Plaintiff v Defendant

Duration and renewal of originating process

(1) A writ or an originating motion shall be valid for service for one year after the day it is filed.

(2) Where a writ or originating motion has not been served on a defendant, the Court may, from time to time, by order extend the period of validity for such period from the day of the order as the Court directs, being not more than one year from that day.

(3) An order may be made under paragraph (2) before or after expiry.

(4) The plaintiff may apply under paragraph (2) without notice to the defendant, but if the Court considers that the defendant ought to be heard, the Court shall -

(a) adjourn the further hearing; and

(b) direct the plaintiff to give notice to the defendant by summons or otherwise.

(5) Where an order is made under paragraph (2), the Prothonotary shall stamp any sealed copy originating process for service with the date of the order and the extended date of validity.

1. In Howard v Power, Derham AsJ summarised the applicable principles in an oft-cited passage, as follows (excluding citations included within this passage): [2]

1. The principles applicable are well settled. They derive in part from earlier Rules (Order 8 Rule 1), which provided that the court might order that a writ be renewed if satisfied that reasonable efforts had been made to serve the defendant, or for "other good reason". Despite the change in language, however, the authorities make it clear that the court should determine the question of extending the validity of the Writ on the same basis as previously. Amongst the differences between the old and new Rules is a change of terminology, from renewal of the writ to 'extension of its validity'. The principles applicable are, in summary, as follows:

(a) Although the power conferred by Rule 5.12 is wholly discretionary, a judge has to approach the exercise of the discretion in accordance with established principles; > > (b) The jurisdiction given by the rule ought to be exercised with caution; > > (c) It is the duty of a plaintiff to serve a writ promptly; > > (d) An application to extend time for service is not granted as a matter of course; > > (e) The first question to consider is whether the plaintiff has taken reasonable steps to serve the writ. If not, it then becomes necessary to consider whether there was "some other good reason" for making the order to extend time for service of the writ; > > (f) The plaintiff carries the onus of showing that there is a good reason for extending the time to serve the writ; the applicant's burden is no greater if the limitation period has expired between the date of issue of the writ and the date on which the application is made; > > (g) Whether there is good reason depends on all the circumstances of the case; and it is not possible to define or circumscribe the scope of the expression "good reason"; > > (h) Where the application is made after the period for service has expired, the reason must be one of substance; > > (i) The selection of relevant factors to establish that there is a good reason for making the order, and the significance to be given to each of the factors, are matters of discretion; > > (j) The fact that the plaintiff decides not to serve the writ whilst some other case is tried, or to await some future development, is generally not a good reason to justify extending time for service. It is for the Court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been commenced against them if they are there to be served; > > (k) It is a relevant factor against the exercise of the discretion that the renewal of the writ might deprive the defendant of a limitation defence where the plaintiff has been aware that the passage of time might be dangerous; > > (l) It is a relevant factor against the exercise of the discretion that the defendant was unaware of and had no reason to expect that a writ had been issued against them; > > (m) The lapse of time is itself generally to be regarded as prejudicial to the defendant. In this contest, the relevant delay is to be measured from the time at which the plaintiff's cause of action arose; > > (n) Any delay in making the application to extend the time for service of the writ is a relevant factor against the exercise of the discretion; delay preceding (as well as following) the issue of the writ is material; > > (o) The expiration of the limitation period will not in itself constitute a good reason for extending the validity of the writ, although it is relevant; and > > (p) It may be appropriate to have regard to the balance of hardship.

2. In applying those principles, the Court is also required to seek to give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic); to facilitate the just, timely, cost effective and efficient resolution of the real issues in dispute.[3]
3. In the circumstances of this proceeding, those principles lead me to conclude that it is not appropriate to extend the validity of Mr King's writ for a further 12 months, and that instead, if Mr King wishes to maintain this proceeding but wait to see what happens in the related abuse proceeding (as defined in the December affidavit), it is more appropriate that the writ be served now and any arrangements in that regard be raised with the defendant's representatives.
4. It is apparent from the affidavit material that there has been no attempt made to serve the writ to date. As such, Mr King is required to demonstrate that there is "some other good reason" to make the extension order.
5. The reasons relied upon by Mr King in this application are that, firstly, if the abuse proceeding resolves the issue he is seeking to agitate (by permitting him to claim further damages from his original defendant if the settlement deed is set aside) then this proceeding may no longer be required, and secondly, that serving the writ at this stage would cause both parties to incur costs that may prove to be unnecessary.
6. I am not satisfied that either argument amounts to a "good reason" for the purposes of r 5.12. The authorities make clear that a plaintiff's decision not to serve a writ while waiting for another case to proceed, or for some other future development to eventuate, is generally not considered a good reason to allow an extension.[4]
7. Further, there is a significant delay in the history identified by Ms Macriyianis that has not been adequately explained. As noted above, the August affidavit provides no explanation as to what had occurred between the commencement of the proceeding on 24 August 2023 and the time of affirming the affidavit on 21 August 2024, either in relation to this proceeding or the proposed new Institutional Liability List proceeding. The December affidavit adds slightly more detail, noting an examination of Mr King in December 2023, counsel being engaged to draw pleadings in the related abuse proceeding at some unspecified point in time, and then a statement of claim being delivered and a writ served on the defendant in December 2024.
8. Despite this additional detail, I do not think the affidavit material is sufficient to explain what has occurred since the writ in this proceeding was issued. If nothing else, in an application of this nature the requirement that any reason to extend a writ be one of substance and the relevance of any delay by the plaintiff both suggest that sufficient information needs to be provided to enable the Court to have a proper understanding of what has taken place and why the writ was not served in time. The affidavits do not do this. The expert examination of Mr King would not ordinarily be expected to take a year to result in a report, and the date on which counsel was briefed to draw a statement of claim is not specified, but if the document was only received in December 2024 it appears likely that this occurred relatively close in time to that point.
9. In circumstances where the plaintiff bears the onus of showing that there is good reason to extend a writ's period of validity, and where delay is a factor that will count against a plaintiff in these circumstances, the very limited affidavit material available is problematic for the application. No information is available as to why the related abuse proceeding was only commenced very recently given the history available, and where it was presumably in contemplation from at least around the time this proceeding was initiated in August 2023.[5] I do not consider that I can be satisfied that Mr King's position is free from delay in the circumstances, noting that this was a matter that was squarely within his solicitor's ability to address in this application.
10. Before moving on, I note that the very limited nature of the affidavit material available in this case presents a difficulty in and of itself. Mr King sought to pursue this application on an ex-parte basis, and there is a heightened obligation on a party in such circumstances to put before the Court all matters that are material to the application, whether favourable to their position or not.[6] Particularly in circumstances where the principles that apply to applications to extend writs are so well settled and widely understood, it is difficult to see why this much more limited approach was taken in this application. A more detailed explanation of what has transpired would ordinarily be expected.
11. Next, and significantly in this proceeding, there is no evidence available to suggest that Australaw is on notice of the claim that has been commenced by Mr King. There are several reasons why I consider this is a particularly significant factor weighing against the application being granted:

(a) As is clear from the authorities, it is undesirable that a defendant be left in the dark as to the fact that a proceeding has been commenced against them for a protracted period. It would seem that court users should be entitled to rely on an assumption that writs would ordinarily be served within the year provided by Order 5 of the Rules, and can conduct their affairs on the basis that they would not be caught up in legal proceedings commenced much further back in time other than in exceptional circumstances. Further, a delay in the progression of a proceeding is accepted to be presumptively prejudicial.

(b) Where, as here, the proceeding may involve a dispute concerning events occurring some years ago, and where the defendant in a professional liability claim would ordinarily be likely to be the repository of a large number of relevant documents and other evidence, the continued delay in advancing a proceeding creates real risks that evidence might be lost or destroyed in the course of a business' ordinary operations, and recollections may continue to fade over time. Such risks are obviously capable of being ameliorated by a party being put on notice of a case being pursued against them. There is no indication such a step has occurred here.

(c) Further, and related to the first point, the existence and identification of a proceeding of this nature being brought against a firm such as the defendant has the potential to have its own impacts on a party such as Australaw. Although not all court files will be automatically available for inspection to non-parties under the Rules, typically the fact of the existence of a proceeding, and the identity of the parties to it, will not be confidential and will be capable of being ascertained by members of the public. An ongoing professional negligence claim against a law firm has at least the potential to affect its reputation amongst current and prospective clients, as well as affecting its ongoing operations. This is obviously a largely unavoidable side effect of any civil proceeding being commenced, however it seems to be to be problematic for that state of affairs to persist for a protracted period without the defendant being on notice of the proceeding and therefore able to take steps in response to it.

1. Beyond this, it is not obvious that a defendant to a claim such as this would necessarily agree to a proceeding against them being held in abeyance pending the outcome of some other claim. Although the approach taken by Mr King in this proceeding appears to have become increasingly common in recent times, the assumption that there is no detriment to a defendant's position arising from extending a writ does not appear to have been justified in any real way. For instance, if a professional liability proceeding such as this claims for a loss of opportunity, in circumstances where steps have not been taken yet to seek to set aside a prior settlement deed or judgment in an institutional liability proceeding to mitigate any losses, it is conceivable that a defendant could take a very different view as to how a claim ought run, and may contend it should not proceed at all if no loss has yet been suffered. I am not persuaded that there is any good reason to prevent a defendant from being able to make that kind of an argument, or to at least be involved in the decision-making concerning the conduct of the proceeding, if they wished to do so.
2. There has also been no specific prejudice identified by Mr King that would flow from being required to have served the writ rather than obtaining an extension (setting aside for the moment the fact that the writ has lapsed since the application was issued), other than questions of costs and inconvenience. I am not satisfied that these are valid reasons to delay service of the writ, weighed against the other factors discussed above. The costs of serving and responding to a writ and communicating between parties are inevitabilities in civil proceedings, and should be taken to have been accepted as being on the cards by Mr King when he elected to issue the writ.
3. Finally, it is not possible for me to form any views about the effects of any limitations periods on the present application, where the affidavit material does not address why the current proceeding was commenced when it was, or what limitations periods might apply, and moreover the indorsement to the writ does not contain any dates so it is not possible to even guess at any potential limitations issues that could arise. I can therefore place no weight either way on this factor, although once again, this seems to have been something that was well within Mr King's solicitors' ability to address in this application.
4. For the above reasons, I do not consider that a good reason has been demonstrated in this application to extend the period of validity for service of the writ for a further 12 months. It is preferable that the writ be served on the defendant, and if the plaintiff wishes to seek that the proceeding be stayed pending further developments in the related abuse proceeding, that is an application that can be made with the defendant's involvement.
5. That conclusion raises the practical issue of what order should be made. Although I have declined to make the lengthy extension order sought by the plaintiff, the time this application has taken to be ready to be heard has meant that at this stage, Mr King's writ is no longer valid. In this regard, I note that Mr King's summons was issued prior to the writ lapsing, though only by one day.
6. As I raised with counsel for Mr King in the hearing of this application, the increasingly common practice of plaintiffs issuing these kinds of applications at effectively the last minute, leaving no prospect that an outcome would be available before the writ's expiry and therefore no ability for the plaintiff to serve the writ if the application is not granted, should be cause for concern.[7] Although the Court has the power to extend the period of validity of a writ after it has already lapsed,[8] there does not appear to be anything justifying the apparent assumption amongst some practitioners that orders extending the validity of writs will routinely be made. As such, in cases such as the present, where it appears to have been well known for some time that the plaintiff did not intend to serve the writ within the period of its validity, the prudent course would seem to have been that an application of this nature should have been issued in enough time to allow it to be determined before the writ lapses, so that a plaintiff could still serve it if the application is not allowed.
7. Counsel for the plaintiff sought that in the alternative, if I was not inclined to grant the one-year extension that was sought, an order for a very short extension should be made instead so that the plaintiff can at least serve the writ. For the reasons I have just identified, I do not think the approach taken by the plaintiff was a particularly wise one in the circumstances: no explanation for the delay in making the application has been offered, so the arguments as to why there is a good reason to allow even a short extension seem to be quite limited.
8. On balance, however, and applying the principles set out above, I think the fairest approach and the one most consistent with the overarching purpose of the Civil Procedure Act is to make an order extending the writ for 14 days, to allow service to occur should the plaintiff wish to do so. In this regard, I note that:

(a) the application was made prior to the writ's expiry (albeit only just);

(b) there has been some delay outside the plaintiff's control due to the Court's non-sitting period in late December and early January;

(c) the issues of prejudice to the defendant identified above are much less substantial (if indeed they remain at all) if the writ was to be served immediately; and

(d) in balancing the hardship that would arise from either outcome of this application, the detriment to Mr King of being precluded from pursuing his proceeding at all is significant, and the detriment to Australaw from a very brief extension appears to be far more modest.

1. I note that it should not be assumed that a similar short extension would inevitably be a 'backup' option available to plaintiffs who apply for extensions very close in time to the date on which their writ will lapse without justifying any delay in doing so. The outcome in this application has been significantly influenced by the length of time that the application has taken to be relisted and determined, and the scheduling difficulties that arise during the non-sitting period, which were outside Mr King's control. Fundamentally, the obligation remains on plaintiffs to either serve writs within the time provided by the Rules, or to apply for extensions appropriately early if it is known well in advance that an extension will be sought.
2. I will therefore make an order extending the period of validity for service of Mr King's writ for 14 days.

AUSTRALAW PTY LTD (TRADING AS KELSO LAWYERS) (ACN 167 783 708)

[1] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 5.12(1).

[2] [2013] VSC 198, 7-9 [10].

[3] Civil Procedure Act 2010 (Vic) ss 8, 7(1).

[4] Howard v Power [2013] VSC 198, 7 [10(j)].

[5] Noting that it was clearly within Mr King's solicitors' ability to address if this is not the case and the new abuse proceeding only became a possibility much later for any reason.

[6] See, eg, Re Castlerea Carpenters Pty Ltd [2019] VSC 303, 29-31 [77]-[83].

[7] I note in this regard the comments of Clayton JR (as her Honour then was) in Mooney v Alfred Health [2020] VSC 114, 3 [11]-[12].