TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Commencement of proceedings; originating process - Renewal of writ - Whether reasonable efforts made to serve defendant or other good reason shown.

Rules of the Supreme Court 1965 (Tas), O8, r1(1).

Verdich v McKechnie [1981] Tas R 91; National Mutual Life Association of Australasia Ltd v Huddlestone 72/1997, referred to.

Judgment Number: [2000] TASSC 138

3 Interlocutory application filed 3 September 1999 seeking renewal of the writ dismissed.

4 Leave given to the first defendant to withdraw his appearance.

1 The appeal is from an order made by a judge which renewed the respondent's writ for six months.

2 The respondent filed the writ on 3 September 1998. She named the appellant as the first defendant and also sued three other defendants namely Lisa Turner, Robert Linacre and the State of Tasmania. The endorsement of claim stated that "the Plaintiff's claim against you is for damages for personal injuries, loss and expense suffered by the Plaintiff at the Royal Hobart Hospital in Tasmania as a result of the negligence and/or breach of contract by the Defendants between the 6th of September 1995 and the 1st of September 1998".

3 The application to renew the writ was governed by the Rules of the Supreme Court 1965, which were not replaced by the Supreme Court Rules 2000 until the latter came into operation on 1 May 2000. Under the Rules of the Supreme Court 1965, O8, r1(1), no writ was in force for more than 12 months from the date upon which it was filed, including that date. If a defendant had not been served, the subrule permitted the plaintiff, before the expiration of the 12 month period, to apply to the Court or a judge for leave to renew the writ. The subrule continued by providing that "the Court or a judge, if satisfied that reasonable efforts been [sic] made to serve such defendants, or for other good reason, may order that the original or concurrent writ of summons be renewed for six months from the date of such renewal, inclusive of such date, and so from time to time during the currency of the renewed writ". (The word "have" appeared after "efforts" in early editions of the rules but was omitted on republication in 1976.)

4 On 3 September 1999 the respondent's solicitors filed an interlocutory application seeking an order that she have leave to renew the writ in respect of the appellant and that the writ be renewed for six months from 3 September 1999. The application was given 14 September 1999 at 9.30am as the date for a hearing before the Master. There is no record on the file concerning what happened with regard to that appointment. On 28 September 1999 an affidavit was sworn by Peter Andrew Warmbrunn, a legal practitioner employed by the respondent's solicitors, Piggott Wood & Baker. The affidavit was filed on the same day. On an unknown date, no record having been made of it on the Court's file, a judge granted the respondent leave and ordered that the writ be renewed for six months as and from 3 September 1999. It appears that his Honour made the order in chambers without either of the parties appearing before him. The appellant had no knowledge of the application in any event. No reasons for granting leave and making the order were published.

5 There is a note on the file that on 4 October 1999 the fact that the order was made was communicated, presumably to the respondent's solicitors. On the same day the registry renewed the writ marking it, in accordance with O8, r1(2), as having been renewed for six months from 3 September 1999.

6 On 22 February 2000 the appellant entered an appearance and on the next day filed the notice of appeal. An order was made, by consent, on 24 March 2000 that the time for the appellant to appeal be extended until 23 February 2000. That order erroneously stated that the date of the order of Slicer J, by which the writ was renewed, was 6 September 1999. That error had already been made in the notice of appeal.

7 The grounds of the appeal are that there was no material before the learned judge upon which it could properly be concluded, as required by O8, r1(1), that either reasonable efforts had been made to serve the appellant with the writ or that other good reason existed for making the order for renewal. Although the respondent's counsel initially argued that the entry of an appearance waived any irregular or erroneous renewal of the writ, that argument was abandoned and the only issues remaining for this Court's determination were those raised by the notice of appeal.

8 Counsel for both parties argued the appeal upon an assumption that the learned judge had regard to the contents of Mr Warmbrunn's affidavit. In it he said that he had carriage of the action on behalf of the respondent. The firm which employed him, Piggott Wood & Baker, received instructions in October 1995 that on 6 September 1995 the respondent received treatment at the Royal Hobart Hospital and was treated and examined by the appellant and the other two individuals named as defendants. His instructions were that as a result of certain treatment given by the three individuals named as defendants she became ill. He added that among other things she suffered from severe rectal and general pain, the growth of cysts in her abdomen and significant weight gain. She had since been hospitalised on a number of occasions. Mr Warmbrunn attested that on 3 September 1998 he filed the writ on her behalf. Prior to doing so he obtained medical reports from a number of practitioners regarding issues of liability in the action. The respondent instructed him at around that time that her physical condition, referred to above, was continuing to deteriorate. He advised her that further investigations needed to be conducted and that the writ should not be served until the respondent was in a position to prosecute her action efficiently in respect of each defendant. What further investigations Mr Warmbrunn contemplated were needed was not disclosed by the affidavit, nor whether any were conducted. He said that the last medical report was received in about October 1997 and from that date until the date of his affidavit, 28 September 1999, the respondent was hospitalised on several occasions and as a result was unable to provide him with detailed instructions to enable him to progress the action. Why being hospitalised on several occasions prevented her from providing detailed instructions over a two year period was not explained, nor did Mr Warmbrunn detail what instructions he needed. The respondent did however instruct him to file the writ.

9 Mr Warmbrunn attested that after the writ was filed the respondent continued to have treatment "and as a consequence I had further difficulties obtaining instructions". He did not explain what those difficulties were.

10 The respondent had always been in receipt of legal aid and Mr Warmbrunn said that by letter dated 3 August 1999 he was advised by the Legal Aid Commission that legal aid had been withdrawn, as with all other civil matters that were legally aided. He then advised the respondent that his firm would need to consider whether it was still prepared to act for her notwithstanding that legal aid had been withdrawn. In this case the firm resolved that it would continue to act for her on the basis that she would be a full fee paying client and on 1 September 1999 she agreed and instructed Mr Warmbrunn to proceed with the action against the first, second and fourth defendants (the appellant was the first defendant) and to serve them with the writ. She was requested to make a deposit, presumably of money, to obtain further medical reports.

11 Mr Warmbrunn said that the second and fourth defendants had been served but not the third defendant because the respondent had instructed him not to proceed against that defendant. He also said that the appellant had not been served with the writ "despite attempts to do so". Although he referred to attempts in the plural, he gave detail of only one attempt and then only by annexing a copy of an affidavit sworn by a process server on 7 September 1999. In it the process server said that on 2 September 1999 at 10.46am he attempted to serve the appellant with the writ at the Royal Hobart Hospital, 48 Liverpool Street, Hobart, but was unable to effect service. The process server was advised by hospital staff that the appellant had retired two months previously and it was their belief that he had moved to New South Wales. As a result of that information, Mr Warmbrunn said that he believed that the appellant resided interstate and he was attempting to locate him.

12 With respect, the learned judge erred in more than one way when he determined the application in the respondent's favour. Not having been renewed, the writ, issued on 3 September 1998, became stale at the expiration of 2 September 1999. That was the effect of O8, r1(1). It was a requirement of the rule that an application to renew the writ had to be made before the period expired. In this case, the application was not filed until the next day. Unless the judge enlarged the time, pursuant to the power to do so in O79, r7(1), and there is no suggestion that he did enlarge the time, he should not have entertained the application. Verdich v McKechnie [1981] Tas R 91.

13 It was also, with respect, a clear case of error that the application to renew the writ was granted. The material contained in Mr Warmbrunn's affidavit was not capable of justifying the making of the order. Two questions arose, one of which had to be answered in the respondent's favour, before the learned judge could consider exercising the discretion to renew the writ in favour of the respondent. The first such question was whether reasonable efforts had been made to serve the writ. The affidavit was deficient in that regard. It revealed that only one attempt was made to serve the writ and it was on the last day before the writ became stale. It may be assumed that there was no attempt to serve it prior to that date and the failure to make an earlier attempt was, it may be inferred, a conscious and deliberate one. One attempt made on the 365th day available to a plaintiff to effect service could not, without substantially more evidence, justify the Court or a judge being satisfied that reasonable efforts had been made to serve the writ. The whole of the 365 day period fell to be considered. National Mutual Life Association of Australasia Ltd v Huddlestone 72/1997. Upon the basis of the material in the affidavit of the process server which was annexed to Mr Warmbrunn's affidavit, it appears likely that the appellant was living and working in Tasmania for the first 10 months of the 12 month period and that an attempt to serve him in the State at any time during that 10 month period would have been successful.

14 The second question was whether there was some "other good reason" for renewing the writ. The contents of Mr Warmbrunn's affidavit could not have justified a conclusion that there was. His advice to the respondent that the writ should not be served until she was in a position to prosecute her action efficiently in respect of each defendant was not shown to be a sound one. There was no evidence that he or the respondent did anything at all with respect to the advancement of her claim or the prosecution of the action for the first 11 months of the life of the writ. His claim that the respondent was hospitalised on several occasions to the extent that she was unable to provide him with detailed instructions to enable him to progress the action could not be accepted without more evidence. When the withdrawal of legal aid galvanised some action, he was able to obtain instructions from his client. There was no evidence from the respondent to explain her responsibility, or lack of it, for the failure to serve the writ. There was no suggestion that she and her solicitors were unaware of the material limitation period for commencing the action and the period during which the writ would be in force. There was no claim that the respondent would suffer particular prejudice if the writ was not renewed. It would have meant that she would have to sue the appellant again, by issuing a fresh writ, and to do that she would first require an extension of time because the primary three year limitation period of the Limitation Act 1974, s5(1), had expired, but for all the learned judge knew the fourth defendant, the State of Tasmania, may have been vicariously liable for the appellant's negligence or breach of contract, if established. If so there may have been no prejudice to be suffered by the respondent if the writ was not renewed.

15 The respondent bore the onus of satisfying the learned judge that she had made reasonable efforts to serve the appellant or that there was some other good reason for renewing the writ and the evidence, limited as it was to the contents of Mr Warmbrunn's affidavit, fell far short of being capable of satisfying a judge of either of those matters upon a reasonable consideration. It is therefore my opinion that the learned judge should not have made the order renewing the writ. The appeal should be upheld.

16 The remaining question concerns what orders should be made by this Court. Counsel for the respondent submitted that the Court should not re-determine the application on its merits but should merely quash the order of renewal, allow the appellant to withdraw his appearance and remit the application for a fresh hearing at which further evidence could be put before the judge. I am not at all persuaded that such a course would be appropriate. The respondent has had an opportunity, of which she took full advantage, to argue the merits of her application before this Court. She did not claim that she had available to her other evidence which might, on a rehearing, result in the application being successful. This Court is perfectly capable of determining the application on its merits upon the basis of the evidence the respondent sought to rely on at the original hearing. I am unpersuaded that there is any justice in allowing her another opportunity to succeed with the application.

17 By virtue of the Supreme Court Civil Procedure Act 1932, s47(1), the Full Court has the power to make any order or determination which ought to have been made and to make such further or other orders as the case may require. An appellate court, when varying or reversing orders made below, has a duty to place the parties in the position they would have occupied but for the orders varied or reversed. Huddlestone v National Mutual Life Association of Australasia Ltd (No 2) 43/1997. "Restitutio in integrum is the right of every successful appellant". Cox v Hakes (1890) 15 App Cas 506 at 547. See also Heavener v Loomes [1924] HCA 10; (1924) 34 CLR 306 at 323 -324 and Commonwealth v McCormack [1984] HCA 57; (1984) 155 CLR 273 at 276.

18 I would set aside the order renewing the writ, dismiss the respondent's application for renewal and give leave to the appellant to withdraw his appearance.

19 I have had the advantage of reading the Reasons for Judgment prepared by Crawford J and agree with them and the orders he proposes.

20 I respectfully agree with the reasons for judgment of Crawford J, and with the orders he proposes.

21 I wish to add a little in relation to the disposition of the appeal. Given that Mr Warmbrunn's affidavit did not disclose any good reason to order the renewal of the writ, I believe the most appropriate course for the learned primary judge would have been to invite the respondent's solicitors to adduce further affidavit evidence, and to serve the appellant, assuming he was able to be located. The dismissal of the respondent's interlocutory application by this Court thus will probably leave her in a worse position than she would have found herself in if the learned primary judge had not fallen into error. Generally, such a situation will be unfair to a respondent. But I do not think such a result is unjust in this case, since it remains open to the respondent to issue a fresh writ against the appellant and apply for an extension of time under the Limitation Act 1974, s5(3).