Saunders v Altieri
[2025] WADC 15
•19 MARCH 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SAUNDERS -v- ALTIERI [2025] WADC 15
CORAM: CLEARY DCJ
HEARD: 16 DECEMBER 2024
DELIVERED : 19 MARCH 2025
FILE NO/S: CIV 889 of 2024
BETWEEN: PAUL WILLIAM SAUNDERS
Plaintiff
AND
JAYME ANTHONY ALTIERI
Defendant
Catchwords:
Application to set aside writ - Order 12 r 6 - Whether writ lodged without prayer for relief under s 29A Motor Vehicle (Third Party Insurance) Act 1943 (WA) is invalid
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 29(1), s 29A
Rules of the Supreme Court 1971 (WA), O 12 r 6
Result:
Application to set aside writ dismissed
Representation:
Counsel:
| Plaintiff | : | Mr K S Pratt |
| Defendant | : | Mr P E Jarman |
Solicitors:
| Plaintiff | : | Separovic Injury Lawyers |
| Defendant | : | Jarman Legal |
Case(s) referred to in decision(s):
Blum v Motor Vehicle Insurance Trust [1966] WAR 121
Howell v Smith [2018] WADC 125
Howell v Smith [2018] WADC 63
Hunter v Morris [2000] WASCA 23
Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (in liq) v Sun Engineering (Qld) Pty Ltd [2017] WASC 195
Matheson v Commissioner of Main Roads [2001] WASCA 402
Meyer v Solomon [2019] WASC 458
Morrissey v Nigoscik (1997) 26 MVR 553
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232
Stojceska v Muharemovic [2017] WADC 9
CLEARY DCJ:
Is a writ issued absent a prayer for relief under s 29A of the Motor Vehicle (Third Party) Insurance Act 1943 (WA), where a plaintiff has not complied with s 29(1) of the Act, invalid? Mr Altieri says that it is. Mr Altieri says that Mr Saunders has not complied with s 29(1) of the Act.
Mr Saunders' writ in this action does not seek relief under s 29A. Consequently, says Mr Altieri, the writ issued by Mr Saunders is irregular, and should be struck out as invalid.
Mr Saunders says that, if an action has already commenced, there is no requirement that the prayer for relief under s 29A be pleaded in the writ ‑ it is not until a defendant raises failure to comply with s 29(1) that a response under s 29A is necessary.
A brief history of this matter
As the application does not depend on a history of the matter, I will only briefly summarise the facts of the claim.
On 13 June 2021 the plaintiff's car and another collided. The plaintiff says he was injured as a result. On 12 July 2022 the plaintiff's lawyers wrote to the Insurance Commission of Western Australia saying their client intended 'to claim for injuries and consequential losses arising from a motor vehicle accident which took place on' 13 June 2021. The plaintiff issued a writ on 20 February 2024.
The defendant on instructions from the Commission says that the plaintiff has not complied with s 29(1) of the Act.
The defendant has entered a conditional appearance to the writ, and applied to have the writ struck out, claiming that the plaintiff not complying with s 29(1) of the Act, and not seeking relief from s 29(1) in the writ, the writ is invalid.
After the defendant lodged his conditional appearance and application to strike out the writ, the plaintiff lodged an application for relief under s 29A of the Act.
The legislation
Firstly, I make the same comment as Registrar Kubacz did in Howell v Smith[1] in relation to O 12 r 6: the order does not enable a writ to be 'struck out'. Rather, the order enables a defendant to lodge a conditional appearance denying the jurisdiction of the court or reserving the right to apply to the court to set aside the originating process on the grounds of informality or irregularity which renders the originating process invalid.
[1] Howell v Smith [2018] WADC 63 [8].
Section 29(1) of the Act is as follows:
29.Notice of claim
(1)A person shall not, in respect of the death or bodily injury to a person directly caused by, or by the driving of, an insured or an uninsured motor vehicle by another person which may, under the provisions of this Act, give rise to an action or proceeding for damages against either an insured person or the Commission, commence or maintain such an action or proceeding unless the person proposing to claim the damages or some person on his behalf has given to the Commission, as soon as practicable after the occurrence giving rise to the claim, notice in writing prescribed by the regulations of his intention to make the claim.
Under s 29(2), where that notice has been given, but an action has not been commenced within six months of the occurrence leading to injury, the Commission may ask a court to order that proceedings be commenced, and the court, under s 29(3) and s 29(4) may hear that application and make orders accordingly.
Under s 29(4)(a) the court may set a time limit for an action to commence. Under s 29(4)(b) the court may adjourn the Commission's application under s 29(2) for an indefinite period. If a time limit has been fixed under s 29(4)(a), and either that time has expired, or where there has been an extension of that time under s 29(6), and that has expired, and no action has been commenced,
the claim of the claimant and any rights he may have had in respect of it are forever barred and extinguished.
Section 29A is as follows:
29A.Court may grant leave to proceed
Notwithstanding the provisions of section 7(2) and (3), section 8(5), and section 29(1), where the court in which an action is brought, or (as the case may be) is sought to be brought, to recover damages against an insured person or the Commission in respect of the death of, or bodily injury to, any person, directly caused by, or by the driving of, an insured or an uninsured motor vehicle, considers the failure to give notice, or the defect in any notice, or the failure to make due search and inquiry, as required by one or other of those subsections, was occasioned by mistake, inadvertence or any other reasonable cause or that the Commission is not materially prejudiced in its defence or otherwise by the failure or defect, the court may -
(a)where the action is commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect; or
(b)where an action is sought to be brought, if it thinks fit, grant the applicant leave to proceed, notwithstanding that failure or defect.
The defendant's arguments in this application
While whether the plaintiff has complied with s 29(1) is not to be determined in this application, the conditional appearance and application under O 12 are based on the premise that the plaintiff has not complied with s 29(1), the defendant saying in his written submissions 'The plaintiff in this case has not complied with s 29.'[2] I have therefore summarised briefly why the defendant says the plaintiff has not complied, as it grounds the basis for this application.
[2] Defendant's written submissions dated 2 September 2024, par 27.
In his affidavit sworn 5 April 2024 in support of the application to strike out the writ, Teron Jon Stone says that from his copy of the file his law firm holds, 'the plaintiff has not submitted a notice of intention to make a claim, the form of which is prescribed in Schedule 1' of the Act.[3]
[3] Affidavit of Teron Jon Stone sworn 5 April 2024, par 16.
It is common ground that the plaintiff's lawyers wrote to the Commission on 12 July 2022. In the Commission's response, which is annexure SR2 to the affidavit of Stephanie Jane Reeves sworn 25 July 2024, the Commission says:
The Insurance Commission received your letter dated 12 July 2022 which advised that you act for Paul William Saunders in relation to a motor vehicle crash on 13 June 2021.
Your client is required to give notice of their intention to claim in writing in line with s29(1) of the Motor Vehicle (Third Party Insurance) Act 1943 and regulation 5(1) of the Motor Vehicle (Third Party Insurance) Regulations 2009.
However, in the same letter:
Following our assessment of the claim, we will advise you of our decision on liability.
And further:
The notification of this claim in your letter occurred more than six months after the crash. Please provide an explanation for the late notification of this claim.
Please supply medical reports about your client's injuries from the crash on a without prejudice basis.
The wording of that letter suggests that despite the reference to the prescribed form, notice of intention to claim by the letter from the plaintiff's lawyer on 12 July 2022 was accepted.
Gail Marie Lawless, in her affidavit sworn 3 April 2024 and filed in support of the defendant's application acknowledged that it is common for the Commission to accept written notification of an intention to make a claim in any form.[4]
[4] Affidavit of Gail Marie Lawless sworn 3 April 2024, par 9.
At the hearing of this application, the defendant confirmed that it was not its argument that because the prescribed form had not been used, there was no notice of intention to claim.[5] Rather, the defendant will claim that the plaintiff did not give that notice as soon as practicable. While the application for leave under s 29A has been lodged in this case, I have adjourned that application to await the outcome of this application.
[5] ts 12.
The defendant's primary argument in relation to this application can be summarised as:[6]
1.The terms of s 29 make it clear that the plaintiff cannot commence an action for damages unless he has complied with s 29.
2.The plaintiff has not complied with s 29.
3.Therefore, the plaintiff requires leave from the court, pursuant to s 29A, to commence his claim for damages.
4.At the time of filing the writ, the plaintiff had not applied for, or obtained leave from the court, to proceed with the action pursuant to s 29A.
5.The appropriate manner of doing that is within the writ, and he has not.
6.Accordingly, the writ is 'invalid, or, alternatively, irregular' and liable to being struck out under O 12 r 6.
7.In the absence of a statutorily required grant of leave, the irregularity cannot be remedied, the process is therefore invalid and the court has no jurisdiction to decide the matter.
[6] Defendant's written submissions dated 2 September 2024, pars 19 - 30.
Therefore, argues the defendant, where 'An action in absence of a notice that complies with s 29 is expressly prohibited by the Act',[7] and 'where an action is prohibited by legislation, it follows that the originating process is invalid, or alternatively, irregular'.[8] Further, despite the cases cited drawing a distinction between an irregularity which can be cured, and an invalidity, 'it is immaterial whether the action is invalid (or a 'nullity'), or irregular as a result of the absence of the grant of leave pursuant to s 29A; the result is the same in terms of the jurisdiction of the court pursuant to O 12 r 6, because if the originating process is irregular, it is invalid'.[9]
[7] Defendant's written submissions dated 2 September 2024, par 18.
[8] Defendant's written submissions dated 2 September 2024, par 19.
[9] Defendant's written submissions dated 2 September 2024, par 25.
Is the writ irregular or invalid?
The parties referred to the legislation, and to cases where either questions of invalidity have been determined, or questions relevant to s 29 and s 29A have been determined. A review of each leads me to doubt that there is an irregularity in the writ, however, even if there is, the irregularity in the process of this writ does not make the writ invalid and liable to be set aside.
The legislation
The wording of s 29(1)
Section 29(1) commences with 'A person shall not …'. Thus, there is, it appears, a prohibition on an action.
The prohibition is to 'commence or maintain such an action or proceeding'.
However, an action or proceeding can be commenced or maintained where notice in writing, on the prescribed form, has been given to the Commission as soon as practicable after the occurrence giving rise to the claim. It is immediately observable that s 29(1) contemplates an action already having been commenced when the question of notice may arise.
Therefore, on s 29(1) an action cannot be commenced or maintained but for notice having been made in the requisite terms. Read on its own, there are no other circumstances in which a court might allow a claim to be commenced or maintained where the prescribed notice has not been given as soon as practicable.
The context of s 29(1)
The importance of the notice is reflected in s 29(2), which enables the Commission, having received the notice, but where no claim has been commenced within six months of the occurrence which gave rise to the claim, to apply to the court for an order that a claim be commenced within a particular time. Failure to make a claim in any period so ordered extinguishes the claimant's rights to claim. The importance of the notice is also reflected in the cases published in which the grounds under s 29A are considered.
There are other sections within the Act where there is a statutory prohibition on action.
Section 7(2) enables a person who has a claim, but for the insured being dead or unable to be served, to claim against the Commission, 'but will not be entitled to recover' unless notice of the claim and a short statement has been given to the Commission as soon as practicable after knowing that the insured person was dead or could not be served, or within a time that the Commission would not be prejudiced.
Section 7(3) enables a person who has a claim but where the identity of the insured driver is not known, to claim against the Commission, on the proviso of similar notice requirements as s 7(2).
Section 8(5) enables a claim against the Commission where the driver liable for the injury or death was driving an uninsured vehicle, but the driver is dead or cannot be found, to obtain judgement against the Commission, provided that, under s 8(6), the claimant gave notice of intention to make a claim to the Commission as soon as practicable after it was known that the driver was dead or could not be found. Otherwise, a person 'shall not be entitled to recover under s 8(5).
Combined, each of those provisions, and s 29(1), prohibits a particular type of claim or recovery on a claim unless notice requirements have been fulfilled. Section 29(1) is the only one of those provisions which relates to a claim being commenced or maintained, however each of the other provisions refers to the obtaining of judgement, rather than commencing or maintaining a claim.
The wording of s 29A
Section 29A commences 'Notwithstanding the provisions of section 7(2) and (3), section 8(5), and section 29(1) …'.
Section 29A is an exception to the prohibitions in those provisions ‑ even by its opening words it seeks to override the harsh consequences of failing to comply with the pre‑condition of notice.
Section 29A then empowers a court 'where … an action is brought, or (as the case may be) is sought to be brought' for the recovery of damages, to, under certain conditions,
(a)where the action is commenced, at any stage of the proceedings, if it thinks fit, relieve the plaintiff of the effect of that failure or defect; or
(b)where an action is sought to be brought, if it thinks fit, grant the applicant leave to proceed, notwithstanding that failure or defect.
There are differences between (a) and (b), namely, that where an action is already commenced, but no leave has been sought nor granted, relief is sought and given, but where an action is not yet commenced, an application for leave is made and granted. However, there is no differentiation in s 29A(a) between the prohibition in s 29(1) and the others covered by s 29A. Given s 29(1) envisages an action already commenced, and needing to be maintained, s 29A(a) is sufficiently broad to incorporate the situation in s 29(1) that an action may have already been commenced once s 29A is invoked.
Together, the words 'notwithstanding' at the commencement of s 29A, and the structure of (a) and (b) suggest that where an action has been commenced without the requisite notice, the action may be maintained provided relief is given. That is, if lodging a writ absent a prayer for relief under s 29A, or without prior leave being granted creates an irregularity in the writ, it is curable. A curable writ lodged in those circumstances could not, therefore be invalid or a nullity, or render the action outside the court's jurisdiction. That is not what the legislation provides.
That view is supported by the cases cited by the parties, which I summarise below.
While s 29A(a) allows the relief to be granted at any stage of the proceedings, in my view, that provision of itself does not answer the question of when the relief must be sought. The cases cited by the parties assist in answering that question.
The case law
Howell v Smith[10]
[10] Howell v Smith [2018] WADC 63.
This matter was heard by Registrar Kubacz. Like the present case, this was an application under O 12 r 6 of the Rules of the Supreme Court 1971 (WA). The defendant said that the plaintiff had not complied with s 29(1) and had not pleaded in her writ either the non‑compliance nor claimed relief under s 29A. The defendant did not challenge the court's jurisdiction, but sought that the writ be 'set aside', for an irregularity, a prayer for relief not having been made in the writ.
The plaintiff raised two arguments in defence of the application:
1.the Commission was well aware of the intention to claim as the details of this incident formed part of negotiations in relation to a previous incident and claim, that is, there was no breach of s 29(1), and
2.s 29A overrides s 29(1) and cures any irregularity in the writ.
The registrar identified that s 29A allows a plaintiff to seek leave of the court to remedy a failure to comply with s 29(1). However, as in this case, she identified the issue as being, at what stage of proceedings can this be done?[11]
[11] Howell v Smith [2018] WADC 63 [22].
The registrar found that the writ as lodged was valid, because:[12]
1.given s 29A commences 'Notwithstanding the provisions of … s 29(1) …', s 29A operates to override s 29(1) to allow a plaintiff, even once an action is commenced, to seek leave to continue with their claim, and
2.the wording of s 29A seems to anticipate that the seeking of leave can be done either before proceedings are commenced, or after, and
3.given that, she found it difficult to see how a writ issued which was in contravention of s 29(1) would be irregular and therefore invalid, and
4.While Staude DCJ commented in Stojceska v Muharemovic[13] that s 29A should be pleaded, a writ without such a plea does not make it invalid.
[12] Howell v Smith [2018] WADC 63 [23] - [27].
[13] Stojceska v Muharemovic [2017] WADC 9 [13].
Comment was made in the present case that the registrar's findings were tentative, and in any event, being a registrar, I am not bound by her findings.
I note that Deputy Registrar Hewitt was then tasked to determine whether the plaintiff should have leave to continue under s 29A. He determined that he should not.[14] The parties referred to that case as illustrating one way in which matters in these circumstances are resolved.
Stojceska v Muharemovic
[14] Howell v Smith [2018] WADC 125.
In this case the plaintiff conceded that she had not notified the Commission of her intention to claim as soon as practicable. The defendant pleaded that she was precluded in proceeding. However, the plaintiff neither pleaded in reply that she sought relief under s 29A, nor sought that relief under separate application. The matter reached trial, injury being denied, and s 29(1) being invoked as a bar to the action.
In his reasons for decision, Staude DCJ identified, at [5], that the plaintiff's failure 'to plead in her reply' a claim for relief from compliance pursuant to s 29A in answer to the defendant's plea that she was precluded from commencing or maintaining an action, was a 'problem with the pleadings'.
He allowed an application to amend the reply to plead the relief required, and said, at [13], 'where a plaintiff seeks relief from non‑compliance with s 29, the plaintiff should plead a claim for such relief …'.
His Honour read into the amended reply an application for leave under s 29A, and determined[15] that despite the late notification the Commission was not materially prejudiced, and granted relief under s 29A, proceeding to assess the claim for injury.
[15] Stojceska v Muharemovic [2017] WADC 9 [258] - [273].
Paragraphs [5] and [13] of his Honour's reasons for decision read together, it cannot be said that his Honour meant by saying in [13] that the plaintiff should plead relief, that the plea for relief should be in the writ, when in [5] he notes the failure of the plaintiff to plead in her reply.
Allowing the plaintiff to amend her reply to the defendant's response to her writ, his Honour proceeded on the basis that a claim for relief in reply was sufficient.
While I accept that it does not appear that it was argued before his Honour that the writ was irregular as such, and the consequences of that irregularity, I am satisfied that I can be guided by his Honour's acceptance of the reply as being sufficient to satisfy the requirement that the request for relief be pleaded, rather than being necessarily in the writ.
As I have identified, Registrar Kubacz was referred to Stojceska in Howell. Before the registrar, the Commission had submitted that if the plaintiff sought to rely on s 29A, the plaintiff was 'required to plead this in its prayer for relief in the 'Writ', referring to the 'obiter' in [13] of Stojceska.[16] The registrar determined that while Staude DCJ was of the view that the prayer for relief 'should be pleaded', in her opinion that did 'not render the Writ invalid'.[17]
[16] Howell v Smith [2018] WADC 63 [13].
[17] Howell v Smith [2018] WADC 63 [24].
The registrar's focus in that case on the 'Writ' must be seen in the context of that case ‑ no reply appears to have been filed by the plaintiff at the stage of the application before her. I do not read her finding as accepting the Commission's submission before her that the prayer for relief should be in the writ.
In her view, it appears, even without a prayer for relief being in the writ, and before a reply had been filed, that did not render the writ invalid. By so finding, she rejected an argument that a failure to plead in the writ the relief sought amounts to invalidity.
Therefore, both these cases support the plaintiff's submission that a writ is not irregular or invalid because relief has not been sought under s 29A where it appears that there has been non‑compliance with s 29(1), or, if irregular, that irregularity is nevertheless curable.
The defendant referred to Blum v Motor Vehicle Insurance Trust[18], Stevens v Motor Vehicle Insurance Trust[19], Morrissey v Nigoscik[20], Hunter v Morris[21] and Howell v Smith[22]. While each of these cases required the application of s 29A, they are cases concerning either appeals in relation to, or the application of at first instance, the criteria for the grant of leave under s 29A. The defendant did not point to any mention in those cases of when or how the relief could be sought and accordingly can be of no assistance in this application.
[18] Blum v Motor Vehicle Insurance Trust [1966] WAR 121.
[19] Stevens v Motor Vehicle Insurance Trust [1978] WAR 232.
[20] Morrissey v Nigoscik (1997) 26 MVR 553.
[21] Hunter v Morris [2000] WASCA 23.
[22] Howell v Smith [2018] WADC 125.
The defendant also referred to cases which set out or refer to the principles of jurisdiction. These are uncontroversial principles which I will not repeat here. In any event, the defendant, as I understood it, resiled from a submission that the court's jurisdiction was denied, and confirmed that the application was based on the irregularity which rendered the writ invalid.[23]
[23] ts 5 and ts 8 - 9.
The defendant referred to cases where a writ may be irregular or invalid, and the consequences of such findings.
Matheson v Commissioner of Main Roads[24], Meyer v Solomon[25] and Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (in liq) v Sun Engineering (Qld) Pty Ltd.[26]
[24] Matheson v Commissioner of Main Roads [2001] WASCA 402.
[25] Meyer v Solomon [2019] WASC 458.
[26] Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (in liq) v Sun Engineering (Qld) Pty Ltd [2017] WASC 195.
The defendant relies on Matheson to support his proposition that where an action is prohibited by legislation, it follows that the originating process is invalid or irregular. The defendant cites [46] of that decision where the court says that it cannot effectively retrospectively grant leave where the originating process was invalid by virtue of s 47A of the Limitation Act 1935 (WA).
In Matheson, the plaintiff lodged a writ well over one year after the cause of action arose, which required leave to proceed out of time. He sought that leave, which was refused. He lodged a second writ, without leave, or an application for leave, one day short of an absolute legislative time limit, beyond which leave to lodge out of time could not be granted. He then sought leave for an extension of time after the absolute time limit had expired and he appealed the original decision refusing leave.
In determining the appeal against the decision to refuse leave, the court held that upholding an appeal in relation to the refusal of leave would be futile. What would follow would be the granting of leave by virtue of upholding the appeal, to allow the lodging and service of the writ beyond the six year absolute time limit. The court then would be effectively backdating the granting of leave, when leave was required to file and serve proceedings prospectively, and any effective grant of leave retrospectively would subvert the intent of the legislation. The court found that the plaintiff's action was, or might be argued to be, a nullity because it was lodged without leave when leave was required.[27] In any event the court found that there was no error in refusing leave at first instance.
[27] Matheson v Commissioner of Main Roads [2001] WASCA 402 [36], [37].
I note in the present case that s 29A does, in effect, contemplate retrospectivity, with the ability to give relief even after the action has commenced. The legislation concerning the Court in Matheson did not contain a similar provision.
In considering Matheson in Meyer, his Honour Justice K Martin took the view that the court was influenced by the abuse of process by the plaintiff in filing the second writ in the face of the first refusal when it came to the conclusion about the ability to cure the lack of leave. His Honour preferred the terms 'defective' or 'irregular,' rather than Mr Matheson's writ being a 'nullity'.[28]
[28] Meyer v Solomon [2019] WASC 458 [195], [196].
His Honour was of the view that there are some processes which are incurably defective, for example where the process is lodged outside an absolute time limit. However, if there is an apparent remedial power under procedural rules then the defect is curable, and the proceeding cannot be described as a nullity.[29] That is, even those with incurable defects are not nullities ‑ they are simply a process with incurable defects.
[29] Meyer v Solomon [2019] WASC 458 [198] quoting Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; 1 Qd R 173 [26].
Further, in Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (in liq) v Sun Engineering (Qld) Pty Ltd his Honour Justice K Martin appears to suggest that where a procedural 'irregularity problem' is capable of being cured by a grant of leave retrospectively, the grant of leave may be issued after the filing of the originating process.[30]
Order 12 rule 6 in the context of this case
[30] Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (in liq) v Sun Engineering (Qld) Pty Ltd [2017] WASC 195 [81].
It is in the context of the cited cases that O 12 r 6 should be viewed. Not all irregularities or informalities render a process incurable, and not all informalities or irregularities render a process invalid. It depends on the extent of the legislative remedial powers, if any.
Accordingly, I am not of the view that there is a 'circularity' in O 12 r 6, as the defendant suggested,[31] in that it is not always the case that 'if the originating process is irregular, it is invalid'.[32]
[31] Defendant's written submissions dated 2 September 2024, par 24.
[32] Defendant's written submissions dated 2 September 2024, par 25.
Order 12 r 6 contains the words:
… on the ground of any informality or irregularity which renders the originating process or the service thereof invalid…
The words 'which renders' qualify the informality or irregularity, rather than define it. Only those irregularities or informalities which render the process invalid may be set aside under this rule.
I am not satisfied therefore that O 12 r 6 provides that any irregularity causes invalidity. While it is the case that none of the cases cited by the defendant were dealing with O 12, that order is procedural; it does not purport, in my view, to render any writ suffering an informality or irregularity without more, invalid.
My reading of the rule is supported, in my view, by the cases cited by the defendant. Each of the judgments points out that there are some irregularities and informalities which render the originating process incurable, but others that do not.
The application to set aside the writ must be dismissed
Having regard to the cases cited, particularly Stojceska, I agree with Registrar Kubacz that a failure to plead in the writ relief under s 29A does not make the writ invalid such that it can be set aside.
At worst, it is irregular.
However, I am not satisfied that it does render a writ irregular. While s 29(1) prescribes a legislative prohibition, it is not an absolute prohibition; s 29A provides a mechanism by which relief may be sought and given.
I see no reason why Staude DCJ was wrong in allowing the plaintiff to amend her reply to respond to a bar in action raised by the defendant under s 29(1). Consequently, the nature or standing of the writ is inconsequential. The writ may contain an irregularity which can be cured, in which case it is not invalid, and cannot be set aside under O 12 r 6. Alternatively, it is a writ which stands until a defence is lodged alleging a failure to comply with s 29(1), and a court determines that s 29A cannot provide relief in the circumstances of the case, in which case the plaintiff's claim would be dismissed.
Accordingly, the defendant's application to set aside, or 'strike out' the plaintiff's action under O 12 r 6 of the Supreme Court Rules is dismissed.
I will hear from the parties as to programming the next steps in the matter and any consequential orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CR
Associate to the Judge
17 MARCH 2025
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