Philomena Burgess v Dr Ian Ferguson [1992] ACTSC 125; (1992) 111 FLR 349 (11 December 1992)

SUPREME COURT OF THE ACT

PHILOMENA BURGESS v. DR IAN FERGUSON
No. SC 123 of 1991
Number of pages - 12
Practice
[1992] ACTSC 125; (1992) 111 FLR 349

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Practice - Writ of Summons - Renewal of stale Writ - "Good reason" to be shown - No prejudice to defendant.

Limitation Act 1985 (ACT), s.36

Rules of the Supreme Court of the Australian Capital Territory, O.9 r.1, O.64 r.5

Noja v Civil and Civic (1990) 93 ALR 224

Van Leer Australia Pty Ltd v Palace Shipping K K and Anor (1981) 34 ALR 3

Irving v Carbines (1982) VR 861

Southwell v Specialised Engineering Services Pty Limited [1990] NTSC 27; (1990) 101 FLR 175

Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542

Mondial Trading Pty Limited v Interocean Marine Transport Inc (1985) 60 ALJR 277

Ramsay and Anor v Madgwicks (a Firm) and Anor (1989) VR 1

Finlay v Littler (SC VIC No. 8205/90; 1/10/91; Crockett and Southwell JJ.; unreported)

Daroczy v B and J Engineering (1986) 67 ACTR 3

Rogers v Whitaker (FC 92/045; 19/11/92; Mason C.J., Brennan, Dawson, Toohey, Gaudron and McHugh JJ.; unreported)

HEARING

CANBERRA, 21 August and 9 October 1992
11:12:1992

Counsel for the Plaintiff/Respondent: Mr J. Purnell

Instructing solicitors: Messrs Snedden Hall and Gallop

Counsel for the Defendant/Appellant: Mr S. Gageler

Instructing solicitors: Messrs Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed save insofar as it is necessary to
enlarge time for renewal of the Writ to the date of this
decision.
2. Time be enlarged for the purpose of permitting renewal as from
this day.
3. All other orders made by the Acting Registrar on 10 August 1992
be confirmed.

DECISION

HIGGINS J. On 25 February 1991, a writ of summons was issued endorsed with a claim by the plaintiff for damages for negligence arising out of medical treatment given by the defendant to her "in or about March 1985".

2. By notice of motion dated 29 July 1992 the plaintiff sought leave to enlarge the time within which to apply for renewal of the writ and then to renew the writ for a further period of six months.

3. That application was supported by an affidavit from Mr Andrews, the plaintiff's solicitor.

4. It was Mr Andrew's evidence that no attempt had been made to serve the writ or apply for its renewal until February 1992. On 13 February 1992, Mr Andrews sent a copy of the writ and a covering letter to the defendant at "Shop 14, 2 Hyperdome, Ankatell Street, Tuggeranong, ACT, 2900".

5. Counsel was then briefed to settle a statement of claim. No acknowledgement was received from the defendant of the letter of 13 February 1992. A further letter was sent on 1 July 1992 requesting that acknowledgement.

6. Messrs Blake Dawson Waldron responded on the defendant's behalf by letter dated 7 July 1992. They asked - "Could you please enlighten us as to what this is all about?".

7. On 9 July 1992, Mr Andrews responded forwarding copies of the letter of 13 February 1992 and previous enclosures. The defendant was invited to file "a Notice of Address for Service".

8. The defendant's solicitors responded on 15 July 1992 as follows:-

"It appears that on 25 February 1991 you issued a writ for events
said to have occurred in March 1985. Our instructions are that
Dr Ferguson has not been served with the Writ.
We note that the Writ is now stale and it would seem that the
Writ was not renewed prior to its going stale. We also note that
the events complained of occurred over 7 years ago.
We have advised Dr Ferguson that there is nothing further that we
need to do."

9. On 4 August 1992 a "Conditional Appearance" was entered for the defendant. His professional address was shown as "Hyperdome Medical Centre, Shop 142, Tuggeranong Hyperdome, Anketell Street, Tuggeranong Town Centre in the Australian Capital Territory".

10. On 10 August 1992 the Acting Registrar granted the relief sought by the plaintiff in her notice of motion dated 29 July 1992. The defendant, by notice dated 14 August 1992, appeals from that decision.

11. The appeal was heard on 21 August 1992 and 9 October 1992. Two affidavits were read. There was an affidavit of the plaintiff filed on 7 September 1992. The purpose of it was to explain the delay in renewing the writ and to provide evidence concerning the plaintiff's claim. There was also an affidavit of Mr W M Andrews, the plaintiff's solicitor. It was dated 28 July 1992.

12. The plaintiff and Mr Andrews were cross-examined.

13. Mr Andrews deposed to the reasons for not serving the writ immediately. He had wished, before doing so, to obtain medical opinions giving prima facie support to the plaintiff's claims. Though sought as early as April/May 1991, no reports were received until February 1992. It was in response to those reports, or that report, that the plaintiff, on Mr Andrews' advice apparently, instructed service of the writ on the defendant. Mr Andrews, also, regarded it as discourteous to send a process server to deliver a copy of the writ to the defendant, a medical practitioner. Accordingly, he sent a letter to the defendant enclosing the writ. He agreed that he had, however, neglected to follow up that letter before the writ expired. The professional address of the defendant as shown on the letters of 13 February 1992 and 1 July 1992 was, he acknowledged, erroneous. However, the letter of 1 July 1992 apparently reached the defendant although the letter of 13 February 1992 did not. I consider that, notwithstanding the error in address, it would have been reasonable to expect that the letter of 13 February 1992 would have reached Dr Ferguson, although I accept that it did not, in fact, do so. It is clear that the sending of that letter, even if it had been received, would not have constituted valid service of the writ. It was always possible, even if it had been correctly addressed, that it could have gone astray.

14. The plaintiff deposed that she had attended the defendant during 1984 complaining of neck and back pain extending to her wrists and forearms. In December 1984, the defendant carried out a number of spinal manipulations. They were not particularly successful but neither were they particularly harmful. In March 1985, the plaintiff was admitted to hospital and manipulated by the defendant under general anaesthetic. That resulted in severe pain rather than relief. Treatments continued to be given by the defendant up until December 1985. Thereafter, manipulations were given by a chiropractor at the defendant's suggestion.

15. There was, over that period, a marked deterioration in the plaintiff's symptoms, which she regards as related to the treatment given to her by the defendant in and from March 1985.

16. Until about Christmas 1990, the plaintiff was uncertain whether she could take action against the defendant. At that time she spoke to a family friend, who was a practising barrister. He advised her that she might well have a cause of action upon which she could sue and should instruct her solicitors to investigate whether a claim against the defendant should be commenced.

17. The plaintiff waited until 6 February 1991 to see Mr Andrews concerning the matter. The writ was issued before investigations were able to be completed in the hope of avoiding the impending time bar under the Limitation Act 1985 (ACT).

18. Those investigations involved seeking medical opinions concerning the defendant's treatment of the plaintiff. It was not until 5 February 1992 that she was advised that, on the basis of an opinion from one of the medical practitioners so consulted, she had reasonable cause to commence proceedings. She then instructed Mr Andrews to effect service of the writ.

19. It is apparent that the plaintiff did not pursue her claim against the defendant as diligently as she could have. She explains that by reference to "family problems" and a general malaise arising from her original compensable condition in respect of which she had sought treatment from the defendant.

20. Nevertheless, assuming that the plaintiff has a cause of action resulting from the defendant's treatment of her, she did commence proceedings within the time permitted by the Limitation Act 1985 (ACT). She was entitled to serve the writ at any time before 25 February 1992. There is no evidence of any prejudice to the defendant by reason of the delay between 25 February 1992 and the date in July 1992 on which the defendant was notified of the existence and terms of the writ.

21. Order 9 rule 1 permits the renewal of a stale writ. An application to renew should be made before the expiration of 12 months from its issue. The applicant should show that "reasonable efforts" have been made to serve the defendant or that there is "other good reason" to renew the writ. In this case, it could not be contended, nor was it asserted, that "reasonable efforts" to serve the defendant were made. The plaintiff relies on "other good reason".

22. It is not disputed that I may enlarge the time for an application to renew the writ, notwithstanding its expiry, pursuant to Order 64 rule 5.

23. The defendant, whilst not claiming any specific prejudice, points to the fact that the time fixed for commencing proceedings has now expired. However, it is also the case that the plaintiff's claim is one in respect of which the time bar could be extended pursuant to s.36 of the Limitation Act 1985 (ACT).

24. If the time is not extended and the plaintiff had commenced fresh proceedings, the defendant would have some defence under the Limitation Act 1985 (ACT), qualified though that might be.

25. If the plaintiff was an applicant to extend time under that Act, any possible cause of action she might have against her solicitor would be a relevant consideration. It does not seem, however, to be a consideration which carries much weight adverse to such an applicant (see, for example, Noja v Civil and Civic (1990) 93 ALR 224).

26. The plaintiff is not applying to extend time under the Limitation Act 1985 (ACT). She is seeking to renew a stale writ, albeit after expiry of the limitation period which otherwise would apply.

27. Stephen J in Van Leer Australia Pty Ltd v Palace Shipping K K and Anor (1981) 34 ALR 3 considered such a situation arising under almost identical Rules. There was, in that case, an absolute time bar unless the writ was renewed out of time. His Honour adopted the view that a stale writ is not a nullity. It merely lacks the quality of being in force for the purpose of service.

(6) "It follows that renewal out of time cannot properly be
described as depriving a defendant of a defence the essence of
which is failure to issue within time."

28. 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.

29. 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.

30. In the event, in that case, leave to renew the writ was refused. It was a commercial case. There had been considerable and deliberate delay. There had been no notice of intention to claim to enable the defendant to mitigate prejudice. There had been no action by the defendant to induce delay or otherwise encourage the plaintiff to believe litigation would not be necessary.

31. The Full Court of the Supreme Court of Victoria (Young C.J., McInerney, King JJ.) in Irving v Carbines (1982) VR 861, upheld a decision to renew a stale County Court summons. Van Leer was applied. There had been notice given by the plaintiff of intention to claim damages for personal injury shortly after the summons issued. Failure to serve the defendant in time was apparently due to the incompetence of the plaintiff's solicitor. It was not due to the plaintiff's instructions. There was no demonstrable prejudice to the defendant in granting the application and considerable hardship to the plaintiff in refusing it. The refusal to renew would raise an absolute time bar in relation to fresh process. The defendant did nothing to induce the plaintiff to withhold service. The plaintiff's cause of action was not, apparently, a strong one. Nevertheless, the learned primary Judge's decision to extend time was not considered erroneous.

32. In the present case, of course, no notice was given to the defendant before expiry of the writ of intention to make a claim. However, there is no absolute time bar accruing to the defendant as a defence if the application is refused.

33. It is fair to observe, also, that I have not been told anything about the Acting Registrar's reasons for granting the application. Accordingly, it is not a question of reviewing her exercise of discretion. In any event, this is a rehearing de novo (see, for example, Southwell v Specialised Engineering Services Pty Limited [1990] NTSC 27; (1990) 101 FLR 175).

34. Van Leer was followed by Mason J in Foxe v Brown [1984] HCA 69; (1984) 58 ALR 542. In that case, however, it appeared that reasonable efforts had been made to serve the defendant before expiry of the writ.

35. Dawson J applied Van Leer in Mondial Trading Pty Limited v Interocean Marine Transport Inc (1985) 60 ALJR 277. In that case, however, informal service had taken place by delivery of relevant documents to the defendant's solicitors. The latter, after long delay and contrary to initial expectations, failed to obtain instructions to accept service. There was no apparent prejudice to the defendant.

36. I was also referred to Ramsay and Anor v Madgwicks (a Firm) and Anor (1989) VR 1. However, in that case the time bar which arose on refusal of leave to renew the writ was absolute. It was not capable of extension as in the present case. It was a commercial matter that reasonably appeared to the defendant to have been long abandoned.

37. In a more recent but unreported decision, Finlay v Littler (SC VIC No. 8205 /90; 1/10/91; Crockett and Southwell JJ.; unreported), the plaintiff's solicitor had failed to seek renewal of a stale writ for almost 3 1/2 years. There had been some early desultory efforts at service. Unlike the present case, the delay was by itself able to found an inference that prejudice would be suffered by the defendant.

38. Having regard to all the circumstances of the case, I am persuaded that "good reason" to renew the writ and to extend time for that purpose has been shown.

39. I give particular weight to the fact that it was not the plaintiff's choice to remain silent until the writ had nearly expired. It was not her choice to adopt a policy of informal service. It was not her fault that her solicitor failed to follow up the attempt at "service" which had been made on 13 February 1992. It would be a considerable hardship to force her to sue her solicitor as her only avenue for remedy. The fact that such an alternative exists may well be relevant (see Daroczy v B and J Engineering (1986) 67 ACTR 3).

40. I am also mindful that there is, prima facie, a substantial claim against the defendant, strengthened, possibly, by the recent High Court decision in Rogers v Whitaker (FC 92/045; 19/11/92; Mason C.J., Brennan, Dawson, Toohey, Gaudron and McHugh JJ.; unreported).

41. Of course, the defendant does not need to show prejudice to succeed in opposing an application for renewal. However, given that the plaintiff has made out a prima facie case for renewal, the absence of any evidence of prejudice to the defendant enables the confident exercise of discretion in favour of the plaintiff.

42. It follows that I dismiss the appeal from the Acting Registrar save insofar as it is necessary to enlarge time for renewal of the writ to the date of this decision. The order enlarging time and permitting renewal will date from this day. Otherwise, I confirm the orders made by the Acting Registrar.

43. I will hear the parties as to costs.