Wickes v Al-Mofathel

Case [2015] ACTSC 266

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Wickes v Al-Mofathel & Anor

Citation:

[2015] ACTSC 266

Hearing Date:

3 November 2014

DecisionDate:

4 September 2015

Before:

Refshauge J

Decision:

1.The proceedings be stayed until the procedures required under Parts 4.7 and 4.8 of the Road Transport (Third Party Insurance) Act 2008 (ACT) have been completed.

2.     The parties be heard as to the other orders to be made and as to costs.

Category:

Principal Judgment

Catchwords:

CIVIL – Jurisdiction, practice and procedure – Road Transport (Third Party Insurance) Act 2008 (ACT) – confirmation of cause of action – limitation period – pre-court requirements – stay order pending completion of the pre-action requirements – expert report – joint report – medical examination – court’s power to stay proceedings where a plaintiff unreasonably refuses to undergo a medical examination – statutory interpretation – Explanatory Statement – ability of respondent to obtain medical report where plaintiff declines to be examined

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT)

Court Procedures Rules 2006 (ACT), rr 75, 75(3)

Crimes (Forensic Procedures) Act 2000 (ACT)
Limitation Act 1985 (ACT), ss 16B, 32
Road Transport (Third Party Insurance) Act 2008 (ACT), ss 5A, 5A(e), 61(a), 69, 70, 84, 117, 118, 118(1), 118(3), 119, 120, 136, 137, 139, Parts 4.5, 4.7, 4.8,
Uniform Civil Procedure Rules 2005 (NSW), Part 23

Road Transport (Third-Party Insurance) Bill 2007 (ACT), Part 3.5

Cases Cited:

Burow v Hoyer (2015) 292 FLR 325
Campbell v Biernacki (2009) 19 Tas R 345
Donnelly v Sallard (1936) 53 WN (NSW) 121
Edmeades v Thames Coal Board [1969] 2 QB 67
Furesh v Schor (2013) 45 WAR 546
Insurance Australia Ltd v Albrecht (2015) 70 MVR 139
Lack v Lusty EMS Pty Ltd [2008] 2 Qd R 522
Lambert v ACT Nursing Services Pty Ltd (2007) 214 FLR 422
Neill v Commonwealth (Unreported, Australian Capital Territory Supreme Court, SC No. 209 of 1982, 9 September 1982)
Pickett v Bristol Aeroplane Co Ltd (Unreported, UK Court of Appeal, Willmer and Donovan LJJ, 16 March 1961)
Racic v Haltiner (2010) 4 ACTLR 224
S v S [1972] AC 24
Singh v Rodden [2013] ACTSC 272
Starr v National Coal Board [1977] 1 WLR 63
Taylor v Owners-Strata Plan No 11564 (2014) 306 ALR 547

Thiering v Daly [2011] NSWSC 1345

Parties:

Raquel Wickes (Plaintiff)

Mustafa Al-Mofathel (Defendant)

Insurance Australia Ltd trading as NRMA Insurance (Second Defendant)

Representation:

Counsel

Mr R Crowe SC and Mr D Crowe (Plaintiff)

Mr R Rewell SC (Defendant)

Solicitors

Maliganis Edwards Johnson (Plaintiff)

Moray & Agnew (Defendant)

File Number:

SC 82 of 2014

Refshauge J:

  1. On 9 December 2010, the plaintiff, Raquel Wickes, was involved in a motor vehicle collision when the motor vehicle driven by the first defendant, Mustafa Al-Mofathel, was being reversed out of a long driveway onto the street and collided with the plaintiff’s motor vehicle which was travelling along Corringle Close in Amaroo.

  1. Ms Wickes consulted her lawyers on 21 December 2010 and the relevant forms required…

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Details
AGLC
Wickes v Al-Mofathel [2015] ACTSC 266
Case
[2015] ACTSC 266
Decision Date

CaseChat Overview and Summary

The case of Wickes v Al-Mofathel arose in the ACT Supreme Court concerning a motor vehicle accident where the plaintiff, Wickes, sought damages from the defendant, Al-Mofathel, under the Road Transport (Third Party Insurance) Act 2008 (ACT). The plaintiff alleged injuries from the accident and sought compensation. The defendant contested the claims, arguing that the plaintiff had not complied with pre-court requirements, including the submission of an expert report and a medical examination. The central issue before the court was whether the plaintiff's failure to comply with these statutory pre-action requirements justified a stay of proceedings.

The court needed to determine whether it had the power to stay the proceedings due to the plaintiff's refusal to comply with the statutory requirements. Specifically, the court considered whether the plaintiff's refusal to undergo a medical examination was unreasonable and whether this refusal justified the imposition of a stay order. The interpretation of the relevant statutory provisions and the Explanatory Statement to the Act were critical in this determination. The court also examined the legislative intent behind the requirement for medical examinations and the ability of the respondent to obtain a medical report despite the plaintiff's refusal to be examined.

The court concluded that it had the authority to stay the proceedings due to the plaintiff's unreasonable refusal to comply with the statutory pre-action requirements. The court held that the statutory provisions and the Explanatory Statement indicated that the requirement for a medical examination was mandatory and necessary to facilitate the assessment of the plaintiff's claims. The court emphasised the importance of these pre-action procedures in ensuring that claims were adequately substantiated before proceeding to trial. Therefore, the court ordered that the proceedings be stayed until the plaintiff completed the required medical examination and other pre-action procedures under the Act. The court also scheduled a hearing to address further orders and the allocation of costs.

Orders

Orders of the court

1. The proceedings be stayed until the procedures required under Parts 4.7 and 4.8 of the Road Transport (Third Party Insurance) Act 2008 (ACT) have been completed.

2. The parties be heard as to the other orders to be made and as to costs.

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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