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Racic v Haltiner

Racic v Haltiner

Case [2010] ACTSC 63 9 July 2010

Civil Litigation & Procedure

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MARKO RACIC v KRISTIN HALTINER
[2010] ACTSC 63 (9 July 2010)

PRACTICE AND PROCEDURE – Road Transport (Third Party Insurance) Act 2008, parts 4.7, 4.8 and 4.9 – requirement for claimant to take specified steps before action – action commenced before steps taken – effect of non-compliance – whether proceeding a nullity – non-compliance an irregularity – action stayed until steps taken

Civil Law (Wrongs) Act2002 (ACT)
Personal Injuries Proceedings Act 2002 (Qld)
Road Transport (Third Party Insurance) Act 2008 (ACT)
Workers Compensation Act 1987 (NSW)

Berowra Holdings Pty Limited v Gordon (2006) 80 ALJR 1214
Emanuele v Australian Securities Commission (1997) 188 CLR 114
McGregor v Franklin [2006] ACTSC 69
State of Queensland v Coffey [2005] QSC212
Woods v Bate (1986) 7 NSWLR 560

No. SC 45 of 2010
Judge: Master Harper
Supreme Court of the ACT

Date: 9 July 2010

IN THE SUPREME COURT OF THE       )
  )          No. SC 45 of 2010
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:MARKO RACIC
Plaintiff

AND:KRISTIN HALTINER
Defendant

ORDER

Judge:  Master Harper
Date:  9 July 2010
Place:  Canberra

THE COURT ORDERS THAT:

The action be stayed until further order.
The plaintiff pay the defendant’s costs of the plaintiff’s application filed on 23 June 2010, and of the defendant’s application filed on 2 June 2010.
Costs not be recoverable until final orders are made in the action.
The parties have liberty to apply on 3 days notice.

The Road Transport (Third Party Insurance) Act 2008 applies to actions for damages for personal injury arising from motor accidents occurring after the act commenced to operate in that year. The Act requires a claimant to take specified steps before bringing a court proceeding. Part 4.7 of the Act deals with compulsory conferences before commencement of proceedings. Part 4.8 requires the parties to exchange written final offers in the context of the compulsory conference. Part 4.9, relevantly for present purposes, imposes time limits for the commencement of court proceedings.
The provisions of the Act which apply to the present application are as follows:
76 Definitions – Chapter 4
In this chapter: ... court for a motor accident claim means –
a)If a proceeding based on a motor accident claim has been started – the court hearing the proceeding; or
b)If no proceeding based on the motor accident claim has been started – a court with jurisdiction to hear the motor accident claim.

136 Compulsory 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) 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…

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 Racic v Haltiner

Details

AGLC: Racic v Haltiner [2010] ACTSC 63
Case: [2010] ACTSC 63
Decision Date

CaseChat Overview and Summary

Marko Racic commenced an action against Kristin Haltiner to claim damages for personal injuries allegedly arising out of a motor vehicle accident. The action was filed without the necessary pre-action steps, which included a compulsory conference and the exchange of written final offers. Haltiner applied for the action to be struck out, while Racic sought leave to proceed with the action despite the non-compliance. The Supreme Court of the Australian Capital Territory was required to determine whether the non-compliance rendered the action a nullity or merely an irregularity, and whether the court had the discretion to allow the action to proceed.

The court examined various authorities to understand the nature of the statutory requirements and their consequences. The court found that the pre-trial provisions of the Road Transport (Third Party Insurance) Act were similar to provisions in other statutes that imposed duties of imperfect obligation on claimants. The court held that non-compliance with such provisions did not render the action a nullity but rather created an irregularity that the court could address through appropriate orders. The court referenced cases such as Berowra Holdings Pty Limited v Gordon, which held that a statute imposing a duty of imperfect obligation did not necessarily result in the invalidity of proceedings commenced in contravention of it.

Given that the action was not a nullity, the court had discretion to make orders in light of the plaintiff's non-compliance. The court opted to impose a stay on the action until the plaintiff complied with the pre-trial requirements of the Road Transport (Third Party Insurance) Act. The court also granted liberty to the parties to apply if there were any disputes about when the pre-trial steps had been completed.

The court ordered that the action be stayed until further order, that the plaintiff pay the defendant's costs of the applications, and that costs not be recoverable until final orders were made in the action. The parties were given liberty to apply on three days' notice.

Orders