Zeitler v Laing O'Rourke Australia Construction Pty Ltd

[2022] ACTSC 66

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Zeitler v Laing O’Rourke Australia Construction Pty Ltd & Ors

Citation:

[2022] ACTSC 66

Hearing Date(s):

11 March 2022

DecisionDate:

11 March 2022

Before:

McCallum CJ

Decision:

(1) Pursuant to ss 137(1) and 141 of the Road Transport (Third Party Insurance) Act 2008 (ACT), the compulsory conference is dispensed with;

(2)  That the costs of this application be costs in the cause.

Catchwords:

PROCEDURE — Miscellaneous Procedural Matters — Application to dispense with compulsory conference under Road Transport (Third-Party) Insurance Act 2008 (ACT) — Where application of the Act and identification of the proper defendant turn on whether incident occurred on a “road-related area” — Where contest as to whether location was “road-related area”

Legislation Cited:

Road Transport (Third‑Party Insurance) Act 2008 (ACT)

Workers Compensation Act 1951 (ACT)

Civil Law (Wrongs) Act 2002 (ACT)

Parties:

Eric Zeitler ( Plaintiff)

Laing O’Rourke Australia Construction Pty Ltd ( First Defendant)

Bernard Keenan (Second Defendant)

QBE Insurance (Australia) Ltd (Third Defendant)

The Nominal Defendant (ACT) Fourth Defendant)

Representation:

Counsel

Nicolaides ( Plaintiff)

Hutchison ( First Defendant)

Reddy (Second Defendant)

Iliopoulos (Third Defendant)

Solicitors

Baker Deane & Nutt ( Plaintiff)

Clyde & Co ( First Defendant)

Moray & Agnew (Third Defendant)

File Number(s):

SC 351 of 2021

McCALLUM CJ:

1. These proceedings arise out of a motor vehicle accident. The application before the Court is an application by the plaintiff pursuant to s 137(1) of the Road Transport (Third‑Party Insurance) Act 2008 (ACT) to dispense with a compulsory conference. All of the parties to the proceedings consent to the order sought.

1. The application was supported by the affidavit of Richard Baker, the plaintiff's solicitor, sworn 11 February 2022.  Mr Baker explains that the plaintiff suffered injury in August 2018 in an incident involving a forklift.  Mr Baker first met with the plaintiff in April 2021 and then, for the first time, provided him with formal advice in relation to the possibility of making a claim pursuant to the Road Transport (Third-Party Insurance) Act.

1. Prior to that, the plaintiff had made a worker's compensation claim pursuant to the Workers Compensation Act 1951 (ACT). The service of a personal injury claim notification form on the first defendant resulted in the production of CCTV footage which raised a doubt as to the nature of the area where the accident occurred. It was apparently clear from the CCTV footage that the accident did not occur on a public road, the question being whether it occurred at a location that might constitute a “road related area” within the meaning of the Road Transport (Third-Party Insurance) Act.

1. The significance of that dispute is that, if the location of the incident constituted a road related area, there will be a contest as to whether the third defendant or the fourth defendant is the correct respondent for the purpose of that legislation.  Conversely, should the location of the incident not constitute a road related area, the focus of the proceedings will be against the first defendant for the purpose of the Civil Law (Wrongs) Act 2002 (ACT). Mr Baker’s affidavit further explains that the fourth defendant is not a party for the purpose of the Road Transport (Third-Party Insurance) Act and so is not required to participate in a compulsory conference and is not subject to the regime of mandatory final orders.

1. It follows that the prelitigation step of compulsory conference and exchange of mandatory final orders cannot be completed in any practicable way.  In the circumstances, I am satisfied that it is appropriate to dispense with the requirement for a compulsory conference.  I make the following orders:

(1) Pursuant to ss 137(1) and 141 of the Road Transport (Third Party Insurance) Act 2008 (ACT), the compulsory conference is dispensed with;

(2)       That the costs of this application be costs in the cause.

I certify that the preceding five [5] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum.

Associate:

Date: 4 April 2022