Mitchell v Mitchell
[2003] WADC 156
•17 JULY 2003
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: MITCHELL -v- MITCHELL [2003] WADC 156
CORAM: REGISTRAR KINGSLEY
HEARD: 4 JULY 2003
DELIVERED : 17 JULY 2003
FILE NO/S: CIV 2344 of 2002
BETWEEN: ANNE-LOUISE MITCHELL
Plaintiff
AND
DOMENIC MITCHELL
Defendant
Catchwords:
Practice - Order 16, Rules of the Supreme Court - Failure by plaintiff to issue proceedings within time - Defendant serving order on solicitor - Act requires service on the claimant
Legislation:
Motor Vehicle (Third Party Insurance) Act 1942
Rules of the Supreme Court
Result:
Application allowed
Judgment for defendant
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):
Sargent v ASL Development Ltd (1974) 131 CLR 634
Case(s) also cited:
Anderson v Effexseven & Anor (1999) ANZ Insurance Cases 61-424
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Re A Debtor (No 441 of 1938), Ex parte Petitioning Creditor v Debtor [1938] 4 All ER 92
REGISTRAR KINGSLEY: This is the defendant's application that the plaintiff's action be dismissed pursuant to O 16 r 1 of the Supreme Court Rules.
History
The plaintiff in this action was a passenger in a motor vehicle which was involved in an accident in April 1999. The plaintiff purportedly sustained injuries as a result of the accident.
In May 1999 the plaintiff gave notice to the Insurance Commission of Western Australia of her intention to make a claim. Presumably as nothing more was heard from the plaintiff, in April 2002 the plaintiff was personally served with an originating summons pursuant to s 29(2) of the Motor Vehicle (Third Party Insurance) Act 1942 ("the Act"). Section 29(2) of the Act provides that if a person (called in the section "the claimant") who has given notice of a claim but they have not, within a period of six months after the occurrence giving rise to the claim, commenced an action, the Insurance Commission of Western Australia may make an application to a judge of the Supreme Court or of the District Court for an order that an action or proceeding be commenced.
In an affidavit sworn by Penelope Anne Moore on 30 April 2003 the evidence is that on 12 April 2002 the plaintiff in this action was personally served with the originating summons pursuant to s 29(2) of the Act. On 23 April 2002 Bradford & Co (the plaintiff's solicitors) entered an appearance to the originating summons.
On 27 May 2002 his Honour Judge Muller made an order that the plaintiff in this action within 42 days of the date of service of the order commence an action to claim damages for bodily injuries. The plaintiff's solicitors were present at the hearing before Judge Muller.
It is Ms Moore's belief that the order made by his Honour Judge Muller was extracted on or about 20 June 2002 and served by post on the plaintiff's solicitors on that date. The belief of Ms Moore is fortified by John Gerard Staude in an affidavit sworn 4 July 2003 where he deposes that the extracted order for commencement of proceedings was served by post on the plaintiff's solicitors.
It would appear that the order may well have simply been placed in an envelope and posted in the usual way to the plaintiff's solicitors. It would appear that there was no covering letter with the order.
The plaintiff's solicitors filed a writ of summons in this action on 22 August 2002. The writ then was filed outside of the time prescribed by the orders made by his Honour Judge Muller.
The issues
The determination of the defendant's application turns on two issues.
1.Is it sufficient for the purposes of s 29(4)(a) of the Act that service of the order be served on the plaintiff's solicitors?, and
2.Does the evidence establish there was adequate service within time on the plaintiff's solicitor in this case?
Section 29(4)(a) of the Act provides that on the hearing of an application the judge may make an order 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. The plaintiff's counsel argues that any order made pursuant to s 29(4) must be served on the claimant. That is, the plaintiff's counsel argues, the words "personal service of the order" are to be read into s 29(4)(a) of the Act.
The plaintiff at all times has been represented by a firm of solicitors. There was a memorandum of appearance filed in the proceedings pursuant to s 29(2) of the Act. The plaintiff has therefore instructed her solicitors to appear and be heard on the s 29(2) proceedings. So long as the solicitors remain on the record they are authorised to accept service of all documents which do not require personal service.
Further, the solicitors are the agents of the client. The legal doctrine of agency constitutes a recognition that there are circumstances which justify a person entrusting another with the capacity to affect their legal relations with third parties. The lawyer/client relationship is a prime example of this agency relationship (Sargent v ASL Development Ltd (1974) 131 CLR 634). The agency relationship between lawyer and client, within the confines of the retainer, carries with it the implied authority to do all such things incidental to the object of the representation. In the s 29(2) proceedings the object of the representation was to obtain an order against the plaintiff requiring her to commence proceedings within a specified time. Incidental to that representation is the acceptance of service of the order requiring that the proceedings be commenced.
Section 29 of the Act refers to the period of time after service of the order within which the claimant is to commence proceedings. The Act does not mention personal service as personal service is usually reserved for the initiating process. However, having regard to the consequences, and where the claimant is not represented, it would be prudent of the Insurance Commission of Western Australia (the applicant in the s 29(2) proceedings) to ensure that the order is served personally on the claimant. But in this proceeding the claimant has been represented by a firm of solicitors. By their authority as solicitors on the record and as agents for the claimant, the solicitors have the authority to accept service of documents, including Court orders. In my opinion service of a Court order made pursuant to s 29(4)(a) of the Act can be effected by post on the solicitors who have entered an appearance in the s 29(2) proceedings for the claimant.
The plaintiff's counsel argues that because of the serious consequences of the order if it is not attended to within time that the solicitors for the defendant had an obligation to do more than simply post the order to the solicitor. In my opinion the solicitors for the defendant had no greater obligation than that ordinarily imposed in relation to service of orders. The fact that the defendant's solicitors may well have forwarded the order without a covering letter or without even a "with compliments" slip does not detract from the fact that it is upon service of the order that time runs. It is the fact of service of the order, and nothing else, that is important. In any event the plaintiff's solicitors were present at the time that the order was made and were aware that an order would be forthcoming.
The defendant's application is one pursuant to O 16, Rules of the Supreme Court. To succeed in an application of this nature it is for the defendant to show that there is no arguable issue to warrant the matter progressing to trial. I am of the opinion that in this case there is no issue to be argued and accordingly would give judgment to the defendant.
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