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:

The application be dismissed.
The costs of the application be reserved.
Each party have liberty to apply in relation to costs upon three days’ notice.

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.

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.

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.

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…

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 McIntosh v Hikechukwu

Details

AGLC: McIntosh v Hikechukwu [2011] ACTSC 131
Case: [2011] ACTSC 131
Decision Date: 19 August 2011

CaseChat Overview and Summary

McIntosh v Hikechukwu was a case heard in the Supreme Court of Queensland where the plaintiff, McIntosh, sought damages from the defendant, Hikechukwu, for injuries sustained in a motor vehicle accident. The primary dispute centred on the procedural requirements that must be met before a party can commence proceedings for motor vehicle accident claims, specifically the necessity of a compulsory conference and the implications of the certificate of readiness provided by the parties' lawyers.

The central legal issue before the court was the interpretation and effect of the certificate of readiness given by the lawyers of each party. The court had to determine whether a lawyer could add a qualification to the certificate, and if such a certificate, which states that a party is in all respects ready for trial, restricts the party to only presenting evidence gathered by the date of the certificate. The court was also required to clarify the consequences of not strictly adhering to the procedural prerequisites, particularly the compulsory conference requirement.

In its judgment, the court held that a lawyer may not add any qualifications to the certificate of readiness as it undermines the purpose of ensuring the parties are genuinely ready to proceed to trial. The court also ruled that a certificate stating that a party is in all respects ready for trial does not limit the party to the evidence gathered by the date of the certificate. However, the court emphasised that parties must comply with the procedural steps, including the compulsory conference, before initiating proceedings for motor vehicle accident claims. The court concluded that any failure to adhere to these requirements could result in the dismissal of the application and the imposition of costs.

The court dismissed McIntosh's application and reserved the costs of the application. It granted each party the liberty to apply in relation to costs upon three days' notice. This decision underscores the importance of strictly following the procedural steps mandated for motor vehicle accident claims in Queensland, ensuring that both parties are adequately prepared before proceeding to trial.

Orders

Orders of the court

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.

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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