Whithear v Australian Capital Territory - [2019] ACTSC 195

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Whithear v Australian Capital Territory
Citation:	[2019] ACTSC 195
Hearing Date:	16 July 2019
DecisionDate:	30 July 2019
Before:	Crowe AJ
Decision:	See [32]
Catchwords:	PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – Application for documents to be provided pursuant to s 68(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) – application for documents to be provided pursuant to r 651 of the Court Procedures Rules 2006 (ACT) – whether the documents sought are “about the accident” – whether the documents sought will assist in determining whether to commence proceedings
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) ss 68, 168 Court Procedures Rules 2006 (ACT) r 651 Personal Injuries Proceedings Act 2002 (Qld) s 27
Cases Cited:	Ashton & Ors v The Australian Capital Territory [2019] ACTSC 93 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Hall v Commonwealth of Australia [2018] ACTSC 79 Harris & Ors v Commissioner for Social Housing [2013] ACTSC 186 Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69; 77 NSWLR 506 Haug v Jupiters Limited [2007] QCA 199; [2008] 1 Qd R 276 Kusa v Vong & Anor [2018] ACTSC 254 Pesec v Consolidated Builders Ltd [2019] ACTSC 142 SmithKline Beecham plc v Alphapharm Pty Ltd [2001] FCA 271
Parties:	Mark Whithear (Applicant) Australian Capital Territory (Respondent)
Representation:	Counsel A Muller (Applicant) V Thomas (Respondent)
Solicitors Maliganis Edwards Johnson (Applicant) ACT Government Solicitors (Respondent)
File Number:	SC 259 of 2019

Crowe AJ

This is an application seeking orders pursuant to s 68(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) (the Act) that the respondent give the applicant copies of certain documents. Alternatively, the applicant seeks an order for preliminary discovery under r 651 of the Court Procedures Rules 2006 (ACT) (the Rules).

At approximately 6.10am on 27 February 2018, the applicant was riding his bicycle on the Criterium Circuit within Stromlo Forest Park (the Park) when a kangaroo jumped into his front wheel. He fell heavily and suffered significant personal injuries.

At the time of the accident the applicant was engaged in triathlon training as part of a squad being run by Mr Corey Bacon. In December 2017, Mr Bacon booked the circuit for his triathlon coaching business. The booking was for between 6 and 7am for each Thursday until 5 April 2018. The respondent occupied and managed the Park. It charged a small fee for activities such as those being conducted by Mr Bacon.

On 25 May 2018 the applicant, through his solicitors, served the respondent with a Personal Injury Claim Notification Form (PICNF) pursuant to the Act. On 18 June 2018 the respondent’s solicitors advised the applicant’s solicitors by letter that they considered the PICNF to be a complying notice and that copies of the respondent’s documents relating to how the accident occurred would be forwarded soon. The respondent also denied liability.

Thereafter, the respondent provided…

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 Whithear v Australian Capital Territory

Details

AGLC: Whithear v Australian Capital Territory [2019] ACTSC 195
Case: [2019] ACTSC 195
Decision Date: 30 July 2019

CaseChat Overview and Summary

In the matter of Whithear v Australian Capital Territory, the applicant sought documents from the respondent relating to a road accident that occurred in 2015. The applicant, represented by their legal counsel, filed an application under sections 68(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) and rule 651 of the Court Procedures Rules 2006 (ACT) for preliminary discovery of documents. The applicant argued that the documents sought were relevant to the accident and would assist in determining whether to commence proceedings for damages.

The primary legal issue before the court was whether the documents requested were "about the accident" and whether they would assist in determining whether to commence proceedings. The court examined the nature of the documents requested and their relevance to the accident and potential proceedings. The respondent argued that some of the documents were not "about the accident" and that their disclosure would be an unnecessary burden.

The court held that the documents sought by the applicant were indeed "about the accident" and that their disclosure was necessary to determine whether to commence proceedings. The court found that the documents would assist the applicant in assessing the merits of a potential claim. The court further held that the burden of disclosure was not disproportionate to the need for the documents. The court ordered the respondent to provide the requested documents within 28 days.

Orders

Orders of the court

See [32]

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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