Ruspandini v Summernats Pty Ltd

[2025] ACTSC 83

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Ruspandini v Summernats Pty Ltd

Citation: 

[2025] ACTSC 83

Hearing Date: 

14 March 2025

Decision Date: 

14 March 2025

Before:

McCallum CJ

Decision: 

(1)    Adjourn the second defendant’s application in proceeding filed on 21 February 2025 to 11 April 2025 at 10:00am before me to be heard together with the plaintiff’s application in proceeding filed on 11 March 2025

(2)    I reserve all issues of costs to that date.

(3)    Direct the plaintiffs to serve the application and any additional materials within 7 days.

Catchwords: 

CIVIL PROCEDURE – claim for damages for personal injury –where proceedings commenced before plaintiff had complied with the requirements of ch 5 of the Civil Law (Wrongs) Act 2002 (ACT) – requirement for leave – where defendant seeks stay of proceedings – where competing application filed by plaintiffs seeking leave nunc pro tunc – desirability of hearing both applications together

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT) ch 5, ss 51, 79

Cases Cited: 

Maletic v Calvary HealthcareACT Limited [2022] ACTSC 231

Parties: 

Red Dawn Australia Pty Ltd (Applicant / Second Defendant)

Daniel Ruspandini ( Respondent / First Plaintiff)

Jason Aylott (Respondent / Second Plaintiff)

Summernats Pty Ltd ( Respondent / First Defendant)

Canberra Security Company Pty Ltd (Respondent / Third Defendant)

Representation: 

Counsel

R Walls (Applicant / Second Defendant)

D Richards ( Respondents / Plaintiffs)

J Zeidan ( Respondent / First Defendant)

A Bonura (Respondent / Third Defendant)

Solicitors

Wotton Kearney ( Applicant / Second Defendant)

United Legal (Respondent / Plaintiffs)

DWF (Australia) (Respondent / First Defendant)

McCabes (Respondent / Third Defendant)

File Number:

SC 379 of 2024

McCALLUM CJ:       

EX TEMPORE REASONS (REVISED)

1․The plaintiffs in these proceedings seek damages for two assaults alleged to have been committed against them at the Summernats event, an annual event in the ACT.  The proceedings were commenced by originating claim filed on 2 December 2024.

2․The proceedings are governed by the Civil Law (Wrongs) Act 2002 (ACT). Section 51 of that Act provides that, before bringing proceedings based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim. That section falls within ch 5, which then provides a carefully structured regime for bringing the parties together in a practical way with a view to resolving proceedings without the need to resort to litigation where possible. Consistent with that aim, the requirement to give notice of a claim prior to commencing proceedings is arguably jurisdictional, that is to say, proceedings commenced without notice having been given and the steps required under ch 5 having been taken would be incompetent. That conclusion is fortified by the provisions of s 79 of the Civil Law (Wrongs) Act, which provides that the court on application by a claimant may give leave to the claimant to begin a proceeding despite non-compliance with ch 5 if satisfied there is an urgent need to begin the proceeding.

3․Historically, those provisions have been ignored in this jurisdiction, a practice I attempted to discourage by determining a similar issue in the matter of Maletic v Calvary HealthcareACT Limited [2022] ACTSC 231. Having read that decision, Mr Richards, who appears for the plaintiffs, appropriately brought an application for leave to commence the present proceedings in circumstances where the parties are in dispute as to whether the requirements of ch 5 have been complied with. However, that application has only recently been filed and has not yet been served on the defendants.

4․In the meantime, the second defendant, the party that claims the ch 5 procedures have not been complied with so far as it is concerned, brought an application for a stay of the proceedings for a period of six months to enable those steps to be taken. The stay application was before the Registrar this morning and it was referred to me. The leave application is returnable on 11 April 2025.

5․Having heard from the parties this morning about the proper order in which the two applications might be determined, I consider it appropriate to stand the stay application over to the same return date as the leave application and, if practicable, for both applications to be determined in the civil applications list on that day. The reason is that, first, there being a dispute as to whether ch 5 has been complied with, if the second defendant is correct that it has not, the second defendant does not need a stay, there being an automatic stay under s 79(3) of the Act.

6․From what I have heard this morning, without embarking on a formal hearing of the stay application, there appears to be a respectable argument that the provisions of the chapter have not been complied with. Conversely, it may be that, notwithstanding the fact that the proceedings have been commenced well within the limitation period and there being no other apparent indication of an urgent need to begin the proceeding, there may be a respectable argument that an allegation of fraud recently raised creates an urgent need to have the proceedings brought within the processes of the court rather than the processes of ch 5. I say that without expressing any view on that issue, beyond observing that it can be litigated on 11 April.

7․In all the circumstances the appropriate course is to adjourn the stay application to 11 April 2025 for both applications to be heard together.  In the meantime, I would expect the second defendant to make inquiries so as to be in a position to present its response to the fraud allegation, which, in short, is an allegation that their contention that they were not the service provider or security provider who employed the two alleged assailants derives from a sham contract and that they were, in truth, the employers of the two alleged assailants. 

Orders

8․For those reasons I make the following orders:

(1)Adjourn the second defendant's application in proceeding filed on 21 February 2025 to 11 April 2025 at 10:00am before me to be heard together with the plaintiff's application in proceeding filed on 11 March 2025

(2)I reserve all issues of costs to that date.

(3)Direct the plaintiffs to serve the application and any additional materials within 7 days.

I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: