John De Jong v Roche Products Pty Limited [1992] ACTSC 71 (14 August 1992)

SUPREME COURT OF THE ACT

JOHN DE JONG v. ROCHE PRODUCTS PTY LIMITED
S.C. No. 656 of 1990
Practice and Procedure - Law Reform

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan(1)

CATCHWORDS

Practice and Procedure - Amendment - General Indorsement on Writ - Method of effecting amendment - Copy delivered - Failure to serve amended document in time - Order granting leave void - Power to extend time.

Law reform - Procedure - Method of amendment - Irregularities - Powers of Master.

Australian Capital Territory Supreme Court Act 1933 Ss 43, 44

Rules of the Supreme Court of the Australian Capital Territory O.3 rr 1(2), 1(3), 5(2); O.4 r.1; O.6 rr 1, 2, 3, 4, 5; O.10 rr 1, 2, 2B, 8; O.23 r.11; O.32 rr 7, 8, 9, 10; O.61A r.1; O.64 r.5; O.69 r.1

Attorney General v Wylde (1946) 47 SR (NSW) 99

Lamshed v Lamshed (1962) SASR 190

HEARING

CANBERRA
14:8:1992

Counsel for the Applicant: Mr R. Refshauge

Instructing Solicitors: Macphillamy Cummins

and Gibson

Counsel for the Respondent: Mr B. Walker

Instructing Solicitors: Blake Dawson Waldron

ORDER

The Court orders that:
1. The application by the defendant dated 28 July 1992 be dismissed.

2. Directs that the proceedings be dealt with as if the purported amendment

of the indorsement of the Writ had been properly effected on 19 February 1991.

3. Orders that the time within which the plaintiff is to serve the amended Writ pursuant to O.32 r.10 be extended to 21 August 1992.

4. Orders that the plaintiff pay the costs of and incidental to the Notices of Motion.

5. Directs that the defendant be at liberty to proceed forthwith to taxation of the costs ordered by Gallop J. on 15 February 1991.

DECISION

This is the determination of two motions on notice in an action that was commenced by Writ of Summons on 29 October 1990.

2. The Writ, as issued on that date, bore the following general indorsement:

"The Plaintiff's claim is for damages for the
injuries suffered by the plaintiff as a result of a
breach of the defendants duty of care in the Australian
Capital Territory to the plaintiff arising out of the
use of the defendants products by the plaintiff."

3. By Notice of Motion dated 28 November 1990, solicitors for the defendants, without filing an appearance, moved to set aside the Writ, on the ground that the indorsement was defective.

4. When that application came on for hearing before Gallop J. on 15 February 1991 the solicitors for the plaintiff offered to amend the endorsement, by adding, after the words "the defendants products" the words "namely 'Valium' and other products containing Diazepam" and, after the words at the end, "by the plaintiff", the words "since approximately 1976 till 29 October 1990".

5. His Honour made an Order granting leave to the plaintiff to make that amendment. The Order did not specify a time within which the amendment of the indorsement was to be effected. His Honour formally dismissed the defendant's application, but ordered that the plaintiff pay the costs of the motion, and added that those costs were to be paid when the matter is resolved. He further gave liberty to the defendant to apply if there were any undue delay in the matter's being resolved, intimating that he might then make some other order as to costs.

6. On 19 February 1991 there was lodged in the Registry a document headed "Amended Writ of Summons". It bore an indorsement complying with O.32 r.9, namely, "Amended the 19th day of February 1991 pursuant to an order made the 15th day of February 1991". The General Indorsement contained the additional words referred to in the Order made by Gallop J., underlined in red.

7. Meanwhile, by letter dated 18 February 1991, the solicitors for the plaintiff wrote to the solicitors who had acted for the defendant, inter alia, as follows:

"We are arranging for the Amended Writ of Summons
to be sealed and issued by the Court and thereafter
propose to serve the same on you. We note that you
have instructions to accept service of the Amended Writ
of Summons. We assume that, thereafter, you will file
an Appearance."

8. Those solicitors did not proceed to enter an appearance for the defendant. Nor did the solicitors for the plaintiff proceed immediately to serve the amended Writ, either personally or by delivery to the solicitors.

9. Almost a year later, under cover of a letter dated 14 February 1992, the plaintiff's solicitors forwarded to the solicitors acting for the defendant a copy of the so called amended Writ of Summons, purportedly by way of service upon them. They responded by letter dated 27 February 1992 denying that they had given an undertaking to accept service and to enter an appearance. They stated that they had had instructions to accept service. They pointed out that the amended Writ had not in fact been served, and was therefore stale. They rejected the purported attempt to effect service. They did not enter an appearance.

10. After further politely argumentative correspondence the solicitors acting for the defendant, on notice dated 28 July 1992, moved for a declaration that the amended Writ was void, for a variation of the costs order made by Gallop J., and for an order that the original Writ be set aside.

11. The solicitors for the plaintiff moved on notice dated 3 August 1992 that the time within which the plaintiff might serve the defendant with the amended Writ be extended.

12. By consent both these motions were heard together. On the hearing the form of the first order sought by the defendant was, by consent, amended to seek a declaration that the amended Writ was a nullity on the ground that the Order granting leave to amend had become void.

13. The somewhat unusual form of such an order is suggested by the rule that lies at the heart of the submissions made by counsel for the defendant, namely O.32 r.7. It reads:

"7. If a party who has obtained an order for leave
to amend does not amend accordingly within the time
limited for that purpose by the order, or, if no time
is thereby limited, then within fourteen days from the
date of the order, such order to amend shall, on the
expiration of such limited time or of such fourteen
days (as the case may be), become ipso facto void,
unless the time is extended by the Court or Judge."

14. It was submitted that what had been done by the solicitors for the plaintiff had not effected the amendment contemplated by the Order of Gallop J. No time having been limited in that order, the period for effecting the amendment had been 14 days from the date of the order. That time had long expired. The Order made by Gallop J. had therefore ipso facto become void.

15. The step in the argument which proposed that the amendment had not in fact been effected was based upon the terms of O.32 r.8, which provides:

"8. An indorsement or a pleading may be amended by
written alterations in the copy which has been
delivered, and by additions on paper to be interleaved
therewith if necessary, unless the amendments require
insertion of more than One hundred and forty-four words
in any one place, or are so numerous, or of such
nature, that the making them in writing would render
the document difficult or inconvenient to read, in
either of which cases the amendment must be made by
delivering the document as amended."

16. It was submitted that "delivered" and "delivering" in that rule mean delivered or delivering to the defendant, and that such delivery can be effected only by personal service pursuant to O.10 r.2. The so called amended Writ had not been served personally within the 14 days referred to in O.32 r.7, therefore the mode of amendment required by O.32 r.8 had not been carried out, and therefore the Order made by Gallop J. had become void.

17. It was also submitted that since the Order had become void on the expiration of the 14 days, it could not be revived by any enlargement of time, despite the terms of O.64 R.5. Attorney General v Wylde (1946) 47 SR (NSW) 99. I think it is clear from the distinction drawn by Hogarth J. in Lamshed v Lamshed (1962) SASR 190 at p.193 that in this particular case I could do so, since the time was limited, not by the order made by Gallop J., but by the operation of O.32 r.7. Nevertheless, the powers of the Court to enlarge or abridge time where justice requires it should not be limited by technical defects in the words of the Rules, and I commend to the Rules Committee the amendment of O.64 r.5 suggested by Hogarth J. at the foot of p 193.

18. In that case Hogarth J. held (at p 192) that, on the proper interpretation of the Rules then in operation in the Supreme Court of South Australia, a party had not carried out all the steps necessary to effect the amendment to a pleading until he had noted the amendment not only on the copy of the pleading on the Court file, but also on all copies delivered to other parties.

19. Respectfully, I would not seek to differ from His Honour's ruling, because the rule that he referred to expressly deals with filing and delivering.

20. The Rules which I must construe are more cryptic. O.32 r.8 speaks of written alterations in "the copy which has been delivered" or "delivering the document as amended".

21. But if "delivered" there means "delivered to the other party", what is to be made of O.32 r.10? Which provides:

"10. Whenever any indorsement or pleading is
amended, such amended document shall be delivered to
the opposite party within the time allowed for amending
the same."

22. That rule obviously contemplates that what is to be delivered to the opposite party within the specified time is a document that has already been amended. If it is the delivery to the other party that effects the amendment, and the time for doing so is already determined according to O.32 r.7, O.32 r.10 has no meaning and no place to operate.

23. O.32 r.8 deals with indorsements and pleadings. So far as pleadings are concerned, O.23 r.11 requires a pleading to be filed and to be delivered on the day of filing.

24. A writ of summons, however, is not filed. It is issued. O.3 r.1(2) and (3); O.3 r.5(2); O.4 r.1; O.6 rr 1, 2 and 3. What stays with the Court file is the signed copy of the writ of summons required by O.6 r.4, which copy is then filed: O.6 r.5.

25. But the original writ is not delivered to the defendant. Personal service is effected by delivery to the person to be served a sealed copy of the writ. O.10 r.2B. The original writ may be indorsed by the defendant's solicitors under O.10 r.1. Alternatively, the person effecting service should indorse on the original writ the day of the week and month of service, under O.10 r.8.

26. In the ordinary case, there will therefore be three pieces of paper. The copy writ filed in the Court under O.6 r.5, the original writ issued to and in possession of the plaintiff's solicitor (until it is lodged with the Court together with an affidavit of service and bearing any endorsement relating to service of it, if it has been served), and the copy, sealed under O.6 r.3(a), designed to be delivered or offered to the defendant under O.10 r.2B.

27. Which of those three pieces of paper is "the copy which has been delivered", within the meaning of O.32 r.8?

28. The word "delivered" is not apt for any of them. Linguistically, it is most apt for the copy served. But there are obvious practical difficulties in requiring a plaintiff who wants to amend to get back the document from the other party in order to do so. The one that makes most sense, and accords with what solicitors in fact do, is the copy that has been lodged in Court and filed by the Registrar. The original writ is also usually physically altered. Rule 10 of O.32 can then have some meaningful operation. In my opinion that is the meaning that I should give to the words in O.32 r.8.

29. I commend the whole complex of rules to the Rules Committee for attention.

30. In this case however I find that the lodging on 19 February 1991 of the document headed "Amended Writ of Summons", numbered 3 in the Court file, effected the amendment permitted by the order of Gallop J., and did so within the time fixed by O.32 r.7. The order permitting the amendment therefore did not become void.

31. The plaintiff's solicitors did not comply with O.32 r.10. On their Notice of Motion dated 3 August 1992 I extend the time for doing so until 7 days after the date of this order.

32. In case I might be in error in the way in which I construe the rules in O.32, I have given thought to sections 43 and 44 of the Australian Capital Territory Supreme Court Act 1933, and to O.69 r.1, although they were not raised in argument.

33. The real questions in controversy in this litigation are whether the plaintiff can make out a cause of action within the indorsement as proposed to be amended before Gallop J., and if so whether it, or any part of it, is statute barred. If there were any form of order that I could devise to ensure that the parties would get on with the business of contesting those real issues I would do so, especially as I can see no reason why an appropriate order for costs would not meet any disadvantage suffered by the defendant by what has happened so far.

34. I would hold that, if what the plaintiff's solicitors were required to do was to write the amendments on the copy of the Writ that had been delivered to the defendant, their failure to do so, and their purporting to effect the amendment by lodging with the Court an amended document, was either a formal defect or an irregularity. However, power to make an order declaring the proceeding (namely the purported amendment) to be valid pursuant to s.44(2) of the Act, is not within the powers given to the Master by O.61A r.1. Perhaps that is another matter that could be considered by the Rules Committee.

35. It is within the powers of the Master to make orders under O.69 r.1. But that rule does not, in terms, provide for an order of the same type as that contemplated by s.44(2) of the Act. For what it is worth, in order to get this litigation focussed on the real issues in contention, I specifically decline to direct that such non compliance with the Rules or with any of them as was involved in the purported amendment rendered the amendment void, and I decline to set aside the proceedings either in whole or in part as irregular. I direct that these proceedings be dealt with as if the amendment had been properly effected on 19 February 1991.

36. Counsel for the plaintiff properly conceded that in the circumstances it was appropriate that the plaintiff should pay the defendant's costs of this matter, and that the defendant should be at liberty to proceed to taxation forthwith of the costs ordered by Gallop J. on 15 February 1991. I so order.