Judgment Number: [2014] TASSC 25

1 The plaintiff has applied for an order renewing a writ so as to make it effective for service. There is an incidental application for an order extending the time within which the application may be brought.

2 I commence with some general matters of approach including; the appropriate test to be applied on renewal applications; the usual considerations, the circumstances in which such applications might be made ex parte and the use of hearsay evidence.

3 Rules of court limit the time within which writs are effective for service and confer upon courts a discretion to extend time for service upon application made whilst the writ remains effective for service.

4 The reason for the existence of such rules was explained by Lord Greene MR, Lord Goddard and Du Parcq LJ in Battersby v Anglo-American Oil Company Ltd [1945] KB 23. There it was said at p32:

"It is the duty of a plaintiff who issues a writ to serve it promptly ... 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 taken against them if they are here to be served."

5 The duty of a plaintiff who issues a writ to serve it promptly was confirmed by Zeeman J, with whose reasons Wright J and Crawford J (as he then was) agreed in National Mutual Life Association of Australasia Ltd v Huddlestone & Anor [1997] TASSC 73 at p3.

6 In Tasmania a writ is effective for service for six months commencing on the date of issue or such further period as may be allowed by order of the Court or a judge. Subrules (1) and (2) of r107 of the Supreme Court Rules 2000 are relevantly as follows:

(b) ... 6 months commencing on, and including, the date of issue.

(2) On the application of the plaintiff made whilst a writ is in force, the Court or a judge may order that the original writ and any concurrent writ be renewed for such period as the Court or judge thinks fit if a defendant named in the writ has not been served."

7 If attempts at service are left until shortly before the writ would cease to be effective for service, with the result that the six month period passes by without either service or renewal, the court or a judge can still grant relief. Rule 52 relevantly provides:

"(1) The Court or a judge may extend or abridge the period for doing any act or taking any proceedings allowed or limited by these rules or by any order of the Court or a judge on any terms the Court or judge considers just.

(2) An extension of any period may be ordered although the application is made after the expiration of the period originally allowed or limited."

8 In National Mutual Life Association of Australasia Ltd v Huddlestone Zeeman J said at p4:

"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; 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."

9 A distinction between the "good reason" test and the "interests of justice" test, if it exists, is probably only semantic. Bell Group NV (In liq) v Aspinall (1998) 19 WAR 561.

10 Counsel for the plaintiff adopted as a "concise summary" of the relevant principles what I had said in Remess v Webberly [2010] TASSC 63. Paragraphs [3] and [4] of that decision are as follows:

"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."

11 As to the last dot point concerning the relevance of the expiry of a limitation period, Underwood J (as he then was) said in Woodcock v State of Tasmania [2003] TASSC 81 at pars[23] and [24]:

"23 What then is the relevance of the fact that if the writ is not renewed the appellant is barred from bringing a fresh action without first getting the leave of the court pursuant to the provisions of the Limitation Act 1974, s5(3)? Stephen J addressed this issue in Van Leer Australia Pty Ltd v Palace Shipping KK & Another [1981] HCA 11; (1979) 180 CLR 337. His Honour said at 340, that it rather "overstates the matter" to describe an order of renewal of a writ as depriving the defendant of a limitation defence because the writ was issued within time and was not a nullity. However, at 341 he said that the passage of time between the expiry of time within which proceedings may be brought as of right (in this appeal, 26 October 2000) and the application for renewal (28 June 2001) has relevance to the exercise of the discretion. His Honour followed Australian and Canadian authorities in preference to United Kingdom authorities, and held that the expiry of any limitation period was just one of the many matters that fall for consideration under the issue of whether there is good reason to order renewal. Stephen J expressed approval of the following proposition taken from the judgment of Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496 at 504:

'The rule first directs the Court to inquire whether reasonable efforts have been made to serve the defendant. If they have, it seems to me that the Court should renew the writ. If not, the Court has to consider whether other good reasons exist for the renewal. I will not attempt an exhaustive category of such reasons. That would probably be impossible and would certainly be undesirable. Prominent, however, amongst tile matters for the consideration of the Court, apart from whatever attempts have been made 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 the renewal or to the defendant by granting it.'

24 In Burgess v Ferguson (1992) 111 FLR 349, Higgins J (as he then was) said at 352:

'The expiration of a time bar is relevant. However, a plaintiff is not required to show 'exceptional circumstances' to succeed in an application for renewal. The court should look to the general justice of the case, having regard to all the circumstances, including not only the time bar which would be applicable to any fresh proceedings, but also the relative hardships which would be imposed on the parties.

It follows that the same rigour need not be applied to an application to renew a writ as one to extend a time bar. After all, the plaintiff did commence proceedings in time. Nevertheless, the attempts at service (if any), the length of and reasons for delay and hardship or prejudice to the parties if the application is granted or refused, are all relevant considerations.'"

12 I would also add to what I said in Remess, that in cases where a writ becomes ineffective for service due to the fault of the plaintiff's solicitor, the fact that the plaintiff, if refused renewal, would have a cause of action against the solicitor, is not a matter of great significance and has rarely been considered to be a matter militating against the grant of an order renewing a writ. National Mutual Life Association of Australasia Ltd v Huddlestone (supra) per Zeeman J at pp4 - 5.

13 Counsel for the plaintiff, relying on a passage in the judgment of Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496 quoted with approval by Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; 180 CLR 337 at 343, submitted that there is a tendency in procedural law to relax rigid time limits. The observation of Bray CJ which was adopted by Stephen J was made in the context of a consideration of the question of whether or not the statement in Battersby v Anglo-American Oil Company Ltd (supra) that renewal, on an application made after a writ has become ineffective for service, should be refused if to renew would deprive the defendant of the benefit of a limitation period which has expired, should be accepted as the law in Australia. The conclusion was that no such principle applied in Australia. I see no justification in elevating the observation to a statement of general principle that there should be a tendency to relax procedural time limits. The answer to the question of whether or not renewal should be granted depends upon whether the plaintiff has shown good reason, or in other words that the justice of the case requires renewal. Each case should be assessed depending upon the particular circumstances uninfluenced by tendencies or preconceptions.

14 Having regard to the test to be applied and the nature of the considerations, there is an argument that the defendant should have an opportunity to be heard on the return of the renewal application if the defendant is here to be served.

15 The question of whether a renewal application may be made ex parte was considered in Verdich v McKechnie [1981] TASRp 9; (1981) Tas R 91. There the defendant resided in England and the renewal application had been dealt with at first instance by the Acting Master ex parte. Neasey J said at p93 that the procedure was "sound". His honour referred to Williams on Supreme Court Practice (Victoria), 2nd Ed, Vol 1, p1125, par8.1.2. Reference was made in Williams to Irving v Carbines [1982] VicRp 86; (1982) VR 861. There the Full Court (Young CJ, McInerney and King JJ) said at 863:

"An application for an extension of time for service ... will ordinarily be made ex parte, for the application will usually be founded on the plaintiff's inability to serve the defendant."

16 In Verdich Neasey J at p97 quoted with approval what Bray CJ had said in Victa Ltd v Johnson (1975) 10 SASR 496 at 503, namely:

"What the failure to serve a writ within [time] gives the defendant is no more than a right to contend that the court in the exercise of its discretion should not renew the writ."

17 In New South Wales the practice is for renewal applications to be dealt with ex parte even where the defendant can conveniently be given notice of the application. This practice is supported by r12.11(1)(e) of the Uniform Civil Procedure Rules 2005, which provides that the Court may, on the application of the defendant, make an order discharging any order extending the validity for service of the originating process. In Onefone Australia Pty Ltd v One Tel Limited [2007] NSWSC 1320, Barrett J said at pars[9] to [12]:

"9 There is, in any event, a strong indication in the rules of the court themselves that a person named as a defendant in unserved originating process is not intended to be heard on an application for extension of the time for which the process remains valid for service. Rule 12.11(1)(e) of the Uniform Civil Procedure Rules 2005 is in these terms:

'In any proceedings, the court may make any of the following orders on the application of a defendant:

(e) an order discharging any order extending the validity for service of the originating process."

10 This, it seems to me, recognizes the obvious point that there will be cases in which filed but unserved process is never served. Unless and until a filed process is served, the defendant has not been drawn into the proceeding. The rule works on the basis that the named defendant is a non-participant in the process by which the court decides whether the time for service should be extended and that a defendant's interest in that question, if there is any, is something that is to be aired and dealt with after the event - that is, when the plaintiff has, by service, shown that it does in truth draw the defendant into the proceeding.

11 To put this another way, a defendant who has been served and who is thereby given a definitive status in relation to proceedings which it is by then clear will be pursued should be heard only retrospectively on the question of extension of time for service, assuming he or she wishes to be heard at all.

12 This is, to my mind, an example of a situation in which the rules of court expressly put to one side the general expectation that affected persons should be heard before any order affecting them is made. The expectation evidenced by the rules in this area is one of being heard after the event, not before the event, in much the same way as one might expect in relation to, for example, a subpoena. Much time and effort could be wasted if an unserved defendant were heard on a question that would become entirely academic if the plaintiff eventually decided not to serve at all."

18 The New South Wales practice is founded on a rule which gives to a defendant a right to be heard retrospectively in all cases where renewal is granted. There is no such specific rule in Tasmania. The general position is set out in r530 which is as follows:

"(1) Except as otherwise provided by these rules, an application is not to be made ex parte.

(2) If a delay in the conduct of proceedings is likely to cause irreparable or serious harm or detriment, the Court or a judge may make an order ex parte on any terms as to costs or otherwise and subject to any undertaking as the Court or judge thinks just.

(3) The Court or a judge may set aside or vary an order under subrule (2)."

19 It is to be noted that r107 does not provide for renewal applications to be made ex parte. Accordingly, it appears that only those renewal applications falling within subrule (2) of r530 can be made ex parte and, short of appeal, only those orders made on such renewal applications can later be set aside on the application of the defendant.

20 The power to set aside an order made ex parte was considered in Bell Group NV (In liq) Aspinall (1998) 19 WAR 561. There Pidgeon, Walsh and Owen JJ held at 569:

"But what are the circumstance in which a judicial officer should set aside an order made ex parte by another judicial officer? Counsel for the appellant submitted that before the jurisdiction to reconsider an ex parte order can be enlivened, it is necessary for a party seeking such relief to adduce additional material evidence or to establish that there was material non-disclosure by the party who obtained the order. We think this is correct. A subsequent hearing, either by the judge who made the original order or by another judge with co-ordinate powers, is not an 'appeal' against the first order. Nor is it an application merely to reconsider the correctness of the original decision on the materials then placed before the judge. The application rests in every case on the production of further materials not before the judge who heard the ex parte application and which throw a new and different light on the situation of the parties involved: Farrell v Delaney [1952] 52 SR NSW 236 at 238. If the order is made without jurisdiction, the requirement for further evidence does not apply: Re Reid Murray Acceptance Ltd [1964] VicRp 12; [1964] VR 82 at 90. Farrell (supra) has been followed in other jurisdictions: see, for example, Garling v Laska; ex parte New Zealand Insurance Co Ltd [1981] 51 FLR 49 at 52-53 (NT Sup Ct); Cook v Dodds and Shenton [1985] 40 SASR 79 at 81."

21 Consistently with r530 and consistently with what was said in Verdich, it may be that in cases where a defendant is here to be served and can be served without delay that a renewal application should be on notice to the defendant so that the defendant's right to contend that renewal should not occur can be exercised at the outset rather than confining the remedy of the defendant to appeal.

22 Marsden v Taylor [2000] TASSC 138 was an appeal to the Full Court from an order made ex parte renewing a writ. Although the argument was confined to whether renewal should have been ordered, Blow J (as he then was) said at par[21] that he believed "the most appropriate course for the learned primary judge would have been to invite the respondent's solicitors ... to serve the appellant, assuming he was able to be located".

23 The question of whether a renewal application may be made ex parte where the defendant is here to be served was dealt with by Tennent J in Allstate Explorations v Ryan [2008] TASSC 79 at pars[12] - [16]. Her Honour concluded that the renewal application could be dealt with ex parte. It appears, however, that the argument before her Honour was not exhaustive. There is no reference in the judgment to r530.

24 In the present case, the renewal application was notified to the defendant. With respect, I consider this to have been the proper approach.

25 Finally, I wish to make some observations on the use of hearsay material on renewal applications. An applicant must satisfy the Court that there is good reason to order renewal. In most cases the applicant must explain the delay. An applicant who is at fault is not necessarily disentitled. Generally, it is expected that an applicant seeking a favourable exercise of the discretion to renew will furnish the Court with a full and frank explanation for the delay so as to put the Court in a position to properly weigh the relevant considerations and so make an informed determination as to whether good reason to renew exists. An applicant who fails to give a complete explanation for the delay, in circumstances where such an explanation is called for, and so deprives the Court of relevant information cannot expect to receive a favourable exercise of the discretion.

26 The Evidence Act 2001, s75, provides that hearsay evidence is admissible in interlocutory proceedings. The Supreme Court Civil Procedure Act 1932, s200, provides that Rules of Court may be made as to procedure or practice which alter or modify other legislative provisions. Rule 502(2)(b) provides that the hearsay rule applies to evidence in an affidavit on an interlocutory application for an order "to extend or waive a time limit on the continuation of proceedings that is imposed by statute". However, time limits imposed by Rules of Court are not time limits imposed by statute. Further, Rules of Court do not fall within the definition of "Act" in the Acts Interpretation Act 1931, s5 as "assent by or on behalf of the Sovereign" is not required for Rules of Court to take effect. The Supreme Court Civil Procedure Act, s197, authorises the making of rules by the judges of the Supreme Court or a majority of them and the provision does not require the giving of royal assent to such rules. Accordingly, hearsay evidence is admissible on a renewal application.

27 Here, the plaintiff has not given evidence herself. Instead she has relied on an affidavit given by her solicitor which includes hearsay evidence as to the plaintiff's role in the delay. Although it might be thought that in many cases a plaintiff seeking a favourable exercise of a discretion would give his or her own evidence as to important matters within his or her own knowledge, the plaintiff, presumably acting on the advice of her solicitors, has elected not to give her own evidence. Such a decision may have protected the plaintiff from exposure to scrutiny under cross-examination, but it came with a risk that the hearsay explanation may be found not to be complete or not to be persuasive.

28 I now turn to the background leading to the present application.

29 The plaintiff's writ was filed on 19 November 2012. It was endorsed with a claim against the present defendant and the operator of a hospital, namely, Calvary Health Care Tasmania Ltd, seeking damages for personal injury resulting from allegedly negligent medical treatment undertaken from 20 November 2009. The writ was not served, but on 17 May 2013 a statement of claim was filed. According to the statement of claim, the plaintiff was advised by the defendant, a Gynaecologist and Obstetrician to undergo a laparoscopic vaginal hysterectomy and other related surgical procedures. She was not advised of the risk associated with the surgery. The surgery was performed on 24 November 2009 under the care of the defendant. The plaintiff developed a resultant haematoma. It is alleged that post-operatively the defendant failed to order certain tests. Such tests and follow-up investigations would have revealed internal bleeding. The plaintiff was discharged from hospital on 27 November without detection of the internal bleeding. She was readmitted on 2 December with symptoms including high temperature and abdominal pain. Further surgery was needed, which was performed under the care of the defendant on 4 December. As a result of the further surgery the plaintiff developed a bowel obstruction and other problems. It is alleged that the injury suffered by the plaintiff was the result of the defendant's negligence.

30 No attempt to serve the writ was made until about a week before it would become ineffective for service. The writ became ineffective for service after 18 May 2013. On 10 May 2013 a process server was engaged to effect service on the first defendant. By then a decision had been made not to serve Calvary Health Care Tasmania Ltd and the proceedings against Calvary were subsequently dismissed. On 17 May the process server advised that the defendant had vacated the rooms formerly occupied by her in Launceston. The process server further advised that he did not know the defendant's whereabouts. The six month period passed by without the writ having been served and without a renewal application having been made.

31 On 7 June 2013 the renewal application was filed. On the first return of the application a supporting affidavit was yet to be filed. The hearing of the application was adjourned. A supporting affidavit was filed on 26 November. The application was then set down for hearing on 20 February 2014, but it was further adjourned at the request of the solicitor for the applicant. The application was finally heard on 17 April 2014.

32 The affidavit in support of the renewal application was from the plaintiff's solicitor Lina Howroyd.

33 The evidence in Mrs Howroyd's affidavit was as follows. Mrs Howroyd is a solicitor employed by the firm Slater and Gordon. She did not have carriage of the matter for the plaintiff until November 2012. In May 2010 the plaintiff contacted the Melbourne office of Slater and Gordon about the potential claim and provided initial instructions to the firm in July 2010. In August 2010 the plaintiff entered into a retainer agreement with her solicitors. Between August 2010 and December 2010 Slater and Gordon obtained various hospital records. Mrs Howroyd's affidavit continued as follows:

"Between 21 February 2011 and 14 July 2011 the plaintiff remained in contact with Slater and Gordon in relation to the progress of her matter.

On 10 August 2011 Slater and Gordon obtained instructions from the plaintiff to proceed to obtain a medico-legal report from a Gynaecologist.

On or about 12 October 2011 Slater and Gordon sent a briefing letter to Gynaecologist Dr Andrew Korda requesting a medico legal report/medical negligence opinion.

On 11 January 2012 the plaintiff was advised that the report of Dr Andrew Korda was available and a request was made for payment for the cost of the report.

Between 16 February 2012 and 8 October 2012 the communications between the plaintiff and Slater and Gordon concerned payment for the report of Dr Korda.

On or about 11 October 2012 the plaintiff's file was transferred from Slater and Gordon's Melbourne office to the Hobart Office."

34 Mrs Howroyd went on to say that she took over carriage of the matter personally on 5 November 2012. On 8 November she wrote to the plaintiff requesting instructions "to file a writ" and at the same time requested funds.

35 The writ was filed on 19 November. Mrs Howroyd said as to the delay following the filing of the writ:

"Due to the merger of Hilliard & Associates with Slater and Gordon on 20 August 2012 I had considerable work commitments including a number of files requiring Writs to be filed and/or served over these months and I did not immediately attend to service of the Writ.

On 3 May 2013 I wrote to the plaintiff with advice in relation to the contents of the report of Dr Korda and advising of the necessity to serve the Writ by 19 May 2013.

On 9 May 2013 I wrote to the plaintiff seeking instructions to serve the Writ and clarifying which defendant should be served.

On 9 May 2013 I drew a Statement of Claim to support the Writ.

On 10 May 2013 I contacted ANET Detection Services by email requesting that they arrange service of the Writ which needed to be served by the following week."

36 It may be that the delay at the Slater and Gordon Melbourne office was due to the plaintiff failing to put her solicitors in funds for the cost of obtaining a report from Dr Korda. It may be that the delay in the Hobart office caused by Mrs Howroyd not attending to the matter with expedition between the time of the issue of the writ in November 2012 and giving advice as to the merits of the claim and seeking instructions to proceed to service in May 2013, was due to the plaintiff not having put her solicitors in funds.

37 Under cross-examination, Mrs Howroyd said that between February and October 2012 the substance of communications between Slater and Gordon and the plaintiff concerned putting the solicitors in funds to cover the cost of Dr Korda's report. At the time the writ was issued Slater and Gordon had still not received the money requested. This was despite the plaintiff, at the outset, having been advised as to time limits applicable for the commencement of the proceedings. The communication which led to the filing of the writ, just before the third anniversary of the surgery which had resulted in the injury, was initiated by Slater and Gordon and not by the plaintiff. At the time instructions to file the writ were given the plaintiff had still not received advice as to the merits of the potential claim and so no instructions to proceed with the service of the writ were requested or given. Mrs Howroyd said that she would normally have sought instructions to serve the writ at the same time she sought instructions to file the writ. It may be that the reason merits advice was not given earlier and instructions to serve the writ were not requested earlier was the failure of the plaintiff to put her solicitors in funds.

38 In re-examination Mrs Howroyd said that a schedule of payments had been arranged with the plaintiff and that although the plaintiff had made some payments she had not complied with the agreed schedule.

39 There was no evidence as to why the plaintiff had failed to provide money to her solicitors when requested to do so. There was no evidence as to the plaintiff's financial position and her ability to fund the litigation. There was no evidence as to whether the plaintiff knew that her claim would not or might not be progressed without the provision of funds. In particular, the evidence was silent as to whether the plaintiff was at fault.

40 All that is said about the delay in attending to service of the writ from the plaintiff's perspective is contained in Mrs Howroyd's affidavit at par[16] which is as follows:

"16 The Plaintiff applicant has stated the following to me regarding her belief about the Writ being served:

a) My solicitor did not tell me that the Writ had to be served within six months of the date it was filed and I did not know until about 6 May 2013 that the Writ had to be served on the First Defendant within a certain time.

b) When I instructed her to institute proceedings in November 2012 I assumed that she had done so and that included taking whatever steps were necessary to get the proceedings commenced against the First Defendant.

c) I did not hear from my solicitor after November 2012 until she wrote to me on 3 May 2013 asking for instructions to serve the Writ. I did not know during that time that the Writ had to be served within six months of the date it was filed however her letter of 3 May 2013 advised me that the Writ needed to be served by 19 May 2013.

d) After she wrote to me I called her on 9 May 2013 and provided the instructions to serve the writ. At that time I assumed that the Writ would be served and that the proceedings would continue without any problems.

e) I found out on 23 May 2013 that the Writ had not been served within the six months because Dr Mandapati had vacated her rooms, and that the Writ was stale and that I need to apply to the Court to extend time to serve the Writ on the First Defendant."

41 The ultimate question is whether the applicant has discharged her onus of demonstrating that good reason exists to order renewal of the writ.

42 Although the writ was not filed until shortly before the third anniversary of the surgery which caused the alleged injury and this delay may have been attributable to the unexplained failure of the plaintiff to put her solicitors in funds, I attach no weight to this feature as the writ was filed within time and the present application concerns the failure to serve and not a failure to commence the action in a timely fashion. The relevant period of delay is the time between the filing of the writ in November 2012 and it becoming ineffective for service in May 2013.

43 The defendant did not assert any prejudice other than the general prejudice which comes with delay. Such general prejudice would be likely to be minimal in the circumstances of the present case as in the ordinary course of events it could be expected that hospital records will be available and the defendant will have her own records. I conclude, in favour of the plaintiff, that a fair trial can still occur.

44 I do not attach any weight to the delay between the writ becoming ineffective for service and the hearing of the renewal application. The renewal application was filed shortly after the writ became stale and the defendant was notified of the application. The defendant did not submit that I should count against the plaintiff the delay in filing the affidavit in support of the application and the delay in having the application listed for hearing.

45 The plaintiff did not produce Dr Korda's report on the hearing of the application, nor any evidence as to the merits of the claim. If she had done so it might have assisted her application, but the fact that it has not been done is neutral and does not count against her. See Jadwan Pty Ltd v Porter (No 2) [2004] TASSC 126 at par[25].

46 I do not know whether, if renewal is refused, the plaintiff will have a claim against her solicitors. Even if she has such a potential claim it would not eliminate or necessarily substantially diminish the detriment which would or might be suffered by her if renewal is refused. As previously noted, such a possibility is not a matter of much significance on a renewal application and I do not attach any weight to the possibility, if it exists, of an action against the solicitors.

47 There is a chance that if renewal is refused, a fresh action will be statute barred. The plaintiff has three years from the date of discoverability to bring an action. The date of discoverability is the date when the plaintiff knew or ought to have known that she had suffered injury attributable to the conduct of the defendant sufficiently significant to warrant bringing proceedings. See the Limitation Act 1974, s5A and the definition of "date of discoverability" in s2. If it was considered that the plaintiff ought to have first consulted solicitors earlier than she did, the three year limitation period might have commenced to run as early as by about the middle of 2010. In this regard I note that the time between the plaintiff entering into a retainer agreement with her solicitors and the solicitors having hospital records available so as to be in a position to request a report from expert Dr Korda was about five months. As a precaution, the plaintiff issued a fresh writ against the defendant in July 2013. Notwithstanding this, there is a possibility that the defendant can make out a limitation defence to the fresh action and I take this possibility into account in favour of the plaintiff in that if the new action is statute barred she will suffer significant prejudice if her present action cannot proceed.

48 I also take into account that the plaintiff was unaware of the six month period for service until shortly before that period expired. However, the significance of this feature is reduced by the fact that there is no evidence as to whether or not the plaintiff knew that service was being withheld and there is no specific evidence as to whether or not the plaintiff appreciated that there might have been some time limit for service, although she did not know what that limit was.

49 Counting against the grant of renewal is the fact that renewing the writ would deprive the defendant of the possible limitation defence which has been pleaded in the fresh action commenced in July 2013. The loss of a possible limitation defence was regarded as a relevant factor in Ramsay v Madwicks [1989] VicRp 1; (1989) VR 1 at p7.

50 There is the matter of the plaintiff's failure to fully explain the delay. In particular, why she did not pay her solicitors when requested to do so has not been explained. There is no evidence as to whether the plaintiff knew that her failure to pay was holding up proceedings. I would not apply overwhelming significance to this feature, but it is a matter counting against the exercise of the discretion in favour of the plaintiff.

51 The delay in making attempts to serve the writ after its issue was not great, a period of about 5½ months. The proceedings came to the attention of the defendant shortly after the expiry of the six month period limited for service. A fair trial can still occur. Refusing renewal might result in the plaintiff's claim being statute barred. To be weighed against these matters is the fact that renewal might deprive the defendant of a limitation defence and the fact that the plaintiff has not fully explained the delay. The case is finely balanced. However, when everything is taken into account I am unpersuaded that there is good reason to order renewal.