Mitchell v Mitchell

[2003] WADC 280

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   MITCHELL -v- MITCHELL [2003] WADC 280

CORAM:   COMMISSIONER GREAVES

HEARD:   21 NOVEMBER 2003

DELIVERED          :   17 DECEMBER 2003

FILE NO/S:   CIV 2344 of 2002

BETWEEN:   ANNE-LOUISE MITCHELL

Plaintiff

AND

DOMENIC MITCHELL
Defendant

Catchwords:

Statutory interpretation - Procedure - Appeal from Deputy Registrar - Whether "service of the order on the claimant" means "service of the order on the claimant or solicitors for the claimant"

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943, s 29(4), s 29(7)

Result:

Appeal allowed
Application for summary judgment dismissed

Representation:

Counsel:

Plaintiff:     Mr B G Bradley

Defendant:     Mr G P Bourhill

Solicitors:

Plaintiff:     Bradford & Co

Defendant:     Phillips Fox

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

Nil

Case(s) also cited:

Nil

1. COMMISSIONER GREAVES: This is an appeal from the decision of the learned Deputy Registrar whereby he entered summary judgment for the defendant in this action. The facts and issues are adequately described in the reasons of the learned Deputy Registrar and I do not repeat them. Section 29(4)(a) of the Motor Vehicle (Third Party Insurance) Act 1943 provides:

   "(4)On hearing an application made pursuant to subsection (2) the Judge may make an order —

   (a)fixing the time after service of the order on the claimant within which the action or proceeding referred to in that subsection shall be commenced;"

2. The issue between the parties is whether on a proper construction of s 29(4)(a) of the Act, the words "service of the order on the claimant" mean "service of the order on the claimant or the solicitors for the claimant". In my opinion they do not.

3. In my opinion, the proper construction of s 29(4) is clear on the literal meaning of the words "the claimant" in s 29(4)(a) of the Act. If that is not the case, it is necessary to have regard to the purpose of the legislature in providing for service of the order upon the claimant. That purpose is abundantly clear from s 29(7) which provides:

   "(7)Where the Judge makes an order pursuant to subsection (4)(a) and the action or proceeding has not been commenced within the time fixed, or any extension of it pursuant to subsection (6), the claim of the claimant and any rights he may have had in respect of it are forever barred and extinguished."

4. The purpose of the legislature was to provide a mechanism by which the claim of the claimant and any rights she may have had in respect of it are forever barred and extinguished.  In enacting that provision, having that effect, the legislature required personal service on the claimant.

5. The learned Deputy Registrar appears to have recognised the purpose of the legislature in par 13 of his reasons where he observes it would be prudent of the defendant to ensure the order in circumstances such as the present is served personally on the claimant.  In my opinion, it would not only be prudent but it is also what the section obviously requires in the circumstances.  It would be practical in such circumstances for a copy of the order to be served on the solicitors for the claimant.

6. Accordingly, in my opinion, the appeal should be allowed and the application for summary judgment dismissed.