Winstanley v Natalwala - [2023] WASC 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WINSTANLEY -v- NATALWALA [2023] WASC 92
CORAM:   REGISTRAR GRIFFIN
HEARD:   7 FEBRUARY 2023
DELIVERED          :   23 MARCH 2023
PUBLISHED           :   23 MARCH 2023
FILE NO/S:   CIV 1424 of 2022
BETWEEN:   SARAH WINSTANLEY
Plaintiff
AND
JAY NATALWALA
Defendant

Catchwords:

Application to extend limitation period commenced by originating summons ‑ Whether should have been commenced by writ of summons ‑ Defendant's application to convert originating summons to writ of summons ‑ Turns on own facts

Legislation:

Accident Compensation Act 1985 (Vic)
Limitation Act 2005 (WA)
Property Law Act 1969 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Defendant's application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	R D McCabe
Defendant	:	H Cormann

Solicitors:

Plaintiff	:	AJB Stevens Lawyers
Defendant	:	Avant Law

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

Ame Hospitals Pty Ltd v Dixon [2015] WASCA 63; (2015) 48 WAR 139
Corruption v Crime Commission v McCusker AO QC [2009] WASC 44
Hastings v Hastings [2020] WASC 209
Martin-Smith v Woodhead [1990] WAR 62
Maurice Blackburn v Brown [2011] HCA 22
Mullaley v State of Western Australia [2020] FCA 13
Wardley Australia Ltd v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514

REGISTRAR GRIFFIN:

This application

This is the defendant's application, originally lodged on 22 September 2022, amended by consent on 16 January 2023 seeking orders that:
1.the originating summons filed on 2 May 2020 to be treated in all respects as if it were a Writ generally endorsed, and the proceedings to continue in all respects as if commenced by Writ,
2.the plaintiff do file and serve a statement of claim with 3 weeks after the date of these orders,
3.the defendant to file and serve a defence within 14 days after receipt of the statement of claim,
4.the cost of the application be in the cause, or
5.in the alternative to orders 1 to 4 herein, the originating summons filed 2 May 2020 to be set aside or struck out, and the plaintiff do pay the costs of the proceeding.
The originating summons to which the defendant refers is the plaintiff's originating summons dated 2 May 2022 seeking orders for an extension of the limitation period applicable to her claim against the defendant, pursuant to s 39 Limitation Act 2005 (WA) (Limitation Act).

Background

The plaintiff proposes a civil action for damages for personal injuries arising from two surgical procedures performed on the plaintiff by the defendant in 2011 and 2013.
The Limitation Act provides for a general limitation period of three years for personal injuries claims. The plaintiff seeks an extension of that limitation period pursuant to s 39 Limitation Act. There is no agreement as to when, or if, the limitation period applicable to the plaintiff's claim expired.

Applicable law

This application requires consideration of the Limitation Act and the Rules of the Supreme Court 1971 (WA) (RSC).
The Limitation Act relevantly provides:
14.Personal injury, Fatal Accidents Act

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: [2023] WASC 92
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Sarah Winstanley brought an action against Jay Natalwala seeking an extension of the limitation period applicable to her claim for damages for personal injuries arising from two surgical procedures performed by the defendant. The defendant has applied for the originating summons to be treated as if it were a writ of summons and for the plaintiff to plead her claim in full. The plaintiff opposed the defendant's application. The central issue before the court was whether the plaintiff's application should have been brought by originating summons or writ of summons. The court considered the relevant statutory provisions and case law and found that the plaintiff's application could be dealt with as an originating summons. The court held that determining the limitation extension before a final hearing would provide certainty and that if the application was not successful, the substantive action would not proceed. The court dismissed the defendant's application and ordered that the defendant pay the plaintiff's costs of the application.

Orders