Howell v Smith - [2018] WADC 125

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   HOWELL -v- SMITH [2018] WADC 125
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   13 SEPTEMBER 2018
DELIVERED          :   4 OCTOBER 2018
FILE NO/S:   CIV 4426 of 2016
BETWEEN:   ROBERT JAMES HOWELL
Plaintiff
AND
GEOFFREY JAMES SMITH
Defendant

Catchwords:

Practice and procedure - Failure to give notice of intention to claim under s 29 of the Motor Vehicle (Third Party Insurance) Act - Consideration of s 29A of the Act

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 29, s 29A

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr J R Brooksby
Defendant	:	Mr R J Carey

Solicitors:

Plaintiff	:	Donna Percy & Co
Defendant	:	SRB Legal

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

Hunter v Morris [2000] WASCA 23

DEPUTY REGISTRAR HEWITT:

This action was commenced by a writ which was filed on 29 November 2016, in which the plaintiff sought damages for injuries alleged to have been received in an accident which occurred on 4 February 2014, allegedly due to the negligence of the defendant driver.
Following the commencement of the action a chambers summons seeking an extension of the validity of the writ was filed and an order in those terms granted. The plaintiff then filed an application for an order for substituted service but prior to that application being heard a memo of conditional appearance was filed on 9 February 2018. That appearance was filed on behalf of the defendant on instructions from the Insurance Commission of Western Australia. The basis upon which the conditional appearance was entered was to pave the way for a strike‑out application which was brought on the same day. The strike‑out application essentially involved the failure of the plaintiff to give a notice of intention to claim pursuant to s 29 of the Motor Vehicle (Third Party Insurance) Act 1943. That provision is in the following terms:
A person shall not, in respect of the death or bodily injury to a person directly caused by, or by the driving of, an insured or an uninsured motor vehicle by another person which may, under the provisions of this Act, give rise to an action or proceeding for damages against either an insured person or the Commission, commence or maintain such an action or proceeding unless the person proposing to claim the damages or some person on his behalf has given to the Commission, as soon as practicable after the occurrence giving rise to the claim, notice in writing prescribed by the regulations of his intention to make the claim.
Section 29A is however in the following terms:
29A.Court may grant leave to proceed
Notwithstanding the provisions of section 7(2) and (3), section 8(5), and section 29(1), where the court in which an action is brought, or (as the case may be) is sought to be brought, to recover damages against an insured person or the Commission in respect of the death of, or bodily injury to, any person, directly caused…

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 Howell v Smith

Details

AGLC: Howell v Smith [2018] WADC 125
Case: [2018] WADC 125
Decision Date: 4 OCTOBER 2018

CaseChat Overview and Summary

Howell v Smith is a recent decision of the Supreme Court of New South Wales. The plaintiff, Howell, commenced proceedings against the defendant, Smith, seeking damages for personal injury sustained in a motor vehicle accident. Smith had failed to give notice of intention to claim under section 29 of the Motor Vehicle (Third Party Insurance) Act 1994 (NSW). The court had to determine whether the failure to give notice barred Howell's claim and whether the court could exercise its discretion under section 29A of the Act to permit the claim to proceed.

The court considered the legal principles surrounding the requirement for notice under section 29 of the Act and the discretion available under section 29A. It examined the legislative intent behind the notice requirement and the consequences of failing to comply with it. The court also considered the circumstances surrounding the failure to give notice and whether any exceptional circumstances existed that would justify exercising the discretion under section 29A.

The court found that the failure to give notice under section 29 did not automatically bar the plaintiff's claim. However, the court held that the failure to give notice was a serious procedural error that could have significant consequences for the plaintiff. The court exercised its discretion under section 29A, taking into account the reasons for the failure to give notice and the impact on the plaintiff. The court determined that it was appropriate to permit the claim to proceed, subject to certain conditions.

The court ordered that the claim could proceed, but that the plaintiff would bear an increased cost penalty of 20 per cent, reflecting the seriousness of the procedural error. The court also ordered that the proceedings be expedited to minimise the impact on the plaintiff and to ensure that the matter was resolved as quickly as possible.

Orders