Ng v Richard

[2024] WADC 89

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   NG -v- RICHARD [2024] WADC 89

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   9 OCTOBER 2024

DELIVERED          :   18 OCTOBER 2024

FILE NO/S:   CIV 1001 of 2024

BETWEEN:   DEREK NG

Plaintiff

AND

CHOYCE KYLE RICHARD

Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court 1971 (WA) - Application for summary judgment by the defendant - Order 16 of the Rules of the Supreme Court - Application to amend the writ and appearance made by the defendant

Legislation:

Nil

Result:

Application for summary judgment successful
Application to amend refused

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	Ms D M Carpenter

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	McCabes Lawyers

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

Nil

DEPUTY REGISTRAR HARMAN:

1. By writ of summons the plaintiff expresses the following indorsement:

   The plaintiff's claim is for

   I wished [sic] to contest the case as I have a witness to my accident!

   Seeking damages in loss of property, injury, emotional distress, financial losses and compensatory damages.

   My accident with a tow truck which occurred on 26 Feb 2021 around 5.10 pm in which the tow truck [driver] crashed into the back of my vehicle and lied that I changed lanes suddenly and caused the accident.

2. The writ does not disclose that when drafted the plaintiff had been represented by a solicitor.

3. Solicitors filed the memorandum of appearance by which a specified insurer was nominated as an interested party.  They subsequently filed an application for summary judgment and for an order as follows:

   Pursuant to Order 21 Rule 7 of the Rules of the Supreme Court 1971 (WA) leave be granted to correct the name of the Defendant from Choyce Kyle RICHARD to Kyle Richard CHOYCE as it currently appears on:

   a.the Writ of Summons filed 23 February 2024; and

   b.the Memorandum of Appearance filed 16 April 2024.

4. The plaintiff did not attend upon the return of the application.  Submissions were advanced upon the depositions of Darlene Maree Carpenter. 

5. Carpenter deposes that her employer is the solicitor on the record for Kyle Richard Choyce in identified proceedings in the Magistrates Court.

6. She outlines some history of those proceedings.  They were commenced by her for the claimant Russell upon instructions from Russell and his insurer.  The claimant sought damages resulting from a vehicle collision which occurred on 26 February 2021 on Nicholson Road, Lynwood, Western Australia from Derek Ng. 

7. Ng then represented by solicitors filed a defence by which he alleged that Kyle Richard Choyce was liable for the collision.  His solicitors issued a third-party notice against Choyce claiming among other things, contribution pursuant to the provisions of the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA).

8. The relevant claim, defence and third-party notice are attached to the affidavit.

9. The proceedings resulted in a trial at which Ng gave evidence.  On 12 April 2024, an order also attached to the affidavit was made in part as follows:

   1.There is Judgment for the Claimant against the Defendant ... 

   2.The Claim by the Defendant against the Third Party is dismissed.

   3.…

10. Carpenter deposes that under instructions from Choyce, she caused the memorandum of appearance to be filed '… albeit with the incorrect name being recorded as Choyce Kyle RICHARD instead of Kyle Richard CHOYCE …'.

11. She deposes that she has reviewed the writ and the indorsement of claim and from that review and her knowledge of the proceedings in the Magistrates Court, it is her belief that the District Court proceedings relate to the same collision the subject of the determination in the Magistrates Court.  In particular she notes that the plaintiff made each relevant claim; that the cause of damage was the same; so too, the date and location of the collision.

12. For the purposes of the application for judgment it is immediately apparent that a clear case would depend upon an inference being drawn that in the process of drafting the writ the plaintiff had not followed convention in identifying a person by name and that he had intended to present the cause of action against Kyle Richard Choyce.

13. There is no evidence of what had transpired at the time of service of the writ.  The deposition that relates to the instructions to file the appearance is no more than conclusionary.

14. The strength of the application is articulated in written submissions of the applicant by reference to issue estoppel and abuse of process. 

15. By the conclusion of the hearing, it was considered that a clear case had been established sufficient to justify an exercise of discretion with the result that the action be dismissed with an appropriate order for costs. 

16. That result involved drawing the necessary inferences.  It was not inappropriate to do so as despite the prospect that there had been some relevant communication between Choyce and whoever served the writ, it would be unlikely that it would extend to an expression of the intention of the plaintiff at the point of drafting the writ.  Ultimately the lack of evidence was not due to failure to discharge an evidentiary onus in circumstances where it is open to consider that an applicant could have done so.

17. The only question that remained for consideration was whether it was appropriate to amend each of the writ and the memorandum of appearance to state the name of the defendant as Kyle Richard Choyce. 

18. At the hearing it was submitted that O 21 r 7 would provide jurisdiction to do so. By the conclusion of the hearing, the issue was whether r 7 applied. Consideration of that issue was deferred.

19. The rule is as follows:

    (1)For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

    (2)This rule shall not have effect in relation to a judgment or order.

20. A straightforward reading would permit amendment of the writ and memorandum of appearance, however it appears under a heading 'Amending other documents'.  Although the heading is not part of the rule, it is appropriate to reflect upon the reason for its characterisation of the rule as being to facilitate amendment other documents. 

21. Order 21 r 5 appears under the heading 'Amending writ or pleading with leave'. It provides as follows:

    (1)…

    (2)The Court may at any stage of the proceedings … allow the plaintiff to amend the … writ, or any party to amend that party's pleading, on any terms as to costs or otherwise that may be just and in the manner (if any) that the Court may direct.

22. Because r 5 expressly relates to amendment of a writ, a proper reading of r 7 would accord with the description provided by its heading.  It is not available to a defendant for the purpose of amending a writ.

23. Had the hearing proceeded other than along the lines suggested by these reasons and the application for amendment of the writ had first been determined, there is no reason to consider that the result of the application for judgment would have been different. 

24. As for the proposition that the memorandum of appearance be amended, in light of the other results of the hearing, it is open to consider that the only impact of failure to achieve that result would be that it would at least complicate but may defeat realisation of the benefit of an order for costs that usually would be put in place upon a successful application for summary judgment. 

25. It would be difficult to justify amending the memorandum of appearance in circumstances where the writ remained unamended.  It would be difficult to justify amending the memorandum of appearance in circumstances where there is no evidence of whatever had transpired at the point of service of the writ; of the instructions provided by Choyce to his solicitor prior to the appearance being filed; or the reasoning for engagement by Choyce in the action. 

26. There is no need to determine the issue as an appropriate order for the costs of summary judgment can be made by reference to Kyle Richard Choyce. 

27. Costs have been sought on an indemnity basis.  In part because there is no evidence in relation to the matters outlined, the order will be limited to the costs of the application on the usual basis.

28. At the conclusion of the hearing, I indicated that I would communicate the result of the application for amendment without the need for any further attendance.  These reasons provide that communication.

29. It follows that the order made on the application will be for summary judgment and that the application to amend the writ and the memorandum of appearance will be dismissed.  The costs of the application insofar as it relates to summary judgment will be paid by the plaintiff to Kyle Richard Choyce. 

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

ER

Associate to Principal Registrar

18 OCTOBER 2024