Laird v Raciti; Laird v Lemming; Falconer v Laird

[2003] NSWCA 101

CITATION:	Laird v Raciti; Laird v Lemming; Falconer v Laird [2003] NSWCA 101
HEARING DATE(S):	11 April 2003
JUDGMENT DATE:	11 April 2003
JUDGMENT OF:	Handley JA at 1; Beazley JA; Giles JA
DECISION:	Paras 3, 4, 9, 10 and 11 of judgment
CATCHWORDS:	PRACTICE - COURT OF APPEAL - DEATH OF PARTY - AMENDMENT OF RECORD - NO QUESTION OF PRINCIPLE
LEGISLATION CITED:	Motor Vehicles Third Party Insurance Act 1942
PARTIES :	Alexander Laird v Robert Raciti & Anor Alexander Laird v Mark Lemming Irene Falconer v Alexander Laird & Anor
FILE NUMBER(S):	CA 40980/02; 40979/02; 40309/02
COUNSEL:	For Laird: M R Aldridge SC/J C Thompson For Falconer, Raciti & Lemming: C Hoeben SC/ J Sewell
SOLICITORS:	For Laird: Maxwell Berghouse & Ives For Falconer, Raciti & Lemming: Nevill & Edwards For Nominal Defendant: NSW Ministerial Corporation

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 356; 357; 358/86
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

40980/02 DC 356/86
40979/02 DC 357/86
40309/02 DC 358/86

HANDLEY JA
BEAZLEY JA
GILES JA
11 April 2003

ALEXANDER LAIRD v ROBERT RACITI & ANOR

ALEXANDER LAIRD v MARK LEMMING

IRENE FALCONER v ALEXANDER LAIRD & ANOR

Judgment

1 HANDLEY JA: Mr Hoeben has moved for leave to correct the record in the proceedings in which at the moment Irene Theresa Falconer is the claimant and Alexander Laird is the first opponent, Court of Appeal 40309/02. Mrs Falconer was the driver but not the owner of motor vehicle BNI564 which on 31 March 1982 was involved in a collision with a motor cycle carrying the late Wayne Derek Sevil and Mr Laird at Macquarie Fields. Exhibit A, which has been tendered by Mr Hoeben, establishes that that motor vehicle was then owned by Mr Falconer and was insured under a current third party motor vehicle policy with the Government Insurance Office of New South Wales.

2 The proceedings in the District Court and in this Court as presently constituted are fundamentally irregular in that a deceased party remains on the record and all relevant proceedings have been conducted in this Court and in the District Court while that state of affairs has continued. However it has now been ascertained that probate of the will of the late Irene Theresa Falconer was granted by this Court on 2 April 2001. The executor was Derek Francis Halliwell and under SCR Pt 8 r 10(2) an order should be made substituting him for the deceased in the proceedings in this Court. It appears reasonably clear that s 18 of the Motor Vehicles Third Party Insurance Act 1942 as amended authorises the Government Insurance Office, now the New South Wales Ministerial Corporation, to conduct the present proceedings in the name and on behalf of its insured, which of course would include on ordinary principles the legal personal representative of the insured who has been properly constituted. The Court however has a residual concern that these proceedings are being conducted in the name of the executor without his knowledge and without his approval, assuming that were necessary, and that there is possibly, albeit probably remotely, some prospect that orders for costs or orders for damages might become personally enforceable against the executor subject to the usual defences of plene administravit or plene administravit praeter and the like.

3 The Court therefore directs under SCR Pt 8 r 11 that the summons for leave to appeal, a copy of these reasons, and an appropriate explanatory letter prepared by the solicitors for the Government Insurance Office representing the estate of the late Mrs Falconer should be served on the executor and this Court will reserve liberty to the executor to apply within 21 days of such service for the rescission or variation of this order.

4 The Court also directs that an affidavit proving service on the executor of those documents be filed on the solicitors for Mr Laird promptly after such service has been affected.

5 Mr Aldridge I think you have to move to do the same thing mutatis mutandis.

6 ALDRIDGE: Yes I do your Honour.

7 HANDLEY JA: Mr Hoeben do you want to be heard against that?

8 HOEBEN: No.

9 HANDLEY JA: On 25 March 2002 Delaney DCJ, having noted that Mr Thompson appearing for Mr Laird before him had sought leave “to substitute the executor/administrator of the estate of the second defendant as to second defendant”, said that he granted that application. The order is irregular in that the executor or administrator is not named as he should have been so that the order was ineffective and as a result the proceedings remained against Mrs Falconer. However the record having been corrected in this Court it is appropriate to exercise this Court’s powers under s 75A(10) of the Supreme Court Act and SCR Pt 51 r 22 to make the order that Delaney DCJ should have made.

10 Accordingly the Court will direct that the notice of motion of 14 February 2002 and the statement of claim in action 356/86 be amended under DCR Pt 7 r 10(2) with effect from 25 March 2002 to substitute for Irene Theresa Falconer the name of Derek Francis Halliwell.

11 The Court will not direct service of documents in the District Court proceedings on Mr Halliwell but the covering letter referred to in the earlier order should refer to the order just made, which amends the proceedings in the District Court, so that Mr Halliwell properly understands the position.

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Last Modified: 05/05/2003