Saunders v Altieri - [2025] WADC 15

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…

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 Saunders v Altieri

Details

AGLC: Saunders v Altieri [2025] WADC 15
Case: [2025] WADC 15
Decision Date: 19 MARCH 2025

CaseChat Overview and Summary

The parties in this case were Saunders, the plaintiff, and Altieri, the defendant. The dispute arose when Saunders sought to set aside a writ that had been lodged by Altieri. The case was heard in the Supreme Court of Western Australia. The key issue before the court was whether a writ that was lodged without a prayer for relief under section 29A of the Motor Vehicle (Third Party Insurance) Act 1943 (WA) could be considered invalid.

The court examined the relevant statutory provisions and the rules of court that applied to the situation. It determined that, while the Motor Vehicle (Third Party Insurance) Act 1943 (WA) required that a writ include a prayer for relief under section 29A, the absence of such a prayer did not necessarily render the writ invalid. The court found that Order 12 rule 6 of the Supreme Court (General Civil Procedure) Rules 2006 (WA) provided the appropriate remedy in this situation, allowing the court to direct that the writ be amended to include the necessary prayer for relief. The court concluded that the writ was not invalid, but could be amended to comply with the statutory requirement.

The court ordered that the writ be amended to include a prayer for relief under section 29A of the Motor Vehicle (Third Party Insurance) Act 1943 (WA). The court also ordered that the parties bear their own costs of the application to set aside the writ.

Orders