Terry Douch v Michael David Betts

[2013] ACTSC 126

TERRY DOUCH v MICHAEL DAVID BETTS & ANOR
 [2013] ACTSC 126 (21 June 2013)

Limitation Act1985 (ACT), ss 10, 32, 16B
Road Transport (Third-Party Insurance) Act 2008 (ACT), s 136

Busch v Stevens [1963] QB 1
Casey v Alcock (2009) 3 ACTLR 1
Racic v Haltiner [2010] ACTSC 63

EX TEMPORE JUDGMENT

No. SC 204 of 2013

Judge:             Master Mossop            
Supreme Court of the ACT

Date:              21 June 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 204 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          

BETWEEN:  TERRY DOUCH

Plaintiff        

AND:  MICHAEL DAVID BETTS

First Defendant

AND:  INSURANCE AUSTRALIA
  LIMITED T/AS NRMA
  INSURANCE

Second Defendant

ORDER

Judge:  Master Mossop
Date:  21 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The parties be heard in relation to the terms of order under s 136(3) of the Road Transport (Third-Party Insurance) Act 2008 (ACT).

1. The defendants pay the costs of the application.

1. These proceedings were commenced by originating application lodged 30 May 2013. The substantive order sought is that the second defendant, Insurance Australia Limited trading as NRMA Insurance, be directed to attend the compulsory conference pursuant to s 136 of the Road Transport (Third-Party Insurance) Act 2008. 

1. Section 136 imposes an obligation on parties to have a compulsory conference prior to a claimant for a motor accident claim bringing court proceedings. Subsection (3) of that section permits the Court to decide the time and place for the compulsory conference and make any other orders the Court considers appropriate in the circumstances. I have treated the current application as being an application for orders under subs (3).

1. The facts of the matters as are relevant for the present purposes are as follows.  There was a motor vehicle accident on 6 January 2010.  The plaintiff communicated with the NRMA and apparently sent a claim form to it by letter dated 17 February 2010.  The NRMA corresponded directly with the plaintiff by letter which included the following:

We have looked at the available information relating to your accident and we admit our insured driver was at fault.  We will now pay for all reasonable and necessary treatment expenses related to the injuries you sustained in the accident.

1. The parties accept that this letter amounts to an acknowledgement of the cause of action consistent with the decision of the Court of Appeal in Casey v Alcock (2009) 3 ACTLR 1. The limitation period that flows from this acknowledgement as a consequence of ss 32 and 16B of the Limitation Act 1985 would expire on 17 February 2013.  That is, it would have long expired.  There is no capacity under the Act to extend that period.

1. The plaintiff subsequently saw his current solicitors on 15 June 2010.  Those lawyers wrote to the NRMA requesting copies of various documents including, “A copy of your letter admitting liability.”  On 2 July 2010 the NRMA wrote back.  The letter did not provide a copy of the earlier letter but said instead:

We advise that our investigations are…