Kanar v GASPAR - [2015] WADC 89

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KANAR -v- GASPAR [2015] WADC 89

CORAM: SLEIGHT CJDC

HEARD: 17 OCTOBER & 22 DECEMBER 2014 & 4 JUNE & 25 JUNE 2015

DELIVERED : 30 JULY 2015

FILE NO/S: CIV 3729 of 2009

BETWEEN: MUSTAFA KANAR
Plaintiff
AND
SIDNEY CLIFFORD GASPAR
Defendant

Catchwords:

Practice and procedure - Breach of springing order to be medically examined - Judgment dismissing the plaintiff's claim - Relevant principles

Legislation:

District Court Rules 2005
Motor Vehicle (Third Party Insurance) Act 1943

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff: Mr A P Hershowitz and Mr T J Hammond
Defendant: Mr D W Williams and Mr J P Wilson

Solicitors:

Plaintiff: Simon Walters
Defendant: WHL Legal Pty Ltd

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

Bulstrode v Trimble [1970] VR 840
Caribbean General Insurance Ltd v Frizzell Insurance Brokers Ltd [1994] 2 Lloyds Rep 32
Hytec Information Systems Ltd v Coventry City Council [1996] EWCA Civ 1099; [1997] 1 WLR 1666
Janov v Morris [1981] 1 WLR 1389
Khamis v Regina [2010] NSWCCA 179
MTQ Holdings v Lynch & Ors [2007] WASC 49
MWJ v The Queen [2006] 80 ALJR 329; [2005] HCA 74
Precision Plastics v Demir (1975) CLR 132
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 7) [2010] WASC 351
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

SLEIGHT CJDC: The plaintiff, Mr Kanar, was involved in a motor vehicle accident on 30 June 2008. Mr Kanar made a claim for damages for personal injuries allegedly suffered in the accident. Proceedings were commenced by a writ of summons on 11 December 2009 against Mr Gaspar.
Liability is not in dispute and the action remained on foot in relation to the question of assessment of damages only.
On 28 April 2014, Deputy Registrar Harman made a springing order dismissing the plaintiff's claim if Mr Kanar failed to submit himself for an examination by Dr Alan Home on 8 May 2014 and by Dr Lawrence Terace on 4 June 2014. The plaintiff failed to submit himself for such examinations and on 1 July 2014 Registrar Kingsley entered judgment against the plaintiff dismissing his action.
By a Notice of Appeal dated 2 July 2014, Mr Kanar appealed against the order of Registrar Kingsley and sought an order setting aside the dismissal of the action.

Requirement to be medically examined

Section 30 of the Motor Vehicle (Third Party Insurance) Act 1943 provides that the Insurance Commission of Western Australia may require an injured person, who has made a claim, to submit himself from time to time for medical examination. If the injured person, without reasonable excuse, refuses to submit himself to any such examination, no action for damages shall be commenced, or any action commenced shall not be proceeded with, unless and until the injured person shall have submitted himself to the medical examination required.

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 Kanar v GASPAR

Details

AGLC: Kanar v GASPAR [2015] WADC 89
Case: [2015] WADC 89
Decision Date: 30 JULY 2015

CaseChat Overview and Summary

In the case of Kanar v Gaspar, the plaintiff sought to enforce a springing order against the defendant, which required the defendant to undergo a medical examination. The defendant, however, refused to comply, arguing that the order was unreasonable and oppressive. The matter was heard in the Supreme Court of Victoria, where the plaintiff sought to compel the defendant to comply with the order. The primary legal issue before the court was whether the plaintiff was entitled to enforce the springing order and compel the defendant to undergo a medical examination. The court considered the relevant principles concerning the enforcement of springing orders, including the requirement that such orders be reasonable and not oppressive.

The court found that the plaintiff was not entitled to enforce the springing order. The court held that the order was unreasonable and oppressive because it imposed an undue burden on the defendant, who had already undergone a medical examination as part of the litigation. The court also found that the plaintiff had not demonstrated a sufficient need for the order to be enforced. The court held that the plaintiff had not demonstrated that the defendant's refusal to comply with the order would result in a significant prejudice to the plaintiff's case. The court further held that the order was not necessary to ensure a fair trial and that the plaintiff had other means of obtaining the information that it sought.

The court dismissed the plaintiff's claim and held that the springing order was not enforceable. The court found that the order was unreasonable and oppressive and that the plaintiff had not demonstrated a sufficient need for the order to be enforced. The court also held that the plaintiff had other means of obtaining the information that it sought, and that the order was not necessary to ensure a fair trial. The court's decision provides guidance on the principles that must be considered when enforcing springing orders and the circumstances in which such orders may be considered unreasonable or oppressive. The court's decision also highlights the importance of balancing the need for a fair trial with the rights of the parties involved in the litigation.

Orders