Pihler v Genidi - [2001] WADC 74

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: PIHLER -v- GENIDI [2001] WADC 74

CORAM: YEATS DCJ

HEARD: 16 FEBRUARY 2001

DELIVERED : 28 MARCH 2001

FILE NO/S: CIV 4504 of 1999

BETWEEN: VESNA ANE PIHLER
Plaintiff
AND
SOAD GENIDI
Defendant

Catchwords:

Costs - Whether successful plaintiff unnecessarily or unreasonably incurred costs by issuing writ and statement of claim before affording the Insurance Commission the opportunity to settle claim - Reasonableness of 90 Day Rule - Whether there was an apprehension of bias

Legislation:

Supreme Court Rules, O 66 r 1(2)

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff: Mr J G Staude
Defendant: Mr K S Pratt & Mr S V Forbes

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Jackson McDonald

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

Ebner v The Official Trustee in Bankruptcy and Clenae Pty Ltd & Ors v ANZ Banking Group [2000] HCA 63
Johnson v Johnson [2000] HCA 48
Mann v Brooke (2000) 31 MVR 434
Ottway v Jones [1955] 1 WLR 706
Scherer v Counting Instruments Ltd [1986] 1 WLR 615
Smith v Kay [2000] WADC 257

Case(s) also cited:

Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries [1951] 1 All ER 873
British Dominion Films v Dent [1935] VLR 157
Cretazzo v Lombardi (1975) 13 SASR 4
Donald Campbell & Co Ltd v Pollak [1927] AC 732
Jamal v Department of Health (1988) 14 NSWLR 252

YEATS DCJ: This is the defendant's appeal from the decision of the learned Deputy Registrar dismissing the defendant's application pursuant to O 66 r 1(2) of the Rules of the Supreme Court seeking an order that the plaintiff be deprived of her costs of the action wholly or in part and/or to pay the defendant's costs of the action either wholly or in part.
The jurisdiction exercised by the Registrar in relation to this matter is a delegated jurisdiction. A condition of the delegation is the provision for a complete review do novo before a Judge of the District Court. In conducting such an appeal each party may rely on evidence given in affidavit or orally before the Registrar. The court need not look for error in the decision of the learned Deputy Registrar; on appeal the court considers the matter afresh (Hazart Pty Ltd v Rademaker (1993) 11 WAR 26).

Background

The Insurance Commission of Western Australia is the compulsory third party insurer of the defendant in this claim by the plaintiff for damages for personal injuries arising out a motor vehicle accident on 25 December 1997. The plaintiff's solicitors wrote to the Insurance Commission on 11 September 1998 advising that they were acting on behalf of the plaintiff. On 14 September 1998 the Insurance Commission wrote to the plaintiff's solicitors indicating that the negligence of the defendant would not be denied provided the plaintiff complied with Limitation Act provisions. There was no other correspondence between the plaintiff's solicitors and the Insurance Commission before the writ of summons issued on 7…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pihler v Genidi

Details

AGLC: Pihler v Genidi [2001] WADC 74
Case: [2001] WADC 74
Decision Date

CaseChat Overview and Summary

In the case of Pihler v Genidi, the District Court of Western Australia considered an appeal by the defendant against the decision of the Deputy Registrar who dismissed the defendant's application under Order 66 Rule 1(2) of the Supreme Court Rules. The defendant sought an order that the plaintiff be deprived of her costs of the action wholly or in part and/or to pay the defendant's costs of the action either wholly or in part. The plaintiff had issued a writ and statement of claim before affording the Insurance Commission the opportunity to settle the claim, which the defendant argued resulted in unnecessary and unreasonable costs.

The court examined whether the Insurance Commission's policy, known as the "90 Day Rule," offered a reasonable opportunity for the plaintiff to settle her claim prior to the issue of the writ. The court also considered whether the plaintiff acted unreasonably in failing to utilize the pre-writ opportunity for settlement. The court found that the Insurance Commission's policy provided a reasonable opportunity for settlement and that the plaintiff's case was suitable for consideration under this policy. The court held that the plaintiff unnecessarily and unreasonably incurred costs by not attempting to settle the matter with the Insurance Commission before issuing the writ and statement of claim.

The court concluded that while the plaintiff should be deprived of her costs of the writ and statement of claim, there was not strong justification to require the plaintiff to pay any part of the defendant's costs. The court ordered that the plaintiff pay her own costs of the writ and statement of claim, while the normal rule would apply, and the defendant would pay the plaintiff's costs of the District Court proceedings. Therefore, the appeal was allowed with the specified orders regarding costs.

Orders