| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PEDERSEN CORPORATION PTY LTD -v- WESTERN QBE INSURANCE LTD [2002] WADC 227 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 10 SEPTEMBER 2002 DELIVERED : 25 OCTOBER 2002 FILE NO/S : CIV 787 of 2002 BETWEEN : PEDERSEN CORPORATION PTY LTD (ACN 070 855 855) Plaintiff
AND
WESTERN QBE INSURANCE LTD (ACN 009 079 850)
Defendant
Catchwords: Practice and procedure - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application to set aside judgment entered in default of defence - Permissible hearsay O 37 r 6
Legislation: Nil
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Result:
Dismissed Representation:
Counsel:
Plaintiff : Mr R Davis
Defendant : Mr M J Feutrill
Solicitors:
Plaintiff : John W Byrne
Defendant : Jones King Lawyers
Case(s) referred to in judgment(s):
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989
Case(s) also cited:
Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988
Briginshaw v Briginshaw & Anor (1938) 60 CLR 336
Britten v Royal Insurance Co (1866) 176 ER 843
CBFC Leasing Pty Ltd v Zimmerman, unreported; DCt of WA; Library No 3231; 17 October 1991
Collins Book Depot Pty Ltd v Bretherton [1938] VLR 40
Dome Mining Corporation Ltd v Drysdale (1931) 41 L1 L Rep 109
Entwells Pty Ltd v National & General Insurance Co Ltd (1991) 6 ANZ Ins Cas 61-059
FAI General Insurance Co Ltd v Hendry Rae & Court (1993) 10 WAR 322
Ferrcom Pty Limited v Commercial Union Assurance Company of Australia Limited (1993) 176 CLR 332
Lek v Mathews (1927) 29 L1 L Rep 141
Palmer v Prince [1980] WAR 61
Parker v Transfield Pty Ltd & Anor [2000] WASCA 382
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Rhesa Shipping Co SA v Edmunds & Anor (The Popi M) [1985] 2 All ER 712
Richard Evans & Co Ltd v Astley [1911] AC 674
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1 DEPUTY REGISTRAR HARMAN: By the action the plaintiff sought to recover the value of a motor vehicle from its insurer. It entered judgment in default of defence on 6 June 2002.
2 On 20 June 2002 the defendant brought the application to set aside the judgment. The application proceeded before me along the lines that the judgment was regularly entered. 3 Order 22 provides an unfettered discretion to set aside a default judgment. In such an application the applicant carries the onus. In considering the exercise of discretion it is appropriate for the Court to reflect upon the circumstances of the default, the extent of any delay by the defendant in making the application and the merits of the proposed defence. 4 The defendant did not delay in bringing the application and there has been no significant delay in having it listed for hearing. 5 The defendant has given an adequate explanation for its default. That is not to say that some criticism should not be directed to its solicitor for her failure to protect what appears to have been her client’s interest. 6 During the course of the hearing the defendant went to some trouble to portray the entry of judgment by the plaintiff as a demonstration of its solicitor's failure to meet an appropriate standard of conduct. The only assessment that I am required to make is that ultimately it is not the role of the Court to enforce what is at best a professional courtesy. 7 In support of the application the defendant sought to rely upon the affidavit of Carrie Ann Ashby sworn 19 June 2002. It annexes a draft of the defence that it would seek to file in the event of success in the application. By the date of the hearing it was evident that the proposed defence would be the subject of review. In any event there would be little achieved by analysis of the pleading other than to note that it reveals the intention of the defendant to put in issue the plaintiff's entitlement to make any claim. 8 During the hearing it was evident that the manner in which the defendant had sought to discharge the onus was in itself an issue. 9 Order 37 r 6 as follows: 1. Except as provided by O 14 r 2(2) and O 14 r 4(2) and O 16 r 1(3) and O 16 r 2(1a), and by par (2) of this Rule,
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and subject to any order made under O 29 r 2(d) an affidavit must be confined to such facts as the deponent is able of his own knowledge to prove. 2. On interlocutory proceedings an affidavit may contain statements of information or belief with the sources and grounds of that information and belief. 3. … 10 In Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989 the Court demonstrated the practical application of r 6 in the following format: "I have been informed by X and believe that Y is a fact. The grounds for my belief are as follows." 11 There is no magic in that formulation it simply has recourse to the rule. 12 In her supplementary affidavit sworn 4 July 2002 Ms Ashby deposes in the following terms:
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(a) Mr Paul Pedersen was a person who drove the insured vehicle at least once a month or more often and was most probably the regular driver of the insured vehicle; (b) had the Defendant been aware that Mr Pedersen was a driver of the insured vehicle once a month or more often and had it been aware that his licence had been suspended on three occasions and that he had been convicted of reckless driving the Defendant would not have agreed to provide insurance cover to the Plaintiff at all, or at least not on the same terms conditions nor for the same premium; (c) Mrs Pedersen sought to conceal the regularity with which Mr Pedersen used the vehicle in the facts stated by her in Annexure "H" hereto; (d) it is likely that the Plaintiff sought from, but was declined insurance cover by FAI, because Plaintiff (sic) disclosed to that company that Mr Pedersen would be a regular driver of the vehicle. This is matter the Defendant intends investigating through the process of discovery and interrogatories in these proceedings should leave be granted to defend these proceedings; (e) the insured vehicle could not be driven unless someone had a key which operated its ignition system and disarmed its immobiliser; (f) the vehicle could have been towed away, if someone had gained access to the interior of the vehicle and placed the vehicle's gear box in neutral and disconnected the tail-shafts of the vehicle; (g) the vehicle could have been winched onto a flat-topped truck; (h) there was no evidence of broken glass on Mrs Pedersen's driveway;
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(i) there was no evidence of the noise likely to have been made in an operation of loading the vehicle onto a flat-topped truck, or in gaining access to the interior of the vehicle and disconnecting its tail-shafts; (j) the insured vehicle was most likely removed from Mrs Pedersen's driveway by a person in possession of a key that operated the vehicle's ignition system and disarmed the vehicle's immobiliser; (k) Mr Pedersen was given two keys at the time the insured vehicle was purchased; (l) the Plaintiff has only been able to produce one key for the vehicle; (m) Mr Pedersen has not been able, satisfactorily, to account for the missing key; (n) it is most likely that the vehicle was removed from Mrs Pedersen's driveway by a person with the authority of the Plaintiff to do so." 13 The fact that a deponent does not slavishly follow the formula expressed by the Full Court may be of little consequence. That said, the import of the rule is significant as hearsay beyond the scope of the rule is no more than hearsay. 14 The fact that the deponent fails to found any of the propositions in par 4, other than by the opening words of that paragraph, is significant. Save for the case of the certified copy of the record of traffic convictions, which by the process of certification may speak to the content of that document, those words say nothing as to the deponent's belief in the content of the documents identified in par 3. 15 But for the exception that I have noted, all that the deponent at par 3 has done nothing more than to identify documents which she has annexed to her affidavit. 16 When I addressed that issue to the defendant's counsel he put the proposition that it was for me to evaluate the content of the annexures in order to ascertain whether the content supported the beliefs expressed. I
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have some difficulty with that proposition. It would be far beyond the proper function of the Court to seek to evaluate the contents of a document in the absence of any evidence as to that content. 17 It is notable that some of the significant documents are transcripts of conversations, yet there is no evidence which would indicate either the accuracy of the process of recording or the process of transcription that conversation. In the case of the statutory declaration, it was contended by the defendant that some significance attached to the process of amendment, yet there was no evidence as to that process. 18 I see no reason to deal exhaustively with each of the beliefs expressed by the deponent. I will however restate an observation made by me to the applicant at the hearing. And that is; after the applicant had taken me to the significant parts of the annexures, which conceivably would substantiate the belief expressed by the deponent at par 4(a), I could not understand how it was that the deponent came to that belief. 19 As to the exception that I have identified in the form of the record of convictions, that document does not appear to support any of the beliefs expressed at par 4. It otherwise says nothing that I would understand to have any bearing on the merits of the defence. 20 In my opinion it is appropriate that the application be dismissed.
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