Wade v Muir (No 2) [2009] NSWSC 991

New South Wales Supreme Court

CITATION : Wade v Muir (No 2) [2009] NSWSC 991

HEARING DATE(S) : 31 August 2009

JUDGMENT DATE : 23 September 2009

JUDGMENT OF : Harrison J

DECISION : Plaintiff to pay LawCover's costs of the plaintiff's unsuccessful application to join LawCover as a defendant.

CATCHWORDS : COSTS – unsuccessful application to join insurer as a defendant - where plaintiff's cause of action defective – where insurer allegedly aware of defect – whether insurer either withheld information or whether its conduct brought about the proceedings – plaintiff in possession of relevant information but proceeded in any event – plaintiff ordered to pay costs of the motion

LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 Legal Profession Act 1987

CATEGORY : Procedural and other rulings

CASES CITED : The Owners – Strata Plan No 50530 v Walter Construction Group Ltd (In Liquidation) [2007] NSWCA 124; (2007) 14 ANZ Insurance Cases 61-734

Dawn Florence Wade (Plaintiff) PARTIES : Brian Muir (First Defendant) Donald Wakeling (Second Defendant)

FILE NUMBER(S) : SC 20026/2008

COUNSEL : G C Jones (Plaintiff) G Curtin (LawCover)

SOLICITORS : Oliveri Lawyers (Plaintiff) HWL Ebsworth Lawyers (LawCover)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROFESSIONAL NEGLIGENCE LIST

HARRISON J

23 September 2009

20026/2009 Dawn Florence Wade v Brian Muir and Donald Wakeling (No 2)

JUDGMENT 1 HIS HONOUR: The plaintiff made an unsuccessful application to join LawCover Pty Ltd as a defendant in the proceedings pursuant to s 6(4) of the Law Reform (Miscellaneous Provisions) Act 1946. LawCover now seeks costs of that unsuccessful application. The plaintiff resists that course and has made detailed submissions on why quite different orders should be made. These include submissions that LawCover should pay the plaintiff's costs. 2 The plaintiff contends that she would not have commenced the application to join LawCover as a defendant in these proceedings if she had known beforehand that the first defendant had not held a practising certificate issued by the Law Society in the period from 1 July 2001 to 10 September 2001. The plaintiff asserts that she did not discover this fact until informed by letter dated 18 August 2009 from Ray Collins of the Law Society. Mr Collins is the Manager of Professional Standards. Background 3 The brief facts would appear to be as follows. The plaintiff made inquiries of the Law Society in January 2008 about whether or not the first defendant had held a practising certificate for the period between 1 July 2001 and February 2002. The proceedings were commenced on 6 February 2009. The notice of motion seeking an order that LawCover be joined as a defendant was filed on 16 March 2009. The motion was heard by me on 5 June 2009 and decided on 29 July 2009: see [2009] NSWSC 723. The Law Society informed the plaintiff of the practising certificate status of the first defendant in letters dated 18 August 2009 and 19 August 2009. 4 The plaintiff's approach has been conveniently summarised in a letter dated 25 August 2009 from her solicitors to LawCover's solicitors, which is in the following relevant terms: "Our client has instructed us that she does not wish to proceed with her application pursuant to section 51 of the Insurance Contracts Act to join your client LawCover Pty. Limited as a defendant in the above proceedings. Our client's above instructions are based on the fact that she only found out from The Law Society on or about the 19th instant that the first defendant in the above proceedings, Mr Brian Muir (Mr Muir) did not hold a practising certificate issued to him by the Law Society of New South Wales for the period from 30 June, 2001 to 10 September, 2002. Please find enclosed copy of letter dated the 18th instant from The Law Society's professional standards department to our client. It would follow that as Mr Muir did not hold a practising certificate for the above period that he was not entitled to practice as a solicitor or that he could lawfully practice as a solicitor for the above period let alone for the purpose of the Legal Profession Act he could not be regarded as a solicitor for the above period.