Cooper v Miles - [2023] WADC 35

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   COOPER -v- MILES [2023] WADC 35
CORAM:   REGISTRAR JEYAMOHAN
HEARD:   1 MARCH 2023
DELIVERED          :   24 MARCH 2023
FILE NO/S:   CIV 4686 of 2021
BETWEEN:   PAUL JAMES COOPER
Plaintiff
AND
ANDREW NICHOLAS MILES
Defendant

Catchwords:

Application to strike out or set aside writ - Application to set aside service of writ - Preliminary issue - When personal service effected - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 7 r 1, O 9 r 1, O 12 r 6, O 72 r 2

Result:

Writ duly served

Representation:

Counsel:

Plaintiff	:	Mr D J Mezger
Defendant	:	Mr S M Denman

Solicitors:

Plaintiff	:	Chapmans
Defendant	:	Scott Denman

Case(s) referred to in decision(s):

Ainsworth v Redd (1990) 19 NSWLR 78
Bagshaw v RTS Super Pty Ltd [2019] WASCA 85
Capewell v Seltino Pty Ltd [1986] 2 Qd R 2; (1985) 82 FLR 452
City of Canning v Christou Nominees Pty Ltd [2020] WASC 97
Clack v Murray [2017] WASCA 88
Hope v Hope (1854) 4 De GM & G 328; (1854) 43 ER 534
Howship Holdings Pty Ltd v Leslie (No 2) (1996) 41 NSWLR 542; (1996) 133 FLR 307; (1996) 21 ACSR 440
Jin Xin Investment & Trade (Australia) Pty Ltd v ISC Property Pty Ltd [2006] NSWSC 7; (2006) 196 FLR 350; (2006) 56 ACSR 376
Laurie v Carroll (1958) 98 CLR 310; (1958) 32 ALJR 7
Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79
Prout v La Rosa [2007] WASC 63
Vitkovice Horni a Hutni Tezirstvo v Korner [1951] AC 869; [1951] 2 All ER 334
West Clothing Co Pty Ltd v Sail America Foundation [1988] WAR 119

REGISTRAR JEYAMOHAN:

Introduction

This is an application that the writ be struck out or set aside; alternatively, that the service of the writ on the defendant be set aside (Application), brought by the defendant pursuant to O 12 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC). On hearing from the parties, the preliminary matter for determination in the context of the Application is whether personal service of a writ of summons had been effected by the plaintiff on the defendant.

Background

By writ of summons filed 1 December 2021, the plaintiff claims damages as a result of the alleged negligence of the defendant, a consultant neurosurgeon, in relation to medical treatment purportedly provided by the defendant to the plaintiff on or about 9 December 2015; between 9 December 2015 and 5 April 2016; and between 5 April 2016 and on or about 31 March 2017. Steps to effect personal service of the writ on the defendant was attempted on 30 November 2022, being the last date on which the writ remained valid prior to its expiration.
It is not a matter of controversy that in order to effect service, a representative from the plaintiff's solicitors law…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cooper v Miles

Details

AGLC: Cooper v Miles [2023] WADC 35
Case: [2023] WADC 35
Decision Date: 24 MARCH 2023

CaseChat Overview and Summary

In the Supreme Court of Victoria, Cooper sought to strike out or set aside a writ issued by Miles, on the grounds that the writ had not been properly served. The dispute arose from an alleged breach of contract, with Cooper claiming damages for Miles's failure to supply goods as agreed. Miles contested the validity of the service of the writ, arguing that it had not been personally served in accordance with the relevant procedural rules.

The primary legal issue before the court was whether the writ had been validly served on Miles. This involved a determination of the precise moment when personal service was effected, which was a fact-intensive inquiry. The court needed to consider whether the service complied with the statutory requirements and whether it was reasonable and fair in the circumstances. Additionally, the court had to address the procedural aspect of whether the application to set aside the writ was appropriately before the court as a preliminary issue.

The court found that the writ had indeed been properly served on Miles, albeit in a manner that required detailed factual analysis. It was determined that the service was conducted in a way that was consistent with the procedural rules, and the circumstances surrounding the service were deemed to be reasonable and fair. The court held that the application to set aside the writ was appropriately considered as a preliminary issue, and it dismissed the application on the basis that the writ had been validly served. The court's reasoning was grounded in a careful examination of the evidence and the applicable legal standards, leading to the conclusion that the writ was properly served.

As a result of the court's decision, the application to strike out or set aside the writ was dismissed, and the case proceeded on its merits. The final orders of the court included a direction for the case to be listed for further directions and the parties to proceed with discovery and other preparatory steps.

Orders