Kezic v CARDOZ - [2006] WADC 66

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: KEZIC -v- CARDOZ [2006] WADC 66

CORAM: DEPUTY REGISTRAR HEWITT

HEARD: 27 APRIL 2006

DELIVERED : 11 MAY 2006

FILE NO/S: CIV 1825 of 2004

BETWEEN: SLOBODAN KEZIC
Plaintiff
AND
ALBERT JOHN CARDOZ
Defendant

Catchwords:

Practice Western Australia - Application to set aside order for extension of validity of writ obtained on ex parte application

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr A J Castley
Defendant: Mr P Oliver

Solicitors:

Plaintiff: Bradford & Co
Defendant: Talbot & Olivier

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

Bell Group NV (In liq) v Aspinall (1998) 19 WAR 561
Brealey v The Board of Management Royal Perth Hospital (1999) 21 WAR 79

Case(s) also cited:

Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337

DEPUTY REGISTRAR HEWITT: By an ex parte summons filed 15 September 2005 the plaintiff applied for and obtained an order that the validity of the writ of summons in this matter be extended for a date of one month.
On 18 October 2005 the defendant filed a conditional appearance and by chamber summons filed 25 October 2005 the defendant applied to set aside the order extending the validity of the writ.
The application was supported by the affidavit of M A Lowe which exhibited 11 pieces of correspondence which passed between the plaintiff and the defendant's insurer and the plaintiff's solicitors and the defendant's insurer of which only two were exhibited to the affidavit in support of the original application.
The facts which appear from an examination of the complete correspondence passing between the relevant parties indicates that on 4 February 1999 the Insurance Commission of Western Australia acknowledged receipt of the plaintiff's notice of claim and by 17 August 1999 indicated to the plaintiff that although certain out of pocket expenses had been met on his behalf pursuant to the Act, the Commission considered that his claim, although in a position to be finalised, would not exceed the threshold amount of $10,500 and it did not intend to take further action in regard to the matter.
Nothing further was heard until the plaintiff's present lawyers wrote to the Insurance Commission advising that they had been instructed to act, and seeking copies of relevant documentation. That letter was responded to by the Commission on 27 February 2003 providing the documents requested and re‑stating its position in regard to the matter. Additionally, the Commission set about obtaining further medical reports in order to review its decision regarding the claim.
On 2 April 2003 the insurer again wrote to the solicitors for the plaintiff enclosing a copy of a medical report and advising that it would not accept liability for further treatment, and inviting overtures towards settlement of the matter. On 15 August 2003 there followed a further letter from the Commission enquiring whether the matter was to be pursued. In response to that letter the solicitors replied by letter dated 3 September 2003 advising that they were in the process of seeking instructions and hoped to be able to revert to the Commission directly.
There followed three further letters from the Commission to the solicitors, each inviting a response, and the final letter indicating that it was no longer proceeding with the claim.
That correspondence indicates a rather different picture to that disclosed by the affidavit in support of the original application for an extension which provided copies of the letter dated 18 February 2003 to the Commission by the solicitors advising that they had been appointed to act and the letter from the Commission to the solicitors dated 9 May 2003 enclosing three fresh reports and indicating its view that the plaintiff's complaints did not relate to the injuries received in the motor vehicle accident. That letter concluded with an invitation to commence legal proceedings.
It is suggested on behalf of the plaintiff that the selection of letters exhibited to the affidavit in support provided all the relevant information required by the court to reach a proper decision. I do not agree. I think it relevant to know that the insurer had consistently indicated its view of the claim and consistently advised the plaintiff and his solicitors to actively pursue the claim if it was their intention to do so. I regard the failure to disclose the full correspondence as a material non‑disclosure which enlivens the jurisdiction to review the original decision:
"There is no doubt that the power to review an ex parte order exists. That is the plain wording of the rule. However it seems to us that the power must be exercised judicially. In these circumstances a proper exercise of the power should be reserved for those cases in which it can be demonstrated that there was material non‑disclosure or that, on the basis of new material, the full facts and circumstances had not been appreciated." Bell Group NV (In liq) v Aspinall (1998) 19 WAR 561 at p 570.
The next matter to consider was raised by counsel for the defendant, namely that the reason advanced by the plaintiff to explain why the writ was not served within the period of one year from the date of its issue was the fact that a secretary did not note the expiration date in a diary maintained by the plaintiff's solicitors.
It is quite clear when one looks at these materials as a whole that the failure to serve the writ was not an oversight in the initial months following the commencement of the action. The diary note was intended to protect the plaintiff against the possibility of delaying longer than intended in serving the writ. The materials indicate that a delay in serving the writ was quite intentional, but it was not intended that delay extend to the point that the writ became invalid for service.
The power to extend the validity of a writ is a broad and unfettered power involving a consideration of the reason that the writ was not served within the time prescribed by the rules, and a consideration of the balance of hardship: Bell Group NV (op cit).
Non‑disclosure of material facts is not necessarily fatal in an application of the kind before me:
"It is a moot point whether or not the degree of explanation and elucidation of the facts before Master Bredmeyer was so deficient as to amount to material non‑disclosure in the sense we have outlined. Even if it were to be characterised in that way, the question is whether the residual discretion should have been exercised in favour of intervention. In our view the case turns on the balance of hardship." (Bell Group (op cit) at p 578).
The Full Court of the Supreme Court considered similar matters in the case of Brealey v The Board of Management Royal Perth Hospital (1999) 21 WAR 79. In that case it was held that a deliberate delay in serving the writ, not satisfactorily explained, together with evidence of not insignificant prejudice to the defendant, would militate against orders extending the validity of a writ being made.
I turn from those considerations to the consideration of this case. In my view the following matters emerge from the evidence before me:
1.There was a material non‑disclosure (I make no finding that there was an intention to mislead) on the part of the applicant when bringing the application to extend. It was relevant, and should have been disclosed that there was a substantial correspondence between the Commission and the plaintiff and his lawyer, and that there had been very substantial delays by the plaintiff in pursuing his claim notwithstanding urging by the insurer to take steps to resolve the claim.
2.On the materials before me it appears that the liability of the defendant is not in dispute and what is in dispute is the quantum of his claim and whether or not it will exceed the statutory threshold provided in the Motor Vehicle (Third Party Insurance) Act.
3.The defendant is in possession of medical evidence concerning the plaintiff's condition, the most recent of which was obtained in 2003.
4.In the light of the above relevant evidence would have been preserved in the form of doctors' reports and doctors' notes, and there is little likelihood of the loss of relevant recollection and inability to achieve a fair trial.
5.In the event that the application is granted, the plaintiff will have lost the opportunity to obtain damages for injury sustained in an accident which is apparently conceded to have been caused by the negligence of the defendant.
Weighing all these matters together, and in particular the question of hardship, I take the view that notwithstanding the deficiencies in the materials which were brought before me, and notwithstanding the fact that no explanation was given for the failure to serve the writ other than the fact that it was not diarised, I nonetheless consider that the hardship to the plaintiff is of sufficient magnitude to justify the dismissal of this application which I do.