Path Transit Pty Ltd v Insurance Commission of Western Australia

[2009] WASCA 47

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PATH TRANSIT PTY LTD -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2009] WASCA 47

CORAM:   MARTIN CJ

McLURE JA
LE MIERE AJA

HEARD:   18 AUGUST 2008

DELIVERED          :   4 MARCH 2009

FILE NO/S:   CACV 6 of 2007

BETWEEN:   PATH TRANSIT PTY LTD

Appellant

AND

INSURANCE COMMISSION OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

For File No              :  CACV 6 of 2007

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MARTINO DCJ

Citation  :MAITLAND-SMITH -v- PATH TRANSIT PTY LTD & ANOR [2006] WADC 188

File No  :CIV 137 of 2003

Catchwords:

Application for extension of time - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time refused

Category:    B

Representation:

Counsel:

Appellant:     Mr J G Staude

Respondent:     Mr C L Zelestis QC & Mr M D Howard

Solicitors:

Appellant:     Cahill Billington

Respondent:     Talbot Olivier

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

Maitland‑Smith v Path Transit Pty Ltd [2009] WASCA 46

1. MARTIN CJ:  This appeal was brought out of time.  An application for an extension of the time within which to lodge the appeal was directed to be heard with the appeal itself.  The appeal was listed to be heard simultaneously with the appeal in Maitland‑Smith v Path Transit Pty Ltd, CACV 158 of 2006 ([2009] WASCA 46), which is also an appeal from the decision the subject of this appeal.

2. The grounds of appeal for which an extension of time is sought suggest that the purpose of the appeal was to challenge the observation made in obiter by the trial judge to the effect that if he had concluded that Path Transit Pty Ltd (Path) was entitled to indemnity from the Insurance Commission of Western Australia, he would also have concluded that Path was in breach of a warranty of the relevant policy.  However, when the matter was called on for argument, counsel for the Insurance Commission of Western Australia advised the court, in the presence of counsel for Path (and without demur from that counsel) that Path conceded that if the conclusion of the trial judge to the effect that there was some unknown and unspecified defect in the vehicle in question stood, it would follow that there was a breach of warranty of the statutory policy (ts 50).

3. Accordingly, the appeal appears to have been misconceived.  The application for extension of time should be refused.

4. McLURE JA:  This application was listed to be heard with the appeal in Maitland‑Smith v Path Transit Pty Ltd, CACV 158 of 2006 (the primary appeal).  The application by the appellant is for an extension of time within which to appeal from the conclusion of Martino DCJ relating to whether the appellant was in breach of a warranty under a policy of insurance with the respondent.  The trial judge had concluded that Mr Maitland‑Smith was injured as a result of the chair of the bus he was driving being in an unsafe condition which placed the appellant in breach of warranty under the insurance policy.  At the hearing of the appeal, counsel for the appellant conceded the correctness of the trial judge's conclusion that the unidentified defect in the chair was a breach of warranty.  This application was made to cover the contingency of the appellant succeeding in its challenge to the trial judge's finding that the drivers chair had an unidentified defect and Mr Maitland‑Smith succeeding on his notice of contention in the primary appeal.  The contingency has not arisen.  The application for an extension of time should be refused.

1. LE MIERE AJA:  I agree that the application for extension of time should be refused for the reasons given by the Chief Justice.