Jyascovic v Territory Insurance Office

[2000] NTSC 58

Jyascovic v Territory Insurance Office [2000] NTSC58

PARTIES:JYASCOVIC, Julian Dante

v

TERRITORY INSURANCE OFFICE

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:M 2 of 1998 (9824528)

DELIVERED:  14 JULY 2000

HEARING DATES:  22 JUNE 2000

JUDGMENT OF:  MARTIN CJ

CATCHWORDS:

PROCEDURE

Miscellaneous procedural matters

Motor Accidents (Compensation) Act 1979 (NT), s 28 and s 29A

REPRESENTATION:

Counsel:

Applicant:No Appearance

Respondent:  Mr Farquhar

Solicitors:

Applicant:No Appearance

Respondent:  Cridlands

Judgment category classification:        B

Judgment ID Number:  mar20019

Number of pages:  4

Mar20019

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Jyascovic v Territory Insurance Office [2000] NTSC 58
No. M 2 of 1998 (9824528)

BETWEEN:

JULIAN DANTE JYASCOVIC

Applicant

AND:

TERRITORY INSURANCE OFFICE

Respondent

CORAM:    MARTIN CJ

REASONS FOR JUDGMENT

(Delivered 14 July 2000)

1. In November 1998 the applicant filed a Reference to the Motor Accidents (Compensation) Tribunal claiming to be aggrieved by the determination of the Board of the respondent to uphold the determination of the Designated Person of June 1998 that the applicant’s capacity to earn income was no longer reduced as a result of injuries sustained in a motor vehicle accident on 6 August 1993.  The Tribunal’s records do not disclose when that Reference was served.  The solicitors acting for the applicant at the date of filing the Reference ceased to act for him in July 1999, other solicitors filed a Notice of Address for Service in August.

1. The respondent filed its answer to the Reference in November 1999, maintaining that the applicant had no further entitlement to any benefits under the Act.  The new solicitors for the applicant filed a Notice of Ceasing to Act in February 2000.

2. On 6 April 2000 the matter came before the Master for mention.  Notice had been given to the applicant at his last known address which was in Adelaide.  He did not appear.  The Master adjourned the proceedings to 4 May, and the solicitors for the respondent wrote to the applicant at that address advising him of the date fixed for the mention.  He did not appear.  On that last day, the Master referred to the matter to a Judge, there being doubt as to what could be done.

3. The matter came before me on 22 June.  The respondent seeks to have the proceedings brought to an end because of the applicant’s failure to appear or otherwise respond on the dates fixed for mention.  He has twice been informed that the matter was listed, of the need for him to attend, or arrange for a solicitor to appear for him, and twice he has failed to appear or have someone appear on his behalf.

4. The Judges of the Supreme Court are empowered to make rules governing the practice and proceedings of the Tribunal.  Subject to that, the practice and procedure of the Tribunal in relation to a matter referred to it is as determined by it (Motor Accidents (Compensation) Act 1979 (NT), s 29A). Rules were made in 1986. They provide for the mention of the Reference before the Tribunal at which the Tribunal may give such directions as in its opinion are expedient for the speedy and inexpensive determination of the Reference (r 7(1) and r 7(2)). It is apparent that the applicant is not interested in furthering his Reference, but procedural fairness requires that before it be determined by being dismissed, he be given notice that that is proposed.

5. Bearing in mind the need for speed and the saving of expense, it would be preferable for the respondent not to be required to do anything further unless the applicant responds.

6. I propose to make an order, subject to hearing counsel for the respondent further, that the Registrar serve on the applicant by post at his last known address appearing on the Notice of Ceasing to Act from the solicitors last acting for him, that the Reference will be mentioned before the Registrar, on a date to be fixed, at the Registrar’s office at the Supreme Court building in Darwin; that date be not less than 21 days after the posting of the notice; that in the event of his not informing the Registrar in writing signed by him or by a solicitor instructed by him not later than 24 hours prior to the time fixed for the mention, that he or his solicitors will appear at the mention, then the Reference be dismissed at the time fixed, judgment be entered for the respondent and the applicant be ordered to pay the respondent’s taxed costs.

7. I have made provision for the notice prior to the time fixed for the mention so that the respondent can ascertain whether it will be necessary for it to appear before the Registrar at the mention.

8. The Registrar will serve a copy of the notice given to the applicant upon the respondent and inform the respondent if any response is received from the applicant.

9. If the procedural steps are taken as proposed and the applicant does not inform the Registrar not less than 24 hours prior to the time fixed for the mention that he or his solicitor will appear at the mention at that time, then his Reference will stand dismissed, judgment entered for the respondent and the applicant ordered to pay the respondent’s taxed costs.

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