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 |
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…
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- Whithear v Australian Capital Territory [2019] ACTSC 195
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- [2019] ACTSC 195
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CaseChat Overview and Summary
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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