Bekteshi v Yanxin

[2019] ACTSC 203

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bekteshi v Yanxin

Citation:

[2019] ACTSC 203

Hearing Date:

11 July 2019

DecisionDate:

7 August 2019

Before:

Crowe AJ

Decision:

See [18]

Catchwords:

COSTS – Whether the respondents should pay the costs of the Originating Application – where there were delays in responding to requests for a compulsory conference –  where the applicant failed to attend medicolegal appointments

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1720

Road Transport (Third-Party Insurance) Act 2008 (ACT) ss 97, 136

Cases Cited:

Andara Homes Pty Limited v Palm and Jiang [2014] ACTSC 141

Parties:

Lejla Bekteshi (Applicant)

Lin Yanxin (First Respondent)

Insurance Australia Limited Trading As NRMA Insurance (Second Respondent)

Representation:

Counsel

R Clynes (Applicant)

R Watson (Respondents)

Solicitors

United Legal (Applicant)

Moray and Agnew (Respondents)

File Number:

SC 126 of 2019

Crowe AJ

1. The applicant claims that she was injured in a motor vehicle accident on 3 August 2017. I am informed by her counsel that she was a passenger in a stationary vehicle which was hit from behind. For some reason, breach of the first respondent’s duty of care remains in issue.

1. The applicant’s solicitors served a complying notice of claim and Motor Accident Notification Form under the Road Transport (Third-Party Insurance) Act 2008 (ACT) (the Act) on 28 November 2017. This was acknowledged by the second respondent on 9 February 2018. Thereafter, on a number of occasions, the applicant’s solicitors sought to appoint a time for a compulsory conference under s 136 of the Act. The letters requesting a conference seem to have been ignored by the second respondent until 6 April 2018, when a claims officer sent an email to the applicant’s solicitors advising that the proposed compulsory conference could not proceed because “… liability has not been admitted yet”. There was also reference to the need for some medical certificates.

1. On 4 May 2018, the applicant’s solicitor replied in writing to the email, taking issue with the argument about liability and advising that the medical certificates had been provided. The letter acknowledged that the applicant was not entitled to appoint a time for a compulsory conference until six months after service of the complying notice of claim (see sub-s 136(2)(b) of the Act). The applicant nominated 30 May 2018 for another proposed compulsory conference. The letter also enclosed a draft application for an order under s 136, presumably by way of warning.

1. The second respondent replied to this letter by arranging for medicolegal assessments to be conducted with the applicant. These were to occur on 8 June 2018 and 11 July 2018.

1. Unfortunately the applicant did not attend these appointments. I am informed by her counsel that she “forgot”.

1. The second respondent’s solicitor attached to her written submissions a copy of an email sent by a claims officer to the applicant’s solicitor on 14 June 2018. I have admitted that into evidence as Exhibit “R2” in the costs application. In that email the claims officer advises of the first non-attendance and requests the applicant’s solicitor to advise when the applicant might be able to attend a further appointment. That request was overlooked by the applicant’s solicitor, who did not respond.

1. For reasons which are not explained, nothing further occurred in the management of the claim between the applicant’s non-attendance at the 11 July 2018 appointment and early 2019.

1. On 22 February 2019, the applicant’s solicitors wrote to the second respondent appointing 21 March 2019 for a compulsory conference. It is clear from the letter that the proposal was for the conference to occur by telephone. This letter elicited no response from the second respondent. As a consequence, the applicant, her solicitor and counsel met on 21 March 2019 with the expectation of negotiating with the second respondent in the course of the conference. After some unproductive attempts at telephone communications with the second respondent, the applicant’s counsel was eventually informed that the second respondent was unable to participate in the compulsory conference because the applicant had failed to attend the previously arranged medical appointments.

1. On 22 March 2019, the applicant’s solicitors wrote to the second respondent complaining about its management of the claim, and in particular its failure to reschedule the appointments and its failure to comply with s 97 of the Act. The letter enclosed a copy of the Originating Application and supporting affidavit seeking an order of the Court for the appointment of a compulsory conference. The Originating Application was filed that day.

1. The second respondent’s claims officer responded to that letter by email dated 26 March 2019. In the email she advised that she was “currently obtaining evidence to be in a position to participate” in a compulsory conference. She did, however, indicate a willingness to participate in an informal settlement conference.

1. It appears that the applicant’s solicitors had some difficulty in having the Originating Application issued by the court. I note that it was re-lodged on 5 April 2019, and again on 17 April 2019. There was then some delay in service. I am informed by the second respondent’s solicitor that it was only served on 15 May 2019, a day before the first return date. Be that as it may, the service of the application prompted the second respondent to appoint solicitors. Subsequently, arrangements were made for further medicolegal appointments and on 11 July 2019 I made orders by consent under sub-s 136(3) of the Act for the appointment of a compulsory conference, conditional on the applicant attending the appointments.

1. The second respondent’s solicitor submits that there was fault on both sides in this matter and that the appropriate order in relation to costs is that they be costs in the cause. The applicant, on the other hand, seeks an order that the second respondent pay the costs of the application.

1. While I accept that there was fault on both sides, I have come to the conclusion that it was the failure of the second respondent to comply with the spirit, and indeed the substance, of the obligations placed upon it by s 97 of the Act that has contributed most to the need for the applicant to issue the Originating Application. That failure was exacerbated by the complete lack of response to the letter from the applicant’s solicitor of 22 February 2019.

1. Moreover, for reasons which have not been explained, rather than immediately responding to the 22 March 2019 letter by arranging the further medicolegal appointments and setting a time for a compulsory conference, conditional upon the applicant attending the appointments, the second respondent prevaricated. I do not see the suggested informal settlement conference as a reasonable response in all of the circumstances.

1. I conclude that in the context of the delays and lack of communication on the part of the second respondent, it was reasonable for the applicant to commence proceedings for an order under s 136 of the Act. She has succeeded in achieving the relief sought and as a consequence the costs should follow the event.

1. An order that costs should be costs in the cause, as advocated by the respondents, might be ineffective here for the simple reason that if the compulsory conference is successful there will be no cause. I do not see an order in those terms as an appropriate alternative.

1. The applicant has also sought liberty to apply for an order under r 1720(3)(c) of the Court Procedures Rules 2006 (ACT) that the costs be in an amount decided by the Court. Having regard to the principles discussed by Refshauge J in Andara Homes Pty Limited v Palm and Jiang [2014] ACTSC 141 at [44] to [51], I do not consider that making an order under that rule would save time and expense in the circumstances of this case. It would require filing and service of costing evidence, which may be controversial, and occupy the Court in deciding issues which are usually dealt with in the costs assessment process prescribed in the rules. I see no good reason to depart from the usual order for the assessment of costs, should the parties not be able to reach agreement.

1. Accordingly, the orders of the court are as follows:

(1)     The respondents are to pay the applicant’s costs of the Originating Application.

(2)     In default of agreement, the costs are to be assessed at the full Supreme Court scale.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.

Associate:

Date: 7 August 2019