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

Judgment Number: [2010] TASSC 63

1 On 19 December 2007 the plaintiff, through his solicitor, issued a writ claiming damages for personal injury sustained in a motor vehicle accident on 20 December 2004. The writ has not been served. It is no longer effective for service. The Supreme Court Rules 2000, r107, relevantly provides that a writ is in force for six months from the date of issue. The rule goes on to provide that on the application of a plaintiff made whilst the writ is in force the Court or a judge may order renewal for such period as the Court or a judge thinks fit. Rule 52 provides that the Court or a judge may enlarge the period for doing any act or taking any proceeding allowed by the rules notwithstanding that the application is made after the expiration of the period originally allowed.

2 By application filed 13 October 2010 the plaintiff has applied for the following orders:

"1 That the period within which the applicant may apply to renew the writ dated 19 December 2007 be extended;

2 That the writ dated 19 December 2007 be renewed for a period of six (6) months."

3 Although, in order to succeed, the plaintiff requires both a favourable exercise of the discretion to enlarge time and a favourable exercise of the discretion to renew the writ the two go together. If renewal is not appropriate the occasion to enlarge time would not arise. If the justice of the case requires renewal, then it follows that an enlargement of time for the bringing of the application ought also be granted. See National Mutual Life Association of Australasia Ltd v Huddlestone & Anor (1997) TASSC 73.

4 The principles applicable to a renewal application are well established. I set out below a list derived from the following decisions. National Mutual Life Association of Australasia Ltd v Huddlestone & Anor (supra), Marsden v Taylor [2000] TASSC 138, Woodcock v State of Tasmania [2003] TASSC 81 and Jadwan Pty Ltd v Porter (No 2) [2004] TASSC 126.

● The power to renew should only be exercised for good reason.

● Proof of reasonable efforts to serve the defendant is a matter of considerable importance. A failure to do anything by way of attempting service until shortly before the expiry of the writ, coupled with the absence of a compelling reason justifying such a course, must result in a conclusion that reasonable attempts at service have not been made.

● If reasonable attempts to serve the defendant have been made the Court should ordinarily renew the writ.

● If reasonable attempts at service have not been made the Court must consider whether other good reason exists for ordering renewal.

● A list of possible good reasons cannot be exhaustively stated.

● Prominent in the consideration of whether good reason exists, apart from attempts at service, will be the length of the delay, the reasons for the delay, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.

● It is not incumbent upon a plaintiff seeking an order for renewal to establish a prima facie case.

● The existence of a time bar affecting the institution of fresh proceedings, although relevant, does not cast a special onus on the plaintiff.

5 Counsel for the plaintiff did not contend that reasonable attempts at service had been made. He submitted that good reason to order renewal existed because a fair trial of the action can still occur and the failure to serve the writ, and the delay generally, is attributable to the fault of the plaintiff's former solicitor.

6 I accept that a fair trial of the action can still occur and that the renewal of the writ will not cause prejudice to the defendant. The defendant is entitled to be indemnified, in respect of any damages awarded to the plaintiff by the Motor Accidents Insurance Board pursuant to the Motor Accidents (Liability & Compensation) Act 1973, s14. The Board was notified of the accident and the plaintiff's claim that he suffered a whiplash type injury by the submission of an application for scheduled benefits a few days after the accident. Within two months of the accident the plaintiff's solicitor had written to the Board giving details of how the accident occurred and stating the extent of the plaintiff's injury. The solicitor enquired of the Board as to whether liability would be admitted, and so it was obvious that a damages claim was in contemplation. A few days later the plaintiff's solicitor received a response from the Board's solicitor advising that an investigation into the accident was being conducted. Whilst the writ was still effective for service it was posted to the Board's solicitor. The solicitor, however, returned the writ advising that he had been instructed by the Board not to accept service. That was on the day upon which the writ would become ineffective for service. If there was information relevant to the chances of a fair trial having been lost or evidence of other prejudice or oppression arising by reason of the delay it would be in the interests of the Board to present it. The Board presented no such evidence and at the hearing its counsel did not argue that belated litigation of the claim would or might cause problems. I infer that a fair trial can still occur and the delay has not caused material prejudice.

7 The evidence of the neglect of the plaintiff's former solicitor is as follows. The plaintiff first consulted his solicitor in February 2005 and left the initial consultation with the impression that a writ would immediately issue. Within a few days of that meeting the plaintiff received a letter from his solicitor stating that he had advised the Board of the intention to make a claim and had asked the Board to appoint a solicitor to act for it. The letter indicated that liability was likely to be agreed, leaving only the matter of the quantification of an appropriate award of damages. The plaintiff's solicitor arranged for the plaintiff to be medically examined by a rheumatologist. In late 2006 and on several occasions during 2007 the solicitor, in response to telephone calls from the plaintiff, advised that the claim was progressing well. The first contact initiated by the solicitor for about three years came in December 2007. He wrote to the plaintiff asking for the defendant's address. The plaintiff telephoned him and the solicitor said that the writ had yet to be filed. On 19 December the solicitor telephoned back to confirm that the writ had been filed and to advise the plaintiff that no further time limits applied and that they could take their time in progressing the claim. Over the next two years the solicitor did not initiate any contact with the plaintiff. The plaintiff telephoned several times and received the response that the solicitor was busy, but that in due course he would be in contact regarding the progress of the claim. The plaintiff made two appointments to see the solicitor in mid-2009, but each was cancelled by the solicitor's secretary. The solicitor finally honoured an appointment to see the plaintiff in October 2009. At that time he advised the plaintiff that the file was still sitting in a box consequent upon the solicitor's change of office, but that there was nothing to worry about. Thereafter the solicitor did not respond to any of the plaintiff's telephone calls and did not contact the plaintiff. In mid-2010 the plaintiff engaged a new solicitor, but the plaintiff's former solicitor left unanswered requests to transfer the file. This evidence about the conduct of the former solicitor was not disputed. For the purpose of considering this renewal application I accept the evidence. It plainly follows that the plaintiff's contention that the failure to serve the writ and the delay was due to the neglect of the solicitor and I so find.

8 Counsel for the defendant submitted that notwithstanding the lack of action by the plaintiff's former solicitor the plaintiff himself was not free of blame. The plaintiff was non-assertive and undemanding in the period of almost three years following his initial instructions to the solicitor. He was told in December 2007 that the writ had not been filed. Having left his initial consultation with the solicitor in February 2005 with the impression that a writ would be filed immediately, he should, by December 2007, have become concerned to ensure that the claim thereafter would progress. However, despite the occasional phone call and chance meeting with the solicitor during the course of his work the plaintiff made no attempt to have his claim pursued at an acceptable rate.

9 It was also pointed out that if renewal was refused the plaintiff would have a cause of action against his former solicitor. The potential availability of such a remedy was considered in Collingwood v Bishop Davies Court [1999] TASSC 94. There Evans J noted that great caution needed to be exercised in attaching significant weight to such a factor. He referred to difficulties in establishing the liability of the primary tortfeasor as that person will not be a party to the action against the solicitor. He also referred to the problem that interrogation and discovery against the primary tortfeasor was not available. In the circumstances of the present case these matters do not appear to be of much significance. The plaintiff said that he was injured when his vehicle was hit from behind by the defendant. A police officer attended the scene and prepared a report. There is no reason to think that the facts demonstrating the liability of the primary tortfeasor could not be easily proved in an action against the solicitor. Accordingly, in the circumstances of the present case, some weight ought be attached to this feature.

10 Finally, counsel for the defendant referred to the fact that apparently the plaintiff had received no treatment for his whiplash injury since April 2005 and that although the plaintiff complained of ongoing pain and discomfort there was no suggestion that it had ever been sufficient to interfere with the plaintiff's work or social, domestic or sporting activities. The plaintiff's medical expenses have already been paid by the Board. The Civil Liability Act 2002, s27, provides that no damages are to be awarded for non-economic loss if such loss, when assessed, is no more than $4,000 adjusted for CPI. There is a chance, in view of this provision, that the plaintiff would be unsuccessful in the action even if the writ is renewed as the claim appears to be small and only for general damages.

11 There is the possibility that, if renewal is refused, the plaintiff might apply for and obtain an extension of time in respect of a fresh writ which issued on 9 December 2010. That writ contains the same claim as the writ the subject of the renewal application. The considerations on an extension of time application are not identical to those applicable to a renewal application. For example, on an extension of time application it is usually incumbent upon the applicant to demonstrate, in an appropriately preliminary manner, the apparent viability of the claim. Proof of the existence of a viable claim will be a factor which favours the grant of an extension of time. As earlier noted in these reasons an applicant for renewal does not need to show that there is a viable claim. However, many of the considerations overlap and in particular the length of the delay and the reasons for it must usually be considered. Although it is theoretically possible for renewal to be refused, but an extension of time to be granted, it is unlikely that such a result would occur in the circumstances of this case. I attach little weight to the existence of this possibility as mitigating the hardship which might be caused to the plaintiff by refusing renewal.

12 I attach the greatest weight, in the circumstances of this case, to the following features. A fair trial can still occur. The failure to serve the writ within time and the continuing delay is largely due to the fault of the plaintiff's former solicitor. The Board, which is liable to pay any damages which may be awarded, was notified of the accident a few days after its occurrence and said shortly thereafter that it was investigating the matter. The Board was given the writ whilst it was still effective for service. Accordingly, notwithstanding the lengthy delay, the plaintiff's failure to press his solicitor for activity, the availability of a cause of action against the solicitor and the chance that because of the Civil Liability Act, s27, the plaintiff might not succeed at trial, I am persuaded that there is good reason to order renewal.

(1) The period within which the application for renewal may be made is extended to the date of the filing of the application, namely 13 October 2010.

(2) The writ be renewed for a period of two months.