McIntosh v Hikechukwu

[2011] ACTSC 131

KIRRILY MCINTOSH V FESTUS HIKECHUKWU
[2011]  ACTSC 131 (19 August 2011)

PROCEDURE – Steps required before commencing proceedings for motor vehicle accident claims – Requirement for compulsory conference – Lawyers for each party to give certificate of readiness – Effect of certificate of readiness – Whether lawyer may add qualification to certificate – Effect of certificate that party is in all respects ready for trial – Whether party limited at trial to evidence gathered by date of certificate of readiness

Road Transport (Third-Party Insurance) Act 2008 (ACT), ss 136, 139, 140, 150.
Court Procedures Rules 2006, R. 1306

Casey v Alcock (2009) 3 ACTR 1

REASONS FOR DECISION

No. SCC 544 of  2011

Master Harper
Supreme Court of the ACT
Date:   19 August 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 544 of  2011
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:KIRRILY MCINTOSH

Plaintiff

AND:                        FESTUS HIKECHUKWU
  Defendant

ORDER

Judge:  Master Harper
Date:  2011 
Place:  Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The costs of the application be reserved.

3. Each party have liberty to apply in relation to costs upon three days’ notice.

1. This is an application by the plaintiff for relief from certain of the constraints imposed upon her by the Road Transport (Third-Party) Insurance Act 2008.  She seeks relief as follows:

(a) leave to institute proceedings pursuant to s 150 of the Act, notwithstanding that a compulsory conference has not taken place and has not been dispensed with;

(b) an order that the parties participate in a compulsory conference notwithstanding the defendant’s failure to sign a certificate of readiness as required by s 139 of the Act;

(c)    alternatively, an order that a compulsory conference be dispensed with.

1. The plaintiff was injured in a motor vehicle collision as a result of the admitted negligence of the defendant on 2 November 2008.  The Act applies to motor accidents as defined which occurred after 1 October 2008.  The object of the Act set out in s 5A includes keeping the cost of third-party insurance “at an affordable level” and encouraging “the speedy resolution of personal injury claims resulting from motor accidents.”  Chapter 4 of the Act, entitled “Motor Accident Claims” puts in place a detailed regime requiring the claimant to give notice of intention to claim to the insurer, the exchange of documents and information between the parties, the holding of a compulsory conference, the making of offers of settlement, and the commencement of court proceedings, including strict time limits for the taking of the various steps.

1. In the present matter, court proceedings (apart from the present application) have not been commenced.  There is no complaint by either party about compliance with the requirements of the Act up to the stage they have now reached.

1. Part 4.7 of the Act, which is confined in Chapter 4, sets out the requirements for the compulsory conference. Section 136(1) provides that before a claimant brings a court proceeding, the parties must have a conference. Section 140 provides that each party must attend and must actively take part in an attempt to settle the claim. Section 139 requires each party to give each other party, at least seven days before the conference, any relevant document not previously served, a statement to the effect that all relevant documents have now been served, and, if the party is legally represented, a “certificate of readiness” signed by the party’s lawyer. “Certificate of readiness” is a term defined in s 139(3) of the Act and is not to be confused with the certificate of readiness for trial which is approved form 2.38 under Rule 1306 of the Court Procedures Rules 2006. The latter does not come into play until well after the commencement of legal proceedings, and after the various interlocutory steps which may be appropriate in a particular action before trial have been taken.

1. The definition in s 139(3) of the Act is as follows:

Certificate of readiness, by a party to a motor vehicle 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 cost statement.

“Cost statement” is defined in the same subsection but is not relevant to the present application.

1. On 13 July 2011, the plaintiff’s solicitors sent the defendant’s solicitors what purported to be a certificate of readiness under the Act, but which was expressed to be subject to a qualification set out at the foot of the certificate, in the following terms:

The claimant’s readiness for trial is based on information and evidence currently available to it [sic].  It is possible that certain processes which cannot, by definition, take place until after the commencement of proceedings (such as the administering and answering of interrogatories and formal discovery) may open further avenues of enquiry.  In that eventuality, the claimant reserves the right to pursue such further enquiries as may be necessary to fully prosecute the claimant’s case – including obtaining further evidence.

In the event that the obtaining of such further evidence is challenged by any other party, the claimant reserves the right to produce and rely upon this document.

1. The solicitors for the defendant responded with a suggestion that the certificate was not consistent with s 139. They said that there was no issue about refresher material being obtained prior to trial, but that would not agree to newly obtained evidence. They said that it would not be fair on the defendant to be expected to make a Mandatory Final Offer in circumstances where the claimant might be obtaining further evidence. Accordingly, they would not agree to proceed to a compulsory conference on the basis of the certificate as drafted.

2. The solicitor with carriage of the matter of the behalf of the claimant has deposed that it is his view that a solicitor can never reasonably certify a matter as being in all respects ready for trial prior to the commencement of proceedings, taking account of the fact that there are many interlocutory steps which cannot be taken until after proceedings have commenced

3. I take note of the fact that the limitation period will elapse on 2 November 2011.  The parties are however agreed that the admission of breach of duty of care on 8 September 2009 has the effect of extending the period until three years after that admission was received by the claimant’s solicitors, removing the immediate urgency to commence proceedings:  see Casey v Alcock (2009) 3 ACTLR 1, in which a letter admitting breach of duty of care was treated as a confirmation of the cause of action.

10. I also recognise that whilst interrogatories and formal discovery are the exception rather than the rule in motor vehicle personal injury litigation, it is extremely common for plaintiffs and defendants to make extensive use of the availability under division 2.8.7 of the Court Procedures Rules facilitating non-party production of documents. Bearing in mind that s 139 requires both parties to sign a certificate of readiness, I find it difficult to accept that it was the intention of the legislature to deprive insurers of the opportunity to gain access during the interlocutory stages of an action to, for example, the records of health professionals who had treated the plaintiff whether before or after the cause of action arose.

11. Counsel for the plaintiff, concerned that the court might endorse a literal reading of s 139, sought to circumvent the difficulty by asking for leave under s 150 to commence court proceedings notwithstanding that a compulsory conference had not been held. There are difficulties with such a course, which may arise from an inadvertent oversight in the drafting process. Section 150 is in the following terms:

150Need for urgent proceeding

(1)   The court, on application by a claimant, may give leave to the claimant to begin a proceeding in the court based on a motor accident claim despite non-compliance with this part if satisfied there is an urgent need to begin the proceeding.

(2)   The order giving leave may be made on conditions the court considers appropriate having regard to the circumstances of the case.

(3)   If leave is given, the proceeding started by leave is stayed until the claimant complies with the part or the proceeding is discontinued or otherwise ends.

(4)   However, the proceeding is not stayed if –

(a)the court is satisfied that –

(i)the claimant is suffering from a terminal condition; and

(ii)the trial of the proceedings should be expedited; and

(b)the court orders the proceeding be given priority in the allocation of a trial date.

(5)   If under sub-section 4 the proceeding is not stayed, this part (other than this section) does not apply to the personal injury.

1. The difficulty I perceive is the reference in sub-section 150(1) to non-compliance “with this part”. Section 150 is included in part 4.9 of the Act, which deals with court proceedings. The non-compliance conceded by the claimant in seeking leave under the section is a non-compliance with the requirement to participate in a compulsory conference, a requirement imposed by part 4.7 of the Act. Both parts are contained within chapter 4, and I wonder whether the drafter intended s 150 to operate in circumstances of non-compliance with a provision of chapter 4, rather than limiting it to non-compliance with a provision contained within part 4.9. I invite the attention of the legislature to the issue. However, the course proposed by counsel for the claimant does not seem to me in any event to be an appropriate one for leave under s 150, assuming that the section should be construed so as to confer power on the court to grant leave in the present circumstances.

1. To read s 139 literally would be to impose an impossibility on claimants, insurers and lawyers. The section must be read so as to achieve the clear intention of the legislature. That intention is that before court proceedings are commenced, the claimant and the insurer must have exchanged all relevant documents in their possession and made a genuine effort to settle the claim. Clearly, neither party will be ready for trial a week before the compulsory conference, well prior to the commencement of proceedings and probably at least a year before the trial itself. Neither party will by then have had available the various interlocutory processes available under the Court Procedures Rules: I have mentioned discovery, interrogatories and non-party production, and there may be others which will be relevant in particular cases.

1. To comply with the section, each party much sign a certificate of readiness which states what the definition requires such a certificate to state, so that a qualification such as the solicitors for the plaintiff sought to rely on in the present claim will not be acceptable.  But the certificate will be read as a statement that the party is ready for a compulsory conference and ready for trial to the extent practicable, taking account of the fact that proceedings have not yet been commenced.

1. It should also be said that there is nothing in the Act which would render inadmissible at trial evidence obtained subsequently to the signing of the certificate of readiness.  Whilst the signing of a certificate which was false to the knowledge of the solicitor at the time would be highly improper and might amount to professional misconduct, I can see nothing in the Act which would prevent a party from continuing to gather evidence after an unsuccessful compulsory conference.  Indeed, a solicitor who failed to do so might be found to have been derelict in his or her duty to the client.

1. The effect of this interpretation of s 139 is that the solicitor signing the certificate must believe it to be true at the time it is signed, but is in no way limited by having signed the certificate to adducing in evidence at trial only the material in the solicitor’s possession at the date of signature.

1. The upshot is that I do not propose to dispense with the compulsory conference or to give the claimant leave to start proceedings, nor do I think it is necessary for me to make any orders at this stage about the future progress of the claim.

1. The issue raised by the plaintiff is an important one, of construction of an Act which regulates disputes which make up a large part of the civil business of this court, and will no doubt make up an increasing part of the business of the Magistrates Court.  In the circumstances it is inappropriate that I order either party to pay the costs of the other.  It may be that the dispute between the parties will be resolved through the compulsory conference procedure, or that agreement will be reached through some other means, making the commencement of proceedings unnecessary.  If that does not happen, and it is necessary for proceedings to be commenced, I would be amenable to making an order that the costs of the present application be costs in those proceedings.  Hence, the costs of the proceedings will be reserved, with liberty to apply on three days’ notice.

I certify that the preceding * (*) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date:   19 August 2011

Counsel for the plaintiff:  Mr S H Pilkinton
Solicitor for the plaintiff:  Maliganis Edwards Johnson
Counsel for the defendant:  Mr A R Muller
Solicitor for the defendant:  Moray and Agnew
Date of hearing:  12 August 2011 
Date of judgment:  19 August 2011