Muirhead v Uniting Church in Australia Property Trust [1999] QCA 513

[1] DAVIES JA: I have read the reasons for judgment of Pincus JA and Williams J. Subject to the remarks made by Pincus JA, with which I agree, I agree with the reasons of Williams J. I also agree with the orders which his Honour proposes.

[2] PINCUS JA: The circumstances giving rise to this appeal are set out in the reasons of Williams J.

[3] The question whether the application was appropriately made to a judge, rather than to the registrar, was not argued; I express no opinion on it. Assuming that an affirmative is the proper answer to the question just mentioned, then in the circumstances of the present case an order to renew could be made only if there was shown "another good reason to renew the claim" - i.e. a reason other than that reasonable efforts had been made to serve the defendant. In this case no such efforts were made.

[4] Authorities on rules of a similar sort were discussed by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337. There Stephen J adopted statements of principle from South Australia and Canada (343, 344, 345, 346) in dealing with such an application. In summary, the views which his Honour applied were:

(1) There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.

(2) The discretion may be exercised although the statutory limitation period has expired.

(3) Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.

(4) There is a wide and unfettered discretion and there is "no better reason for granting relief than to see that justice is done".

[5] The last principle was applied by the Full Court of the Supreme Court in Brown v Coccaro (1993) 10 WAR 391 at 400. Further, Van Leer, although a decision of a single judge, acquires some additional authority from the references to it in Foxe v Brown [1984] HCA 69; (1984) 59 ALJR 186 at 189 and in Mondial Trading Pty Ltd v Interocean Marine Transport Inc (1985) 60 ALJR 277.

[6] I have thought it right to apply the principles set out in Van Leer to the present case; on that basis, and although I regard the case as a marginal one, it is my opinion that the appeal should be upheld. The case is one where we have to exercise the discretion anew, since the primary judge relied on the view, which I think is erroneous, that the fact that the limitation period has expired is in itself a good reason to renew.

[7] I would add that, in my respectful opinion, the statement in Traj v The Cannery Board [1990] 1 QdR 494 at 496, that "the factors relevant to the exercise of the discretion to permit amendments under O 32 r 1 are similar to those relevant to applications under O 9 r 1 and O 90 r 9" must be treated with reserve. Its ultimate source is a dictum of Gibbs J in Jones v Jebras and Hill [1968] Qd R 13 at 23, reference to which will show that Gibbs J did not go so far. In particular it seems clear that ordinarily applications for amendment under O 32 r 1, or its present counterpart r 375, could be allowed more freely than applications to renew under r 24.

[8] In the present case, where the appellant defendant would have difficulty in unearthing evidence relating to particular incidents of back strain in 1994, and distinguishing their effects from those of the earlier, similar incidents mentioned in the material, the court should be reluctant to grant the respondent plaintiff relief from those consequences which would, absent such relief, follow. Subject to the foregoing remarks, I agree with the reasons of Williams J. I also agree with the orders proposed by his Honour.

[9] WILLIAMS J: On 2 September 1999 a District Court judge, inter alia, granted the plaintiff leave to renew the plaint pursuant to r 24 of the Uniform Civil Procedure Rules notwithstanding that it had not been served within the applicable limitation period. From that decision the defendant sought leave to appeal pursuant to s 118 of the District Court Act 1967. After hearing argument this Court announced that leave to appeal was granted and that the decision on the appeal was reserved.

[10] In accordance with r 24, where no effort has been made to serve the claim within a year of its issue - the position here, the applicant must establish "good reason to renew the claim" before the order can be made. Relevant authorities emphasise the importance of that consideration where the applicable limitation period has expired.

[11] In the course of giving reasons in this case the District Court judge considered a number of explanations advanced as to why the appellant had not been served and went on:

"The only one of them which I think may qualify as a good reason for renewing the plaint is that the plaintiff will be denied the ability to pursue her action otherwise."

[12] That was the one and only matter which was found to constitute "good reason" for renewing the claim.

[13] Such a circumstance alone could never constitute "good reason" for purposes of such an application. That is a feature which will be present in every case where recourse is had to r 24, at least where the relevant limitation period has expired. For that reason that circumstance alone can never in law constitute sufficient "good reason". It was because of that error in the reasoning below that the court granted leave to appeal.

[14] The discretion of the judge of first instance having miscarried, it is for this Court to consider the matter afresh and determine whether or not circumstances exist which would warrant renewing the claim pursuant to r 24.

[15] There were three affidavits by the respondent's solicitor, EJ Lawson, relied on in support of the application. The precise date on which the respondent first consulted her solicitor is not clear, but the first step taken was the writing of a letter on 13 August 1997 to one of the treating doctors. Then it is said that on or about 19 August 1997 the respondent instructed her solicitor to issue court proceedings in order to protect her rights to damages for personal injuries sustained in work related accidents on or about 1 September 1994 and 13 October 1994. The solicitor further deposes that on or about that date she was further instructed by the respondent "to investigate the liability and quantum issues relevant to her actions and to advise her on the prospects of success before serving the Defendant with the Plaint." It is said that the reason for those instructions was to avoid a possible costs order if the actions were unsuccessful. On 29 August 1997 a plaint was filed in the District Court relating to the incident at work on 1 September 1994.

[16] The respondent had informed her solicitor that at the material time she was employed at a nursing home known as the Toowoomba Garden Settlement. She also informed the solicitor that she believed it was owned by the Uniting Church. On 29 August 1997 the solicitor made some enquires and ascertained that the nursing home was owned by The Uniting Church in Australia Property Trust (Q). Those enquiries ascertained that eight persons were trustees of that trust. In consequence the plaint as originally issued named those eight persons in their capacity as trustees as the defendants.

[17] In order to protect the respondent's position with respect to the alleged accident at work on 8 October 1994 with the same employer on 8 October 1997 the solicitors caused to be issued an amended plaint naming the same parties as in the original one. No leave to file that amended plaint was sought prior to filing it. Thereafter the solicitors took some statements from work colleagues of the respondent and corresponded with her medical advisers.

[18] In about April 1998 one of the doctors informed the respondent that he was of opinion she may have been suffering from ankylosing spondylitis; if that were so then the back condition may not have been caused or aggravated by any work related incidents. It was apparently decided to await final assessment of the condition and its cause before serving the plaint. That assessment was still being awaited in November 1998 when counsel advised that an application be made to renew the plaint for service forthwith. However, it took until 16 April 1999 before that application was filed. On 31 May 1999 a District Court judge adjourned the application and ordered that it be served on the defendants. Subsequently, the solicitors for the respondent ascertained that The Uniting Church in Australia Property Trust (Q) was an incorporated body and on 9 July 1999 they filed an application for leave to amend the plaint by substituting that defendant for the originally named defendants. That amendment to the title of the plaint was duly made and is not the subject of the appeal.

[19] It should be noted that by the end of August 1998 the respondent's solicitors were in receipt of verbal advice from the doctors that the respondent was not suffering from ankylosing spondylitis, but written confirmation of that was not forthcoming until shortly before the hearing of the application to renew the claim on 2 September 1999.

[20] In one of the solicitors' affidavits the statement was made that as eight trustees were named as defendants service would be expensive, but it was not expressly stated that that was a reason for not serving the plaint.

[21] That is a summary of the material relied on by the respondent in support of her application to renew the claim.

[22] Once served with the application, the solicitor for the appellant filed an affidavit in which it was alleged that the appellant was prejudiced in a number of ways by the failure to serve the claim within the limitation period.

[23] Firstly, it was asserted (and not disputed) that receipt of the application and supporting affidavits on 5 July 1999 was the first notification the appellant had of a claim being made with respect to either alleged incident. In other words this was not a situation where the employer or its insurer had some prior knowledge of the alleged incidents.

[24] Secondly, it is alleged that the appellant is prejudiced because essential witnesses are no longer available. Each incident on which the respondent relies involved her lifting a patient with assistance from a co-worker. Each of the patients in question is now deceased. Further, the respondent can no longer remember the name of the co-worker involved in the lift on 13 October 1994.

[25] Thirdly, a search of records has revealed that the respondent had reported a number of incidents causing back strain or injury whilst lifting or assisting residents from as early as 1989 and including incidents in 1990, 1991, 1992, 1993 and June 1994. The appellant contends that, particularly in view of the early doubts expressed by the respondent's own doctors as to the cause of her symptoms, an investigation of those other incidents is relevant and necessary to a determination of the cause of her present back condition. The appellant's solicitor deposes to the likelihood that medical records relating to incidents over seven years ago have probably been lost or destroyed or become illegible.

[26] The final alleged prejudice is the understandable and inevitable lessening of accurate recollection of events because of the lapse of time since they occurred.

[27] It is in those circumstances that the application for renewal of the claim is to be assessed.

[28] Particularly where the limitation period has expired the relevant principles when considering whether or not to renew the plaint are no different from those which are relevant to an application to extend the limitation period or for leave to proceed when no step has been taken in the action for 12 months and the limitation period has expired. (Traj v The Cannery Board (1990) 1 Qd R 494 and Ambrose J in Tyson v Morgan unreported, No 744 of 1995, judgment 13 May 1998.)

[29] The general principle is that it is for the applicant to establish some good reason why the case should be excepted from the general rule that the court will not exercise its discretion in favour of renewal. (Jones v Jebras & Hill (1968) Qd R 13, Licul v Corney (1976) 58 ALJR 439, and Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1979) 180 CLR 337). One of the more recent relevant statements is that of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553:

". . . I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts on an individual case." (see also Dawson J at 554)

[30] It is often prudent for a solicitor to await conclusive medical reports before serving originating proceedings. But the weight to be given to that consideration is diminished, if not extinguished, once the applicable limitation period is reached. There can really be no justification for failing to give the defendant any notice at all before the expiry of the limitation period. This plaint was issued only days before the limitation period expired and no attempt to serve was made notwithstanding the fact that no notice at all had been given to the other side. Here it was 19 months after the plaint was issued that leave to renew was sought; that means that 19 months after the expiration of the limitation period the appellant still had no idea that it was being sued. It was some 22 months after that period expired that it received notice of the proceedings. In those circumstances delaying service until conclusive medical reports were received did not constitute "good reason" for purposes of this rule.

[31] It is also clear that it is for the applicant seeking the renewal to satisfy the court that such an order would not result in significant prejudice to the defendant. (cf. Dawson J in Taylor at 544) The appellant here has pointed to a number of significant areas of possible prejudice and they have not, in my view, been sufficiently answered by the respondent. The District Court judge in this case concluded "that the prejudice to the defendant, is not sufficiently weighty to put the plaintiff out of court." It was argued by the appellant that by so saying he erred because implicit in that statement is a rejection of the principle that the onus is on the party seeking the indulgence. Whether or not such an inference should be drawn from that statement need not be decided. It is sufficient to say that the material does not support a conclusion that the present appellant will not be materially prejudiced if this plaint was renewed after the expiration of the limitation period.

[32] In a number of cases it has been recognised that the availability of an alternative remedy, for example a negligence action against the solicitor, is a relevant circumstance when considering whether or not there is "other good reason" for renewing the plaint. Here there was some debate as to whether or not the respondent would have a claim in negligence against her solicitor. The proposition was advanced that the solicitors were not negligent because at all times they were acting on specific instructions from the respondent. In my view it is not necessary to resolve that issue in order to arrive at a proper conclusion in this case.

[33] At the end of the day, the material is not capable of supporting a finding that there is "good reason" for renewing this plaint after the expiration of the limitation period.

[34] The appeal should be allowed and the order that the amended plaint be renewed for a period of 12 months starting on 9 October 1998 be set aside. The appellant should have its costs of the appeal and of the application to be assessed.