QBE Insurance Ltd v DARMAKO

[2000] WADC 237

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   QBE INSURANCE LTD -v- DARMAKO [2000] WADC 237

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   29 AUGUST 2000

DELIVERED          :   27 SEPTEMBER 2000

FILE NO/S:   CIV 463 of 2000

BETWEEN:   QBE INSURANCE LTD

Plaintiff

AND

ANDREW ARIEF DARMAKO
Defendant

Catchwords:

Practice and procedure - Western Australia - Rules of the Supreme Court of Western Australia - Application to extend time within which to bring an application consequent upon conditional appearance - Application to be set aside - Writ issued without leave

Legislation:

Nil

Result:

Dismissed

Representation:

Counsel:

Plaintiff:     Mr A N Siopis

Defendant:     Mr D E Eley

Solicitors:

Plaintiff:     Jackson McDonald

Defendant:     Eley Palmer Archer

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

Nil

Case(s) also cited:

BP Australia Ltd v Kirki Shipping Corporation & Anor, unreported; SCt of WA; Library No 940612; 1 November 1994

Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158

Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1975-1976) 136 CLR 529

Laurie v Carroll (1957-1958) 98 CLR 310

Newcombe v AME Properties Ltd & Anor (1995) WAR 259

Pountney v Griffiths [1976] AC 314

Rothmans of Pall Mall (Overseas) Ltd & Ors v Saudi Arabian Airlines Corporation [1981] QB 368

1. DEPUTY REGISTRAR HARMAN:  On 22 February 2000 the plaintiff issued the writ of summons.  By application filed 7 March 2000 the plaintiff sought leave to serve notice of the writ of summons on the defendant out of the jurisdiction.  By order made 21 March 2000 the plaintiff was granted leave.

2. On 17 April 2000 the defendant filed a conditional memorandum of appearance.  On 12 June 2000 the defendant filed the application presently before the Court which seeks the following orders:

   "1.Pursuant to Order 3 Rule 5 of the Rules of the Supreme Court, the Defendant have leave to bring this application out of time.

   2.The Plaintiff's writ of summons be set aside because of:

   (a)the Plaintiff's failure pursuant to Order 5 Rule 9 of the Rules of the Supreme Court, to obtain leave to issue the writ of summons, notice of which was to be served out of the jurisdiction."

3. The record reveals that the writ was issued without leave.

4. Order 3 r 5 is as follows:

   "(1)The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these Rules, or by any judgment, order, or direction, to do any act in any proceedings.

   (2)The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.

   (3)…

   (4)…"

5. The leave sought at par 1 is in effect an application for an extension of time to bring the substantive application under O 12 r 6.

6. That rule is as follows:

   "(1)A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, … on the ground of any informality or irregularity which renders the originating process … invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this Rule.

   (2)The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance."

7. The period for which an extension of time is sought is for some 41 days.  That would constitute the application as having been made on the last day permitted by subrule (2).  In my opinion a closer reading of the subrule would necessitate an extension of time to a time which would be forthwith upon the appearance being filed, a period of some 55 days.

8. The onus is upon the applicant to satisfy the Court that it is appropriate to exercise discretion to extend time to bring the application.  He offers no explanation for his failure to issue an application within time.  He gives no evidence as to the reason for the delay in bringing the application.

9. Since the application was filed, the plaintiff has filed its own application of 20 June 2000 by which it seeks the following orders:

   "1.The Plaintiff have leave to issue the Writ of Summons for service outside of the jurisdiction pursuant to Order 5 Rule 9 of the Rules of the Supreme Court.

   2.That the grant of leave be retrospective to the date of the issue of the Writ or 22 February 2000."

10. Both applications were before the Court on 5 July 2000.  It was the plaintiff who by letter of 7 August 2000 sought the listing of both applications for a special appointment.  There is no explanation for the defendant’s delay in listing his application for determination.

11. In my opinion the defendant has not discharged the onus.  The delay in at least bringing the application is significant.

12. In any event there would be nothing to be gained from merely extending time to make the application as the defendant seeks.  For the defendant to be reinstated to his former position would require the Court to determine that it was appropriate to reinstate the conditional appearance.  Order 12 r 6 has had effect in the context in which it is expressed to have effect.  The conditional appearance has become unconditional.  I fail to see that there is any proper basis to allow for the result sought by the defendant.  Indeed it follows that it is difficult to conceive that it could ever be appropriate.

13. In my opinion it is appropriate that leave be refused and the application dismissed.

14. As to the plaintiff’s application it is unnecessary and ought to be dismissed.