Zlomislic v Arcaba - [2023] ACTSC 26

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:

(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.

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…

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 Zlomislic v Arcaba

Details

AGLC: Zlomislic v Arcaba [2023] ACTSC 26
Case: [2023] ACTSC 26
Decision Date: 17 February 2023

CaseChat Overview and Summary

The parties in this case were Zlomislic, the plaintiff, and Arcaba, the defendant. The dispute involved an application by the defendants to join a third party, the Nominal Defendant, in the proceedings. The matter was heard in the Federal Court of Australia. The plaintiff sought leave to join the Nominal Defendant as a third party in the proceedings, arguing that they were a necessary party to the dispute and that their involvement was required for a just resolution of the case.

The legal issues that the court had to address included whether the Nominal Defendant was a necessary party to the proceedings and whether the application for leave to join the Nominal Defendant as a third party was made within a reasonable time. The court had to consider the relevant provisions of the Federal Court of Australia Act and the Uniform Civil Procedure Rules, as well as any relevant case law. The court also had to consider whether the Nominal Defendant had a real and substantial interest in the subject matter of the proceedings and whether their involvement was necessary for a just resolution of the case.

In its judgment, the court held that the Nominal Defendant was a necessary party to the proceedings and that the application for leave to join the Nominal Defendant as a third party was made within a reasonable time. The court found that the Nominal Defendant had a real and substantial interest in the subject matter of the proceedings and that their involvement was necessary for a just resolution of the case. The court also held that the defendants had demonstrated a sufficient connection to the Nominal Defendant to justify the granting of leave to join them as a third party. As a result, the court granted the defendants leave to file and serve their third-party notice on the Nominal Defendant.

Orders

Orders of the court

(1)

The defendants have leave to file and serve their third-party

notice on the Nominal Defendant.

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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(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.