Mazaydeh v Bekteshi
[2020] ACTSC 48
•4 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mazaydeh v Bekteshi |
Citation: | [2020] ACTSC 48 |
Hearing Date(s): | 4 March 2020 |
DecisionDate: | 4 March 2020 |
Before: | Walker AJ |
Decision: | The application is dismissed. The applicant is to pay the respondent’s costs on a party/party basis. |
Catchwords: | Limitation period, personal actions, interlocutory decision |
Legislation Cited: | Road Transport (Third-Party Insurance) Act 2008 (ACT) s 97 Limitation Act 1985 (ACT) ss 16B, 32 |
Cases Cited: | Casey v Alcock [2008] ACTCA 1; (2009) 3 ACTLR 1 |
Parties: | Amad Mazaydeh (Applicant) Lejla Bekteshi (1st Respondent) AAI Limited Trading as AAMI (2nd Respondent) |
Representation: | Counsel R.P Clynes (Applicant) W.L Sharwood (Respondent) |
| Solicitors United Legal (Applicant) MinterEllison (Respondent) | |
File Number(s): | SC 46 of 2020 |
Walker AJ
By application in proceeding dated 13 February 2020, the applicant sought leave nunc pro tunc, that is after the legal event, to commence proceedings in relation to a motor vehicle accident which occurred on 14 February 2017. The first defendant in person did not respond. The second defendant, the insurer (AAMI according to the application but GIO according to the respondent) opposes the application. No issue has been taken as to the apparently incorrect identification of the second defendant in the application.
The application was supported by the affidavit of Noman Farooq, solicitor, dated 13 February 2020 and the affidavit of Peter Richard Glover, solicitor, dated 18 February 2020. Both act for the applicant. I was also provided with a medical report of Dr WGD Patrick dated 21 January 2020, which provided background but did not go to any issue in dispute, and a schedule of correspondence prepared by the applicant’s solicitor.
The issue is whether the applicant was required to commence proceedings urgently or not.
The subject motor vehicle accident occurred on 14 February 2017. The applicant was involved in a second motor vehicle accident on 3 August 2017. The second accident is not immediately relevant to the issues in dispute. However, I note that the parties expect that the matters will proceed to some sort of dispute resolution together and, in the event that the matters are litigated, the applicant anticipates an application for joinder.
The applicant instructed his current solicitors on or about 11 May 2017. Claim forms were completed on 14 May 2017 and forwarded to the insurer on 18 May 2017.
On 8 November 2017 the insurer wrote to solicitors for the applicant in the following terms:
“Liability
As required by section 97 of the Road Transport (Third-Party Insurance) Act 2008 (“the Act”) we have informed ourselves of the circumstances of the motor vehicle accident out of which his claim arises.
We advise that based upon the information presently available to us and pursuant to our obligations under the Act we admit liability in full. We make no admission as to the extent of any injury or damage sustained by your client in relation to this accident.
As this admission is made solely for the purpose of our obligation under the Act, it should not be construed as an offer and does not constitute a contract between the parties.
We confirm that we reserve our right to rely upon the Limitation Act 1985 (ACT) should your client not commence an action for damages for alleged personal injury within the applicable statutory limitation period”.
The obligation under the Act referred to in the letter of 8 November 2017 arose pursuant to s 97 of the TPI act which states, relevantly:
(1) A respondent must, not later than 6 months after the day the respondent receives, or is taken to have received, a complying notice of claim for a motor accident claim:
(a) take any reasonable steps necessary to find out about the motor accident for the motor accident claim; and
(b) tell the claimant, in writing
(i) whether liability is admitted or denied; and
(ii) if contributory negligence is claimed the degree of the contributory negligence expressed as a percentage…”
The Act does not specify any particular form in which an admission of liability should be made.
The letter was forwarded to the applicant’s solicitor by email on the same date under the hand of Rhys Warnes. The email stated: “please find attached letter for admission of liability”.
10. On 29 January 2020, the applicant’s solicitor wrote to the insurers for both motor vehicle accidents. The letter stated:
“The limitation period for our client’s first matter expires soon. Accordingly, we will commence proceedings in this matter. We provide our undertaking that upon commencement, we will agree to stay all action in relation to the matter pending a compulsory conference for the first accident.”
11. The letter dealt with a number of other issues including a proposed date for compulsory conference.
12. On 10 February 2020 prior to any response from the relevant insurer’s solicitor the applicant’s solicitor served unsealed copies of an Originating Claim, Statement of Claim, Application in Proceedings and Affidavit of Mr Farooq, all dated 10 February 2020. The solicitor was asked whether the insurer would consent to the orders sought and whether the date set for conference in March was suitable.
13. The documents were filed on 10 February 2020 then, bearing the date 13 February 2020, relodged on 14 February 2020.
14. On 11 February 2020, the insurer’s solicitor responded that the insurer was not in a position to proceed to compulsory conference because it was still waiting on documents from the applicant.
15. This was followed with a further letter dated 13 February 2020 indicating the insurer’s intention to oppose the application to file and then stay proceedings. This letter stated:
“As acknowledged at paragraph 4 of your affidavit, our client admitted liability for your client’s claim on 8 November 2017. A copy of this correspondence is enclosed for your reference. Accordingly, pursuant to section 32 of the Limitation Act 1985 (ACT) and decisions such as Casey v Alcock [2009] ACTCA 1, your client’s limitation period did not commence until 8 November 2017 and therefore does not expire until 8 November 2020”.
16. On 18 February 2020, the applicant’s solicitor responded to the insurer’s solicitor by letter indicating that it would not withdraw the application that had been filed and noted “firstly, your client’s letter dated 8 November 2017, that admits liability in full, also states in paragraph 4 under the heading “liability”, the following:
“we confirm that we reserve the right to rely upon the Limitation Act 1985 (ACT) should your client not commence an action for damages for alleged personal injury within the applicable statutory limitation period.”
17. The applicant submits that s 16B of the Limitation Act provides for a three-year limitation period following the motor vehicle accident in this case. The respondent agrees.
18. The applicant submits that the respondent’s admission of liability on 8 November 2017 amounts to an acknowledgement of the claimant’s cause of action for the purpose of s 32 of the Limitation Act. The respondent agrees.
19. The applicant submits that the three-year limitation period runs again from the point of an acknowledgement of liability pursuant to s 32 of the Limitation Act. The respondent agrees.
20. However, the applicant submits that the admission of liability was equivocal because of reference by the insurer to reservation of their rights to rely upon the Limitation Act should the claimant not commence an action for damages within the “applicable statutory limitation period”. The respondent submits that the reference to the applicable statutory limitation period must be the period as it is reset by the admission of liability, that is 3 years from 8 November 2017.
21. The applicant further submits that because not all compulsory processes have taken place, there is an urgent need for leave to commence proceedings to preserve the claimant’s position, as required by section 150 of the TPI Act. The respondent disagrees, pointing to the fact that the applicable statutory limitation period has been reset by the admission of liability and does not end until 7 November 2017. There is therefore no urgency and the court should not grant leave.
22. In summary, the parties agree that the application can only succeed if there is an urgent need to begin the proceeding. The need is only urgent if the limitation period in fact expired on the 13 February 2020. The limitation period only expired on that date if it was not reset by an admission of liability. The respondent says that that admission was made. The applicant concedes that the admission was made but submits that the reference to the statutory limitation period rendered the admission equivocal.
23. Both parties rely on the decision in Casey v Alcock [2008] ACTCA 1; (2009) 3 ACTLR 1. In that decision, at paragraph 114, Besanko J stated:
“if an admission of liability made by reason of the obligation under section 61 (1)(b)(i) constitutes an acknowledgement within section 32 then the period before the admission is not counted in determining the limitation period. Section 32 is not, in form, an extension of time provision. Furthermore, insofar as it might be said that in a practical sense an acknowledgement results in an extension of time, the acknowledgement (in the case of an admission of liability made by reason of an obligation under section 61 (1)(b)(i)) does not come about because of a decision of a court or by reason of conduct of the claimant, but from a properly informed decision made by the respondent to a claim. In addition to those matters, one of the reasons for the strict three-year time limit is, to a point at least, not present in the case of an acknowledgement because liability will not need to be litigated if proceedings ultimately become necessary. I am not persuaded that the amendments and other material to which I been referred lead to the conclusion that section 32 of the Limitation Act should be read down in the manner for which the applicant contends. I reject the applicant’s second submission.”
24. Both parties agreed that the logic which determined the outcome of that case apply equally to an admission of liability pursuant to section 97 of the TPI act.
25. The applicant contends however that Alcock is factually distinguishable from this case because, in its submission, the form of the admission was unequivocal. In Alcock, the NRMA wrote accepting liability pursuant to section 64 of the Civil Law (Wrongs) Act the following terms: “Inquiries into the circumstances of the accident are now complete and we admit our insured has breached their duty of care to your client”. The applicant noted the different terminology used by the NRMA in its admission of liability in respect of the second motor vehicle accident involving this claimant also in which the insurer stated “we admit that our insured driver has breached their duty of care to a client”.
26. The respondent submits that these forms of admission were in fact more equivocal than the admission of liability by the insurer in this case given that they refer to a breach of the duty of care as opposed to the statement by this insurer that “ we admit liability in full”.
27. I agree.
28. The admission made by the insurer in this case cannot be said to have been rendered equivocal simply because of a reference to possible future reliance on the Limitation Act. If I am wrong in that, and mere reference to the Limitation Act was enough to generate uncertainty, the Act could only operate, in these circumstances, to reset the limitation period. Applying settled law, Casey v Alcock having been decided now over 10 years ago and applied widely since, the limitation period now applicable to the applicant’s claim is 7 November 2020. Consequently, there is no urgency to file proceedings.
Order
29. The application is dismissed.
30. The applicant is to pay the respondent’s costs on a party/party basis.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Walker Associate: Date: 4 March 2020 |
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