Woodruffe v MLC Ltd

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: WOODRUFFE -v- MLC LTD [2004] WADC 22

CORAM: COMMISSIONER GREAVES

HEARD: 23 JANUARY 2004

DELIVERED : Delivered Extemporaneously on 23 JANUARY 2004 typed from tape and edited by Trial Judge

FILE NO/S: CIV 2123 of 2002

BETWEEN: VALERIE MARY WOODRUFFE
Applicant (Plaintiff)
AND
MLC LTD
Respondent (Defendant)

Catchwords:

Practice and procedure - Summary judgment - Failure of plaintiff to verify facts upon which application made - Turns on its own facts

Legislation:

Rules of the Supreme Court, O 14

Result:

Application dismissed

Representation:

Counsel:

Applicant (Plaintiff) : Mr L M Hall
Respondent (Defendant) : Mr P Redding

Solicitors:

Applicant (Plaintiff) : Bradford & Co
Respondent (Defendant) : P Redding & Co

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

Nil

Case(s) also cited:

Nil

COMMISSIONER GREAVES: This is an application for summary judgment pursuant to O 14. As is well known, O 14 provides in part that the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, apply to the court for judgment against the defendant.
Order 14 r 2(1) provides:
"An application shall be made by summons supported by an affidavit verifying the facts on which the claim to which the application relates is based and stating that in the deponent's belief there is no defence to that claim or part thereof, as the case may be, or no defence except as to the amount of any damages claimed."
This application is supported by the affidavit of the plaintiff's solicitor, Mr Hall, sworn 7 November last year. In order to succeed, the affidavit in support of the plaintiff's application must comply with O 14 r 2(1), and until it does, the defendant has no obligation to satisfy the court that it has a good defence to the action on the merits. I refer to par 14.2.2 of the Red Book and the authority of Suburban Homes Pty Ltd v Ward.
In this case the primary submission for the plaintiff was that the document marked LMH3 to the affidavit of Mr Hall, was to adopt Mr Hall's expression, sufficient to satisfy the legal onus on the plaintiff. He submitted the evidentiary burden then moves to the defendant to show that it has an arguable defence. He said the plaintiff was therefore entitled to the benefits under the policy calculated at 28 November 1999. The affidavit of Mr Hall in par 14 reads:
"Annexed hereto and marked with the letters LMH3 is a true copy of an email from MLC dated 2 October 2003 indicating that liability was admitted in relation to the policy.
LMH3 reads:
"Dear Mr Bradford, As Paul Redding of Redding and Associates is away until 13 October 2003, we wish to advise you that following review of Dr Linda Hayward's report dated 26 September 2003 we have agreed to admit liability on Ms Woodruffe's total and permanent disablement under MLC policy 16604221. We will shortly be issuing superannuation withdrawal forms to Ms Woodruffe at her home address, 7 Range Court, Mullaloo, WA, 6027. Ms Woodruffe will need to complete and return these forms to us before we are able to proceed with payment of the benefit."
Counsel for the defendant informed the court that he was not instructed to consent to judgment for damages to be assessed. He submitted the plaintiff has failed to comply variously with the requirements of O 14 r 2(1). The evidence for the defendant in this case reveals that the policy defined "totally and permanently disabled" as meaning a "disability caused by injury or sickness which resulted in the plaintiff becoming completely unable to work at her usual occupation or any other occupation that she was reasonably suited to by education, experience or training", and would never be able to perform any such occupations again.
The statement of claim on which the plaintiff seeks summary judgment alleges among other things in par 5 and following:
"On 28 November 1999, the Plaintiff ceased work in her normal occupation as an administrative manager by reason of suffering aneurysm rupture and subsequent subarachnoid haemorrhage and the plaintiff has not since returned to employment.
Medical evidence has been provided to the Defendant for consideration pursuant to the said policy but, unlawfully, and in breach of the said policy the Defendant has failed to properly assess and consider the said medical evidence and has failed to accept the Plaintiff's claim.
The Plaintiff has been completely unable to work at her usual occupation on account of disability caused by injury or sickness and is unable ever again to perform any work or engage in any occupation for which the plaintiff is suited by virtue of her education, experience or training."
In my view, the document referred to as LMH3 does not constitute an admission of those allegations.
Counsel for the defendant submitted that the rules require the plaintiff to establish and verify by affidavit the primary facts upon which she relies to establish that she is entitled to summary judgment. He made a number of submissions that the affidavit of Mr Hall is defective and that in certain particulars the evidence of Mr Hall should not be admitted.
Once it is found that the evidence before the Court does not establish that the defendant has admitted liability to the plaintiff, it seems to me plain that the Court should accept the submissions advanced on behalf of the defendant in relation to the evidence presented in support of this application under O 14.
In my view, for the reasons that Mr Redding advanced, the affidavit is defective and the evidence in support of the application is defective and does not comply in material particular with O 14 r 2(1), because it does not verify the facts on which the claim to which the application relates is based and stating that in the deponent's belief there is no defence to that claim.
More importantly, the evidence wholly fails to establish the primary facts upon which the plaintiff's claim is made, from which conclusions of an expert nature might be drawn in relation to the event or events giving rise to liability under the policy. Mr Redding has referred in detail to that evidence and to those facts and it is not necessary in these reasons for me to spell out the detail and I adopt his submissions in that regard.
Conscious of the view which I began to conclude the Court should reach in this application, I invited Mr Hall to inform the Court whether his instructions were to make application to file a further affidavit or affidavits so that I might understand the plaintiff's position clearly.
Mr Hall made that application and it was opposed by the defendant on the ground that principally the application is so wholly defective that the plaintiff should not be permitted to cure it or seek to cure it by filing a further affidavit. It does seem to me in the end to be a matter of discretion and for the reasons that I have given I am of the view that the plaintiff should not have that opportunity.
There are circumstances, no doubt, in which a defect may be cured. The reasons which I have given reveal that the deficiencies of this application go well beyond such circumstances. I conclude therefore that the application for leave should be refused and in my opinion the application for summary judgment should be dismissed.

[2004] WADC 22

23 January 2004 typed from tape and edited by Trial Judge