Howell v Smith - [2018] WADC 63

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   HOWELL -v- SMITH [2018] WADC 63
CORAM:   REGISTRAR KUBACZ
HEARD:   10 MAY 2018
DELIVERED          :   25 MAY 2018
FILE NO/S:   CIV 4426 of 2016
BETWEEN:   ROBERT JAMES HOWELL
Plaintiff (Respondent)
AND
GEOFFREY JAMES SMITH
Defendant (Applicant)

Catchwords:

Practice and procedure - Conditional appearance - Whether failure to give notice of claim as soon as practicable under s 29(1) Motor Vehicle (Third Party Insurance) Act 1943 constitutes irregular writ of summons

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943 s 29, s 29A
Rules of the Supreme Court 1971 (WA) O 12 r 6

Result:

Chambers summons to strike out writ of summons dismissed

Representation:

Counsel:

Plaintiff (Respondent)	:	Mr J R Brooksby
Defendant (Applicant)	:	Mr R J Carey

Solicitors:

Plaintiff (Respondent)	:	Donna Percy & Co
Defendant (Applicant)	:	SRB Legal

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

Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729
Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 2 All ER 318
Stojceska v Muharemovic [2017] WADC 9

REGISTRAR KUBACZ:

By chamber summons filed on 12 March 2018, the defendant through the Insurance Commission of Western Australia (Commission), sought the following orders:
1.The plaintiff's writ of summons (Writ) be struck out pursuant to O 12 r 6(1) of the Rules of the Supreme Court 1971 (WA) (RSC) and s 29A of the Motor Vehicle (Third Party Insurance) Act 1943 (MVA).
2.The plaintiff do pay the defendant's costs of the action to be taxed.
3.The plaintiff do pay the defendant's costs of and incidental to this application in any event.
The plaintiff was allegedly involved in two separate motor vehicle accidents; one on 19 August 2013 and the second on 19 February 2014. The plaintiff's claim regarding the first accident was settled in April 2015.
In relation to the second accident on 19 February 2014, the plaintiff commenced proceedings in this court by lodging a Writ on 19 November 2016. The Writ was not served on the defendant before its expiration, prompting the plaintiff to make an ex parte motion pursuant to O 7 of the RSC to extend the validity of the Writ. This application was heard by Principal Registrar Melville on 12 December 2017 who made orders extending the validity of the Writ for a further six months from the date of the expiry of the original Writ being 29 November 2017. The validity of the Writ was therefore extended to 29 May 2018.
On 22 January 2018, the plaintiff filed a chamber summons for substituted service of the Writ. Before that application could be heard, the Commission on behalf of the defendant filed a conditional appearance on 9 February 2018 despite the Writ not having been served. On the same day as the conditional appearance being filed, the chamber summons the subject of this application was filed.
I pause here to note that the defendant has not made an application to have the ex parte orders of Principal Registrar Melville extending the validity of the Writ set aside pursuant to O 58 r 23 of the RSC but rather, is seeking to strike out the Writ pursuant to O 12 r 6(1) of the RSC and s 29(1) of the MVA.
I therefore do not need to consider whether the ex parte orders should or should not have been made and I am therefore confined the application in the terms before me, dealing with the original Writ and challenge to the jurisdiction or validity of the writ pursuant to O 12 r 6(1) of the RSC.
Order 12 r 6(1) provides:
A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof, on the grounds of informality or irregularity which renders the originating process or the service thereof invalid.
Given O 12 r 6(1) of the RSC does not provide me with the power to strike out the Writ, I will proceed to deal with the matter on the basis that what the defendant is actually seeking is to have the Writ set aside.
During oral argument, the defendant's counsel submitted that it was not challenging the jurisdiction of the court was but applying to have the Writ be set aside on the grounds of irregularity rendering the Writ invalid.
The defendant submits that the Writ is irregular and therefore invalid as it does not disclose non‑compliance pursuant to s 29(1) of the MVA.
Section 29(1) of the MVA states that:
29.Notice of the claim
(1)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 proceedings 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.
The defendant argues that the plaintiff was not entitled to commence proceedings against the defendant as he did not provide written notice to the Commission as soon as was practicable after the occurrence giving rise to the claim.
Further, the Commission submits that if the plaintiff seeks to rely on s 29A of the MVA, the plaintiff is required to plead this in its prayer for relief in the Writ as per the obiter in Stojceska v Muharemovic [2017] WADC 9 [13] (Staude DCJ).
The salient facts are that at the time that the crash took place on 19 February 2014, the plaintiff already had a claim against the Commission with respect to an earlier crash which occurred on 19 August 2013. Notification regarding this earlier crash was given to the Commission in the prescribed way. The plaintiff's claim for the earlier crash was settled in April 2015 following an informal settlement conference.
The evidence, annexed to the affidavit of Donna Irene Percy dated 26 April 2018, outlines that as part of the settlement discussions for the 19 August 2013 crash, discussion also took place regarding the subject crash and the potential to settle the later crash at the same time.
This did not occur and subsequently and the plaintiff purported to notify the Commission of his intention to claim damages by letter from his solicitors dated 3 November 2016. This notification was not in accordance with s 29(1) of the MVA as it was not in the prescribed form. However, the defendant does not take issue with the form as the notice was in writing as prescribed.
The formal written notification of the claim was therefore some 18 months after the accident. No issue can be taken by the plaintiff that this was not 'as soon as practicable after the accident' in accordance with s 29(1) of the MVA.
Even though the Commission may have been aware of the second crash I do not think this constitutes a valid written notice by s 29(1) of the MVA on the plaintiff's intention to make a formal claim. This cannot be found to be a formal notification.
In its submissions, the plaintiff relies on two points to defend his actions, the first was that the Commission was well aware of the plaintiff's intention to make a claim in relation to the subject crash as it was implied in the discussions leading up to the settlement of the earlier crash and the injuries suffered by the plaintiff during that crash were reported on in the same reports used by the parties in the settlement of the first crash.
Further, it is submitted that, if that is not accepted as sufficient notification, s 29A overrides the provisions of s 29(1) of the MVA to cure any irregularity in the issuing of the Writ, and allows the plaintiff to proceed on the Writ seek leave to continue with his claim.
Section 29A of the MVA provides:
Notwithstanding the provisions of ... 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 or bodily injury to a person directly caused by, or by the driving of, an insured or an uninsured motor vehicle, considers the failure to give notice ... was occasioned by mistake, inadvertence or any other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure or defect, the court may –
(a)Where the proceedings have been commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect; or
(b)Where an action is sought to be brought, if it thinks fit, grant the applicant leave to proceed, notwithstanding that failure or defect.
There is no doubt that s 29A of the MVA allows a plaintiff who has failed to give notification under s 29(1) of the MVA, to seek the leave of the court to remedy that failure. This issue is, at what stage of the proceedings this can be done.
The wording of the section seems to anticipate that the seeking of leave can be done either before proceedings are commenced (subsection (b)) or indeed after proceedings are commenced (subsection (a)) and it is therefore difficult to see how a Writ issued which was in contravention of s 29(1) of the MVA would be irregular and therefore invalid given the overriding nature of s 29A of the MVA.
Further I note Staude DCJ's comments in Stojceska v Muharemovic that the provision of s 29A should be pleaded, but this again, in my opinion does not render the Writ invalid.
Irrespective of the provisions of s 29(1) of the MVA, s 29A operates to override those provisions, this is evidence from its wording 'notwithstanding the provisions of s 29(1) … ' to allow a plaintiff, even once an action is commenced, to seek leave to continue with their claim. A plaintiff may fail in their application for leave, but this does not invalidate the Writ.
I therefore do not see how a Writ issued, even where the plaintiff has failed to comply with s 29(1) of the MVA, can be irregular and therefore invalid. It appears to me that s 29A allows the Writ to issue but then requires the plaintiff to then seek leave of the court to continue with its claim.
I therefore find that the Writ is valid and is allowed to stand.
There is no doubt however, that the plaintiff will now need to amend his pleadings and seek the leave of the court to continue with the proceedings before any further steps can be taken to progress the matter. The plaintiff's counsel concedes this point.
If I am wrong in my interpretation of the interaction of the two sections of the MVA, I do have the discretion, both in common law and pursuant to O 2 r 1 of the RSC to validate irregularities where justice demands it.
Order 2 r 1 RSC gives the widest possible power to do justice, and prejudice or lack of prejudice will often be important factors in the exercise of that discretion. Metroinvest Ansalt v Commercial Union Assurance Co Ltd[1985] 2 All ER 318 (324), (326). In general a litigant is not to be defeated by any mere technicality, any slip, or any mistaken step in his or her litigation and the court should rectify it as long as it can do so without injustice: Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 QB 729 (736).
If I set aside the Writ on the basis of an irregularity, which I have said I do not believe is irregular, the effect of this would be that the plaintiff would have to seek leave to commence his action again and for leave pursuant to s 29A of MVA to maintain the claim.
The difficulty for the plaintiff is that if he had to commence the action again, his claim would be statute barred. Given that the original Writ was filed in November 2016 and given the evidence of discussions between the parties prior to and subsequent to the Writ being issued, the plaintiff's intention was to issue the Writ well before the limitation period expired. To put this impediment in front of the plaintiff would cause him significant prejudice.
There is however no prejudice to the defendant in allowing the Writ to stand on the basis that given the plaintiff must now seek leave of the court to continue with his action pursuant to s 29A of the MVA. The defendant will have the opportunity to put on submissions and argue that application and convince the court why the plaintiff should not be granted leave to continue with his claim.
It appears to me that for Justice to be best served, if there is any irregularity with the Writ in its current form, which I do not believe there is, that such irregularity should be rectified and the Writ should stand. The parties must now move forward and argue the real issue, which is whether the plaintiff should be granted leave to continue with his claim pursuant to s 29A of the MVA.
The defendant's application is therefore dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JC
REGISTRAR'S ASSOCIATE
24 MAY 2018