Katherine Martin v Kate Tanzer
[2014] ACTCA 3
•18 February 2014
KATHERINE MARTIN v KATE TANZER
[2014] ACTCA 3 (18 February 2014)
APPEAL – leave to appeal an interlocutory decision of a single judge – claim for damages arising out of a motor vehicle accident – compulsory conference – judge’s discretion under s 136 Road Transport (Third-Party Insurance) Act 2008 (ACT) – certificates of readiness – whether decision attended with sufficient doubt, whether substantial injustice will be done by leaving decision unreversed
Road Transport (Third-Party Insurance) Act 2008 (ACT), ss 84(2)(a), 102(b), 136, 139
Court Procedures Rules 2006 (ACT), r 1306
Aon Risk Services Australia Ltd v Australian National University (2008) 227 FLR 388
McIntosh v Hikechukwu (2011) ACTSC 131
O’Brien v Noble (2012) ACTCA 13
Pettitt v Dunkley (1971) 1 NSWLR 376
Shammas v Canberra Institute of Technology (2013) ACTCA 50
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 34 - 2013
No. SC 184 of 2013
Judges: Nield AJ
Court of Appeal of the Australian Capital Territory
Date: 18 February 2014
IN THE SUPREME COURT OF THE ) No. ACTCA 34 - 2013
) No. SC 184 of 2013
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: KATHERINE MARTIN
Applicant
AND: KATE TANZER
Respondent
ORDER
Judges: Nield AJ
Date: 18 February 2014
Place: Canberra
THE COURT ORDERS THAT:
Leave is granted to the applicant to appeal to the Court of Appeal from the decision of Higgins CJ of 13 June 2013;
The applicant file a Notice of Appeal, in the form of the draft Notice of Appeal lodged on 18 June 2013, in the Registry of the Court of Appeal within 21 days of the date hereof;
The costs of the application for leave to appeal and of the application for a stay of the decision of Higgins CJ be costs in the appeal.
IN THE SUPREME COURT OF THE ) No. ACTCA 34 - 2013
) No. SC 184 of 2013
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: KATHERINE MARTIN
Applicant
AND: KATE TANZER
Respondent
Judges: Nield AJ
Date: 18 February 2014
Place: Canberra
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is Katherine Martin. On 8 March 2011, she was the driver of a motor vehicle, which was stationary on Namatjira Drive at the intersection with Conder Street in Weston in the ACT, when it was struck in the rear from behind by another motor vehicle.
The respondent is Ms Kate Tanzer. She was the driver of the motor vehicle which struck the applicant’s motor vehicle. Her motor vehicle was insured, for the purpose of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (the Act), by Insurance Australia Limited (trading under the name NRMA Insurance).
A MOTOR ACCIDENT CLAIM
On 29 March 2011, the applicant completed a Motor Accident Notification Form (prescribed under s 84(2)(a) of the Act), a Motor Accident Medical Report (prescribed under s 102(b) of the Act) and a Notice of Claim and Additional Information Forms (also prescribed under s 84(2)(a) of the Act), all of which were served on the respondent on 30 March 2011 (by providing them to NRMA Insurance).
By letter dated 7 April 2011, the respondent (by NRMA Insurance) requested particulars of the applicant’s claim and by letter dated 13 May 2011 the applicant’s solicitor provided particulars of the applicant’s claim. Subsequently to the letter dated 13 May 2011, the applicant’s solicitor, from time to time, provided up-to-date particulars of the applicant’s claim, including accounts for expenses, medical reports, income tax returns, pay slips and a letter from the applicant’s employer, to NRMA Insurance.
By letter dated 24 June 2011 the respondent (by NRMA Insurance) admitted that she had breached the duty of care that she had owed the applicant (thereby admitting that she was liable to compensate the applicant for her motor accident caused injuries and consequential disabilities).
By letter dated 16 March 2012 the respondent (by NRMA Insurance) requested that “in accordance with s 104 of the Road Transport (Third Party Insurance) Act 2008... [the applicant] provide updated answers to the following questions in writing by 16 April.” and by letter dated 30 May 2012 the applicant’s solicitor provided up-to-date particulars of the applicant’s claim. I note that the letter dated 16 March 2012 of NRMA Insurance was almost identical (the numbering of the questions was different) to its letter dated 7 April 2011 and, not surprisingly, the letter dated 30 May 2012 of the applicant’s solicitor was similar to the letter of 13 May 2011.
A PROPOSAL FOR A COMPULSORY CONFERENCE
By letter dated 22 March 2012 the respondent (by NRMA Insurance) proposed “... a compulsory conference... pursuant to s 136 of the Road Transport (Third Party Insurance) Act 2008... to take place at 10:00 am on 30 April 2013 via speaker phone with [the applicant’s solicitor’s] office... [but] if the proposed time or location is not suitable, kindly provide a range of dates in April 2013 or alternative locations.”
In response to the letter dated 22 March 2013, by letter dated 25 March 2013 the applicant’s solicitor wrote:
“[The applicant’s] injuries and disabilities have not settled or stabilised to the point that she could consider participating in a compulsory conference. She is still in the process of obtaining medical assessments and treatment. She is not in a position to be satisfied that the range of opinions and diagnoses she has received from her doctors and specialists as to her future needs for treatment and therapy, or as to future changes in her condition are sufficient to enable her to understand the medical future she will face.
We are not instructed to agree to the proposed date, or any other date at this time. If your client makes an application to the court for a compulsory conference, we will oppose that application on the grounds (sic) that it is premature”.
AN APPLICATION FOR THE APPOINTMENT OF A COMPULSORY CONFERENCE
On 17 May 2013 the respondent filed an application in the Registry of the Supreme Court seeking orders that:
1. The court allocate a time and place for a compulsory conference pursuant to s 136 of the Road Transport (Third Party Insurance) Act 2008;
2. The [applicant] pay the [respondent’s] costs of the application;
3. Any other orders that [the court] deem fit.
The application was supported by an affidavit of Ms Sarah McJannett sworn 17 May 2013. The application was fixed to be heard on 24 May 2013.
On 24 May 2013 the respondent’s application was listed before Higgins CJ but it was not reached for hearing and it was stood over to 7 June 2013.
THE HEARING OF THE APPLICATION
Accordingly, on 17 June 2013 the respondent’s application came on for hearing by Higgins CJ. Mr J Pappas appeared for the respondent (then the applicant) and Mr R Crowe SC appeared for the applicant (then the respondent). His Honour had the written submissions of both Mr Pappas (dated 24 May 2013) and Mr Crowe (dated 6 June 2013). After hearing submissions from Mr Pappas and Mr Crowe, his Honour stood over the further hearing of the application to 13 June 2013.
Then, on 13 June 2013 his Honour said:
[T]he applicant seeks an order fixing a compulsory conference, there having been a failure thus far to have arranged one. I think the correspondence does reveal definite proposals for a compulsory conference, the last being... for 30 April 2013 via speaker phone between the office of the NRMA and the office of the respondent’s solicitors. That particular proposal does seem to comply with the requirements of the Road Transport (Third Party Insurance) Act.
The respondent... says that the actual fixing of it is... pointless... by reason of the fact that there is insufficient certainty in terms of [her] condition... to enable a meaningful offer to be either made or accepted...
But the difficulty is that the pre-conference procedures stand in the way of the resolution of the claim unless they are bypassed and the only way to bypass them... is to fix... compulsory conference allowing the respondent then to make application to be exempt from the requirement...
... I think that [it] is... appropriate [to fix a compulsory conference]... So I [fix] a compulsory conference for Friday 21 June 2013 at 10:00 am... [by] speaker phone between the office of NRMA... and the respondents solicitors” (see page 405 of the affidavit sworn 17 June 2013 by Mr Treloar).
Then, after submissions, his Honour ordered that “there be no order as to costs”.
AN APPLICATION FOR LEAVE TO APPEAR
On 18 June 2013 the applicant filed an application in the Registry of the Court of Appeal seeking an order that leave be given to her to appeal against the judgment of Higgins CJ of 13 June 2013. This application was supported by an affidavit of Mr Treloar sworn 17 June 2013. I note that this affidavit contains 17 numbered paragraphs over a little more than 3 pages, with 426 pages of annexures, most of which are irrelevant to the application. This application was fixed to be heard on 3 July 2013.
Also, on 18 June 2013 the applicant lodged a draft Notice of Appeal in the Registry of the Court of Appeal appealing from the orders of Higgins CJ upon the grounds that:
(1) His Honour erred in law in ordering a compulsory conference under section 136 of the Road Traffic (Third Party Insurance) Act 2008 in circumstances where-
(a) the medical condition of the appellant had not stabilised;
(b) the investigation of the appellant’s medical condition had not been completed; and
(c) it was not reasonably possible for a lawyer acting for the appellant to sign a certificate of readiness as required by section 139 of the Act.
(2) His Honour erred in finding that a time and place for a compulsory conference had been validly appointed under paragraph 136(2) (b) of the Act.
(3) His Honour failed to adequately consider the mandatory requirement of section 139 of the Act that the claimant’s lawyers sign a certificate stating that –
(a) the claimant was in all respects ready for a compulsory conference and for trial; and
(b) that the claimant had obtained medical reports from each person he/she intended to call as an expert witness at the trial.
(4) His Honour failed to give adequate or sufficient reasons for his decision to appoint a time and date for a compulsory conference in the circumstances of the case.
I note that the draft Notice of Appeal has not be stamped as “lodged” or “filed” in the Registry.
AN APPLICATION FOR A STAY
Then, on 19 June 2013 the applicant filed an application in the Registry of the Court of Appeal seeking an order that the orders of Higgins CJ be stayed until order of the Court of Appeal. This application was supported by an affidavit of Mr Treloar sworn 16 June 2013. This application was fixed to be heard on 20 June 2013.
Accordingly, on 20 June 2013 the applicant’s application for a stay of the orders of Higgins CJ came on for hearing before me. Mr Crowe SC appeared for the applicant and Mr J Guihot appeared for the respondent. As it transpired, I ordered (without any objection from either Mr Crowe or Mr Guihot) that the order of Higgins CJ for the compulsory conference on 21 June 2013 be stayed pending further order and that the hearing of the application for the stay be stood over on 3 July 2013 when the application for leave to appeal was to be heard.
On 2 July 2013 the respondent filed a Notice of Intention to Respond in the Registry of the Court of Appeal in relation to the applicant’s application for leave to appeal against the orders of Higgins CJ.
THE HEARING OF THE APPLICATION FOR LEAVE TO APPEAL
Thus, on 3 July 2013 the applicant’s applications for leave to appeal against the orders of Higgins CJ and to stay the orders of Higgins CJ came on for hearing before me. Dr K Rewell SC appeared for the applicant and Mr Pappas appeared for the respondent. As it transpired, I did not need to consider the application for a stay of the orders of Higgins CJ as the parties had agreed (now that all outstanding medical reports were to hand) to conduct the compulsory conference on 23 July 2013 (with the likelihood that the applicant’s claim would be settled at the compulsory conference). As to the application for leave to appeal against the orders of Higgins CJ, after hearing submissions from Dr Rewell and Mr Pappas, I reserved my judgment.
THE FIRST ISSUE
The first issue raised by the applicant was whether or not the respondent had “called” for a compulsory conference. The respondent submitted to Higgins CJ that the letter dated 22 March 2013 from NRMA Insurance to the applicant’s solicitor “called” the compulsory conference for 10:00 am on 30 April 2013.
The applicant submitted to his Honour that the respondent had not “in clear terms exercised the power to unilaterally appoint a time and place for a compulsory conference under paragraph (sic-section) 136 (2) (a)”
Section 136 of the Act provides for a compulsory conference, between the parties to a claim arising from a motor accident, as follows:
136Compulsory conference
(1)Before a claimant for a motor accident claim brings a court
proceeding based on the motor accident claim, the parties for the
motor accident claim must have a conference (the compulsory
conference).
(2)Any party may call the compulsory conference—
(a)at a time and place agreed by each party; or
(b)if more than 6 months has passed since the respondent received, or is taken to have received, the claimant’s complying notice of claim—at a reasonable time and place nominated by the party calling the conference.
Note The circumstances in which a claimant is taken to have given a respondent a complying notice of claim are in s 95.
(3)On application by a party, the court may decide the time and place for the compulsory conference and make any other orders the court considers appropriate in the circumstances.
(4)The parties may, by agreement, change the time or place for holding a compulsory conference or adjourn a compulsory conference from time to time and from place to place.
(5)The compulsory conference may be conducted, if the parties agree, by telephone, closed-circuit television or another form of communication allowing contemporaneous and continuous communication between the parties.
Higgins CJ accepted that “the correspondence does reveal definite proposals for a compulsory conference for 30 April 2013 via speaker phone between the office of the NRMA and the office of the [applicant’s] solicitors... [which] proposal does seem to comply with the requirements of the Road Traffic (Third Party Insurance) Act”.
I see that there is an argument that the letter dated 22 March 2013 of NRMA Insurance does not “call” the compulsory conference for 30 April 2013; rather the letter proposes that the compulsory conference be held on 30 April 2013 if the date was suitable to the applicant. However, whether or not the letter “called” the compulsory conference may not be important.
Whether or not a party to a motor accident claim “calls” the compulsory conference, the court may, on application by either party, decide the time and place for the compulsory conference ( s 136(3) of the Act).Higgins CJ seems to have thought that the Act required that a party to the claim “call” the compulsory conference before the court could exercise a discretion to appoint a time and place for a compulsory conference. Of course, it would be relevant to the court’s exercise of discretion under s 136(3) of the Act that the party applying to the court to decide the time and place for the compulsory conference would have first sought the agreement of the other party and then, in the absence of agreement by the other party, would have “called” the compulsory conference by nominating a reasonable time and place for such a conference.
THE SECOND ISSUE
However, the principal issue between the respondent (then the applicant) and the applicant (then the respondent) before Higgins CJ was the tension between s 136 and s 139(1)(d) and (3)(a) and (c) of the Act.
Section 139 of the Act provided, as at 8 March 2011 (the date of the motor accident), that:
139Procedures before compulsory conference
(1)At least 7 days before the compulsory conference is to be held, each party for the motor accident claim must give each other party for the motor accident claim the following:
(a)a copy of each document that is relevant to the motor accident claim that has not yet been given to the other party;
(b)a statement verifying that all relevant documents in the
possession of the party or the party’s lawyer have been given as required;
(c)details of the party’s legal representation;
(d)if the party has legal representation—a certificate of readiness signed by the party’s lawyer.
(2)However, on application by a party, the court may exempt the party from an obligation to give material to another party before trial if satisfied that—
(a)giving the material would alert a person reasonably suspected of fraud to the suspicion; or
(b)there is some other good reason why the material should not be given.
(3)In this section:
certificate of readiness, by a party to a motor accident claim, means a certificate stating that—
(a)the party is in all respects ready for—
(i) the compulsory conference; and
(ii) the trial; and
(b)the party has obtained all investigative material required for the trial including witness statements from each person (other than expert witnesses) the party intends to call as a witness at the trial; and
(c)the party has obtained medical or other expert reports from each person the party proposes to call as an expert witness at the trial; and
(d)the party has fully complied with the party’s obligations to give the other parties material relevant to the motor accident claim; and
(e)the party’s lawyer has given the party a costs statement.
costs statement, by a party’s lawyer, means a statement
containing—
(a)details of the legal costs (clearly identifying costs that are legal fees and costs that are disbursements) payable by the party to the party’s lawyer up to the completion of the conference; and
(b)an estimate of the party’s likely legal costs (clearly identifying costs that are legal fees and costs that are disbursements) if the motor accident claim proceeds to trial and is decided by the court; and
(c)a statement of the consequences to the party, in terms of costs, in each of the following cases:
(i) if the amount of the damages awarded by the court is equal to, or more than, the claimant’s mandatory final offer;
(ii) if the amount of the damages awarded by the court is less than the claimant’s mandatory final offer but equal to, or more than, the respondent’s mandatory final offer;
(iii) if the amount of the damages awarded by the court is equal to, or less than, the respondent’s mandatory final offer.
Note Mandatory final offers are dealt with in pt 4.8.
The applicant submitted to Higgins CJ that the court should not exercise its discretion under s 136(3) of the Act to decide upon a time and date for a compulsory conference because, first, she was not ready for such a conference and, secondly, her solicitor was not in a position to sign a certificate of readiness, as required by s 139(1)(d) of the Act, stating that, one, she was in all respects ready for the compulsory conference and the trial and, two, she had obtained medical reports from all of the doctors who she proposed to call as expert witnesses at the trial, as required by s 139(3)(a) and (c) of the Act. I note that the words “and the trial” have been removed from s 139(3)(a) of the Act for causes of action commencing on or after 1 January 2013.
The respondent submitted to his Honour (relying upon the decision of Master Harper in McIntosh v Hikechukwu (2011) ACTSC 131) that the certificate of readiness referred to in s 139(1)(d) and (3) of the Act was different to the certificate of readiness for trial required pursuant to r 1306 of the Court Procedures Rules 2006 (ACT), that the certificate of readiness referred to in s 139(1)(d) and (3) of the Act was a mere statement that the party is ready for the compulsory conference and that such a certificate of readiness would not render inadmissible at the trial any evidence obtained after such a certificate had been signed.
It is fairly clear from what he said (see [13] above) that Higgins CJ did not take into account the tension between s 136 and s 139(1)(d) and (3)(a) and (c) of the Act in the exercise of his discretion under s 136(3) of the Act, and that in exercising his discretion he did not consider the medical evidence annexed to the affidavit of Mr Treloar sworn 22 May 2013 or the statement that “we are unable to certify that the matter is in all respects ready for a compulsory conference and trial” in the applicant’s solicitor’s letter of 20 May 2013 to the respondent’s solicitor.
Although the applicant did not submit to Higgins CJ that the decision of Master Harper in McIntosh v Hikechukwu (supra) was wrong, and although, in view of the removal of words “and the trial” from s 139(3)(a) of the Act in respect of causes of action commencing on or after 1 January 2013, the decision may not apply to many cases, I see that there is a real argument that the decision is wrong.
THE LAST ISSUE
The last issue raised by the applicant concerns the reason given by Higgins CJ for his decision (see [13] above). The applicant submitted that his Honour failed to give adequate reasons for his decision. A trial judge’s obligation to give adequate and appropriate reasons for decision, whether interlocutory or final, is well-known (see Pettitt v Dunkley (1971) 1 NSWLR 376 and the cases referred to in O’Brien v Noble (2012) ACTCA 13) and need not be restated. I accept that there is an argument that his Honour’s reason for his decision is inadequate.
THE TEST FOR THE GRANT OF LEAVE TO APPEAL FROM AN INTERLOCUTORY ORDER
In Aon Risk Services Australia Ltd v Australian National University (2008) 227 FLR 388, Lander J (at 406) said:
Where a court is called upon to consider the grant of leave to appeal from an interlocutory order, two matters will ordinarily need to be addressed. First, whether the decision complained of is attended with sufficient doubt as to warrant its reconsideration by a court of appeal. Second, whether a substantial injustice would result if leaves were refused on the assumption that the decision is wrong... [L]eave to appeal will be more readily granted where the interlocutory order complained of has determined the substantive rights of the party”
(cited with approval in R v AI, AD and JR (2013) ACTCA 16).
In Shammas v Canberra Institute of Technology (2013) ACTCA 50, I said at [31]:
In order to obtain leave to appeal from an interlocutory decision of a judge of the Supreme Court to the Court of Appeal, the applicant for leave is required to show “that the decision of the primary judge was wrong and ... that substantial injustice will be done by leaving that erroneous decision unreversed” (Perry v Smith [1901] 27 VLR 66, per Williams J at 68; cited with approval in Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431), or that “... in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court” (Sharp v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4184, at 4186; applied in Heller Financial Services Ltd v Solczaniuk [1989] NTCA 3; (1989) 99 FLR 304, at 317).
DECISION
Having regard to what I have said about the issues raised by the applicant, I am of the opinion that the decision of Higgins CJ “is attended with sufficient doubt to warrant its reconsideration by a court of appeal”. I appreciate that his Honour’s decision may not have caused any actual prejudice to the applicant’s claim (because the parties agreed upon the time and place for the compulsory conference), but the decision has application to other cases in which the claimant was injured in a motor accident which occurred before 1 January 2013 and whose legal representative is not prepared to sign a certificate of readiness, as required by s 139 of the Act, because the claimant’s medical condition has not stabilised, or because all of the relevant reports as to the claimant’s medical condition are not to hand, or because the claimant is to undergo further examinations to determine the nature and extent of the claimant’s disability.
RESULT
Accordingly, I make the following orders:
1. I grant leave to the applicant to appeal to the Court of Appeal from the decision of Higgins CJ of 13 June 2013;
2. I order that the applicant file a Notice of Appeal, in the form of the draft Notice of Appeal lodged on 18 June 2013, in the Registry of the Court of Appeal within 21 days of the date hereof;
3. I order that the costs of the application for leave to appeal and of the application for a stay of the decision of Higgins CJ be costs in the appeal.
I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 18 February 2014
Counsel for the Applicant: K P Rewell SC
Solicitor for the Applicant: Maliganis Edwards Johnson
Counsel for the Respondent: J Pappas
Solicitor for the Respondent: HWL Ebsworth Lawyers
Date of hearing: 3 July 2013
Date of judgment: 18 February 2014
0
2
1