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…

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 63
Case: [2018] WADC 63
Decision Date: 25 MAY 2018

CaseChat Overview and Summary

In the case of Howell v Smith, the parties involved were the plaintiff, Howell, and the defendant, Smith. The nature of the dispute was related to the validity of a writ of summons served in a motor vehicle accident case. The case was heard in the Supreme Court of South Australia. The central issue that the court was required to decide was whether the failure to comply with section 29(1) of the Motor Vehicle (Third Party Insurance) Act 1943, which mandates that a notice of claim must be given as soon as practicable, constituted an irregular writ of summons under the Supreme Court Rules.

The court considered the importance of adhering to statutory requirements and the consequences of failing to do so. It was noted that while the failure to give notice as soon as practicable may not always be fatal to a claim, it could potentially render the writ of summons irregular. The court examined the circumstances of the case, including whether the plaintiff had acted promptly in giving notice of the claim and whether the defendant had been prejudiced by the delay. Ultimately, the court concluded that the failure to give notice as soon as practicable did not necessarily constitute an irregular writ of summons, but rather, it was a factor to be considered in determining the validity of the proceedings.

The court's reasoning was based on the principle that the statutory requirement to give notice as soon as practicable is intended to ensure that the defendant is promptly informed of the claim and has the opportunity to assess their insurance coverage. However, the court held that the failure to comply with this requirement did not automatically render the writ of summons irregular, as other factors, such as the promptness of the notice and any prejudice to the defendant, must also be taken into account. The court found that in this particular case, the plaintiff had acted promptly in giving notice of the claim, and there was no evidence of prejudice to the defendant due to the delay. As a result, the writ of summons was deemed valid, and the proceedings could continue. The court ordered that the case would proceed to trial, with the issues of liability and damages to be determined at a later date.

Orders