Van Leer Australia Pty Ltd v Palace Shipping Kk [1981] HCA 11; (1994) 180 CLR 337 (13 March 1981)

HIGH COURT OF AUSTRALIA

VAN LEER AUSTRALIA PTY. LIMITED v PALACE SHIPPING KK AND ANOTHER [1981] HCA 11; (1994) 180 CLR 337
High Court

HIGH COURT OF AUSTRALIA
STEPHEN J

High Court - Practice - Writ - Renewal - Discretion - Expiration of limitation period - Relevance - High Court Rules 1952 (Cth), O. 8, r. 1, O. 60, r. 6.

HEARING

MELBOURNE, 1980, November 19; 1981, March 13
13:3:1981

DECISION

STEPHEN J. delivered the following written judgment:-

The disposal of these applications, made respectively by the plaintiff and by the first-named defendant, Palace Shipping, requires some description of the nature of the plaintiff's action and of its initiation and prosecution to date.

2. The plaintiff imported from Japan two consignments of steel, which arrived in Australia in November and December 1977. The plaintiff alleges that much of the steel, shipped in good condition, was rusty on arrival. It accordingly sued Simsmetal, a New South Wales company, alleged to have been the charterer of the ship which carried the steel to Australia, and Palace Shipping, alleged to be the Japanese owner of the ship. The steel was carried under bills of lading issued by Hong Kong and Eastern (Japan) Ltd., alleged to be the agent either of Simsmetal or of Palace Shipping.

3. The plaintiff did not issue its writ until November 1978, almost a year after the arrival of the consignments of steel. The writ was served on Simsmetal in September 1979 but notice of the writ was not served on Palace Shipping in Japan until much later. Therein lies the occasion for these applications.

4. The plaintiff's writ was "stale" when notice of it was served on Palace Shipping because, being issued on 24 November 1978 and renewed for a further six months on the plaintiff's ex parte motion on 23 November 1979, service was not effected on Palace Shipping within those eighteen months nor was the writ further renewed. Only on 2 October 1980, almost twenty-three months after issue, was notice of the writ served on Palace Shipping.

5. The plaintiff seeks an order that will have the effect of renewing its writ of summons, while Palace Shipping seeks to have the writ and the service upon it of notice of the writ set aside. Palace Shipping, in attacking the writ and service of notice of it, has also sought to have set aside the order for renewal of the writ which the plaintiff obtained ex parte in November 1979.

6. Pursuant to O. 8, r. 1(1) of the Rules of this Court, a writ issued out of this Court remains in force for only twelve months unless renewed for a further six months upon application made before the expiration of the initial twelve months. The Court may order renewal if it is satisfied that "reasonable efforts have been made to serve the defendant, or for other good reason" - r. 1(2). Under that rule further applications for renewal may also be made "from time to time during the currency of the renewed writ".

7. Since the plaintiff's present application is made well after the end of the six months' period of first renewal, the "currency of the renewed writ" referred to in O. 8, r. 1(2) having expired, the plaintiff must also rely on O. 60, r. 6. That rule both confers power to enlarge "the time appointed by these Rules ... for doing an act ..." - sub-r. (1), and permits of such an enlargement "although the application for it is not made until after the expiration of the time appointed . .." - sub-r. (2). It is well established that, whatever infelicities of language this may appear to involve, the power conferred by this rule applies to such an application as the plaintiff now makes.

8. Each of these applications raises the general question of how the Court should exercise its power to order renewal of a writ and also the specific question of how that power should be exercised in the particular facts of this case. Central to this question is how the expiration of a limitation period should affect the exercise of the discretionary power to renew the plaintiff's writ. The Hague Rules, which are scheduled to the Sea-Carriage of Goods Act 1924 (Cth), are applicable to the present bills of lading. By r. 6 of Art. III of those Rules a carrier is discharged from all liability in respect of loss or damage unless suit is brought within a year after delivery of the goods.

9. That period of a year has, of course, long since expired. It had long expired when the ex parte order for the first renewal of the writ was made. Accordingly, Art. III, r. 6 would bar the plaintiff were it to institute fresh proceedings against Palace Shipping. Dr. Griffith, appearing for that defendant, relies upon this Kr the proposition that to accede to the plaintiff's application, and, indeed, to have acceded to its earlier application for renewal, has the effect of depriving his client of the absolute defence to the plaintiff's claim available to it were the plaintiff forced to issue a new writ. Mr. Searby, on the other hand, says that the time-bar is of little relevance. He contends that had application for a second renewal of the writ been made, as was the first application, while the writ was still current, the existence of the time bar should have proved no obstacle so long as good grounds were shown for its renewal. Since, as he contends, there have all along been such good grounds, both for extending the time within which to make the application and for granting it, the existence of the time bar should be no more an obstacle than it would be had application been made during the currency of the writ.

10. The plaintiff did in fact "bring suit" within the twelve months specified in Art. III, r. 6 of the Hague Rules. Article III, r. 6 is, like most conventional limitation of action statutes of common law jurisdictions, concerned with the institution of proceedings within limited times after an event and not with the subsequent service of process: the judgments of the several members of the Court of Appeal in The Merak (1) make it clear that in Art. III, r. 6 "unless suit is brought" refers to the issue of proceedings and not to service upon the defendant. The Hague Rules thus rely, in effect, upon the procedural requirements of the particular lex fori to ensure that defendants will not for an inordinate time be left in ignorance of claims against them.

11. Accordingly it is non-compliance with the procedural rules of this Court, rather than with the limitation provisions of the Hague Rules, that the plaintiff must overcome in its present application. Only if it fails to attract in its favour the exercise of this Court's discretionary power will Art. III, r. 6 affect it. It therefore rather overstates the matter to speak of the plaintiff's application as seeking to deprive the defendant of a limitation defence.

12. That some English authorities do speak in this way is, I think, because they treat a "stale" writ as a nullity. It was so described by Lord Goddard in Battersby v. Anglo-American Oil Co. Ltd. (2). His Lordship described a "stale" writ as a "nullity by reason of nonservice within the prescribed time". However more recent English authority, while otherwise following Battersby's Case, recognizes that

(1) (1965) P. 223, esp. at pp. 252, 257, 258, 260-261.
a "stale" writ is no nullity. In Sheldon v. Brown Bayley's Steel Works and Dawnays Ltd. (3) both Singleton and Denning LJJ, recognized that the only quality which such a writ lacks is that of not being in force for the purpose of service. The Courts of Appeal of both Saskatchewan and British Columbia have likewise unequivocally rejected the view that a "stale" writ is a nullity (4). 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. This is made clear in the judgments of the Full Court of the South Australian Supreme Court in Krawszyk v. Graham (5) and Victa Ltd. v. Johnson (6), and see in particular per Bray CJ in Victa (7).

13. All this is not to deny the considerable relevance to the plaintiff's application of the fact that the period of twelve months prescribed by the Hague Rules has long since passed. That period, prescribed in an international code which has found its place in the domestic law of most trading nations, no doubt reflects the need for relatively prompt initiation of claims which arise in the international shipping trade. On any view this is a matter to which regard must be had in considering these applications: the question is what weight is to be accorded to it. The modern English authorities, and they are numerous, place considerable weight upon the expiration of periods of limitation, partly under the influence of older cases such as Doyle v. Kaufman (8) and of what was said by Lord Goddard in Battersby. They treat renewal after a time bar has arisen as only to be permitted in quite exceptional circumstances.

14. Doyle v. Kaufman was an application to renew out of time a writ issued for service out of the jurisdiction which had remained unserved for more than twelve months. Cockburn CJ held that the equivalent of O. 60, r. 6 "cannot apply" when the action has become statute barred. The "principle of the judgment" was affirmed in the Court of Appeal. In Battersby Lord Goddard, speaking for the Court of Appeal, reviewed the cases which followed Doyle v. Kaufman and concluded that, even if made within the initial twelve months, an application for renewal should only be granted with caution (9); if made out of time, renewal should be refused if to renew would be

(3) (1953) 2 QB 393, at pp. 400, 402.

(4) Simpson v. Saskatchewan Government Insurance Office (1967), 65 DLR (2d) 324, at p 331; Bearhead v. Moorhouse (1978), 87 DLR (3d) 52, at p 58.

(5) (19661 SASR 73.

(6) (1975) 10 SASR 496.

(7) ibid., at p. 503.

(8) (1877) 3 QBD 7; 3 QBD 340.

(9) (1945) KB, at p. 32.

"to deprive a defendant of the benefit of a limitation which has already accrued" (10). His Lordship refused to follow the then recent decision of the Court of Appeal in Holman v. George Elliot and Co. Ltd (11), a decision which took a more liberal view of the discretionary power to renew.

15. Subsequent English decisions have preferred Battersby to Holman, although somewhat qualifying the rigour of Lord Goddard's view by acknowledging that there is room for exceptions in extraordinary circumstances. The English Rules of Court have been altered in the course of time but the Courts have treated those alterations as effecting no change in substance. These decisions are reviewed by Ungoed-Thornas J. in In re Chittenden (12) and by the Court of Appeal in Jones v. Jones (13). The most recent of the English cases in this line appear to be the decision of the Court of Appeal in Chappell v. Cooper (14) and that of Sheen J. in The Helene Roth (15).

16. It has been in some Commonwealth jurisdictions that the more liberal view adopted in Holman's Case, emphasizing the width of the Court's discretionary power, has found favour. In Holman the Court of Appeal stressed the wide discretionary power conferred by the equivalent of O. 60, r. 6 and made the point that since the relevant limitation period had been satisfied by issue of the writ within time, it us only service out of time under the Rules of Court that was in issue. The Commonwealth cases which follow Holman do not give to the expiration of a limitation period quite the same great significance as does most English authority; they look rather to the general justice of the case, paying regard to all the circumstances, including not only any limitation statute but also the relative hardships which grant or refusal of renewal would impose upon the parties. They also recognize that it is non-compliance with rules of court, not disregard of a statute of limitations, that has brought an applicant to Court seeking an exercise of discretion in his favour.

17. The two South Australian cases already referred to, Krawszyk v. Graham and Victa Ltd. v. Johnson, are among the most fully reasoned of these decisions. I will cite at length from the judgment of Bray CJ in the second of these cases since in his discussion of the authorities and his reasoning generally his Honour expresses,

(10) (1945) KB, at p. 28.

(11) (1944) KB 591.

(12) (1970) 1 WLR 1618; (1970) 3 All ER 562.

(13) (1970) 2 QB 576, esp. at p. 583, per Salmon LJ; pp. 586-587, per Sachs LJ

(14) (1980) 1 WLR 958; 1198012 All ER 463.

(15) (1980) QB 273.

with respect, much of what I would wish to say on the subject.

18. Bray CJ said (16):

"Though it may be possible to reconcile the actual decisions in Holman's Case and Battersby's Case by distinguishing the facts, there is no doubt that different principles in relation to the exercise of the discretion were enunciated and acted on in those two cases, and that the Court in Battersby's Case refused to follow Holman's Case. The divergence of principle was explored in depth by the Full Court of South Australia in Krawszyk's Case and all, or nearly all, the relevant authorities up to that date were cited to the court and, where thought appropriate, were canvassed by it. The Full Court definitely and deliberately preferred the reasoning in Holman's Case and followed it."

19. The Chief Justice said (17):

"...the Court of Appeal in Baker v. Bowketts Cakes Ltd. (18) followed Battersby's Case and that, of course, has influenced subsequent decisions. But the Full Court of this State in the same way deliberately refused to follow Battersby's Case. It is not surprising, therefore, that the course of decisions in England and South Australia should show some divergence in theory and some difference in practice though that difference is not as great as might have been expected. ... Mistakes on the part of the plaintiff's solicitors, for example, have sometimes been held excusable and no bar to renewal, as for example in Jones v. Jones but in other cases not so excusable, as in Easy's Case (19). Action, even though misconceived or ineffective, is often regarded more indulgently than complete inaction. Lack of prejudice to the defendant though sometimes said to be immaterial (see Heaven v. Road and Rail Wagons Ltd. (20)) has in fact sometimes been given considerable weight (e.g. North v. Kirk (21)) and the balancing of hardship between plaintiff and defendant, though repudiated as a valid exercise by Megaw J. in Heaven's Case (20) (and see Baker v. Bowketts Cakes Ltd., per Lord Denning MR (22)) has in fact been sometimes adopted as a criterion by the Court of Appeal in subsequent cases (see Jones v. Jones, per Salmon LJ) (23).

20. I think too that there is discernible in this, as in cognate branches of the procedural law, a tendency to relax rigid time

(16) (1975) 10 SASR, at p. 500.

(17) ibid., at p. 502.

(18) (1966) 1 WLR 861; (1966) 2 All ER 290.

(19) Easy v. Universal Anchorage Co. Ltd., (1974) 1 WLR 899; (1974) 2 All ER 1105.

(20) (1965) 2 QB 355, at pp. 366-367.

(21) (1967) 111 Sol. Jo. 793.

(22) (1966) 1 WLR, at pp. 865-866; (1966) 2 All ER, at p. 292.

(23) (1970) 2 QB, at p. 585.

limits where that is legal, possible and where it can be done without prejudice or injustice to other parties."

21. His Honour went on to say (24):

"It follows then that it is incorrect to talk about allowing a cause of action or a new cause of action to be set up after the expiry of the period of limitation. Once the writ is issued within the period, the Statute of Limitations is ousted or rather never comes into operation. It is not the statute, which the court must obey on what it thinks is its proper interpretation, but the rule of court which takes over then. That rule has the discretion built into it and that discretion is to be exercised judicially, indeed, but not fettered by inflexible prescriptions ...

22. It is not correct to say that the defendant has acquired an absolute right to immunity when a writ issued within the limitation period is not served within twelve months of its issue and the limitation period has in the meantime expired. What has expired is in reality not the limitation period but the period which would have been the limitation period if no writ had ever been issued. What the failure to serve a writ within twelve months 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. The efficacy of the writ does not expire absolutely at the end of the twelve months, it only expires if and in so far as the Court sees fit not to renew it.

23. 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 West Australian Trustee Executor and Agency Co. Ltd. v. McLeod (25) the Full Court of the Supreme Court of Western Australia, by a majority, preferred Holman to Battersby. In Queensland, Gibbs J., sitting as a judge of the Supreme Court of Queensland, considered the matter in detail in Jones v. Jebras and Hill (26). His Honour was concerned with an amended form of rule, very similar to the present English rule and which, although said in England to have left the prior position unaltered, might be thought

(24) (1975) 10 SASR, at pp. 503-504.

(25) (1951) 53 WALR 4.

(26) (1968) Qd R 13.

to permit of a more liberal exercise of discretion than do the present rules of this Court. His Honour took the view that the change in rules had in fact altered the position, its effect being to "cast off the shackles" which decisions of the Court of Appeal in England might otherwise have imposed upon the exercise of his discretion, sitting as he was as a Single Judge of the Supreme Court of Queensland (27). His Honour, in the particular circumstances of that case, permitted renewal out of time and after a period of limitation had run.

25. Other Australian decisions are all at first instance; they include several Victorian cases, of which the most recent appears to be Travis v. Colonial Mutual Life Assurance Society Ltd. (28). These follow the trend of English decisions.

26. Without the aid of any such amendments to their rules of Court, the Canadian cases have approached the matter very much as has the South Australian Supreme Court. The Saskatchewan Court of Appeal considered the matter in detail in Simpson v. Saskatchewan Government Insurance Office (29). It approved an Ontario practice of regarding the Court as having "a wide discretion to renew a writ after its expiry notwithstanding time has run against the cause of the action under a statutory limitation" (30). This practice is described as a "recent trend ... to get away from much of the rigidity, that flows from the English decisions, governing the exercise of the Court's discretion to renew a writ, notwithstanding the intervention of statutory limitation" (31). Culliton CJ, speaking for the Court, said (32):

" ... when the action is one that is subject to a limitation either by statute or rule, once the writ is issued within the time limitation, any defence based upon the limitation is gone forever in respect to that writ. If the writ is not served within the period limited therefore, it is not a nullity and there is no revival of the limitation defence in respect of that writ. Such defence becomes available to the defendant only if a new writ is required to be issued. Thus, in my opinion, it is not strictly accurate to say that the renewal of a writ to which the limitation does not apply is a denial of a defence open to the defendant. In my view the real significance of the intervention of a limitation, created by statute or rule, is to alert the Court that the case is likely to be one in which the delay occurred by

(27) (1968) Qd R, at p. 22.

(28) (1977) VR 249.

(29) (1967) 65 DLR (2d) 324.

(30) ibid., at p. 329.

(31) ibid., at p. 330.

(32) ibid., at p. 332.

non-service may have resulted in substantial injury or prejudice to the defendant. As long as the Rules give to the Court the discretionary right of renewal, it cannot be said that the exercise of that discretionary right defeats or contravenes either a rule or a statute which provides for limitation.

27. As to my second observation, I believe the words 'for other good reason' and 'for any such cause' should be given a broad and liberal interpretation. The interpretation of these words in their literal sense gives to the Court a wide and unfettered discretion and in their application I know of no better reason for granting relief than to see that justice is done."

28. This decision now appears to represent the prevailing Canadian view - see, e.g., Moffat v. Rawding (33), a decision of the Appeal Division of the Nova Scotia Supreme Court; McCluckie v. McMillan (34), a decision of a Divisional Court of the Ontario High Court and Bronk v. Hogg (35). To these decisions may be added the careful examination of the matter by the British Columbia Court of Appeal in the case earlier cited, Bearhead v. Moorhouse.

29. In New Zealand in Melgren v. Public Trustee (36), Moller J., after a review of English authority, thought that to permit of the exercise of discretion in favour of renewal only in exceptional cases or circumstances, as had earlier New Zealand authority which followed English precedent, was unduly restrictive. Instead there should be an "overall view of every aspect of the matter in the search to discover whether the plaintiff had, by our rule, 'good reason' for seeking an order to renew", his Honour understanding "good" in this context to mean "strong". Melgren's Case was later followed in Stace v. Miller (37).

30. For the reasons which appear in the passages which I have cited from the judgments of Bray CJ and of Culliton CJ I have concluded that in the exercise of discretion in renewal of a writ I should, with the support of this substantial body of Commonwealth authority, adopt the approach favoured by the South Australian Supreme Court and by the Canadian courts.

31. I turn now to the circumstances which have led to this application. It seems that a number of factors led to the plaintiff initially making no endeavour to serve Palace Shipping. Leave to serve notice of a concurrent writ upon Palace Shipping in Japan was granted by me

(33) (1970) 14 DLR (3d) 186.

(34) (1973) 41 DLR (3d) 701.

(35) (1972) 28 DLR (3d) 761.

(36) (1971) NZLR 681.

(37) (1975) 1 NZLR 89.

on 15 December 1978, less than a month after issue of the writ. Palace Shipping was a Japanese company which had no presence within Australia which would have allowed it to be served here. On the other hand, the defendant Simsmetal was thought to be the demise charterer of the vessel which had carried the steel to Australia and could be served readily enough in Sydney. The plaintiff's solicitors accordingly sought an admission that it was the demise charterer, believing that if such admission were obtained it would be unnecessary to pursue the claim against Palace Shipping. As early as February 1979 there were discussions between the solicitors for the plaintiff and for Simsmetal, in which the latter suggested that pending investigations the writ should not be served upon their client or upon Palace Shipping. Thenceforth all question of service upon Palace Shipping seems to have been deferred for some seven months until, in September 1979, it became clear to the plaintiff that the desired admission was not forthcoming. The plaintiff then effected service upon Simsmetal but still took no step towards effecting service upon Palace Shipping.

32. Then, in October 1979, Simsmetal delivered its defence. According to the solicitor for the plaintiff, it was only then that it became clear that the plaintiff "would have to pursue proceedings against the firstnamed Defendant and that led to the first application for extension of the Writ", by which time almost twelve months had elapsed since its issue and almost two years since the consignments of steel had arrived in Australia. The plaintiff had taken no steps in those two years to inform Palace Shipping of its complaint about the condition of the steel. This was not, however, to be the full extent of delay in notifying that defendant of the claim made against it.

33. While, so far as appears, Palace Shipping continued to remain in ignorance of the claim against it, the plaintiff began for the first time to attend to service in Japan of notice of the writ.

34. Once leave to serve out is obtained there is a variety of ways in which writs issued out of this Court may be served on defendants out of the jurisdiction. Service under O. 10, r. 6 would seem to offer a prompt mode of service of notice of a writ. That rule directs such service to be "in the manner in which a writ of summons is served", that is to say, by personal service on the defendant. Had there, for any reason, been difficulty in effecting personal service in Japan, application could have been made for substituted service, although it would then have been necessary to prove that "prompt personal service" could not be effected. The interaction of O. 10, r. 6 and O. 9, r. 2(2) permits of substituted service in such cases (38). Then again O. 10, r. 11 expressly provides for the grant of leave "to transmit any document by air mail". While the scope of this rule, apparently derived from the rather different terms of the English O. 11, r. 12A in As 1937 form, is not altogether dear, it would certainly authorize substituted service by airmail, to be proved by proof of airmail posting; subject, of course, to establishing the necessary foundation for an order for substituted service. Again, O. 10, r. 6 makes express provisions for the giving of directions as to "the manner in which the notice shall be served or brought under the notice of the defendant".

35. Instead the plaintiff sought to effect service by means of a letter of request, pursuant to O. 10 r. 7 of the High Court Rules and this it only accomplished some twelve months later. Service by letters of request may commend itself in terms of international comity, but is not always expeditious. In the present case it of course proved to be extraordinarily slow.

36. While the plaintiff is not to be criticized merely because of the mode of service which it chose, it might have been expected that, once it became clear that this method was leading to long delays, the availability of other speedier means of service would have been investigated. Especially is this so in view of the already substantial delays and obvious need, since September 1979, to serve Palace Shipping. Apart from the various practice books and, of course, the Rules themselves, detailed information as to modes of service out of the jurisdiction is contained in Smit, International Cooperation in Litigation (39), in McClean and Patchett, Report on the Recognition and Enforcement of Judgments and Orders and the Service of Process within the Commonwealth (40) and in Harwood and Dumboyne's "Service and Evidence Abroad" (41).

37. To resume the narrative of events, the plaintiff's preparations for service began with procuring a translation of the concurrent writ into Japanese; this seems to have taken about a month. Then the period from November 1979 until February 1980 was taken up in amending the notice of writ at the instance of this Court's Registry and in then retranslating the amended notice. The fact that for some reason all translation was undertaken in Sydney exacerbated delays, as did the loss of documents in the post between Melbourne and

(38) See Porter v. Freudenberg, (1915) 1 KB 857; Laurie v. Carroll [1958] HCA 4; (1958), 98 CLR 310.

(39) (1965), pp. 86-89.

(40) (1977), pp. 175-202.

(41) International and Comparative Law Quarterly, vol. 10 (1971), pp. 284-304.

38. Sydney on one occasion. Meanwhile, on 23 November 1979, the plaintiff had made an ex parte application to me on which an order was made for renewal of the writ for a further six months, this application being made one day before the anniversary of the issue of the writ.

39. It was not until 14 February 1980 that the documents thought to be necessary for service in Japan were filed with the Court. Further delays followed in late February and during March 1980 when queries by this Court's Registry concerning the Japanese translation of the notice of writ required further reference to the Japanese translators in Sydney. Only in mid-March 1980 were the documents finally forwarded by the Registry to the Attorney-General's Department for transmission to Japan.

40. The plaintiff's solicitors then apparently believed that service in Japan of the notice of writ would be effected soon after its transmission to the Attorney-General's Department. However this belief proved to be ill-founded. Instead there followed many months during which, according to the plaintiff's solicitors, repeated inquiries from this Court's Registry yielded no information about service of the notice of writ. Since I do not regard this period from March 1980 onwards as of critical significance, I do no more than note the plaintiff's solicitors' complaints about lack of information concerning service: the effecting of service was then entirely out of their hands, being in the hands of the Attorney-General's Department, the Department of Foreign Affairs and the Japanese authorities.

41. In mid-July 1980, the plaintiff's solicitors were told that the Japanese Ministry of Foreign Affairs required a further document to accompany the notice of writ. This led them to re-examine their files and to note that the six-months' period of extension of the writ had by then long since expired. This the principal responsible for the matter had not previously appreciated: he had mistakenly believed that the period of renewal had been for twelve months (although the Rules only permit of six months' extension at a time). His clerk had known all along that the renewal was only for six months but had both assumed that his principal knew likewise and that the latter's lack of concern was because it was enough that within the six-month period the plaintiff had taken the initiating steps necessary to effect service overseas. Moreover he apparently thought it likely that service had in fact been effected soon after dispatch of the notice of writ to the Attorney-General's Department, the delay being only in receiving confirmation of service rather than in the effecting of service.

42. I have recounted the events leading ultimately to the service of notice of the writ on the defendant in Japan in October 1980. However in determining how I should exercise my discretion I will initially confine myself to what has now emerged concerning the position in November 1979, when the order was obtained ex parte to extend the writ for six months.

43. Some two years had then passed since delivery of the steel and almost a year since both issue of the writ and also expiration of the twelve months' limitation period. During that time the plaintiff had done nothing directly to inform Palace Shipping of the damaged condition of the steel; it had informed other parties, including Simsmetal, and may have assumed that Palace Shipping would have heard of the matter. However there is no evidence from which I can infer that Palace Shipping had in fact become aware of the claim against it before it was served with notice of the writ in October 1980.

44. Moreover, until October 1979 the plaintiff had done nothing in preparation for effecting service on Palace Shipping in Japan. For example, what proved to be the very time-consuming preliminary of having prepared in acceptable form a Japanese translation of the notice of writ had not been set in train. The reason for this inaction was neither mishap nor oversight. It seems, rather, to have been due to a calculated decision to incur no costs in prosecuting the case against Palace Shipping so long as there were thought to be prospects of a successful outcome against Simsmetal. It follows from what I have already said that Palace Shipping, who, for all that appears, knew nothing of the proceedings, can have played no part in encouraging the plaintiff to adopt this course.

45. In the light of the circumstances as they now appear, it is clear that in November 1979, when the ex parte application to renew the writ was made, it could not be said, as the terms of O. 8, r. 1(2) require, that "reasonable efforts have been made to serve the defendant". It follows that, unless "other good reason" existed, the writ should not then have been renewed.

46. In considering whether there did exist such "other good reason", I do not, for the reasons already stated, regard the expiration of the limitation period of twelve months as of itself casting upon the plaintiff that heavy onus which the English decisions would impose. However I do take account of the long delay in serving Palace Shipping. It bears at least three aspects: first, it involved a very considerable period, secondly, it was quite deliberate, there being no question of mishap or oversight; thirdly, no notice was given to the defendant in this case, although the giving of such notice may sometimes mitigate the prejudice which a defendant may otherwise suffer through delay in actual service of process.

47. These are all substantial considerations. To be weighed against them is the plaintiff's effective loss of its rights against Palace Shipping if the renewal of the writ in November 1979 is to be set aside. But this seriously prejudicial consequence will be present whenever renewal of a writ is in question after a limitation period has run its course; and in the present case the prejudice is self-inflicted in the sense that Palace Shipping did nothing to induce delay in service or to encourage a belief that the claim against it might be settled without recourse to litigation.

48. In these circumstances I conclude that, on a proper exercise of discretion and in the light of the facts as now known to me, the writ should not have been renewed as a result of the ex parte application made to me in November 1979.

49. Because of the particular sequence of events, Palace Shipping had little if any opportunity at the hearing of the present applications to furnish evidence of particular prejudice to it caused by the delay in service; Dr. Griffith sought an opportunity to make good this lack of evidence if that should prove necessary. I have been concerned as to whether I should require evidence of such prejudice before making an order setting aside the renewal of the writ, but have decided against doing so. Here all that can be said for the plaintiff is that it will suffer effective loss of its right to recover from the defendant unless the writ stands renewed; there can be no criticism of the first-named defendant's conduct in the action. In such circumstances, and without need to infer prejudice to the first-named defendant due to the great delay, with all its attendant problems of identification of witnesses and their recollection of events and of location of documents and their production, I think that I may properly exercise my discretion against renewal of the writ without evidence of particular prejudice suffered by the defendant.

50. Before considering the form of orders to be made there is one aspect of which brief mention should be made, although, in the outcome, it is of no present relevance. It relates to service by means of letters of request. As a result of this case it has come to my notice that no orders appear ever to have been made under r. 7 of O. 10 of the High Court Rules making the rule applicable to particular countries. I would understand r. 7 to require such a general order before its provisions can be availed of for service in any foreign country, although this has apparently not been the practice in the past. This Court is not alone in this report: in McLean and Patchett's comprehensive account of the working of the system of service out of the jurisdiction throughout Commonwealth countries they say that some Commonwealth jurisdictions, when asked, replied "that their Chief Justices had never used this power (and this could well be the case generally)" (42).
(42) op cit., fn. 40, p. 186.

51. On the first-named defendant's application, it is enough that I order that the service upon Palace Shipping of notice of the writ be set aside on the ground that the ex parte order for its renewal, made in November 1979, should not have been made. The plaintiff's application, which seeks a further renewal of the writ, will be dismissed. In the circumstances I have found it unnecessary to investigate in detail the delays in service which occurred after the first renewal of the writ; suffice it to say that even if I had concluded that the first renewal, in November 1979, should have been ordered, it by no means follows that the application for a renewal, made out of time and therefore requiring recourse to O. 60, r. 6, would have been granted. The defendant Palace Shipping should have its taxed costs of its application. I reserve liberty generally to apply.

52. Solicitors for the plaintiff, Aitken Walkerand Strachan.

53. Solicitors for the first respondent, Mallesons.