Zlomislic v Arcaba
[2023] ACTSC 26
•17 February 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Zlomislic v Arcaba | ||
| Citation: | [2023] ACTSC 26 | ||
| Hearing Date: | 17 February 2023 | ||
| Decision Date: | 17 February 2023 | ||
| Before: | Crowe AJ | ||
| Decision: |
| ||
| (2) Upon service of their third-party notice, the third-party |
proceedings are stayed until further order.
(3)
The defendant is to give the Nominal Defendant written notice pursuant to s 93 of the Road Transport (Third-Party Insurance) Act 2008 (ACT) within 21 days of today.
(4) The defendants have leave under s 93(2)(b) of that Act to
give the notice referred to in Order 3.(5) Liberty to apply on 2 days’ notice. (6) Costs are reserved.
Catchwords: | CIVIL LAW – STATUTORY INTERPRETATION – APPLICATION – Application for leave to join the Nominal Defendant as a third |
| party to proceedings – where the Nominal Defendant opposes the | |
| application pursuant to provisions of the Road Transport (Third- | |
| Party Insurance) Act 2008 (ACT) – whether non-compliance with s 93 is a bar to joining the Nominal Defendant – where s 115 allows for court to order remediation of non-compliance – application to join allowed but stayed until further order – applicant | |
| to comply with notice requirements of s 93 | |
| Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A Court Procedures Rules 2006 (ACT) r 306 Motor Accident Injuries Act 2019 (ACT) Road Transport (Third-Party Insurance) Act 2008 (ACT) ss 62, 63, 93, 95, 96, 115; Chapter 4; Part 4.2 Road Transport (Third-Party Insurance) Regulation 2008 (ACT) reg 23 |
| Cases Cited: | Albrecht v Insurance Australia Ltd [2016] ACTCA 58; 12 ACTLR 46 |
| Racic v Haltiner [2010] ACTSC 63; 4 ACTLR 224 | |
| Parties: | Ivan Zlomislic (Plaintiff) Danijel Arcaba (First Defendant) |
| Insurance Australia Group Ltd t/as NRMA Insurance (Second | |
| Defendant) | |
| Representation: | Counsel |
| W Sharwood (Defendants) | |
| K Teixeira (Proposed Third-Party) | |
| Solicitors | |
| United Legal (Plaintiff) | |
| Sparke Helmore (Defendants) | |
| Minter Ellison (Proposed Third-Party) | |
| File Number: | SC 223 of 2022 |
| Crowe AJ |
1. The defendants in these proceedings apply for an order under r 306 of the Court
Procedures Rules 2006 (ACT) of the Territory, that they have leave to file and serve a
third party notice against the Nominal Defendant.
2. The Nominal Defendant was given notice of the application and wished to be heard in
opposition to the order sought by the defendants. I granted leave to Ms Teixeira to
appear on behalf of the Nominal Defendant at the hearing of the application today.
3. Mr Sharwood who appeared for the defendants informed me that the plaintiff consented
to the joinder of the Nominal Defendant as a third party. There was no appearance by
the plaintiff’s representatives.
4. The plaintiff claims damages for personal injury said to have been suffered in a motor
vehicle accident which occurred in the Territory on 31 January 2020. He was then a
passenger in an Audi motor vehicle, being driven by the first defendant which veered off
Kingsford-Smith Drive, Melba in the ACT and struck a kerb.
5. It is pleaded in the amended statement of claim that the accident occurred when another
car attempted to merge into the lane in which the Audi was travelling. I note that it is not
alleged that there was a collision between the two vehicles.
6. Mr Sharwood relied on the affidavit of his instructing solicitor, Ms M Covell, dated 24
January 2023. The material annexed to Ms Covell’s affidavit discloses that the plaintiff
personally completed the motor accident notification form and the notice of claim which
were then given to the defendants. I interpolate that the second defendant is the third
party insurer of the first defendant.
7. I infer from the date stamp on the notice of claim, that the second defendant probably
received the forms in April 2020. It is clear that the second defendant appointed an investigator to look into the circumstances of the accident. The investigator obtained a
statement from the first defendant which is dated 18 May 2020.
I note from the defendant’s statement, that the emergency services including police
attended the accident. I also note that the plaintiff records in his motor accident
notification form that a report was given to the police. The form contains reference to a
report number, however, I gather from other references in the material that the police
may not have any documentation relating to that report.
9. The account of the first defendant records in relation to the attendance by police, at
paragraph 28 of his statement, that,
The police said that because there was no one else involved they pretty much left. The police did not breath test me. I just talked to the police and I told them that I saw something
out of the corner of my eye. I don’t think the police wanted to do any paperwork and they
left. They did not take down my details.
10. In relation to the other vehicle involved, the first defendant said at paragraphs 33 and 34
of his statement:
It happened very quickly. What I saw out of the corner of my eye was some colour and I think it was probably the car next to me. This car and I were going in the same direction. I remember driving in my direction and then saw some colour, something light and that was it. It was not a car coming from the opposite direction, but something going in my direction.
11. The evidence does not disclose the details of what occurred in relation to the plaintiff’s
claim after May 2020 until the current solicitors acting for the defendants received
instructions in November 2022. According to a notation at the end of the amended
statement of claim, a mandatory final offer was made to the plaintiff by the defendants
on 24 May 2022. I infer from that, that the parties had engaged in the procedures
required under Part 4.2 of the Road Transport (Third-Party Insurance) Act 2008 (ACT),
culminating in the making of that offer.
12. The subject accident occurred on the day before the commencement of the Motor
Accident Injuries Act 2019 (ACT) and there is no issue as between the parties that the
plaintiff’s claim is governed by the provisions of the former Act, notwithstanding its repeal.
13. It is necessary to refer to the relevant provisions of the Road Transport (Third-Party
Insurance) Act 2008 (ACT) (the Act). I refer to s 62(1), (2) and (3), s 63(1) and (2),
62 What is an unidentified motor vehicle?
(1) In this Act:
unidentified motor vehicle—
(a) means a motor vehicle that cannot be identified after reasonable inquiry and search; and
(b) includes a trailer that— (i) is attached to an unidentified motor vehicle; or
(ii) runs out of control after becoming accidentally detached from an unidentified motor vehicle; and
(c) includes anything else prescribed by regulation; but
(d) does not include a motor vehicle that is designed to be driven for recreational purposes on an area that is not a road or road-related area.
Example—par (d)
a quad bike
(2) To remove any doubt, it does not matter whether a trailer mentioned in
subsection (1) (b) is registered.
(3) The inquiry or search may be proved orally or by affidavit of the person who
made the inquiry or search.
Note 1 The claimant must prove that reasonable inquiry or search has been
carried out before the nominal defendant may be added as a later
respondent (see s 91).
Note 2 The respondent must prove that reasonable inquiry or search has been
carried out before the nominal defendant may be added as a
contributor (see s 93).
63 Nominal defendant liable—unidentified motor vehicle
(1) This section applies if—
(a) a personal injury is caused by a motor accident; and
(b) the motor vehicle involved in the motor accident is an unidentified motor vehicle; and
(c) the motor accident happened in the ACT.
Note Motor accident is defined in s 7. Personal injury is defined in s 6.
(2) The nominal defendant is liable in relation to the personal injury as if—
(a) a CTP policy were in force for the motor vehicle; and
(b) the nominal defendant were the CTP insurer for the CTP policy.
Note CTP policy is defined in s 18. …
14. Chapter 4 of that Act sets out a detailed scheme to force parties to disclose information
and engage in the process of trying to settle claims before commencing court
proceedings. I refer to and adopt the summary of the operation of these provisions which
is set out by the Court of Appeal in the matter of Albrecht v Insurance Australia Ltd [2016]
ACTCA 58; 12 ACTLR 46 (Albrecht) at paragraphs [19] to [42].
15. Unfortunately, the decision in that case did not address the precise issues which have
arisen here. Section 93 of the Act provides,
93 Respondent may add contributor
(1) A respondent who receives a complying notice of claim may, not later than the day prescribed by regulation, add someone else as a contributor (the contributor) for the motor accident claim by giving the person a written notice (a contribution notice)—
(a) claiming an indemnity from, or contribution towards, the respondent’s liability; and
(b) stating the grounds on which the respondent holds the person liable; and
(c) stating any other information prescribed by regulation; and
(d) accompanied by copies of documents about the motor accident claim given to, or received from, other parties under this chapter.
(2) However, the respondent may add a contributor after the day prescribed under subsection (1) only if— (a) the contributor and all parties for the motor accident claim agree; or (b) the court gives leave. (3) Also, if the respondent proposes to add the nominal defendant as a contributor because the motor accident for the motor accident claim involved an unidentified motor vehicle, the respondent may add the nominal defendant only if the respondent has made reasonable inquiry and search for the identity of the motor vehicle. (4) The inquiry or search may be proved orally or by affidavit of the person who
made the inquiry or search.
(5) If the respondent adds a contributor under this section, the respondent must
give a copy of the contribution notice to each other party not later than the day
prescribed by regulation.
16. That section deals with the requirement for notice to be given to a person said to be a
potential contributor to the occurrence of the motor accident. The time prescribed under sub-s 93(1) is 28 days from the day the respondent received a complying notice of claim;
see reg 23 Road Transport (Third-Party Insurance) Regulation 2008 (ACT).
17. There is no evidence as to when the plaintiff’s notice of claim became compliant here.
However, it was clearly sometime before the compulsory conference was held which led
to the making of the mandatory final offer. Although, s 93 uses the word ‘may’ in relation
to the giving of notice to a contributor, it seems to me that having regard to the context
of Chapter 4 and the purpose of these provisions of forcing parties to investigate claims,
so as to be able to make a reasonable attempt to resolve them before litigating in court,
that s 93 imposes an obligation on a respondent to serve a contributor notice if that
respondent proposes to seek contribution or indemnity from a third party.
18. That is important because although as Mr Sharwood points out, there is no equivalent in
the Act to s 95 in relation to contributor notices, ss 95 and 96 provide for the
consequences of non-compliance by a claimant as follows,
95 Noncomplying notice of claim may be complying notice of claim
(1) This section applies if the claimant for a motor accident claim gives a
respondent for the claim a notice of claim that is not a complying notice of claim.
Note Complying notice of claim is defined in s 76.
(2) The claimant is taken to have given the respondent a complying notice of claim if—
(a) the respondent has told the claimant, in writing— (i) under section 90 (2) (a) or section 90 (4) (a) (Response to notice of
claim), that the respondent is satisfied that the notice of claim is a
complying notice of claim; or
(ii) under section 90 (2) (b) or section 90 (4) (a) that the respondent
waives any noncompliance; or
(iii) under section 90 (4) (a), that the respondent is satisfied with the action
the claimant has taken to remedy the noncompliance; or
(b) the respondent has not responded to the claimant as required and is conclusively presumed, under section 90 (3), to be satisfied the notice is a
complying notice of claim; or
(c) the court, by order, on application by the claimant— (i) declares that the claimant has remedied the noncompliance; or
(ii) authorises the claimant to proceed further with the motor accident claim despite the noncompliance.
(3) However, if the noncompliance is failure to give the notice of claim in
accordance with section 85 (Time for giving notice of claim—CTP insurer) or
section 86 (Time for giving notice of claim—nominal defendant), the court may
authorise the claimant to proceed under subsection (2) (c) (ii) only if it is in the
interests of justice for the matter to proceed further.
(4) An order of the court under subsection (2) (c) may be made on the conditions
that the court considers necessary or appropriate to minimise prejudice to a
respondent because of the claimant’s noncompliance.
(5) The claimant is taken to have given, and the respondent is taken to have
received, the complying notice of claim, on the day—
(a) for subsection (2) (a)—the respondent tells the claimant, in writing; or
(b) for subsection (2) (b)—that is the required day under section 90 for the presumption; or
(c) for subsection (2) (c)—the court makes the declaration or gives the authorisation.
96 Claimant not to proceed without complying notice of claim
(1) This section applies if the claimant for a motor accident claim—
(a) does not give the respondent for the motor accident claim a complying notice of claim; or
(b) is not taken to have given the respondent for the motor accident claim a complying notice of claim.
Note The circumstances in which a claimant is taken to have given a respondent a complying notice of claim are in s 95.
(2) The claimant cannot proceed with the motor accident claim.
19. However, s 115 does provide an important function to the court in ensuring that parties
in motor accident claims comply with their obligations under Chapter 4 of the Act,
115 Court’s power to enforce compliance with pt 4.2 and pt 4.3
(1) This section applies if a party (the first party) fails to comply with a duty
imposed under—
(a) part 4.2 (Motor accident claims procedures); or
(b) part 4.3 (Obligations to give documents and information).
(2) The court may, on the application of a party to whom the duty is owed, order
the first party to take stated action to remedy the noncompliance not later than
a day stated by the court.
(3) The court may make consequential or ancillary orders, including orders about
costs.
20. Although Ms Teixeira did not articulate her case in terms of the section, I understood the
substance of the Nominal Defendant’s position to be that it wished to ensure that s 93
was complied with before it was joined to the litigation.
21. I proposed to treat the submissions made on behalf of the Nominal Defendant as in
substance, an application under s 115. In that context, I am satisfied that the defendants
did fail to comply with the duty imposed on them by s 93. Unlike s 95 of the Act, in
relation to a non-compliance by a claimant, the consequences of a non-compliance with
s 93 are not spelt out in the Act. However, in general terms and in the ordinary case, the
failure of a party to comply with the requirements of Chapter 4 will lead to the proceedings
being stayed rather than an order that they be struck out. In that context, I refer to the
decision in Racic v Haltiner [2010] ACTSC 63; 4 ACTLR 224 which I note was approved
by the Court of Appeal in the decision in Albrecht at paragraph [49].
22. In all of the circumstances here, bearing in mind the principles stated in s 5A of the Court
Procedures Act 2004 (ACT), I consider that the preferable course is to grant leave to the
defendants to file and serve a third party notice against the Nominal Defendant.
However, once that notice has been served, the third party proceedings should be stayed
until further order. I propose to order that the defendants give the Nominal Defendant
the notice required under s 93. Once that notice has been given, I would envisage that
the stay of proceedings should be lifted.
23. In relation to the issue of whether the defendants have made reasonable enquiry and
search for the vehicle which is said to have veered towards the first defendant’s car and
contributed to the accident, it seems to me that the question of the adequacy of the
enquiry and search will remain an element of the cause of action which the defendants
wish to pursue against the Nominal Defendant. That is because it will be necessary for
the defendants to assert and prove that the vehicle which is alleged to have veered
towards the Audi is an “unidentified motor vehicle”.
24. Proof of that fact is a necessary condition of the liability of the Nominal Defendant, see
s 63(1) paragraph (b). The definition of an unidentified motor vehicle at s 62(1)(a)
requires that it be a motor vehicle which cannot be identified after reasonable inquiry and
search.
25. It will be incumbent on the defendants in pursuing their claim against the Nominal
Defendant to establish that fact.
26. Therefore, the orders of the court are that:
(1) The defendants have leave to file and serve their third-party notice on the Nominal Defendant. (2) Upon service of their third-party notice, the third-party proceedings are stayed until further order. (3) The defendant is to give the Nominal Defendant written notice pursuant to s 93 of the Road Transport (Third-Party Insurance) Act 2008 (ACT) within 21 days of today. (4) The defendants have leave under s 93(2)(b) of that Act to give the notice referred to in Order 3. (5) Liberty to apply on 2 days’ notice. (6) Costs are reserved. I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe.
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