Khan v Batagode - [2018] ACTSC 240

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Khan v Batagode
Citation:	[2018] ACTSC 240
Hearing Date:	16 August 2018
DecisionDate:	30 August 2018
Before:	McWilliam AsJ
Decision:	See [37]
Catchwords:	PERSONAL INJURY – Motor vehicle accident – notification of claim made after expiry of prescribed notification period – application to proceed with claim despite non-compliance – whether in the interests of justice to proceed with claim – whether the delay in notification has caused prejudice to the defendants – application granted STATUTORY CONSTRUCTION - Road Transport (Third-Party Insurance Act 2008 (ACT), s 85
Legislation Cited:	Limitation Act 1985 (ACT) s 16B Road Transport (Third-Party Insurance) Act 2008 (ACT) ss 76, 84, 85, 95, 96
Cases Cited:	Blackpool Corporation v Locker [1948] 1 KB 349 Cook v Nominal Defendant [2015] ACTSC 278 Dordevic v Moore [2017] ACTSC 320; 12 ACTLR 282 Ostrowski v Palmer [2004] HCA 30; 218 CLR 493
Parties:	Sajjad Khan (Plaintiff) Sunil Batagode (First Defendant) Insurance Australia Limited Trading As NRMA Insurance (Second Defendant)
Representation:	Counsel Mr D Crowe (Plaintiff) Mr J Pappas (First and Second Defendants)
Solicitors United Legal (Plaintiff) Sparke Helmore (First and Second Defendants)
File Number:	SC 170 of 2018

The plaintiff in the present case, who is perhaps presently more correctly described as the applicant before this Court, was involved in a motor vehicle accident on 27 January 2016. As a result of that accident, he alleges he sustained personal injuries and wishes to commence proceedings for compensation against the driver of the other vehicle, represented by the compulsory third party insurer (CTP insurer), the defendants in these proceedings.

However, he requires leave of the Court to commence such proceedings, due to the operation of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (RT Act). The combined effect of the relevant provisions contained in the RT Act is to prevent claimants who fail to notify the relevant CTP insurer of a claim within certain prescribed time limits, determined by reference to particular events, from commencing proceedings without first applying for leave of the Court.

In support of the application filed on 20 April 2018, the applicant relied upon affidavit evidence sworn by himself and his instructing solicitor. The applicant was briefly cross-examined and I accept his evidence.

Relevant provisions of the legislation

Before a claimant for a motor accident claim brings a court proceeding based on the claim against a respondent, the claimant must give the respondent written notice of the claim: s 84(1) of the RT Act.

The required contents of such a notice are set out in s 84(2) of the RT Act. They are immaterial to the present application as there is no issue about the content of the notice, merely its timing.

Section 85 of the RT Act governs the timing for providing a notice to a CTP insurer. It is in the following terms (emphasis added):

Time for giving notice of claim—CTP insurer
(1) This section applies if the insurer…

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.

Continue reading Khan v Batagode

Details

AGLC: Khan v Batagode [2018] ACTSC 240
Case: [2018] ACTSC 240
Decision Date: 30 August 2018

CaseChat Overview and Summary

The case of Khan v Batagode arose from a motor vehicle accident involving the plaintiff, Khan, and the defendant, Batagode. Khan initiated proceedings seeking damages for personal injuries sustained in the accident. The dispute centred on the timeliness of the notification of the claim under the Road Transport (Third-Party Insurance) Act 2008 (ACT), which mandates that such notification must be made within a specific period post-accident. The claim was filed beyond the statutory deadline, prompting Batagode to argue that Khan's application to proceed with the claim should be dismissed due to the non-compliance.

The court was required to determine whether the delay in notifying the claim prejudiced the defendants and whether it was just and equitable to allow the claim to proceed despite the non-compliance with the statutory notification period. The court needed to consider the circumstances surrounding the delay and whether any prejudice to the defendants could be demonstrated.

The court examined the statutory provisions and the principles of statutory construction, noting that the legislature intended to ensure prompt notification to facilitate timely investigation and resolution of claims. However, the court also recognised that rigid adherence to statutory deadlines could lead to unjust outcomes in certain circumstances. In this instance, the court found that the delay was not significant and did not prejudice the defendants, as the defendants were already aware of the claim and had not been unable to investigate or defend the matter effectively. The court concluded that it was in the interests of justice to allow the claim to proceed, thereby granting the application to proceed with the claim despite the non-compliance.

The final orders of the court included the grant of permission to the plaintiff to proceed with the claim, despite the late notification, and the case would proceed to trial to determine the quantum of damages, if any, owed by the defendant to the plaintiff.

Orders

Orders of the court

See [37]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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