Couper v City of Casey
[2024] ACTSC 218
•10 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Couper v City of Casey |
Citation: | [2024] ACTSC 218 |
Hearing Date: | 10 July 2024 |
Decision Date: | 10 July 2024 |
Before: | Elkaim AJ |
Decision: | (1) Leave is given to the plaintiff to amend the application in proceeding so as to seek relief pursuant to section 28LZMA of the Wrongs Act 1958 (VIC). (2) The proceedings are stayed until 11 October 2024 to allow the parties to comply with the requirements of Part VBA of the Wrongs Act 1958 (VIC). (3) Costs of the application are reserved. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tort committed in another jurisdiction – conflicting procedure – substantive law of that jurisdiction will apply – complex procedural steps held to be substantive law – Civil Wrongs Act 1958 (VIC) – Court Procedure Rules 2006 (ACT) |
Legislation Cited: | Court Procedure Rules 2006 (ACT) s 1401 |
Parties: | Candice Couper ( Plaintiff) City of Casey ( First Defendant) Schreurs Properties Pty Ltd (ACN 005 269 689) ( Second Defendant) MDG Landscape Architects Pty Ltd (ACN 060 424 866) (Third Defendant) National Pacific Properties Twyford Road Pty Ltd (ACN 603 756 654) (Fourth Defendant) |
Representation: | Counsel Ben Jullienne ( Plaintiff) Ruairi Fleming ( First Defendant) No appearance ( Second Defendant) Emily Unger ( Third Defendant) Jaqui Watt ( Fourth Defendant) |
| Solicitors United Legal ( Plaintiff) Moray & Agnew Lawyers ( First Defendant) No appearance ( Second Defendant) Kennedys Law ( Third Defendant) Maddocks ( Fourth Defendant) | |
File Number: | SC 141 of 2024 |
ELKAIM AJ:
On 22 April 2021, the plaintiff's son was injured while using playground equipment at a location in Clyde, Victoria. The plaintiff saw the incident and alleges that she suffered a nervous shock injury as a result. The plaintiff commenced proceedings in this Court with the filing of an originating claim on 19 April 2024. She has sued four defendants who are alleged in different ways to be responsible for the playground's deficiencies.
The plaintiff's claim for damages includes the pursuit of non-economic loss. The claim is governed by the Wrongs Act 1958 (VIC) (the Wrongs Act) which dictates a number of procedural necessities in order to pursue damages. The procedural necessities mentioned above have not been complied with. In particular, a certificate of assessment had not, as at the date of the filing of the application in proceeding, been obtained or served.
It has now been obtained and served on all but the second defendant. The second defendant was not served because the second defendant was not represented. That situation will soon be brought into order as I understand the second defendant will file a notice of appearance very shortly.
The primary reason that the plaintiff did not fulfil her obligations under the Wrongs Act is that the proceedings were filed two days before the expiry of the relevant limitation period, therefore not leaving time to take the appropriate steps. The defendants’ attitudes to the plaintiff's application are to consent to the application. Originally, the plaintiff relied on r 1401 of the Court Procedure Rules 2006 (ACT). This rule allows a court to give directions about the conduct of proceedings. As broad as this rule’s application may be, I doubt it can be used for the orders sought.
Generally speaking, where a tort is committed in a different jurisdiction, the substantive law of that jurisdiction will apply, but the procedural rules in the jurisdiction where the matter has been filed will be appropriate. The difficulty here is that the Wrongs Act provides a complex system for the awarding of compensation to injured persons, requiring a number of steps to be taken in order for the injured person to succeed. In my view, these steps form part of the substantive law relating to the plaintiff's claim.
As a result of me pointing out my attitude in terms I have just discussed, learned counsel for the plaintiff made an application to amend the application in proceeding so as to rely on s 28LZMA of the Victorian Wrongs Act. This section specifically deals with the matter at hand. Having regard to the consent stated by all of the defendants, I am of the view that an order as sought may be made. However, I think it should be for a slightly shorter period than originally claimed.
Orders
Accordingly, I make the following orders:
(1)Leave is given to the plaintiff to amend the application in proceeding so as to seek relief pursuant to section 28LZMA of the Wrongs Act 1958 (VIC).
(2)The proceedings are stayed until 11 October 2024 to allow the parties to comply with the requirements of Part VBA of the Wrongs Act1958 (VIC).
(3)Costs of the application are reserved.
| I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Elkaim Associate: Date: 10 July 2024 |
0
0
2