Boen James Furler v Mark Victor Haureliuk - [2010] ACTSC 68

BOEN JAMES FURLER v MARK VICTOR HAURELIUK
[2010] ACTSC 68 (16 July 2010)

PRACTICE AND PROCEDURE – motor accidents – personal injury – Road Transport (Third Party Insurance) Act 2008 (ACT) – steps required to be taken before action – compulsory conference – mandatory final offers – discretion to dispense with requirements – conference dispensed with on terms

Road Transport (Third-Party Insurance) Act 2008 (ACT)

No. SC 138 of 2010

Judge: Master Harper
Supreme Court of the ACT

Date: 16 July 2010

IN THE SUPREME COURT OF THE       )
  )          No. SC 138 of 2010
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:BOEN JAMES FURLER
Plaintiff

AND:MARK VICTOR HAURELIUK
Defendant

ORDER

Judge:  Master Harper
Date:  16 July 2010
Place:  Canberra

THE COURT ORDERS THAT:

A compulsory conference between the parties be dispensed with.

Each party within 14 days give to the other party a copy of each document that is relevant to the plaintiff’s motor accident claim that has not yet been given to the other party, and a statement verifying that all relevant documents in the possession of the party or the party’s lawyer have been given as required.

The costs of the application be costs in the cause.

This is an application for orders dispensing with compliance with certain provisions of the Road Transport (Third-Party Insurance) Act 2008 (ACT). The applicant wishes to commence proceedings against the respondent for damages for personal injury arising out of a motor vehicle collision on 26 March 2009 at Belconnen. The applicant was the driver of a car which was struck from behind while stationary by another car driven by the respondent.

The applicant has other proceedings before the court. He is the plaintiff in an action against his employer, a labour hire company, and the Australian Capital Territory with whom he had been placed as a labourer. He injured his right knee on 21 December 2008 while driving a lawnmower. His solicitors seek orders which would enable the two actions to be heard together. This could be done by joining the respondent in the present application as a defendant in the action which has already been commenced, or by the plaintiff starting a fresh action and later consolidating the two proceedings, or at least having them heard together, with the evidence in each being evidence in the other.

Whilst the injuries in the two incidents were to separate parts of the plaintiff’s body, the court may need to determine the extent to which each injury should be found causative of any impairment of the plaintiff’s earning capacity, and perhaps of any need for personal care or domestic assistance.

The Road Transport (Third-Party Insurance) Act 2008 applies to motor accidents occurring after 1 October in that year. The Act lays down detailed procedures which a claimant must comply with in order to be entitled to damages. These include giving a notice of claim to the insurer, and providing the insurer with what the act defines as required documents (section 102) and relevant claim…

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.

Continue reading Boen James Furler v Mark Victor Haureliuk

Details

AGLC: Boen James Furler v Mark Victor Haureliuk [2010] ACTSC 68
Case: [2010] ACTSC 68
Decision Date: 16 July 2010

CaseChat Overview and Summary

Boen James Furler commenced proceedings against Mark Victor Haureliuk seeking damages for injuries sustained in a motor accident. The dispute was heard and determined in the Supreme Court of the Australian Capital Territory. The primary legal issue before the court was whether the procedural requirements under the Road Transport (Third Party Insurance) Act 2008 (ACT) for compulsory conferences and mandatory final offers should be dispensed with. The court had to consider whether the plaintiff's application to dispense with these requirements should be granted and what further steps the parties should take to facilitate the resolution of the claim.

The court examined the circumstances surrounding the accident and the parties' conduct leading up to the proceedings. It considered the plaintiff's reasons for seeking to dispense with the compulsory conference and the defendants' opposition to the application. The court also evaluated the appropriateness of the steps taken by both parties to exchange relevant documents and the adequacy of the information provided thus far. After considering the submissions and the evidence presented, the court concluded that the circumstances justified dispensing with the compulsory conference, given the cooperation and transparency demonstrated by both parties.

In light of the decision to dispense with the compulsory conference, the court ordered that each party exchange all relevant documents pertaining to the plaintiff's claim within 14 days and verify that all relevant documents in their possession or that of their lawyers had been shared. The court also directed that the costs of the application be borne by the cause. This decision facilitated the progression of the case towards resolution, ensuring that both parties had access to the necessary information to evaluate and potentially settle the claim.

Orders

Orders of the court

1. A compulsory conference between the parties be dispensed with.

2. Each party within 14 days give to the other party a copy of each document that is relevant to the plaintiff’s motor accident claim that has not yet been given to the other party, and a statement verifying that all relevant documents in the possession of the party or the party’s lawyer have been given as required.

3. The costs of the application be costs in the cause.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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