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 |
Cases Cited: | Ali-Rawahi v Ali Niazi [2006] ACTSC 84 |
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 claim.
5․The second and third defendants consented to the application. The fourth defendant neither consented to nor opposed the application.
6․This application posed the following three questions about the proper interpretation of s 51:
(a)whether “respondent” in s 51 includes insurers of tortfeasors as well as the tortfeasors themselves;
(b)whether “respondent” in s 51(1) means respondents whose identity was known to the claimant; and
(c)what is the end date in s 51(3).
7․The answers to those three questions are:
(a)“respondent” in s 51 does not include insurers of tortfeasors;
(b)section 51(1) only refers to respondents whose identity was known to the claimant; and
(c)the end date in s 51(3) is the earlier of the two dates specified in s 51(3)(a) and (b);
(i)with the date in s 51(3)(a) being the later of the two dates referred to in s 51(3)(a)(i) and (ii); and
(ii)with the date in s 51(3)(b) being the later of the two dates referred to in s 51(3)(b)(i) and (ii).
8․My reasoning for arriving at those conclusions is set out below.
9․Strictly speaking, and given my conclusions, I need not make any order in favour of the plaintiff because in my opinion there is nothing preventing the plaintiff from continuing with his proceeding in this Court. However, for abundant caution, I have made the declaration set out in the orders to avoid any possible doubt.
10․As the legislation uses the word ‘claimant’ to refer to plaintiffs, I shall hereafter refer to the plaintiff in these proceedings as the claimant for ease of reference.
Background
The parties
11․The claimant was employed by the fourth defendant (Heyday) as an electrical foreman.
12․At the time of the accident the claimant was working for Heyday at a construction site (the site) at Reid, ACT.
13․The second defendant, Geocon, was the principal contractor at the site.
14․The third defendant, I.C. Formwork (ICF), had contracted with Geocon to provide formwork services at the site.
15․Heyday had contracted with Geocon to provide electrical services at the site.
16․Also at the site was a company named B.G.A. Formwork Pty Ltd (BGA). It is alleged that BGA had subcontracted with ICF to provide formwork services to ICF at the site.
17․The first defendant, Catlin Australia Pty Ltd (Catlin), was the public liability insurer of BGA at the time of the accident.
The accident
18․On or about 12 May 2020, it is alleged that an employee of BGA cut a strap which held a bundle of timber. As the strap was cut, numerous timbers fell approximately two metres from the top of the stack onto the claimant. The claimant says this has caused him numerous injuries, including but not limited to, fractures of his cervical spine.
19․The claimant did not discover that BGA was involved in causing his accident until 26 August 2022.
20․On or about 13 January 2021, the claimant contacted his now solicitors but, I infer, did not provide them with any instructions in terms of commencing proceedings or pursuing any claim for compensation.
21․On 17 November 2021, BGA was deregistered. Upon deregistration a company ceases to exist: see s 601AD of the Corporations Act 2001 (Cth).
22․As explained by Sackville J in Hunter Valley Community Investments Pty Ltd v Bell(2001) 37 ACSR 326; [2001] FCA 201 at [44]:
… I explained the position of a deregistered company in Re Morton; Ex parte Mitchell Products Pty Ltd(1996) 21 ACSR 497 at 514–15 . Once the company is deregistered, it ceases to be a legal person. The fact that an application can be made to reinstate the company and that the reinstatement, if granted, is effectively retrospective to the date of dissolution (see now Corporations Law, s 601AH(5)) does not mean that in the interim the company continues to exist: Sweeney & Vandeleur Pty Ltd v BNY Australia Ltd(1993) 11 ACSR 356 at 360 per Cole J.
23․On 5 May 2022, the claimant formally instructed his solicitors to act for him and to pursue a claim for compensation. The claimant identified Geocon, ICF and Heyday as potential defendants to his solicitors. Potential defendants to such claims are defined as “respondents” in s 51.
24․On 9 May 2022, the claimant gave notice to Geocon, ICF and Heyday pursuant to the notice provisions in s 51.
25․On or around 26 August 2022, and as a result of a response received from the solicitors for ICF, the claimant’s solicitors were put on notice that BGA may have caused or contributed to the accident.
26․Section 51(9) provides that if a respondent (who is served with notice by a claimant) knows of anyone else (defined as a relevant person) against whom a proceeding based on the claim may be begun by the claimant, the respondent must, within one month after the day the respondent received the notice, give a copy of the notice to each relevant person, must tell the claimant in writing about each relevant person and must give the claimant a short written statement explaining why each of them may be a relevant person.
27․ICF purported to comply with the first requirement (telling the claimant in writing that BGA was a party against whom a proceeding may be brought). I say purportedly because by that time BGA had ceased to exist.
28․On or about 5 September 2022, the claimant’s solicitors conducted an ASIC search of BGA which showed that the company had been deregistered.
29․On 6 September 2022, the claimant’s solicitors asked ICF’s solicitors whether, noting the contract between ICF and BGA required BGA to carry public liability insurance, ICF’s solicitors had sent a s 57 notice to BGA and asked whether ICF knew the identify of BGA’s insurer at the relevant time.
30․On or about 7 September 2022, the claimant’s solicitors purported to give notice via post to BGA pursuant to s 51 of the Wrongs Act. The notice was sent to BGA’s previous registered office. Because BGA had ceased to exist the sending of that letter was not and could not have been notice to BGA.
31․Needless to say, there was no response received from the non-existent BGA.
32․The claimant did not send any similar letter to BGA’s sole director, a Mr Gulic, for reasons that the claimant’s solicitor cannot now recall, although such a letter was contemplated at the time (p 372 of Ex A). Such a letter would not have been notice to BGA but would have been an exercise in optimism in that Mr Gulic may have passed the letter on to BGA’s public liability insurer. In any event, that letter was not sent.
33․On 17 October 2022, the claimant’s solicitors sent a follow-up email to ICF’s solicitors about their requests made in the letter dated 6 September 2022, and asked that ICF serve a notice which they asserted was required by s 51(9) on the insurer of BGA. No response was received until 14 December 2022.
34․The matter lapsed for some time as the claimant’s solicitor attended to preparing the claimant’s case on quantum and did not follow up the request to ICF’s solicitor about the identify of BGA’s insurer.
35․On 14 December 2022, the claimant received an email from the ICF’s solicitors enclosing an insurance certificate of currency for BGA for the period including the date of the accident. The letter did not address the other questions raised by the claimant on 6 September 2022, namely whether a s 57 notice had been served on BGA, or whether a s 51(9) notice had been served by ICF on that insurer.
36․The certificate of currency represented that Catlin was BGA’s public liability insurer at the time of the claimant’s accident.
37․On 27 February 2023, the claimant’s solicitor conducted an ASIC search of Catlin.
38․For reasons the claimant’s solicitor cannot now recall, Catlin was not notified at that time of the claimant’s claims against BGA or Catlin.
39․The claimant’s solicitors then undertook various enquiries and investigations in order to prepare the claimant’s liability case including retaining an expert and obtaining an expert report going to issues of liability.
40․On 12 May 2023, the claimant commenced proceedings in this Court naming Catlin as first defendant, and naming Geocon, ICF and Heyday as the second, third and fourth defendants respectively.
41․On 19 May 2023, the claimant served the originating process on all of the defendants.
42․On 30 May 2023, Catlin’s solicitors informed the claimant’s solicitors that they were now acting for Catlin.
43․On 14 June 2023, the claimant’s solicitors sent some 21 documents relevant to the case to Catlin’s insurers, said that Catlin was sued pursuant to s 601AG of the Corporations Act, and said that because the Wrongs Act distinguished between respondents and their insurers, the claimant did not consider it necessary to notify Catlin pursuant to s 51.
44․On 23 June 2023, Catlin’s solicitors sent a request for particulars to the claimant’s solicitors and also sent another letter which, in short, asserted that the claimant was required to comply with s 51 vis-à-vis Catlin.
45․On 30 June 2023 the claimant filed an application in proceeding seeking either a declaration that he had complied with s 51 or an order from the Court pursuant to s 59(1)(c)(ii) authorising him to proceed further with the proceeding despite the noncompliance.
The Wrongs Act
46․Section 51 says:
51 Notice of claim
(1)Before a claimant brings a proceeding against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim.
(2)The notice must—
(a)contain a statement of the information required by regulation; and
(b)authorise each of the following to have access to the records and sources of information relevant to the claim that are required by regulation:
(i) the respondent;
(ii) if the respondent is insured against the claim—the respondent’s insurer for the claim; and
(c)be accompanied by the documents required by regulation.
(3)For a proceeding not based on a motor accident claim or child abuse claim, the notice must be given within the period that ends on the earlier of the following days:
(a)the day that is 9 months after—
(i) the day the accident giving rise to the personal injury happened; or
(ii) if symptoms of the injury are not immediately apparent—the day symptoms of the injury first appear;
(b)the day that is 4 months after the later of the following days:
(i) the day the claimant first instructs a lawyer to provide advice about seeking damages for the personal injury;
(ii) the day the respondent is identified.
…
(4)…
(5)…
(6)…
(7)If the notice is not given within the period required under subsection (3), a reasonable excuse for the delay must be given in the notice or by separate written notice to the respondent.
(8)Without limiting subsection (7), an excuse is reasonable if it is prescribed by regulation for this section.
(9)If the respondent knows of anyone else (a relevant person) against whom a proceeding based on the claim may be begun by the claimant, the respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the respondent receives the notice)—
(a)give a copy of the notice to each relevant person; and
(b)tell the claimant in writing about each relevant person and give the claimant a short written statement explaining why each of them may be a relevant person.
(10)If the respondent is a child, the respondent’s parent or legal guardian may comply with subsection (9) for the respondent.
47․Section 55 says:
55 Claimant may add later respondents
(1)After a claimant has given notice of a claim to a respondent under section 51, the claimant may add someone else as a respondent (a later respondent) to the claim by giving the later respondent—
(a)a notice of a claim complying with section 51 (2); and
(b)copies of other documents given to or received from any other respondent under this chapter.
(2)However, the claimant may add a later respondent only—
(a)within the time prescribed by regulation; or
(b)if the later respondent and all parties to the claim agree; or
(c)if the court gives leave.
(3)If the claimant adds a later respondent under this section—
(a)the later respondent must respond to the notice as if it were a notice of a claim given under section 51; and
(b)the claimant must, in writing, tell each other respondent of the addition within the time prescribed by regulation.
48․Section 59 says:
59 Claimant’s failure to give complying notice of claim
(1)If a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless—
(a)the respondent to whom notice of the claim was purportedly given—
(i) has given the claimant a written notice to the effect that the respondent is satisfied the notice is a complying notice of claim or the claimant has taken reasonable action to remedy the noncompliance; or
(ii) is presumed, under section 54 (3) (Respondent’s response to notice of claim), to be satisfied the notice is a complying notice of claim; or
(b)the respondent has waived any noncompliance; or
(c)the court, on application by the claimant—
(i) declares that the claimant has remedied the noncompliance; or
(ii) authorises the claimant to proceed further with the claim despite the noncompliance.
(2)An order of the court under subsection (1) (c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s noncompliance.
The Issues
49․The three questions raised by this application about the proper interpretation of s 51 are:
(a)whether “respondent” in s 51 includes insurers of tortfeasors as well as the tortfeasors themselves;
(b)whether “respondent” in s 51(1) means respondents whose identity was known to the claimant; and
(c)what is the end date in s 51(3).
50․The conclusion I have reached on the first question is dispositive of the application, but I have answered question two against the event that I am wrong about question one.
51․Strictly speaking I need not answer question three, but as it was argued and as there is uncertainty in the legal profession as to its proper interpretation, I have set out my conclusions on that issue.
52․Few submissions were provided by the active parties to the application (the claimant and the first defendant) as to the proper interpretation of s 51(3) other than to provide me with a copy of Master Harper’s judgment in Hanan Al-Rawahi v Mohammad Ali Niazi [2006] ACTSC 84 and the Chief Justice’s judgments in Maletic v Calvary Healthcare ACT Limited [2022] ACTSC 231 and Belovic v Calvary Healthcare ACT Limited [2023] ACTSC 90. Rather, the active parties addressed the bulk of their submissions to discretionary factors going to the claimant’s application for an order that he be authorised to proceed with his claim pursuant to s 59 of the Wrongs Act.
53․As the proper interpretation of the s 51 is dispositive of the application I need not address those arguments in detail but will express my views about it in the event I am wrong about the proper interpretation of s 51.
Question One
54․In Belovic the Chief Justice described the language of s 51(3) as “difficult” at [3] and referred to difficulties of interpretation at [4]. I agree with her Honour and would extend that observation to the balance of Part 5.2 in which s 51 is found.
55․Part 5.2 of the Wrongs Act is awkwardly phrased and gives rise to many problems of interpretation. Nevertheless, that is my task.
56․The first question is whether Catlin is a “respondent” for the purposes of s 51.
57․‘Claim’ is defined in s 49 as:
claim means a claim (however described) for damages based on a liability for personal injury, whether the liability is based in tort or contract or on another form of action (including breach of statutory duty), and, for a fatal injury, includes a claim for the dead person’s dependants or estate.
58․‘Insurer’ is defined in the same section as:
insurer, of a person in relation to a claim, means the insurer or other entity providing, or purportedly providing, the person cover or an indemnity against the claim.
59․As the definition of ‘insurer’ makes reference to the ‘person’ against whom a ‘claim’ is made, and refers to cover or an indemnity ‘against the claim’, the natural reading of that definition, in the context of the definition of ‘claim’, is that a ‘claim’ is only that which is made against the tortfeasor, not any claim that may be brought against the insurer of the tortfeasor (such as under s 601AG of the Corporations Act as is pleaded in this case).
60․That is, within those definitions, an insurer is distinguished from a tortfeasor who is, according to those definitions, the person who is provided cover or an indemnity against a claim for damages based on a liability for personal injury.
61․In the definition of insurer the word ‘claim’ is tied or connected to the tortfeasor and not to the insurer. It follows that in s 51(1) the ‘respondent’ is the tortfeasor against whom the claimant brings a proceeding based on a claim in relation to a personal injury. Since the ‘claim’ must be served on that person, and because an insurer is distinguished from that person, the word ‘respondent’ is s 51(1) does not include insurers of tortfeasors.
62․This conclusion is consistent with the holding in Al-Rawahi at [23]. That case concerned a claim for personal injury damages arising out of a car accident. The claimant knew the identity of the other driver’s insurer, and there were communications between the claimant, the claimant’s solicitors and the insurer and its investigator, but there was delay before the claimant could identify the driver himself. Harper M said:
As I pointed out in McGregor v Franklin [2006] ACTSC 69 at para 32, s 51 requires the notice before action to be given to the respondent, not the insurer. This is the position even, as here, where insurance is compulsory by statute. In the present case, as in McGregor, the named respondent will be the appropriate defendant in a subsequent action for damages. There will usually be no cause of action against the insurer. As I explained in that paragraph, compliance with s 51 is not guaranteed to bring the claim to the attention of the insurer immediately or at all. If the defendant does not pass the notice on to the insurer, the insurer may not find out about it until served with a copy of the originating process, as is required in motor vehicle cases by s 193 of the Road Transport (General) Act 1999. This being so, compliance with s 51 of the Civil Law (Wrongs) Act will not necessarily put the insurer in any better position than it would have been absent the section.
(emphasis added)
63․It is also consistent with the practicality of a situation such as this where a de-registered corporate tortfeasor may be identified, but the avenues available to ascertain the identity of the tortfeasor’s insurer are very limited. To impose the harsh time limits of s 51(3) on injured persons in circumstances which are entirely outside of their control would be unjust.
64․It follows that Catlin is not a respondent for the purposes of s 51 and therefore there was and is no obligation on the claimant to undertake the obligations imposed by s 51 in relation to Catlin.
65․BGA could have been a respondent for the purposes of s 51(3) because it was an (alleged) tortfeasor, but its identity (and involvement in the accident) was not known to the claimant until 26 August 2022, being some nine months after BGA had been de-registered.
66․As mentioned earlier, by operation of s 601AD of the Corporations Act BGA ceased to exist when it was de-registered. Therefore, it could not have been a respondent, nor could a notice of claim have been served on it, after its de-registration.
67․As that de-registration occurred after the claimant became aware that BGA was an entity involved in his accident, it is appropriate that I answer question two.
Question Two
68․The first point to observe is that the chapeau to s 51(1) says that before a person can bring proceedings against someone else based on a claim in relation to personal injury, the claimant must give “the respondent” a written notice.
69․The “respondent” in s 51(1) must mean the person against whom the proceedings are going to be brought i.e the tortfeasor(s). This is important because in this case the claimant was unaware of the existence of BGA and its involvement in his accident until 26 August 2022.
70․Given a notice must be given to “the respondent”, s 51 assumes that the identity of the respondent is known to the claimant. Hence, s 51(3)(b)(ii) refers to a point in time when “the respondent” is identified. Self-evidently, it is only when the “respondent” is known to the claimant that the claimant can give a notice to that respondent.
71․Therefore, “respondent” in s 51(1) refers only to respondents whose identity is known to the claimant.
72․That conclusion is consistent with the holding in Al-Rawahi. At [28] Harper M said:
It is necessary to interpret the words “the day the respondent is identified”. They are expressed in the passive voice. They provide no assistance as to whose identification process is referred to. In construing the words, it should be remembered that the provisions are not limited to motor vehicle collisions. They apply to all actions for damages for personal injury. They are not limited to injuries in respect of which the potential defendant is insured. They are not limited to injuries one might expect to be the subject of an investigation by police or some other government instrumentality. There is thus no objective identifying agency common to all injury claims. In the circumstances the words, to be given a meaning which will be applicable to all injury claims, must be taken to mean identification by the injured person or the legal representatives or other relevant agents of the injured person.
(emphasis added)
73․That conclusion is also supported by the existence and terms of s 51(9)(b) and s 55.
74․Section 51(9)(b) says that if the respondent (served with a notice of claim) knows of anyone else (internally defined as a relevant person) against whom a proceeding based on the claim may be begun by the claimant, the respondent must, within the period prescribed by regulation (or, if no period is prescribed, within 1 month after the day the respondent receives the notice) tell the claimant in writing about each relevant person and give the claimant a short written statement explaining why each of them may be a relevant person.
75․Section 55 then allows for the claimant to add a relevant person as a respondent (internally defined as a later respondent) to the claim by giving the later respondent a notice of a claim complying with s 51(2) and copies of other documents given to or received from any other respondent under this chapter.
76․I note that ‘respondent’ in s 49 is defined to mean a person who is a respondent under s 51 or is a later respondent under s 55.
77․Nevertheless, both s 51(9)(b) and s 55 only operate where there is a respondent who was unknown to the claimant at the time of serving his or her original notice of claim but then is made known to the claimant at a subsequent point in time.
78․It follows that s 51 only refers to respondents whose identity was known to the claimant.
79․If Catlin is, contrary to my conclusion on question one, otherwise a “respondent”, its identity was not known to the claimant until 14 December 2022 and therefore falls within the expression “later respondent” in s 55. If so, the claimant is not bound by the time periods in s 51(3) vis-à-vis Catlin, but by the time periods in s 55 which are quite different.
80․In contradistinction to the harsh time limits set out in s 51(3), which several judges of this Court have previously observed imposes obligations which are impossible to comply with in a range of circumstances which regularly come before the Court, the time limits in relation to later respondents are relatively generous.
81․Section 55(2) says that a claimant may only add a later respondent to the claim (whatever that quite means) in three circumstances. First, if he or she does so within the time prescribed by regulation. Second, if the later respondent and all parties to the claim agree. Third, if the Court grants leave to do so.
82․The time presently prescribed by regulation is the time when a certificate of readiness is filed in the Court in a proceeding in relation to the claim: see reg 7(1)Civil Law (Wrongs) Regulation 2003 (ACT).
83․The Court Procedures Rules previously provided for certificates of readiness in r 1307, but that rule was omitted by the Court Procedures Amendment Rules 2015 (No 2) in June 2015 and certificates of readiness no longer exist. When they did exist, certificates of readiness were filed some time after proceedings had commenced, a markedly more generous time limit than that set out in s 51(3).
84․The post-2015 equivalent to a certificate of readiness is the listing hearing questionnaire parties are required to complete to indicate a matter is ready to be listed for hearing. This document is completed some time after proceedings have commenced. If one interprets the regulation as meaning the listing hearing questionnaire (which is a question not free from doubt), the claimant is still within time to add Catlin to the “claim” because no listing hearing questionnaire has been completed.
85․If, the position of BGA is considered, namely that its identity was not known to the claimant until after BGA’s de-registration, then the claimant had no obligations under s 51 vis-à-vis BGA. That is because s 51 does not apply to tortfeasors whose identity is not known to the claimant and because, by the time BGA’s identity had become known to the claimant, BGA had been de-registered and had ceased to exist.
Question Three
86․The third question to deal with is the end date specified in s 51(3).
87․The claimant contended for the date being four months after Catlin was identified. The first defendant contended for nine months after the accident. Neither party made any detailed submissions for how they arrived at the interpretation of s 51(3) which gave those results.
88․In my view s 51(3) should be interpreted as follows (keeping in mind that the relevant respondent must be known to the claimant as I have set out earlier).
89․Sub-sections 51(3)(a) and (b) each contain two events.
90․Sub-section 51(3)(b) helpfully says, in express terms, that it is the “later” of the dates of the two events mentioned in that sub-section which is the relevant date. That is, it is the “later” of the date the claimant first instructs a lawyer or identifies the relevant respondent.
91․A period of four months is then added to that “later” date to arrive at the s 51(3)(b) date.
92․Sub-section 51(3)(a) unhelpfully does not contain the words “later of the following days” which are found in s 51(3)(b), but that is the sense of the sub-section when regard is had to its text, context and purpose. After all, symptoms could only appear contemporaneously with or subsequent to an injury. Hence, this sub-section must be concerned with the date of the accident or, if symptoms do not appear until later, when those symptoms appear.
93․If that conclusion be correct, s 51(3)(a) is concerned with the day of the accident or the day symptoms later appear. To that date nine months is added to arrive at the s 51(3)(a) date.
94․The chapeau to s 51(3) then requires the s 51(3)(a) and (b) dates to be compared, and the earlier of those two dates becomes the end date for the purpose of s 51(3). That is made apparent, in my view, because the chapeau refers to “the period that ends on the earlier of the following days” after which follows sub-s (a) and (b).
95․Even though that chapeau says that a notice must be given “within the period”, it does not specify a beginning date. I think self-evidently the beginning date must be the date of the accident.
96․That interpretation is consistent with the interpretation of s 85 of the Road Transport (Third-Party Insurance) Act 2008 (ACT) which is in similar terms and which was considered by McWilliam AsJ (as her Honour then was) in Khan v Batagode [2018] ACTSC 240. In that case her Honour interpreted s 85 of the Road Transport Act as I have interpreted s 51(3), at least in relation to the structure and working of the equivalent sections.
97․Therefore, the Wrongs Act requires a claimant to give notice before the earlier of the dates provided by s 51(3)(a) and (b).
98․The consequence is that the latest a s 51(3) notice may be given is nine months after symptoms of the injury (suffered in the accident) first appear (assuming they do not appear at the time of injury). Otherwise, the latest date is nine months after the accident.
99․This is consistent with the holding in Al-Rawahi at [27] wherein Harper M said:
To comply with s 51, the applicant was required to give notice to the respondent, at the latest, nine months after the accident. She first saw a solicitor on 25 March 2004, and would have been required to give notice within four months of the later of that date and the date the respondent was identified. If time had run from the first consultation with her solicitors, the latest date for notice would have been 25 July 2004. If the respondent was identified subsequently to that first consultation, time would run from the date of identification, if within the nine-month period. The latter expired on 19 November 2004.
100․However, should a claimant instruct a lawyer to provide advice about seeking damages for the personal injury, or identifies the respondent at some earlier point in time (for example, one month after the accident), the claimant must serve the notice earlier than nine months after the accident, namely within a further four months which, in my example, would be five months after the accident.
Relief
101․The claimant sought two orders. The first was a declaration that he had complied with the requirements of Chapter 5 of the Wrongs Act in that he asserted that notification had been given to BGA (T 5.24-.25, 8.24-.27). No such order was sought in the application in proceeding, nor, surprisingly, did the claimant seek to file an amended application in proceeding in which that order was sought. Nevertheless, it was not opposed.
102․I will not make that order because, even on the claimant’s case, no notice had been given to BGA before it had been de-registered. Notice after that date could not be notice under the Wrongs Act because BGA no longer existed.
103․The second order sought (and which was contained in the application in proceeding) was an order pursuant to s 59(1)(c)(ii) that the claimant be authorised by the Court to proceed further with the claim despite the noncompliance.
104․That order is not necessary because on the views I have taken Catlin is not a ‘respondent’ to whom notice must be given.
105․However, if I am wrong about that, then on the views I have taken Catlin is a ‘later respondent’ and the claimant is in time to ‘add’ Catlin to his ‘claim’ (whatever that quite means in s 55) because the listing hearing questionnaire (nee certificate of readiness) has not been filed.
Discretion
106․I can only be very general in this discussion because, depending on where I might have erred above, the period of time in which the delay would have to be explained would differ, as would the particular circumstances to be considered.
107․Suffice to say that in the event I was wrong about all of the above, and the question arose whether I should exercise my discretion to authorise the claimant to proceed further with his claim, I would have exercised my discretion in the claimant’s favour for the period post-dating the date he instructed solicitors to pursue a claim for compensation, namely on 4 May 2022.
108․That is because, in my view, his solicitors took all reasonable steps to identify Catlin except for two relatively short periods of time.
109․I would not have exercised my discretion in favour of the claimant for the period between the date of his accident and the date he instructed his solicitors (4 May 2022) for the simple reason that no evidence was given as to the reasons for that delay.
110․If a party wishes the Court to exercise a discretion in his, her or its favour, it is incumbent upon that party to give evidence on matters relevant to the exercise of that discretion. In this case that would include the reasons for the delay between the date of the accident and 4 May 2022. As no explanation was not given for that period, I would not have exercised my discretion in favour of the claimant for that period.
Orders
111․I make the following Orders:
(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.
| I certify that the preceding one hundred and eleven [111] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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