John Mark Vickers & Ors v Guyner Colin Mayne & Anor [1998] WASCA 180

John Mark Vickers & Ors v Guyner Colin Mayne & Anor [1998] WASCA 180 - WASCA 1998 case summary — Zoe

[71]

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".

[80]

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.

[97]

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.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (99 paragraphs)

John Mark Vickers & Ors v Guyner Colin Mayne & Anor [1998] WASCA 180 (17 July 1998)

Parties

Legislation Cited (3)

Cases Cited (7)