Albrecht v Insurance Australia Ltd - [2016] ACTCA 58

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Albrecht v Insurance Australia Limited
Citation:	[2016] ACTCA 58
Hearing Date:	5 November 2015
DecisionDate:	10 November 2016
Before:	Murrell CJ, Burns and Perry JJ
Decision:	1. Appeal Allowed with Costs 2. The Declaration of the Master made on 25 March 2015 and the Orders as to Costs made by the Master on 24 April 2015 be set aside and substituted by an order that “The originating application dated 6 February 2015 is dismissed with costs”.
Catchwords:	STATUTORY INTERPRETATION - interrelationship between Part 4.8 and s 155(3) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) – where mandatory final offer (MFO) was accepted after institution of proceedings – where proceedings were instituted to protect appellant’s position before expiry of limitation period – where acceptance of offer in MFO was embodied in consent judgment – whether cap on assessment of appellant’s costs under s 155(3) applies – where general words in statute were intended to bear a narrower meaning.
Legislation Cited:	Australian Human Rights Commission Act 1986 (Cth) s 46PO Legislation Act 2001 (ACT) ss 139, 140 Limitation Act 1985 (ACT) ss 16B, 32 Road Transport (Third-Party Insurance) Amendment Act 2012 (ACT) Road Transport (Third-Party Insurance) Act 2008 (ACT) ss 5A, 77, 84, 88, 90, 96, 97, 99 100, 101, 102, 104, 105, 112, 113, 115, 126, 128, 129, 136, 137, 139, 140, 141, 142, 143, 144, 150, 155
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 Haureliuk v Furler [2012] ACTCA 11; (2012) 6 ACTLR 151 McIntosh v Hikechukwu [2011] ACTSC 131; (2011) 5 ACTLR 284 Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 Picos v Australian Federal Police [2015] FCA 118 Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Racic v Haltiner [2010] ACTSC 63; (2010) 4 ACTLR 224 Re East; ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 Tati v Stonewall Hotel Pty Ltd (No 2) [2012] NSWCA 124
Parties:	Jeffrey Albrecht (Appellant) Insurance Australia Ltd t/as NRMA Insurance (First Respondent) Ivan Habus (Second Respondent)
Representation:	Counsel Mr R Crowe SC (Appellant) Mr A Black SC (Respondent)
Solicitors Maliganis Edwards Johnson (Appellant) Moray & Agnew (Respondent)
File Number:	ACTCA 15 of 2015
Decision under appeal:	Court: ACT Supreme Court Before: Mossop M Date of Decision: 25 March 2015; 24 April 2015 Case Title: Insurance Australia Limited & Anor v Albrecht; Insurance Australia Limited & Anor v Albrecht (No 2) Citation:

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: [2016] ACTCA 58
Decision Date: 10 November 2016

CaseChat Overview and Summary

The appeal concerned the interpretation of the *Road Transport (Third-Party Insurance) Act 2008* (ACT), specifically the interplay between Part 4.8 and section 155(3). The appellant, Mr Albrecht, had commenced proceedings to preserve his rights before the expiry of the limitation period, despite not having yet engaged in the mandatory pre-action procedures. He subsequently participated in a compulsory conference and exchanged mandatory final offers (MFOs) with the respondent insurer, Insurance Australia Ltd. The appellant accepted the insurer's MFO, and this acceptance was later embodied in a consent judgment. The central dispute revolved around whether a cap on the assessment of the appellant's costs, stipulated in section 155(3), applied in these circumstances.

The court was required to determine whether the statutory cap on costs under section 155(3) of the *Road Transport (Third-Party Insurance) Act 2008* (ACT) applied to Mr Albrecht's claim, given that the MFO was accepted after proceedings had been instituted. This involved considering the purpose and scheme of the Act, particularly the pre-action procedures designed to facilitate speedy settlement and avoid litigation. The court also had to interpret whether general words within the statute were intended to bear a narrower meaning in light of the overall legislative intent.

The court reasoned that the pre-action scheme under the Act was intended to encourage settlement before court proceedings. However, it found that the specific wording of section 155(3) did not apply to a situation where an MFO was accepted after proceedings had already been commenced to preserve limitation periods. The court concluded that the general words in the statute were intended to have a narrower meaning than that contended for by the respondent, and that the cap on costs was not applicable in this instance.

The appeal was allowed with costs. The declaration made by the Master on 25 March 2015 and the orders as to costs made on 24 April 2015 were set aside and substituted with an order dismissing the originating application with costs.

Orders

Orders of the court

1. Appeal Allowed with Costs

2. The Declaration of the Master made on 25 March 2015 and the Orders as to Costs made by the Master on 24 April 2015 be set aside and substituted by an order that “The originating application dated 6 February 2015 is dismissed with costs”.

Background

Background to the litigation

BACKGROUND Mr Albrecht and the second respondent were involved in a motor vehicle accident on 21 October 2010. Mr Albrecht’s solicitors served documents on the NRMA, as the second respondent’s insurer, giving notice of a motor accident claim under the Act on 12 November 2010. The NRMA admitted that the second respondent had been in breach of his duty of care on 26 July 2011. That admission had the effect of confirming Mr Albrecht’s cause of action and hence extending the limitation period under s 16B of the Limitation Act 1985 (ACT) (Limitation Act) until 26 July 2014: see s 32, Limitation Act, and reasons of the Master at [6]. On 8 July 2014, Mr Albrecht commenced proceedings urgently in the ACT Magistrates Court in order to preserve his rights, given the imminent expiry of the limitation period. At that time, the parties had neither engaged in a compulsory conference nor exchanged MFOs, as required by ss 136(1) and 141(2) of the Act respectively. Nor had the parties sought dispensation from these requirements under ss 137(1) and 142 of the Act respectively. These matters were acknowledged by Mr Albrecht in the letter from his solicitors of 16 July 2014 enclosing by way of service the originating claim and statement of claim. The letter further stated that: The solicitors for the NRMA responded by letter on 7 August 2014 noting that the proceedings had been commenced despite the procedural obligations contained within the Act. On the basis of Mr Albrecht’s intention to fully comply with the procedural requirements, the NRMA advised that “we consider the matter is ready for compulsory conference and invite you to attend a conference at a mutually agreeable time.” The letter proposed that the conference be held at 2.00pm on 2 September 2014, and enclosed the certificate of readiness in accordance with s 139(1)(d) of the Act. The parties attended a compulsory conference in accordance with s 140 of the Act on 5 September 2014 but failed to reach agreement. As a result, the parties exchanged MFOs by letters dated 5 September 2014. The NRMA’s offer was in the following terms: Mr Albrecht accepted the NRMA’s MFO on the last day of the 14 day period on 19 September 2014. Upon accepting the offer, Mr Albrecht had an enforceable right to recover his legal costs, albeit that the quantum of costs to which he was entitled was yet to be agreed or assessed on a party/party basis. It was not in issue that at this point in time, Mr Albrecht’s right to costs was not subject to any cap under the Act. By letter dated 24 September 2014 and received by the NRMA’s solicitors on 25 September 2014, Mr Albrecht’s solicitors indicated that Mr Albrecht’s costs were assessed on a party/party basis as $27,800 together with a claim for disbursements totalling $13,128.10. Also on 25 September 2014, the NRMA wrote to Mr Albrecht’s solicitors enclosing a “General Form of Consent Judgment” and terms of settlement, together with other documents, and requested that these documents be executed and returned. The letter concluded by stating “[p]lease forward your assessment of costs and disbursements in due course.” In line with the terms of the MFO accepted by Mr Albrecht, the enclosed terms of settlement stated relevantly that by consent and without admission “Judgment be entered for the plaintiff against the first defendant and second defendant for [sic] $$85,000.00, inclusive of payments made and plus costs as agreed or assessed” (emphasis added). The general form of consent judgment was in the same terms, providing that:

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CONCLUSION For the reasons set out above, the appeal must be allowed with costs and the declaration made by the Master on 25 March 2015 and order as to costs made by the Master on 24 April 2015 be set aside and substituted by an order that “The originating application dated 6 February 2015 is dismissed with costs.”

Ratio Decidendi

Legal Principle Established

CONSIDERATION As noted by the Master at [21] of his reasons, the relevant provisions of the Act to be applied are those which appeared in Reprint 12 of the Act, which predates the amendments to ss 144 and 155 of the Act by the Road Transport (Third-Party Insurance) Amendment Act 2012 (ACT). The objects are set out in s 5A which relevantly reads that: In furtherance of these objects, Chapter 4 of the Act sets out a process which is intended to facilitate the speedy settlement of disputes with a view to avoiding, if possible, the need to institute proceedings in a court. This regime applies with respect to motor accident claims, being claims for damages for personal injury caused by a motor accident (s 77). We note that in the interim, while these processes are on foot, Part 4.6 of the Act provides for the payment of expenses and provision of services in certain circumstances. Thus, where the respondent admits liability and the motor accident was reported to the police, the respondent must pay the injured person’s medical expenses which are reasonably incurred by reason of the accident (ss 121 and 122). The respondent may also make rehabilitation services available to the claimant, the costs of which may be taken into account in assessing damages where notice is given (ss 126 and 128). It is convenient to summarise key elements of the pre-action scheme prescribed by the Act (leaving aside complexities where multiple respondents may be involved which are not relevant here). First, Part 4.2 entitled “Motor Accident Claims Procedures” sets out a number of steps which it is intended be undertaken before proceedings are instituted in a court as follows. Secondly, Part 4.3 of the Act gives greater efficacy to these steps by imposing obligations upon the parties to exchange relevant documents and information. Section 101 explains that the purpose in so doing: In particular: Part 4.5 also provides that the parties may jointly arrange for expert reports on the probable cause of the motor accident and the claimant’s injuries and on prospects for rehabilitation. Thirdly, there are various sanctions for non-compliance with the obligations under Parts 4.2 and 4.3. Under ss 99 and 100, costs may be awarded against a party who does not comply with Part 4.2. It is also an offence not to comply with the obligation to provide documents under Part 4.3 (s 112). Moreover, documents which a party has failed to disclose cannot be used by the party in any later court proceeding unless the court orders otherwise (s 113). In addition, under s 115 the court may order a party to comply with a duty imposed under Part 4.2 or 4.3 and make consequential orders including as to costs. Fourthly, s 136(1) creates a further gateway requirement before court proceedings are instituted. That section provides that: Fifthly, the Act does not specify when a compulsory conference must be held. Rather, Part 4.7 of the Act provides that the compulsory conference may be called by any party at a time and place agreed or, if more than six months have passed since a complying notice of claim was received, at a reasonable time and place nominated by the party calling the conference (s 136(2)). Once that occurs, under s 139(1), the parties must exchange the following documents at least seven days before the conference is to be held: