1. In this case the plaintiff conceded that she had not notified the Commission of her intention to claim as soon as practicable. The defendant pleaded that she was precluded in proceeding. However, the plaintiff neither pleaded in reply that she sought relief under s 29A, nor sought that relief under separate application. The matter reached trial, injury being denied, and s 29(1) being invoked as a bar to the action.
2. In his reasons for decision, Staude DCJ identified, at [5], that the plaintiff's failure 'to plead in her reply' a claim for relief from compliance pursuant to s 29A in answer to the defendant's plea that she was precluded from commencing or maintaining an action, was a 'problem with the pleadings'.
3. He allowed an application to amend the reply to plead the relief required, and said, at [13], 'where a plaintiff seeks relief from non-compliance with s 29, the plaintiff should plead a claim for such relief ...'.
4. His Honour read into the amended reply an application for leave under s 29A, and determined[15] that despite the late notification the Commission was not materially prejudiced, and granted relief under s 29A, proceeding to assess the claim for injury.
5. Paragraphs [5] and [13] of his Honour's reasons for decision read together, it cannot be said that his Honour meant by saying in [13] that the plaintiff should plead relief, that the plea for relief should be in the writ, when in [5] he notes the failure of the plaintiff to plead in her reply.
6. Allowing the plaintiff to amend her reply to the defendant's response to her writ, his Honour proceeded on the basis that a claim for relief in reply was sufficient.
7. While I accept that it does not appear that it was argued before his Honour that the writ was irregular as such, and the consequences of that irregularity, I am satisfied that I can be guided by his Honour's acceptance of the reply as being sufficient to satisfy the requirement that the request for relief be pleaded, rather than being necessarily in the writ.
8. As I have identified, Registrar Kubacz was referred to Stojceska in Howell. Before the registrar, the Commission had submitted that if the plaintiff sought to rely on s 29A, the plaintiff was 'required to plead this in its prayer for relief in the 'Writ', referring to the 'obiter' in [13] of Stojceska.[16] The registrar determined that while Staude DCJ was of the view that the prayer for relief 'should be pleaded', in her opinion that did 'not render the Writ invalid'.[17]
9. The registrar's focus in that case on the 'Writ' must be seen in the context of that case - no reply appears to have been filed by the plaintiff at the stage of the application before her. I do not read her finding as accepting the Commission's submission before her that the prayer for relief should be in the writ.
10. In her view, it appears, even without a prayer for relief being in the writ, and before a reply had been filed, that did not render the writ invalid. By so finding, she rejected an argument that a failure to plead in the writ the relief sought amounts to invalidity.
11. Therefore, both these cases support the plaintiff's submission that a writ is not irregular or invalid because relief has not been sought under s 29A where it appears that there has been non-compliance with s 29(1), or, if irregular, that irregularity is nevertheless curable.
12. The defendant referred to Blum v Motor Vehicle Insurance Trust[18], Stevens v Motor Vehicle Insurance Trust[19], Morrissey v Nigoscik[20], Hunter v Morris[21] and Howell v Smith[22]. While each of these cases required the application of s 29A, they are cases concerning either appeals in relation to, or the application of at first instance, the criteria for the grant of leave under s 29A. The defendant did not point to any mention in those cases of when or how the relief could be sought and accordingly can be of no assistance in this application.
13. The defendant also referred to cases which set out or refer to the principles of jurisdiction. These are uncontroversial principles which I will not repeat here. In any event, the defendant, as I understood it, resiled from a submission that the court's jurisdiction was denied, and confirmed that the application was based on the irregularity which rendered the writ invalid.[23]
14. The defendant referred to cases where a writ may be irregular or invalid, and the consequences of such findings.

Matheson v Commissioner of Main Roads[24], Meyer v Solomon[25] and Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (in liq) v Sun Engineering (Qld) Pty Ltd.[26]

1. The defendant relies on Matheson to support his proposition that where an action is prohibited by legislation, it follows that the originating process is invalid or irregular. The defendant cites [46] of that decision where the court says that it cannot effectively retrospectively grant leave where the originating process was invalid by virtue of s 47A of the Limitation Act 1935 (WA).
2. In Matheson, the plaintiff lodged a writ well over one year after the cause of action arose, which required leave to proceed out of time. He sought that leave, which was refused. He lodged a second writ, without leave, or an application for leave, one day short of an absolute legislative time limit, beyond which leave to lodge out of time could not be granted. He then sought leave for an extension of time after the absolute time limit had expired and he appealed the original decision refusing leave.
3. In determining the appeal against the decision to refuse leave, the court held that upholding an appeal in relation to the refusal of leave would be futile. What would follow would be the granting of leave by virtue of upholding the appeal, to allow the lodging and service of the writ beyond the six year absolute time limit. The court then would be effectively backdating the granting of leave, when leave was required to file and serve proceedings prospectively, and any effective grant of leave retrospectively would subvert the intent of the legislation. The court found that the plaintiff's action was, or might be argued to be, a nullity because it was lodged without leave when leave was required.[27] In any event the court found that there was no error in refusing leave at first instance.
4. I note in the present case that s 29A does, in effect, contemplate retrospectivity, with the ability to give relief even after the action has commenced. The legislation concerning the Court in Matheson did not contain a similar provision.
5. In considering Matheson in Meyer, his Honour Justice K Martin took the view that the court was influenced by the abuse of process by the plaintiff in filing the second writ in the face of the first refusal when it came to the conclusion about the ability to cure the lack of leave. His Honour preferred the terms 'defective' or 'irregular,' rather than Mr Matheson's writ being a 'nullity'.[28]
6. His Honour was of the view that there are some processes which are incurably defective, for example where the process is lodged outside an absolute time limit. However, if there is an apparent remedial power under procedural rules then the defect is curable, and the proceeding cannot be described as a nullity.[29] That is, even those with incurable defects are not nullities - they are simply a process with incurable defects.
7. Further, in Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (in liq) v Sun Engineering (Qld) Pty Ltd his Honour Justice K Martin appears to suggest that where a procedural 'irregularity problem' is capable of being cured by a grant of leave retrospectively, the grant of leave may be issued after the filing of the originating process.[30]

Order 12 rule 6 in the context of this case

1. It is in the context of the cited cases that O 12 r 6 should be viewed. Not all irregularities or informalities render a process incurable, and not all informalities or irregularities render a process invalid. It depends on the extent of the legislative remedial powers, if any.
2. Accordingly, I am not of the view that there is a 'circularity' in O 12 r 6, as the defendant suggested,[31] in that it is not always the case that 'if the originating process is irregular, it is invalid'.[32]
3. Order 12 r 6 contains the words:

... on the ground of any informality or irregularity which renders the originating process or the service thereof invalid...

1. The words 'which renders' qualify the informality or irregularity, rather than define it. Only those irregularities or informalities which render the process invalid may be set aside under this rule.
2. I am not satisfied therefore that O 12 r 6 provides that any irregularity causes invalidity. While it is the case that none of the cases cited by the defendant were dealing with O 12, that order is procedural; it does not purport, in my view, to render any writ suffering an informality or irregularity without more, invalid.
3. My reading of the rule is supported, in my view, by the cases cited by the defendant. Each of the judgments points out that there are some irregularities and informalities which render the originating process incurable, but others that do not.

The application to set aside the writ must be dismissed

1. Having regard to the cases cited, particularly Stojceska, I agree with Registrar Kubacz that a failure to plead in the writ relief under s 29A does not make the writ invalid such that it can be set aside.
2. At worst, it is irregular.
3. However, I am not satisfied that it does render a writ irregular. While s 29(1) prescribes a legislative prohibition, it is not an absolute prohibition; s 29A provides a mechanism by which relief may be sought and given.
4. I see no reason why Staude DCJ was wrong in allowing the plaintiff to amend her reply to respond to a bar in action raised by the defendant under s 29(1). Consequently, the nature or standing of the writ is inconsequential. The writ may contain an irregularity which can be cured, in which case it is not invalid, and cannot be set aside under O 12 r 6. Alternatively, it is a writ which stands until a defence is lodged alleging a failure to comply with s 29(1), and a court determines that s 29A cannot provide relief in the circumstances of the case, in which case the plaintiff's claim would be dismissed.
5. Accordingly, the defendant's application to set aside, or 'strike out' the plaintiff's action under O 12 r 6 of the Supreme Court Rules is dismissed.
6. I will hear from the parties as to programming the next steps in the matter and any consequential orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Howell v Smith [2018] WADC 63 [8].

[2] Defendant's written submissions dated 2 September 2024, par 27.

[3] Affidavit of Teron Jon Stone sworn 5 April 2024, par 16.

[4] Affidavit of Gail Marie Lawless sworn 3 April 2024, par 9.

[6] Defendant's written submissions dated 2 September 2024, pars 19 - 30.

[7] Defendant's written submissions dated 2 September 2024, par 18.

[8] Defendant's written submissions dated 2 September 2024, par 19.

[9] Defendant's written submissions dated 2 September 2024, par 25.

[10] Howell v Smith [2018] WADC 63.

[11] Howell v Smith [2018] WADC 63 [22].

[12] Howell v Smith [2018] WADC 63 [23] - [27].

[13] Stojceska v Muharemovic [2017] WADC 9 [13].

[14] Howell v Smith [2018] WADC 125.

[15] Stojceska v Muharemovic [2017] WADC 9 [258] - [273].

[16] Howell v Smith [2018] WADC 63 [13].

[17] Howell v Smith [2018] WADC 63 [24].

[18] Blum v Motor Vehicle Insurance Trust [1966] WAR 121.

[19] Stevens v Motor Vehicle Insurance Trust [1978] WAR 232.

[20] Morrissey v Nigoscik (1997) 26 MVR 553.

[21] Hunter v Morris [2000] WASCA 23.

[22] Howell v Smith [2018] WADC 125.

[24] Matheson v Commissioner of Main Roads [2001] WASCA 402.

[25] Meyer v Solomon [2019] WASC 458.

[26] Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (in liq) v Sun Engineering (Qld) Pty Ltd [2017] WASC 195.

[27] Matheson v Commissioner of Main Roads [2001] WASCA 402 [36], [37].

[28] Meyer v Solomon [2019] WASC 458 [195], [196].

[29] Meyer v Solomon [2019] WASC 458 [198] quoting Stone v ACE-IRM Insurance Broking Pty Ltd [2003] QCA 218; 1 Qd R 173 [26].

[30] Martin Bruce Jones as liquidator of Forge Group Ltd (Receivers and Managers Appointed) (in liq) v Sun Engineering (Qld) Pty Ltd [2017] WASC 195 [81].

[31] Defendant's written submissions dated 2 September 2024, par 24.

[32] Defendant's written submissions dated 2 September 2024, par 25.