Beagan v Kidd & Anor [1999] NSWSC 549

New South Wales Supreme Court CITATION : Beagan v Kidd & Anor [1999] NSWSC 549 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 11376/89 HEARING DATE(S) : 27 May 1999 JUDGMENT DATE : 8 June 1999

Barbara Ann Beagan (Plaintiff)

Iain Harrison Kidd PARTIES : (First Defendant)

The Newcastle Western Suburbs Hospital now known as The Hunter Area Health Service (Second Defendant) JUDGMENT OF : Master Harrison

Ms Nomchong (Plaintiff) COUNSEL : Mr R J Weber (First Defendant) Mr T L Stern of Stern & Tanner Bondi Junction (Plaintiff) SOLICITORS : Mr D A R Munro of Tress Cocks & Maddox Sydney (First Defendant) CATCHWORDS : Proceedings be set aside - s 81 SCA ACTS CITED : Supreme Court Act Rust v Barnes (1980) 2 NSWLR 727 CASES CITED : Morrison & Anor v Judd (NSWSC, Master Malpass unreported, 10 October 1995) Brennan v Brennan (1953) 89 CLR 129 Wentworth v Rogers (No 1) (1986) 6 NSWLR 642 DECISION : See para 25

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 8 JUNE 1999

11376/89 - BARBARA ANN BEAGAN v IAIN HARRISON KIDD & ANOR

JUDGMENT (Proceedings be set aside - s 81 SCA)

1 MASTER: By notice of motion filed 22 January 1999 the first defendant seeks that the proceedings be wholly set aside or alternatively that the pleadings be wholly be set aside pursuant s 81 of the Supreme Court Act (the Act). The plaintiff Barbara Ann Beagan (now McCarthy) relied on her affidavit sworn 13 May 1999 and three affidavits of the her solicitor Terence Leland Stern sworn 8 March 1999, 8 April 1999 and 6 May 1999. The first defendant relied on the affidavits of Donald Allan Ross Munro sworn 20 January 1999 and 26 March 1999. The plaintiff opposes the orders sought and seeks an order pursuant to Pt 7 r 7 of the Supreme Court Rules (the Rules) that the service of the statement of claim be extended up to and including 2 December 1997. If the proceedings are not set aside against the first defendant, all parties consent to this matter being transferred to the District Court. 2 Section 81 of the Act reads as follows: "Irregularity 81(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with the requirements of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect - (a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings; and (b) subject to subsections (2) and (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its powers under this Act and the rules to allow amendments and to make orders dealing with the proceedings generally. (2) … (3) The Court shall not set aside any proceedings or any step taken in any proceedings or any document, judgment or order in any proceedings on the ground of a failure to which subsection (1) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity." 3 The parties agreed that the relevant authority for extending the time for service of a statement of claim is Rust v Barnes (1980) 2 NSWLR 727. In Rust Yeldham J dismissed an appeal from Master Allen (as he then was). The Master asked the question whether the effect of Part 7 r 7 that there is no order which the court can make, or at least ought to make, to cure the defect that the originating process had become stale, for the purposes of service, before it was in fact served? His conclusion was that he did not think so. It should be noted that Part 7 has been amended since Rust. Part 7 r 7(2) which said that "the court shall not extend the period of two years" has been deleted and the time now allowed for service is one year. However, it is common ground that at the relevant time, the plaintiff had two years to effect service of the statement of claim. 4 Master Allen expressed the opinion that service of originating process more than two years after the same was filed is a failure in compliance with the requirements of the rules which fails to be dealt with under s 81 of the Act. In the case before Master Allen, if service was held to be invalid, the plaintiff was in trouble because the limitation period had since expired. Master Allen concluded that the discretion conferred by s 81 of the Act should be exercised in favour of the plaintiff. The service, albeit irregular, should not be set aside. The irregularity should be cured. He did not consider that there would be injustice to the defendant. Yeldham J agreed with this reasoning. 5 It is common ground that if this matter is allowed to proceed to trial, the plaintiff has an arguable case. The plaintiff submitted that the operation of s 81(3) of the Act is mandatory and as the first defendant has not taken action in a reasonable time and has taken fresh steps on this basis he cannot succeed under s 81(1). 6 For the purposes of this application I find the following facts.