Racic v Haltiner

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.