1 MASTER SANDERSON: On 26 May 2005, the plaintiffs issued a writ against the defendants. The writ was generally indorsed as follows:

"The Plaintiff's [sic, Plaintiffs'] claim against the Defendants, jointly and severally is for:

1. damages and for equitable relief arising out of negligence, breach of statutory duty, breach of contract, breach of fiduciary duty and breach of duty of trust and confidence;
2. Interest, pursuant to Section 32 of the Supreme Court Act 1935;
3. Costs."

2 The writ was not served on the first and second defendants until 26 May 2006. Service was out of time. The writ was valid for 12 months beginning with the date of its issue: O 7 r 1(1). Hence, the writ was valid until 25 May 2006.

3 On 20 June 2006, the plaintiffs applied to have the validity of the writ extended by three months and to have service of the writ on 26 May 2006 validated as regular service. The first and second defendants oppose the extension of the writ's validity. They do so on two grounds. First, they say that the plaintiffs have not established any proper basis for the Court to exercise its discretion to extend the writ's validity in circumstances where the plaintiffs accept that the relevant limitation period for their causes of action has expired. In this context, it is to be noted that the extension application was made after the writ expired. The first and second defendants say they will suffer general prejudice as a result of the extension. Second, they say that the writ is defective and liable to be struck out in any event.

4 As can be seen from the indorsement of claim quoted above, the writ does not disclose the circumstances of the plaintiffs' claim against the first and second defendants. To obtain some idea of the nature of the claim put by the plaintiffs against the defendants, it is necessary to refer to the affidavit of Nicholas Philip Lindsay sworn 20 June 2006 and filed in support of the plaintiffs' application. Appearing as Annexure "B" to that affidavit is a letter from Galic & Co, a firm of solicitors then acting for the plaintiffs, to the second defendant dated 17 April 2003. The letter asserts that the second defendant was retained to act on behalf of the plaintiffs in the second half of 1999 in relation to the settlement of the sale of hotel premises and an associated business. Apparently the plaintiffs subsequently rescinded the sale contract and vacated the hotel at a time which is not mentioned. In effect, it is alleged that the second defendant acted negligently in two respects. First, by failing to issue certain requisitions upon the title of the hotel property which the plaintiffs say would have revealed an encroachment across the boundary by an underground fuel tank. Second, it is alleged that the second defendant was negligent by failing to advise the plaintiffs not to go into possession pending completion of certain work orders by the vendor. It is further asserted that in 2002, the second defendant failed to advise the plaintiffs of a conflict of interest in acting for the plaintiffs.

5 The letter asserts that the plaintiffs "intend to claim damages for negligence including but not limited to their losses associated with the purchase of the hotel". The letter does not mention the first defendant at all. Nor does it mention any claim for breach of statutory duty, breach of contract, breach of fiduciary duty or breach of duty of trust and confidence against the second defendant.

6 There is no dispute between the parties that the writ expired on 25 May 2006. There does appear to be a dispute between the parties as to whether or not the limitation period with respect to these claims has expired. Mr Lindsay in his affidavit at par 6 and par 16 indicates that he believes the limitation period has expired. The first set of submissions filed in support of this application by the plaintiffs appear to confirm that position: see par 10 of the plaintiffs' written submissions lodged 9 March 2007. However, during the course of his submissions, counsel for the plaintiffs declined to concede that the limitation period had expired. Given that there is a difficulty in ascertaining either from the indorsement of claim or from the evidence what cause of action the plaintiffs put against the first and second defendants, it is appropriate to proceed on the basis that the limitation period had not expired at the date when the writ became stale and service was effected.

7 It is clearly relevant to the determination of this application to ascertain why it was that the writ was not served within time. The relevant evidence on this question is the affidavit of Mr Lindsay to which I have already referred and his further affidavit of 4 May 2007. In addition to these two affidavits, counsel for the first and second defendants applied for and was granted leave to cross-examine Mr Lindsay. The picture that emerges from the evidence can be summarised in the following way.

8 The first-named plaintiff consulted Mr Lindsay in February 2005. At the time, Mr Lindsay was employed as a solicitor at the firm of Marks & Sands. When he took instructions, Mr Lindsay formed the view that the plaintiffs' cause of action against the first and second defendants arose on or about 11 August 1999. He was mindful of the provisions of the Limitation Act 1935 (WA) and he advised the plaintiffs to file a writ of summons to preserve their claim against all potential defendants.

9 Mr Lindsay ceased employment with Marks & Sands on 10 February 2006. He then took up a position with S C Nigam & Co. The writ was issued on 26 May 2005. Mr Lindsay says that service of the writ was withheld "pending investigations as to whether or not to discontinue proceedings against any of the Defendants": par 7 of the affidavit of Mr Lindsay sworn 20 June 2006.

10 It is clear that Mr Lindsay took little or no steps in the 12 months after the issue of the writ to advance the plaintiffs' claim. On 3 May 2006, he reviewed the file for approximately one hour. During the course of that review, he telephoned Mr Martin Bennett, principal of Bennett & Co, who had provided the plaintiffs with a letter of advice dated 23 February 2003 regarding the negligence claim. Mr Bennett was unavailable and Mr Lindsay left a message asking Mr Bennett to return his call. On 24 May 2006, Mr Lindsay again telephoned Mr Bennett without success. These two phone calls and a general review of the file appear to be the only steps that Mr Lindsay took between the date upon which the writ was issued and the date upon which it was served.

11 That lack of action needs to be set against a background of prompting from the Supreme Court to take action. On 25 November 2005, a Registrar of this Court wrote to Marks & Sands asking what steps had been taken in relation to the writ of summons. That letter went unanswered. A further letter was written by the Supreme Court to Marks & Sands dated 23 December 2005. It conveyed a similar request. It too went unanswered. The Supreme Court wrote a further letter to Marks & Sands dated 2 February 2006 again asking what had happened in relation to the writ. That third letter provoked a response. On 7 February 2006, Marks & Sands wrote to the Court. They advised that the writ had not been served. The letter went on to say:

"This matter is also fairly complex and investigations are continuing in relation to the circumstances of the claim. A writ was filed in May 2005 primarily because of issues relation [sic] to the limitation period in relation to pursuing some of the Defendants."

12 That letter was misleading. In fact, no investigations had been made into any cause of action by the plaintiffs. To suggest that investigations were "continuing" was just incorrect.

13 In my view, there is no doubt that no satisfactory explanation has been provided for the delay in serving the writ of summons. Mr Lindsay did have an interrupted employment history and he doubtless had upon him many pressures associated with the practice of law in this day and age. But taking the most benign view of his lack of activity in relation to this claim, there can be no possible explanation for not serving the writ within time.

14 Before going any further, it is appropriate to state the principles which apply in a case such as this. It is to be remembered that what has been served is a stale writ. In Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79, Malcolm CJ and Ipp J held that:

(a) A stale writ is not a nullity but is invalid for the purposes of service;

(b) Failure to extend the validity of a writ is an irregularity which can be remedied under O 2 r 1. In reaching this conclusion, the majority relied on an English authority as to the scope of O 2;

(c) Service of a stale writ is necessarily ineffective by reason of the irregularity;

(d) Service of an invalid writ can be waived or corrected under O 2 r 1 but 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);

(e) Having regard to the requirement in O 7 r 1(3), 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, O 7 does not empower the Court to validate retrospectively the service of a stale writ.

15 In Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79, McLure JA, after referring to the principles to be drawn from Brealey that I have set out above, concluded that:

1. Service of a stale writ or service of an extended writ without a stamp is invalid for the purposes of service; and
2. The fact that it is an irregularity to which O 2 r 1 applies does not alter that position.

16 That means then that the question to be determined is whether the irregularity resulting in the invalid service of the extended writ should be waived or condoned.

17 The cases show that the discretion to extend the validity of a writ is wide and unfettered. However, over time some principles providing guidance have been laid down, in particular, the decision in Kleinwort Benson Ltd v Barbrak [1987] AC 597. This case was considered by the Full Court in Bell Group NV (In Liq) v Aspinall (1998) 19 WAR 561. Dealing with the speech of Lord Brandon in Kleinwort Benson, the Court said (at 574):

"Lord Brandon recognised that in an application to renew a writ questions of limitation could arise. He identified three categories of cases in which the issue might arise. Category 1 is where the application for extension is made at a time when the writ is still valid and before the relevant limitation period has expired. Category 2 cases are where the application for an extension is made at a time when the writ is still valid but the relevant limitation period has expired. Category 3 cases are where the application is made at a time when the writ has ceased to be valid and the relevant limitation period has expired. In neither category 1 or category 2 has the defendant an accrued right of limitation at the time when the extension application is made."

18 The Court went on to conclude that the discretion is wide and unfettered and "is to be applied to see that justice is done". However, any investigation is to have regard to the "balance of hardship".

19 In their submissions, the first and second defendants relied on a number of matters which they said stood against any extension being granted. First, it was said that the claim still only had the vaguest of descriptions despite the fact it is now almost eight years since the claim arose. Second, there was no valid reason for delaying in serving the writ - no purpose was served by doing so. Accordingly, there is no possible explanation for the delay in serving the writ. Thirdly, it is said that an extension will allow the first and second defendants to have a professional negligence claim dangling over them with all the attendant insurance complications.

20 While each of these points may be valid in their own right, none really amounts to a significant prejudice suffered by the defendants. This might be contrasted with the position in Monteleone where the appellant's claim was for damages for personal injury. As McLure JA points out in her reasons, the failure to serve the writ meant that the defendants were denied the opportunity to have the appellant's soft tissue injuries investigated by medical practitioners. It must be acknowledged that in this case the fact that eight years have now passed means that the chances of properly investigating the circumstances of the alleged negligence or other cause of action which arose around August 1999 have diminished. But the case relates - it would seem - to a commercial transaction which was documented. While the recollections of individuals may be of significance, the passing of time would not irreparably damage the defendants' position.

21 On balance then, I am satisfied that the interests of justice require that the validity of the writ be extended. In their written submissions, the defendants say that if the discretion to extend the writ's validity is exercised, then they do not oppose an order validating the previous service. Subject to hearing from counsel, I will make orders accordingly.

22 There is clearly a question of costs in this matter. I will hear counsel on that question at the same time I deal with the form of the orders.