ROLFE v EDBROOKE [1999] NSWSC 399

New South Wales Supreme Court CITATION : ROLFE v EDBROOKE [1999] NSWSC 399 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 12279/1991 HEARING DATE(S) : 23 APRIL 1999 JUDGMENT DATE : 3 May 1999

ANNE MARIE ROLFE PARTIES : v ANTHONY JOHN EDBROOKE & RITA EDBROOKE t/as GORDON TRAINED NURSES CLUB (D1) THE ESTATE OF DORIS MARY BLANSHARD (by the Legal Personal Representative) (D2) JUDGMENT OF : Master Malpass

PLAINTIFF: MR K PIERCE COUNSEL : DEFENDANT (1) MR W KEARNS DEFENDANT (2) MR A B PARKER PLAINTIFF: KEDDIES SOLICITORS : DEFENDANT (1) CONNERY & PARTNERS DEFENDANT (2) CURWOOD & PARTNERS CATCHWORDS : SET ASIDE PROCESS; purported service of process on non-parties where the named defendant is not a legal entity; exercise of the discretionary power conferred by s 81 of the Supreme Court Act 1970. ACTS CITED : Supreme Court Act 1970 s 81 Supreme Court Rules Pt. 9 r. 11, Pt. 7 r. 7. DECISION : SEE PARAGRAPH 22

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

MONDAY 3 MAY 1999

12279 of 1991 ANNE MARIE ROLFE v ANTHONY JOHN EDBROOKE & ORS.

JUDGMENT 1 These proceedings were commenced by Statement of Claim filed on 2 May 1991 (shortly before the relevant limitation period expired). The process propounds a claim for damages founded on negligence against two defendants. It is alleged that the injury was suffered on or about 4 May 1985 when the plaintiff was performing nursing duties and lifted the late Doris Mary Blanchard (the deceased). The first defendants were partners in a business conducted under the name "Gordon Trained Nurses Club". The deceased died on 4 April 1988. The purported second defendant is named as "The Estate of Doris Mary Blanchard (by the Legal Personal Representative)." 2 It appears that the first defendants ran a nursing employment agency for about 9 years. They had a number of nurses on their books (in the range of 50 to 100 nurses). Nurses were placed inter alia in public hospital and private situations. A remuneration in the nature of a fee was received for these services. 3 The plaintiff was in doubt as to which of the first defendants or the deceased was her employer at the time of injury. This doubt is reflected in the plaintiff's pleadings. 4 On 4 December 1987, the plaintiff brought proceedings in the Compensation Court against the deceased. In July 1988, the first defendants were added as parties to those proceedings. It was in contemplation that those proceedings would resolve the question of employment. Subsequent to the death of the deceased, the plaintiff's legal advisers appear to have proceeded on the basis that Robert Blanchard and William Blanchard were the deceased's' legal personal representatives (there is no evidence placed before this Court of a grant of probate or letters of administration). They became parties in the Compensation Court proceedings. 5 The Compensation Court proceedings had a long history. There was a hearing before Judge Gibson. His Honour died before delivering his reserved decision. The proceedings then came before Judge Burke. He delivered his decision on 4 February 1993. On 4 March 1993, an appeal was brought from that decision. On 29 August 1995, the Court of Appeal delivered its decision. As the appeal was successful, the proceedings were sent back to the Compensation Court and came before Judge Duck. His Honour delivered his decision on 22 December 1997. The finding was made that the second defendant was the employer of the plaintiff at the time of injury. On 30 January 1998, the second defendant brought an appeal from the decision. The first defendant did not receive notice of the appeal until 9 February 1998. The appeal was discontinued on 31 August 1998. 6 A number of solicitors have acted for the plaintiff. These proceedings were commenced on her behalf by Vandervords. Later, Andrew Fegent became her solicitor. Keddies now act for her. 7 In July 1993, Andrew Fegent sent a copy of the Statement of Claim together with Notice of Change of Solicitor to both Curwood & Partners (who had the conduct of the Compensation Court proceedings on behalf of the deceased), and Connery & Partners ( who had the conduct of the proceedings on behalf of the first defendants). Further correspondence passed between the solicitors. It was arranged that no further action would be taken adverse to the interests of the defendants until the Compensation Court proceedings had been dealt with by the Court of Appeal (in the absence of adequate notice). In the course of this correspondence, Curwood & Partners had informed Andrew Fegent that inter alia "We do not believe that any person liable to be sued has been named in the document in any event". It is common ground that in July 1993 the process was stale and that the forwarding of the copy Statement of Claim did not constitute service of the process. 8 In late January 1998, Mrs Edbrooke (one of the first defendants) received some erroneous advice from her solicitor. It led her to believe that the litigation brought by the plaintiff was then at an end. This led her to destroy about 8 or 9 fruit boxes of documents. These were documents that were associated with the proceedings in the Compensation Court. It seems to be the case that the business activities of the first defendants had ceased some years prior to that time. The plaintiff had first come onto their books in about 1980. 9 The plaintiff did not purport to serve the Statement of Claim on the first defendants until about November 1998. Robert Blanchard was not served with it until 16 December 1998. William Blanchard was not served with it until 24 December 1998. 10 There are three Notices of Motion before the Court. The first was filed by the first defendants on 2 December 1998. It seeks an order that the proceedings be set aside. The second Notice of Motion was filed by the plaintiff on 19 January 1999. It seeks inter alia validation of service of the process. The third Notice of Motion was filed by the second defendants on 15 February 1999. It seeks relief similar to that sought by the first defendants. 11 At the time of purported service, the process was indisputably stale and not valid for service. It had ceased to be valid under the Supreme Court Rules many years earlier (see Part 7 rule 7). The rule in its present form makes the process valid for 1 year from the date on which it is filed (previously it had been valid for a 2 year period), unless the Court otherwise orders. If it is served outside the period of its validity, there is authority to say that the service should be regarded as an irregularity. 12 The parties look to s 81 of the Supreme Court Act 1970 for relief. It is in the following terms:- "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 the 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." The Court is prohibited from exercising the discretionary power conferred by (b) where the application is not made within a reasonable time and the applicant has taken a fresh step after becoming aware of the irregularity (sub-section (3)). The plaintiff does not rely on the prohibition. I should add that section 81 contemplates that the application is to be made by a party. The terms of the section make it applicable where there has been a failure to comply with the requirements of the Act or of the rules. 13 The rules confer other powers on the Court to order dismissal of the process (inter alia where there is an entitlement to summary relief and/or there has been a want of prosecution). 14 The plaintiff relies on a affidavit sworn by her solicitor (Mr Barakat). The first defendants rely on an affidavit sworn by Mrs Edbrooke. The purported second defendant relies on an affidavit sworn by Mr Hensley. The first defendants also tendered Exhibit 1. 15 The plaintiff's Notice of Motion was misconceived and otiose. As I have said, when the section has application the authorities regard purported service as an irregularity. During the course of argument, mention was made of seeking relief by way of confirmation of service. No source of power was identified to enable this relief to be granted in the circumstances of this case (Part 9 rule 11 enables confirmation of informal service where service is impractical). When the section has application, the affected parties are placed in a position where they are obliged to move promptly for relief. 16 It is convenient to first look at the position of the purported second defendant. Mr Parker of counsel appeared in that interest. It was no secret that his real instructions came from an insurer. The difficulty for the plaintiff is that the Statement of Claim does not name any legal entity as the second defendant. The plaintiff's legal advisers had been put on notice of this problem as early as 1993. Despite having the benefit of that notice, nothing was done to rectify the problem in these proceedings. Counsel for the plaintiff was given many opportunities to make submissions on how this problem could be overcome. He was unable to provide an answer. The Court was left with a situation where there has been an abortive attempt to serve this process on two persons who were not parties to the proceedings and there was an insurer purporting to appear for them and have the process set aside. The end result is that the purported service is of no effect and the insurer lacks status to have the proceedings set aside or dismissed. It was not a situation in which section 81 could come to the aid of the plaintiff. 17 I now turn to the application made by the first defendants (it should be noted that the submissions made on their behalf were largely adopted by the purported second defendant). It is common ground that certain estoppels arise from the compensation proceedings (inter alia the plaintiff is estopped from asserting that the first defendants were her employers at the time of the injury). It seems to be clear that the real case now sought to be advanced by the plaintiff for damages was against the insurer of the purported second defendant. The first defendants are uninsured and it is said that they do not have assets to meet any judgment that may be recovered against them. I gained the impression that the plaintiff was now merely seeking to retain the first defendants as parties to the proceedings as a precautionary measure. At best, the thinnest of cases only can be advanced against the first defendants. It was put in terms that there had been a breach of duty by the first defendants in failing to advise the plaintiff that she should have used a lifting device in the course of her employment with others. This allegation really has in contemplation the concept of the first defendants (who were conducting an employment agency) having a duty to interfere in the conduct of work performed pursuant to contractual relations made between the plaintiff and the employer. I bear in mind that the law of negligence is not static and that a claim founded on negligence can often be difficult to categorise as hopeless. The claim in this case has been described as being highly speculative. In my view, putting the case at its highest, its prospects of success are extremely limited. 18 The injury was suffered about 14 years ago. The relevant contractual relationships between plaintiff and first defendants came into being about 19 years ago. There is no relevant writing. The contractual arrangements (together with other relevant matters) will have to be discerned inter alia from conversations which took place many years ago. 19 Memories will have faded. There is a loss of documentation. Some of it may have relevance to the issues which may be agitated at a trial. Whilst the catalyst for the destruction of documents was the erroneous advice given by the solicitor for the first defendants, the delay in the advancing of these proceedings by the plaintiff has also played a part. There is medical evidence to support the view that the many years of litigation have been the stressor for anxiety and depression suffered by Mrs Edbrooke. There was a relapse in December 1998. She has been diagnosed as suffering from a major depressive disorder and from a generalised anxiety disorder which is related to the litigation. The prognosis for recovery is dependent upon the removal of the stress of litigation. It would be cruel to her if she has to continue with the position of these proceedings hanging over her head for years to come. Apart from actual prejudice, there is the presumptive prejudice that flows from the enormous delay in this case. 20 There were other matters agitated. It is not necessary to pursue all of them. Perhaps I should mention two of them. One relates to the matter of bringing Cross-claims. The relevant limitation period for the bringing of Cross-claims between parties in the positions of the first and second defendants has expired. The other relates to the question of alternative rights (such as against legal advisers). The plaintiff may have such rights. If that be so, the authorities say that it is not a matter to be given great weight. 21 There is a real lack of utility in allowing the plaintiff to proceed with her claim against the first defendants. The first defendants bear the onus of the satisfying the Court that the process should be set aside. I take the view that this lack of utility of itself is probably a decisive factor. However, when regard is had to all of the other relevant circumstance as well, that view is strongly reinforced. Accordingly, in the relevant circumstances of this case, I am satisfied that the onus has been discharged. 22 I order that the proceedings brought by the plaintiff against the first defendants be set aside and dismissed. The plaintiff is to pay the costs of the Notice of Motion brought by the first defendants. I dismiss the Notice of Motion brought in the interests of the purported second defendant. I reserve the question of costs of that Notice of Motion. I dismiss the Notice of Motion filed by the plaintiff. The plaintiff is to pay the costs of that Notice of Motion. The Exhibit may be returned. I hereby certify that paragraphs 1-22 are the reasons for judgment of Master Malpass. Dated 3 May 1999. (H D LEWIS) Associate.