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While dealing with a potential claim against an institutional abuse law firm, a judicial registrar was left frustrated by the “apparent assumption” by some legal practitioners that it is open to them to make last-minute applications to extend deadlines.
A childhood sexual abuse survivor was given 14 days to file a writ against Australaw, trading as Kelso Lawyers, for its alleged negligence and breach of contract in respect of an “inadequate” settlement with the trustees of the Marist Brothers.
The survivor originally applied to extend the validity for service of the writ by 12 months – pending the outcome of separate abuse proceedings – but the “limited” affidavit material filed by his solicitor, Madeline Macriyiannis, was found to be “problematic”.
The material also did not provide a “good reason” to extend the writ by 12 months, including the submission that resolution of the abuse proceedings may make the negligence matter unnecessary.
Judicial registrar Andrew Baker of the Supreme Court of Victoria said in light of the affidavit material, it was more appropriate for the writ to be served within a fortnight and that any arrangements about the timing of it should “be raised with the defendant’s representatives”.
The major issue with the affidavit material was that it did not provide an “adequate enough” explanation of what had occurred between August 2023, when the proceedings against Australaw were commenced, and Macriyiannis affidavit in August 2024.
“If nothing else, it provides no explanation as to what steps, if any, had taken place concerning this [professional negligence] proceeding since it was commenced a year earlier, and did not address the matters that are typically required to obtain an order extending a writ’s period of validity for service,” Baker said.
The survivor’s solicitors were given the chance to file a new affidavit.
While additional material into the survivor’s examination and counsel engagement was included in this second affidavit, Baker said the material still did not provide sufficient explanation of the delay.
“In an application of this nature, the requirement that any reason to extend a writ be one of substance and the relevance of any delay by the plaintiff both suggest that sufficient information needs to be provided to enable the court to have a proper understanding of what has taken place and why the writ was not served in time.
“The affidavits do not do this,” Baker said.
Baker also took issue with the “increasingly common practice” of plaintiffs issuing applications for extensions “at effectively the last minute, leaving no prospect that an outcome would be available before the writ’s expiry and therefore no ability for the plaintiff to serve the writ if the application is not granted”.
He added it “should be cause for concern”.
While the court does have the power to extend the validity of a writ before it has lapsed, Baker said there is no justification “for the apparent assumption among some practitioners” that these extensions would be routinely made.
Baker said the “prudent course” would have been to issue the application for an extension of time well before the writ lapses so that it could still be filed if the application was not allowed.
Counsel for King submitted in the alternative to a 12-month extension, the court could grant a “very short” one.
“I note that it should not be assumed that a similar short extension would inevitably be a ‘backup’ option available to plaintiffs who apply for extensions very close in time to the date on which their writ will lapse without justifying any delay in doing so,” Baker said.
In this case, there was “no explanation” or “good reason” to allow even a short extension for King’s writ.
“Fundamentally, the obligation remains on plaintiffs to either serve writs within the time provided by the Rules, or to apply for extensions appropriately early if it’s known well in advance that an extension will be sought,” Baker said.
The case is King v Australaw Pty Ltd [2025] VSC 136 (24 March 2025).
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Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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