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:

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

1. 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.

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

1. 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.

1. 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.

1. 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.

1. 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 information (section 103).  A reciprocal obligation is imposed on the insurer. 

1. Parts 4.7, 4.8 and 4.9 of the Act deal with compulsory conferences before court proceedings, mandatory final offers, and, relevantly for the present application, time limits for bringing court proceedings.

1. Section 136 provides that before a claimant brings a court proceeding, the parties must have a conference, which any party may call.  Section 137 gives the court discretion to dispense with the compulsory conference for good reason, and to make any other orders the court considers appropriate in the circumstances.  In exercising this discretion, the court is required to “take into account the extent of compliance by the parties with their respective obligations for the motor accident claim.” 

1. Section 139 requires the parties to exchange copies of relevant documents, statements verifying that all relevant documents have been given to the other side, details of each party’s legal representation and, where a party has legal representation, a certificate of readiness signed by the party’s lawyer.  The court may exempt a party from an obligation to give material to another party before trial if satisfied that giving the material would alert a person reasonably suspected of fraud to the suspicion, or if there is some other good reason why the material should not be given.

1. A certificate of readiness is defined as a certificate stating that the party is in all respects ready for the compulsory conference and ready for trial.  The certificate must also state that the party has obtained all investigative material for trial including witness statements, and all medical or other expert reports the party intends to rely on at trial.

1. Section 140 requires the parties to attend the compulsory conference and to actively take part in an attempt to settle the claim.

1. Part 4.8 deals with mandatory final offers.  Section 141 requires the parties to exchange written final offers, unless the respondent denies liability when a notice to that effect must be given to the claimant.  The section applies where a compulsory conference has been dispensed with or has taken place without resolving the matter.  Section 142 gives the court a discretion to dispense with the obligation to exchange mandatory final offers.  Section 145 provides that a claimant must not begin a court proceeding if a mandatory final offer remains open. 

1. Part 4.9, which deals with court proceedings, includes section 150.  This section confers a discretion on the court to give a claimant leave to begin a proceeding despite non-compliance with the requirements of part 4.9 if there is an urgent need to begin the proceeding.  Such an order may be made on conditions.  If leave is given, the proceeding is stayed until the claimant complies with part 4.9 (though apparently it is not stayed until the claimant complies with other parts of chapter 4 such as part 4.7 (compulsory conferences) and part 4.8 (mandatory final offers)).  There is no suggestion that there is any urgency about commencement of proceedings by the applicant in this case.

1. The plaintiff’s solicitor deposes that, because of the two injuries, it will cause difficulties for the applicant to settle one claim without settling the other at the same time.  Therefore, she says, the applicant cannot attend a compulsory conference or make a mandatory final offer.  She says that she could not sign a certificate of readiness before the close of pleadings, because the issues would not be defined. 

1. The respondent’s solicitor has sworn an affidavit in similar terms.  He does not consider that he will be in a position to sign a certificate of readiness until pleadings are closed.

1. The respondent’s insurer has admitted that the respondent committed a breach of his duty of care to the plaintiff.  The insurer apparently uses this formula to leave open its entitlement to submit that a claimant suffered no damage resulting from the breach of duty of care, and also to rely on a defence of contributory negligence.  There is no suggestion on the facts of this case that the plaintiff was guilty of contributory negligence, and there is medical evidence on this application of at least some injury to the plaintiff.  It is reasonable, accordingly, for me to assume that when this action goes to trial it will do so for the assessment of damages only.

1. As against that, I am informed that liability is an issue in the plaintiff’s action for damages arising out of his work injury. 

1. Both parties are agreed that it would be inappropriate to require the signature of a certificate of readiness in relation to the motor accident claim.  Counsel for the defendant submits that I should exercise my discretion under section 139(2) to exempt each of the parties from giving a certificate of readiness.  The subsection gives the court a discretion to exempt a party from an obligation to give material to another party before trial.  Counsel for the defendant submits that the certificate of readiness is “material” for the purposes of the subsection.  I cannot see that this was the intention of the legislature. 

1. Section 139(2) seems to be principally aimed at not alerting a claimant to the existence of material which might be suggestive of fraud.  One is aware of instances in the past where car accidents have been staged for the purpose of setting up a claim for damages.  More frequently, plaintiffs who have given sworn evidence about their physical incapacity have been caught out when film of surveillance has been shown in cross-examination.  Instances of the latter example do not necessarily establish fraud but often cast doubt on not just the plaintiff’s claimed level of disability but his or her credibility generally.  One can well understand the intention of the legislature in providing that such evidence should not be disclosed to the claimant prior to the commencement of proceedings.  However, it does not seem to me that the subsection can be construed so as to empower the court to exempt a party from the obligation to sign and hand over a certificate of readiness.  If there is such a power, it is to be found elsewhere. 

1. Counsel for the plaintiff submits that the requirement for a compulsory conference and for mandatory final offers should be dispensed with entirely.

1. I am not convinced that the plaintiff’s motor accident claim will prove unsettleable except in the context of settlement of his work injury claim.  Nevertheless, I accept that there are negligible prospects of settlement at a compulsory conference prior to the commencement of proceedings.  This being the purpose of the compulsory conference, it seems to me that the practical course is to dispense with it.  It need hardly be said that the holding of a compulsory conference will add, not insignificantly, to legal costs.  It must be in the interests of justice to avoid such unnecessary expense if the conference would be futile. 

1. Section 137 gives the court the power to dispense with the compulsory conference, and I am persuaded that it should be dispensed with.  The section also gives the court power to make any other orders the courts considers appropriate in the circumstances.  It seems to me that this would give the court power to order the exchange of documents (other than the certificate of readiness) contemplated by section 139.  Dispensing with the conference should be made conditional on the provision of that material, and I propose to order accordingly.

1. I am not persuaded that the provisions about mandatory final offers should be dispensed with.  There is undoubtedly power to do so, but it is clearly the intention of the legislature that dispensing with mandatory final offers should be very much the exception rather than the rule.  In the present case, the plaintiff claims damages, details of which are set out in the proposed statement of claim.  I see no reason why the plaintiff should be exempted from the requirement to deliver a mandatory final offer to the respondent, nor can I see any reason why the respondent should be exempted. 

1. The time limit for the commencement of proceedings in the circumstances will be governed by section 148, which applies where a compulsory conference has been dispensed with but the obligation to exchange mandatory final offers has not.

1. Of the alternatives in relation to the commencement of proceedings, it seems to me preferable for the applicant to start a fresh action against the respondent (which for practical reasons may be filed in the present proceeding) rather than to join the respondent as a defendant in the action arising out of the plaintiff’s work injury.  If the actions proceed further I would be disposed to order that they be heard together and that evidence in each be evidence in the other, rather than to consolidate them.

1. This application is not a conventional one, opposed but with one party victorious.  Both parties sought some relief from the constraints of the legislation, and I am conscious of the fact that this was one of the earlier applications requiring interpretation of that legislation.  On the assumption that the applicant will now file an originating claim, the costs of the application should be costs in the cause.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date:     16 July 2010

Counsel for the plaintiff:  Mr D P Shillington
Solicitors for the plaintiff:  Blumers Lawyers
Counsel for the defendant:  Mr S R Hausfeld
Solicitors for the defendant:  Moray and Agnew
Date of hearing:  21 May 2010

Date of judgment:  16 July 2010