appellant against the respondent. Consequently he held that O2 r1 did not apply. He also found that at the time the respondent lodged his notice of conditional appearance he was entitled to a Statute of Limitations defence. His Honour referred to the period of six years having expired since the cause of action arose. It is not in dispute that the relevant period to give rise to the defence is four years from the cause of action. His Honour was of the view that the orders made by the learned Deputy Registrar were entirely appropriate.

It was the appellant's counsel's submission before this Court that by his application to join the respondent as a third defendant, the appellant demonstrated "an attempt to begin proceedings" against him. That being so, he submitted, the failure to join the respondent within the time permitted by O21 r8 was an irregularity within the meaning of O2 r1 which could be cured by orders in terms of those sought in the notice of appeal. He accepted, and correctly so in my opinion, that "there was never an amended writ or statement of claim pursuant to leave given by the court".

1. (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 document, 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 an order (if any) dealing with the proceedings generally as it thinks fit.

(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these Rules to be begun by an originating process other than the one employed."

The Rule is expressly directed to failures "by reason of anything done or left undone" ... "to comply with the requirements of these Rules", such failure occurring "in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings." The appeal is squarely based on a "purported commencement of proceedings".

Order 4 r1 of the Rules of the Supreme Court (applicable in the District Court) provides that every action in the court must be commenced by writ and other civil proceedings by originating summons. The word "action" is relevantly defined by s4 of the Supreme Court Act to mean "a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court ..." Relevantly, the Rules of the Supreme Court apply in the District Court. It is said in Halsbury's Laws of England, 4th Ed, Vol 37 at para 17:

"17. Action. 'Action' means any civil proceedings commenced by writ or in any other manner prescribed by rules of court. It has a wide signification as including any method prescribed by those rules of invoking the court's jurisdiction for the adjudication or determination of a lis or legal right or claim or any justiciable issue, question or contest arising between two or more persons or affecting the status of one of them. In its natural meaning 'action' refers to any proceeding in the nature of a litigation between a plaintiff and a defendant. It includes any civil proceedings in which there is a plaintiff who sues, and a defendant who is sued, in respect of some cause of action, as contrasted with proceedings, such as statutory proceedings which are embraced in the word 'matter'."

The appellant commenced his action on 6 October 1992 by writ naming the defendants thereto. At that point there was no "action" commenced by him against the respondent and, in my opinion, having regard to O4 r1 and the meaning of "action", an action against the respondent could only be commenced by amendment of the writ or the issue of a separate writ. The cause of action against the respondent, although arising out of the same set of facts, was a different cause of action. The appellant was given leave to do two things. The first was to join the respondent as a third defendant. The second was to issue and serve an amended statement of claim in terms in which the exercise of the leave to join the respondent was anticipated by naming him as third defendant and by pleading the claim against him. By the operation of O21 r8 leave would cease to have effect if not exercised within 14 days. Whether or not the appellant chose to exercise the leave so granted was a matter for his decision. He did not do so within the 14 day period. There is no requirement under the rules that any leave granted must be acted upon. Consequently, in my opinion, the failure to amend the writ to join the respondent was not a failure to comply with a "requirement" of the rules and O2 r1 had no application. In my view, O21 r8 does not set out a "requirement of the rules". It is declaratory of a result which follows if an order giving leave to amend is not exercised either within the time specified in the order of 14 days.

If I am wrong and the appellant's failures constitute a failure to comply with a requirement of the rules then, in my opinion, the failure is one in purporting to begin the proceedings to join the respondent. That follows, in my view, from the nature of the leave sought and granted and the issue of a Statement of Claim naming the respondent as third defendant. There is no explanation as to why the leave to join the respondent was not acted upon by amending the writ, nor as to the reason why the leave granted was not acted upon within the time permitted by O21 r8. It would seem, however, that the appellant's solicitors assumed the purported issue of the "Amended Statement of Claim" alleging a cause of action against the respondent and naming him as third defendant was all that was required to give effect to the orders granting leave and overlooked or were unaware of the provisions of O21 r8. That they were careless or even negligent is no reason to conclude that the failures or the results thereof are so fundamental as to be incapable of being treated as an irregularity.

Whilst an action must be commenced by writ there was an action on foot against the first and second defendant, the pleaded cause of action relying upon the assault alleged against the respondent. On the basis of the pleadings in that action there was always a very real likelihood of the respondent being joined as a party to the action either by the appellant or the defendants. The failure to amend the writ to include the respondent as third defendant had no prejudicial effect on the rights of the respondent. The respondent's application to set aside the service of the order of 20 October 1993 was not expressed to be based on the proceedings against him being a nullity but, according to his affidavit of 19 November 1996 filed in support of that application, on delay. As was said by Lord Denning MR in Harkness v Bells Asbestos and Engineering Ltd [1967] 2 QB 729 at 735 in respect of the English O2 r1(1) which is in identical terms to O2 r1(1) under consideration. "This rule should be construed widely and generously to give effect to its manifest intentions".

The failure to amend the writ was, in my view, clearly a failure to comply with O4 r1 requiring actions to be commenced by writ. Section 21 of the Supreme Court Act provides that the jurisdiction of the court is to be exercised in the manner provided by that Act and the Rules of Court. Section 52 of the District Court of Western Australia Act 1969 ("District Court Act") provides that, except as expressly provided, the practice and procedure of the District Court is the same as that of the Supreme Court. There is nothing that I can find which makes O4 r1 not applicable to actions in the District Court. There is nothing that I can find in either the Supreme Court Act or the District Court Act which would cause O4 r1 to be construed otherwise than a rule of the court providing "requirements". In my opinion the failure of the appellant to amend the writ and to issue and serve the statement of claim within the 14 day period is to be treated as an irregularity pursuant to O2 r1.

Assuming I am correct in my conclusion that O2 r1 has no application, it is nevertheless open to the court, pursuant to O21 r8, to extend the time for the amendment of the writ to join the respondent and the issue and service of an amended statement of claim in accordance with the orders of 20 October 1993. Whether it should so exercise its discretion is another matter. If I am wrong in my conclusion as to the non-applicability of O2 r1 and the matter should be treated as an irregularity, the question still arises whether the court should exercise its discretion under O2 r1(2) and make the orders sought by the appellant. It is not suggested that the respondent's application cannot succeed by reason of O2 r2.

It would seem from the reasons for decision of the learned Judge on appeal that for him the question of discretion did not arise. His dismissal of the appeal was firmly based on his conclusion that no valid proceedings had been instituted by reason of non-amendment of the writ. It is appropriate, however, that this Court give consideration to the question of discretion. Order 3 r5 provides power to extend the period within which a person "is required or authorized by these Rules, or by any judgment order or direction, to do any act in any proceedings". It is said in Seaman, Civil Procedure Western Australia, in respect of O3 r5:

[3.5.1] Purpose of rule The rule is remedial and confers a broad power upon the court to relieve against injustice which is not readily to be limited by judicial fiat: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at 283, 286. Nevertheless a party in breach of a requirement of the Rules as to time does not have an unqualified right to an extension. Prima facie they must be obeyed and in order to justify the court granting an extension of time there must be some material on which it can exercise its discretion (Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935) and if a solicitor fails timeously to take the procedural steps which are necessary to advance his client's cause, the system of justice is in danger of breaking down: Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 254; [1968] 1 All ER 543 at 552. Although in the past it was said that the Rules should never be allowed to be an instrument of tyranny and that, in general where it was sought to extend time to enable genuine issues to be litigated and that could be done with fairness to all concerned, it was appropriate to make the order, (Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30), the principles and objects of case flow management which are contained in O1 rr4A and 4B must now be taken into consideration."

The time delays on the part of the appellant are self evident from the facts set out above. The respondent was given no notice that any proceedings against him were contemplated or had been commenced until almost six years after the events said to give rise to the cause of action and some 2½ years after application to join him as the defendant was made. Proceedings against the first and second defendants had then been in force some 12 months. No explanation for not earlier joining him has been given. The appellant then failed to act in accordance with the leave given, with the result that it ceased to have effect. It was approximately two months after obtaining leave that an Amended Statement of Claim naming him as third defendant was filed. On the same day (14 December 1993), application was made to "Re-amend" the Statement of Claim and an order sought and obtained by the appellant to dispense with its service. No explanation for the latter order was provided nor was this Court's attention drawn to it. As is pointed out earlier herein, its making is referred to in the reasons of the learned Deputy Registrar . Its effect was that the respondent was left in ignorance of the proceedings. When the question of service was eventually raised in negotiations in 1996 between the first and second defendants and the appellant, no proper service was effected, neither a copy of the writ nor even of the purported "Amended" or "Re-amended" Statement of Claim being served. Despite requests then made by the respondent, all relevant documentation was not made available. It is claimed in the appellant's written submissions that the order of 20 January 1993 was served in February 1996. There was in truth no service as such. It was sent to his solicitor in response to a request for the same without advice that it had ceased to have effect. Neither the "Amended" nor "Re-amended" Statement of Claim was sent. In consequence the respondent was led to assume from the order and other documents sent that they represented the Statement of Claim as issued and validly amended. In my opinion the manner in which the appellant's claim against the respondent has been conducted is reprehensible. It is also entirely contrary to the principles of case management. The respondent at that time had and has a defence under the Statute of Limitations. That the limitation period had expired is attributable in no way to any act on his part and can only be accounted for by the delays and mishandling of the action by the appellant's solicitor. The respondent has testified to prejudice resulting from the delay in that, due to the expiration of time, "I have no chance of recollecting the names of witnesses or alternatively of locating them". He also speaks of the probability of the recollection of witnesses of events, after such a long period, being greatly diminished. In my opinion, there is merit in that claim.

I would refuse to exercise my discretion to extend time pursuant to O21 r8. I would similarly refuse to exercise my discretion were it properly the case that O2 r1 is available to remedy the appellant's failures by making the orders sought in the notice of appeal or any of them or by any other order. I would dismiss the appeal.

I have had the advantage of reading the reasons for judgment of Franklyn J. I agree with those reasons and have nothing to add.