Prior to 4 December 1996, nothing was done with a view to having the writ served or to advising the appellant that a writ had been issued. Although the respondents' solicitor, in his affidavit in support of the application, does not state that there was any particular reason for not attempting service prior to that date, it does appear from that affidavit that he had had discussions with counsel; had made enquiries to locate witnesses and had interviewed witnesses. It might be inferred that service was delayed until witnesses had been interviewed and the advice of counsel obtained. There was no evidence as to precisely when any of those steps had been taken.

At about 4pm on 4 December 1996, the respondents instructed their solicitors to serve the writ. There was no evidence as to the circumstances in which those instructions were given or as to any instructions concerning service which had been given prior to that time. Upon receiving those instructions, the solicitor who had the carriage of the matter immediately did a number of things. At about 4.16pm, he forwarded, by facsimile, to the appellant's Chief Solicitor a copy of the writ and a letter referring to it and asking that an appearance be entered in accordance with the undertaking to accept service. At about the same time, the original of the letter and the sealed writ were forwarded by registered post in an envelope addressed to the appellant at its registered office in Melbourne. The envelope was lodged at the Hobart GPO.

The registered item was received at the Melbourne GPO on Friday 6 December 1996 where it was held pending its collection by the appellant. It was collected on 10 December 1996. The normal practice of the appellant was to have a courier collect its registered mail from the Melbourne GPO. Had the courier done so on 6 December 1996, the likelihood is that on that day the registered item from the respondents' solicitors would have been received by the courier and the writ would have been received by the appellant. The failure of the courier to collect the appellant's registered mail on 6 December 1996 is unexplained. It has not been suggested that the respondents' solicitor had any knowledge of the appellant's mail collection procedures at the time that he forwarded the writ to it by registered post.

The result of the appellant not receiving the writ until 10 December 1996 is that it was served at a time when it was stale. It has not been suggested that forwarding the writ by facsimile transmission constituted service. On 21 January 1997, it was ordered that service of the writ be set aside.

In dealing with the question as to whether the respondents had made reasonable efforts to serve the appellant, the learned primary judge said:

"In the circumstances of this case, at the date of the application the applicants had made reasonable effort to effect service. Their solicitor was not to know that the registered mail would not be collected during the ordinary course of business. It could not be said that the solicitor ought reasonably to have anticipated that for reasons not disclosed to this Court, the respondent would depart from its usual practice.

The respondent contended that the first portion of RSC, O8(1)(i) (sic) has no application since it requires the Court to be 'satisfied that reasonable efforts have been made to serve' and that in this case only one effort has been made. The submission, unencumbered by authority, runs contrary to logic and ignores the provisions of the Acts Interpretation Act 1931, s24(1)(d) which provides that:

'Words in the singular shall include the plural and words in the plural shall include the singular.'"

With respect, that passage does not correctly identify the nature of the inquiry which is to be made. In a case where some attempt at service has been made, the inquiry is not to be directed to whether that attempt has the qualities of being a reasonable attempt to effect service. Rather, the inquiry is to be directed to the whole of the period of twelve months during which the writ was current or, in the case of an application made before the expiration of the period, the whole of the period since the issue of the writ. The answer to the question whether a plaintiff has made reasonable efforts to serve a defendant is to be found by considering those things (if any) which were done during the whole of that period.

The duty of a plaintiff who issues a writ is to serve it promptly (Battersby v Anglo- American Oil Company Ltd [1945] KB 23, referred to with approval in Ramsay v Madgwicks [1989] VicRp 1; [1989] VR 1 and Finlay v Littler [1992] VicRp 59; [1992] 2 VR 181). It is in the context of that duty that the question of whether reasonable efforts to effect service have been made is to be considered. I agree with the views expressed by reference to the equivalent Queensland rule by Helman J in Inprint Ltd v Australian Mutual Providence Society, unreported, Supreme Court of Queensland, 24 April 1995. His Honour said, at 14:

"There is no evidence that the second defendant was avoiding service or that his address was unknown to the plaintiffs. While it is true that some attempts were made to serve the second defendant shortly before the application was made to Derrington J, the long delay that preceded those attempts cannot be ignored. A lengthy period of inaction, followed by a short spurt of activity would not, in the ordinary course of events I think, be regarded as showing that reasonable efforts have been made. But if there were compelling reasons for the delay, that might be another matter."

The position in the present case is that, until a few days before the expiry of the period of twelve months, the respondents made absolutely no attempt to effect service. It cannot be doubted that there were no difficulties associated with service. There was nothing in the evidence before the learned primary judge which remotely could be described as a compelling reason for delaying taking any step with a view to effecting service until a few days before the expiry of the writ. Whether or not what the respondents did on 4 December 1996 in itself could be described as a reasonable attempt to effect service, in the sense that they did something which might reasonably have resulted in service, is of no relevance in the context of this case. The failure of the respondents to do anything by way of attempting service until a few days before the writ expired and their failure thereafter to do anything to this end, other than making an attempt to serve by post, coupled with the absence of any compelling reason justifying that course, must result in a conclusion that the respondents did not make reasonable efforts to effect service. A conclusion to the contrary is not open and the learned primary judge erred in reaching that conclusion.

For the reasons which I have expressed I will assume, without deciding, that the learned primary judge erred in one or more of the ways asserted by the notice of appeal in the course of coming to his conclusion that there existed good reason to permit renewal. On the basis of that assumption, I consider the question for myself.

The parties accept that the nature of the discretion to be exercised is as I stated in Lapham v Wood, A66/1995 at 4:

"In order to succeed the plaintiff requires a favourable exercise of two separate discretions. The first order which she seeks is one pursuant to the Rules of the Supreme Court, O79, r7(1) enlarging the time within which an application under O8, r1(1) may be made. The second order which she seeks is one for leave to renew the writ pursuant to O8, r1(1), which order may not be made unless time is first enlarged. Nevertheless each of the applications raises the same general question as to how I should exercise the power to order renewal of the writ. There would be no occasion to enlarge the time for the making of the application if it is not appropriate to grant leave for the renewal of the writ. If the justice of the case requires that the writ be renewed it would be appropriate to enlarge the relevant time. It follows that primarily my attention is to be directed to the question whether it is appropriate to grant leave for renewal. The power to grant such leave only exists if I am satisfied that reasonable efforts have been made to serve the defendant or that there is some other good reason for making the order."

It follows that the real question is whether the respondents have established that the justice of the case requires that the writ be renewed. It is not possible to state exhaustively the categories of reasons which may result in good reason being established to order a renewal (see Victa Ltd v Johnson (1975) 10 SASR 496 at 504; Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1979) 180 CLR 337 at 346).

The matters which, it was accepted in argument, are relevant to the question of whether good reason has been established, and therefore relevant to the justice of the case, include the nature of the attempted service, the length of the delay in attempting service, the length of the delay in making the application for an extension of time, the reasons for the delays, the conduct of the parties and hardship or prejudice caused to a party by refusing or granting renewal.

In addition, I consider that the merits of a plaintiff's claim may also be relevant. It is not incumbent upon an applicant for renewal to establish a prima facie cause of action or a cause of action which has reasonable prospects of success. However, matters concerning the merits of a plaintiff's claim ought not to be put aside as having no possible relevance. By way of example, where an application relates to a writ which attempts to raise a cause of action which, on the face of the writ, is bound to fail, the absence of merit may provide a sufficient reason to refuse renewal. Conversely, the existence of a strong case against a defendant may provide a positive reason for granting renewal and outweigh other factors militating against a favourable exercise of the discretion.

I have already dealt with the factual material concerning the attempt at service, the length of delay in making any attempt at service and the reasons for that delay. The only inference that I am able to draw is that the writ was issued before the respondents had finally determined whether, on the evidence available to them and the advice concerning it, they wished to proceed with the action, but that they issued a writ nevertheless in order to avoid any limitation defence being raised by the appellant should they determine to proceed with the action. In the absence of a more specific explanation as to precisely what was done and when it was done, the delay in making any attempt to serve the writ in the circumstances disclosed is a matter which must weigh against the respondents.

A reasonably prudent solicitor instructed to effect service of a writ which was about to become stale would not have attempted to serve it by post. The course adopted by the respondents' solicitor was fraught with danger. It should have been apparent to the respondents' solicitor that there was a real risk that service would not be effected within time. It may be that if leave to renew were to be refused the respondents would have a cause of action against their solicitor. I do not consider that to be a matter of great significance. In extension of time matters generally, the availability of an alternative remedy against a negligent solicitor has rarely been considered to be a matter militating against granting the extension particularly, as is the position in the present case, when there is no direct evidence of the likelihood of the success of such an action (see Woolley v Jensen A20/1995; Soper v Matsukawa [1982] VicRp 96; [1982] VR 948). If leave to renew were to be refused, the respondents could issue a new writ but could then expect to be faced with an unanswerable limitation defence. That would inflict relevant hardship on the respondents.

The period of delay in making the application after the expiration of the period of twelve months is slight. Whilst the writ was still in force, the appellant was provided with a facsimile copy of it by way of purported, but ineffective, service. The Rules of the Supreme Court do not make provision for serving process by way of facsimile transmission. On the other hand, it is hard to see that a defendant is put in any better position by receiving an original sealed writ rather that a facsimile copy of it.

Some argument was directed to the merits of the respondent's cause of action upon which the writ is based. The affidavit of Mr Hluchaniuk, the appellant's Tasmanian manager, contains the following paragraphs:

"5 The plaintiffs' assert in their endorsement on the Writ that there were agency agreements between the plaintiffs and the defendant.

I have not located any agency agreements between the plaintiffs and the defendant. The defendant's business records show that when the 'Z' policies were being marketed and sold the plaintiffs were working in the Hobart east division of the defendant and that that division was operated through the company Hobart East Agency Management Pty Ltd. Annexed and marked with the letter 'C' is a true copy of correspondence from the defendant to the firstnamed plaintiff dated the 7th of February 1989 which annexes an appendix in respect of the operation of Hobart East Agency Management Pty Ltd.

Annexed and marked with the letter 'D' is a true copy of correspondence from the defendant to the secondnamed plaintiff dated the 15th of May 1989. I believe that the handwriting on page 1 of annexure 'D' shows that the copy was used as a precedent in respect of drafting a letter to another agent, Mr R Hyatt.

6 All of the defendant's business for the Hobart East Agency was operated through the company Hobart East Agency Management Pty Ltd. The firstnamed plaintiff was appointed director of that company on the 16th of August 1990 and was a shareholder. The secondnamed plaintiff became a director as did his wife Melinda Anne Taylor on the 1st of May 1992 and they all were shareholders.

7 On or about the 1st day of October 1993 Hobart East Agency Management Pty Ltd executed a Release with the defendant in respect of matters arising out of the agency agreement. Annexed and marked with the letter 'E' is a true copy of that Release. It can be seen that that Release is signed by the secondnamed plaintiff and his wife, Melinda Taylor.

Annexed and marked with the letter 'F' is a true copy of the defendant's banking records in respect of the cheque in the sum of $11,000.00 to Hobart East Agency Management Pty Ltd. Annexed and marked with the letter 'G' is a true copy of the cheque butt."

No affidavit answering any of the allegations contained in those paragraphs was filed by the respondents. If the documentary material annexed to the affidavit and referred to in those paragraphs were to clearly demonstrate that at the relevant time the appellant's relationship was with Hobart East Agency Management Pty Ltd and that the respondents sold relevant insurance policies being marketed by the appellant in their capacities as officers or employees of that company, that might provide a substantial reason for refusing renewal on the basis that the evidence of the appellant discloses what prima facie is a complete defence to the action and that the availability of such a defence has not been challenged.

However, documents annexed to Mr Hluchaniuk's affidavit and answers given by him in cross-examination establish that the proposition that the only relevant relationship of the appellant was with Hobart East Agency Management Pty Ltd may well be doubtful. A company search suggests that a company then having that name did not exist at any relevant time. Annexure "C" to the affidavit is a copy of a letter from the appellant to the first respondent, dated 7 February 1989, in which it offers him employment on the basis of remuneration which includes commission on sales. The letter makes no reference to Hobart East Agency Management Pty Ltd. The appendix referred to in the affidavit is an undated and unsigned form of letter from Hobart East Agency Management Pty Ltd, addressed to the appellant, accepting an appointment to manage the "Hobart East division" of the appellant.

Although the affidavit describes the appendix as being an appendix to the letter of 7 February 1989, it is not referred to in that letter and it is not consistent with the terms of that letter. In cross-examination Mr Hluchaniuk conceded that he had no personal knowledge whether the appendix was attached to the letter. He also conceded that he did not know whether it did not come into existence "until a later date, even a later year". Rather than suggesting a defence, the letter to the first respondent lends support to the proposition that he was employed by the appellant on terms which entitled him to be paid commissions by the appellant. It is unnecessary to deal in detail with annexure "D", which is a copy of a letter from the appellant addressed to the second respondent. It appears to create for the appellant the same difficulties as does annexure "C".

I do not overlook the general prejudice which the appellant would suffer by reason of the lapse of almost seven years from the date on which the cause of action allegedly arose until the making of the application. I bear in mind the observations concerning the general prejudice caused by delay made by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 70 ALJR 866 at 870 - 872.

As to specific prejudice, the appellant relied on the following paragraph contained in Mr Hluchaniuk's affidavit:

"13 I am not aware as to whether all records have been kept in respect of Messrs Taylor and Huddlestone. Mr Terry Smith was the State Manager when the 'Z' policies were marketed and following him were Peter Flavel and Ian Anderson none of whom are still employed by the defendant. It was not expected that the plaintiffs would make any claim given their earlier correspondence."

These are not matters of great moment. The deponent makes no reference to what enquiries, if any, had been made to ascertain the existence of records. One would expect a company such as the appellant to maintain proper records. As to the persons named, there was no suggestion that any of them were unavailable to be interviewed or to give evidence, if so required.

Taking into account all the matters which I have mentioned, I consider that the justice of the case requires that the writ be renewed. It follows that a proper exercise of the discretion requires that the respondents have the orders which were made by the learned primary judge. I would dismiss the appeal.