Hrstic v Catlin Australia Pty Ltd - [2023] ACTSC 248

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hrstic v Catlin Australia Pty Ltd
Citation:	[2023] ACTSC 248
Hearing Date:	11 August 2023
Decision Date:	7 September 2023
Before:	Curtin AJ
Decision:	(1) The Court declares that the first defendant is not a respondent for the purposes of s 51 of the Civil Law (Wrongs) Act 2002 (ACT) in relation to the plaintiff’s accident. (2) Costs of the application are to be costs in the cause.
Catchwords:	CIVIL LAW – INTERLOCUTORY APPLICATION – work place injury – application to remedy purported non-compliance with notice provisions of the Civil Law (Wrongs) Act 2002 (ACT) –– interpretation of s 51 of the Civil Law (Wrongs) Act 2002 (ACT) – an insurer is not a respondent under s 51 – respondents in s 51 refer to respondents whose identity is known to the claimant – proper interpretation of the time provision in s 51(3)
Legislation Cited:	Court Procedures Rules 2006 (ACT), rr 210, 1307 Corporations Act 2001 (Cth), s 601AD Civil Law (Wrongs) Act 2002 (ACT), ss 49, 50, 51, 55, 59, 62 Civil Law (Wrongs) Regulation 2003 (ACT), reg 7 Road Transport (Third-Party Insurance) Act 2008 (ACT), s 85
Cases Cited:	Ali-Rawahi v Ali Niazi [2006] ACTSC 84 Belovic v Calvary Healthcare ACT Limited [2023] ACTSC 90 Cleary v Rinaudo [2013] ACTCA 32 Khan v Batagode [2018] ACTSC 240 Hanan Al-Rawahi v Mohammad Ali Niazi [2006] ACTSC 84 Hunter Valley Community Investments Pty Ltd v Bell(2001) 37 ACSR 326; [2001] FCA 201 Maletic v Calvary Healthcare ACT Limited [2022] ACTSC 231
Parties:	Ante Tony Hrstic ( Plaintiff) Catlin Australia Pty Ltd ( First Defendant) Geocon Constructors (ACT) Pty Ltd (Second Defendant) I.C. Formwork Services Pty Ltd (Third Defendant) Heyday5 Pty Ltd (Fourth Defendant)
Representation:	Counsel D Shillington ( Plaintiff) J Nottle ( First Defendant) N Thompson (Second Defendant) S Bryson (Fourth Defendant)
Solicitors Blumers Personal Injury Lawyers ( Plaintiff) Wotton & Kearney ( First Defendant) HWL Ebsworth Lawyers (Second Defendant) Moray & Agnew Lawyers (Fourth Defendant)
File Number:	SC 177 of 2023

CURTIN AJ:

Introduction

1․This is an application in proceeding filed by the plaintiff seeking a declaration that he had complied with the notice provisions contained in Chapter 5 of the Civil Law (Wrongs) Act 2002 (ACT) (the WrongsAct), or alternatively, seeking authorisation from the Court for him to proceed further with the claim despite his noncompliance pursuant to s 59.
2․All subsequent references in this judgment to sections of legislation will be references to sections of the Wrongs Act unless otherwise specified.
3․The plaintiff requires one of those two orders because, on one view, he did not comply with the claim provision set out in s 51 in relation to the first defendant until recently.
4․The first defendant opposes the application on the basis that there has been no sufficient explanation for the delay by the plaintiff and that the first defendant would be prejudiced if the plaintiff were granted leave to proceed with his…

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: [2023] ACTSC 248
Decision Date

CaseChat Overview and Summary

In the case of Hrstic v Catlin Australia Pty Ltd, the plaintiff, Ante Tony Hrstic, sought a declaration that he had complied with the notice provisions under the Civil Law (Wrongs) Act 2002 (ACT) or an order authorising him to proceed with his claim despite noncompliance. Hrstic alleged that he was injured in an accident caused by BGA Formwork, an entity whose identity was unknown to him until August 2022. The first defendant, Catlin Australia Pty Ltd, was the public liability insurer of BGA at the time of the accident.

The court addressed three primary issues: whether an insurer is a 'respondent' under s 51 of the Wrongs Act; whether 'respondent' refers to parties whose identity was known to the claimant; and the interpretation of the end date in s 51(3). The court concluded that insurers are not respondents, respondents refer only to parties known to the claimant, and the end date is the earlier of two specified dates. The court found that Catlin was not a respondent under s 51, and therefore there was no obligation on Hrstic to comply with s 51 regarding Catlin. Additionally, the court held that the time periods in s 55, which govern later respondents, were more generous than those in s 51.

The court made two orders: (1) declaring that Catlin is not a respondent for the purposes of s 51 in relation to Hrstic's accident, and (2) setting the costs of the application as costs in the cause. The court emphasised that Hrstic was not required to comply with s 51 regarding Catlin and that the more lenient time periods in s 55 applied.

Orders