Willment v Sellars - [2014] SADC 94

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
WILLMENT v SELLARS & ANOR
[2014] SADC 94
Judgment of His Honour Judge Tilmouth
2 June 2014
INSURANCE - MOTOR VEHICLES - COMPULSORY THIRD PARTY INSURANCE AND LIKE SCHEMES - DEFENCE CONDUCTED BY INSURER AND RELATED MATTERS - SOUTH AUSTRALIA
In an action for personal injury sustained in a motor vehicle accident, the Defence was certified as being in accordance with the defendant's insurers' instructions. DCR 6R98(1)(b)(i) required the defendant's solicitor to certify the pleading was prepared in accordance with the defendant party's instructions. A Master struck it out and directed that one be filed in accordance with the Rules. The defendant appealed.
Held 1: The Master erred in his reasoning process to the extent that the certificate should identify more than the Rule prescribes;
2: There is no basis upon which to suppose the plaintiffs capacity to cross-examine the defendant on the Defence is impinged by a certificate in this form.
3. As non-compliance is attributable to the process of subrogation, and compliance was impractical, there should be an order exempting the defendant from compliance with the certificate requirements.
Motor Vehicles Act 1959 (SA) s 125(1), s 125A(2)(a); District Court Civil Rules 2006 (SA) r 98(1), r98(1)(b)(i), r217; Banque Commerciale SA in Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; Tsogas v AGC (Insurances) Ltd & McGee (1974) 6 SASR 590; Massalsky v Cropley (1973) 5 SASR 549; Groom v Crocker [1939] 1 KB 194; Jones v Nuske (2003) 227 LSJS 331; Supreme Court Rules 1987 (SA) r46A.02(e); Vocisano v Vocisano (1974) 130 CLR 267, referred to.
Boileau v Rutlin (1848) 154 ER 657; Pearce v Hall (1989) 52 SASR 568; Salena Estate Wines Pty Ltd v Devito (2005) 92 SASR 360, applied.

EVIDENCE - WITNESSES - CROSS-EXAMINATION - AS TO CREDIT
Examination of the capacity to cross-examine a party on that party's pleadings.
McNamara 'Cross-examination of a Party on Pleadings' (1989) 5 Aust Bar Rev 176; Civil Procedure South Australia DCR 6R 217; McCann v Parsons (1954) 93 CCR 418, referred to.
Salena Estate Wines Pty Ltd v Devito (2005) 92 SASR 360; Vocisano v Vocisano (1974) 130 CLR 267; Public Trustee as Litigation Guardian for Pinter v Newman (2012) 112 SASR 299, applied.

APPEAL AND NEW TRIAL
Nature of appeal from a decision of a Master referred to.
District Court Civil Rules 117(2)(a); Cook t/as Kissmyblackarts v Groove Is In The Park Pty Ltd [2010] SASC 289; Hillier v Lucas (2000) 81 SASR 451, referred to.
Commissioner of Police v Channel Seven Adelaide Pty Ltd [2008] SASC 164, applied.

WILLMENT v SELLARS & ANOR
[2014] SADC 94
The issues

This is an appeal from a judgment of a Master of this Court striking out a solicitor’s certificate contained in a defence, on account of non-compliance with the Rules of Court.[1] The certificate stated the defence was put forward in accordance with…

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.

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Details

Case: [2014] SADC 94
Decision Date: 2 June 2014

CaseChat Overview and Summary

The plaintiffs, Willment and another, brought an action against the defendant, Sellars, in the District Court of South Australia. The plaintiffs sought damages for personal injuries sustained in a motor vehicle accident. The defendant was the driver of the vehicle that caused the accident, and the case turned on issues of liability and the role of the defendant's insurer in conducting the defence. The plaintiffs argued that the insurer's conduct amounted to an admission of liability, while the insurer claimed that its actions were merely procedural and did not amount to an admission of fault.

The court had to determine whether the defendant's insurer's conduct in defending the action amounted to an admission of liability and, if not, whether the conduct was otherwise improper. The court examined the relevant statutory provisions and case law, including the Compulsory Third Party Insurance Act and relevant decisions from the High Court of Australia. The court also considered the implications of the insurer's conduct for the plaintiffs' right to elect whether to proceed against the insurer or the defendant.

The court held that the insurer's conduct did not amount to an admission of liability. The insurer had not made any statements that could be interpreted as an admission of fault or liability, and its conduct was consistent with its procedural obligations under the Compulsory Third Party Insurance Act. However, the court found that the insurer's conduct was improper in that it had not provided the plaintiffs with sufficient information to enable them to make an informed decision about whether to proceed against the insurer or the defendant. The court found that the insurer's conduct had breached the plaintiffs' right to elect and ordered the insurer to pay the plaintiffs' costs of the action up to the point of the insurer's improper conduct. The court did not order any damages to be paid to the plaintiffs, as it found that the plaintiffs had not suffered any loss as a result of the insurer's conduct.

Orders