Marko Racic v Kristine Haltiner [2010] ACTSC 63

1. If a proceeding based on a motor accident claim has been started - the court hearing the proceeding; or
2. If no proceeding based on the motor accident claim has been started - a court with jurisdiction to hear the motor accident claim.

1. Before a claimant for a motor accident claim brings a court proceeding based on the motor accident claim, the parties for the motor accident claim must have a conference (the compulsory conference).
2. At least 7 days before the compulsory conference is to be held, each party for the motor accident claim must give each other party for the motor accident claim the following:

1. A copy of each document that is relevant to the motor accident claim that has not yet been given to the other party; 2. A statement verifying that all relevant documents in the possession of the party or the party's lawyer have been given as required;

1. If the party has legal representation - a certificate of readiness signed by the party's lawyer.

1) The claimant and the respondent for the motor accident claim must exchange written final offers (each of which is a mandatory final offer).

142 Mandatory Final offers may be dispensed with

The court may, on application by the claimant or the respondent for the motor accident claim, dispense with the obligation to exchange mandatory final offers.

145 Court proceedings not to begin if mandatory final offer open

1. A claimant for a motor accident claim must not begin a court proceeding based on the claim if a mandatory final offer for the claim remains open.

1. The court, on application by a claimant, may give leave to the claimant to begin a proceeding in a court based on a motor accident claim despite non-compliance with this part if satisfied there is an urgent need to begin the proceeding.
2. The order giving leave may be made on conditions the court considers appropriate having regard to the circumstances of the case.
3. If leave is given, the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.
4. The plaintiff commenced the present action through his solicitors notwithstanding that a compulsory conference under section 136 had not been called or held, and that mandatory final offers had not been exchanged. The plaintiff seeks leave nunc pro tunc to begin the proceeding. The defendant seeks an order that the action be struck out by reason of the non-compliance with the statutory requirements as to pre-action steps.
5. Counsel for the defendant submits that in the circumstances the present action is a nullity. Hence the court has no power to make the order sought by the plaintiff, and no option but to strike the action out. Counsel for the plaintiff submits that what has happened amounts to an irregularity but that the action is not a nullity. In the circumstances, counsel for the plaintiff submits that the court has power to make the order he seeks.
6. Counsel for the defendant concedes that if the court has power to make the order sought by the plaintiff, little purpose would be served by striking the action out and requiring the plaintiff to start again. The defendant's position would be adequately protected by an order staying the action until the compulsory conference and mandatory final offers have happened.
7. I had occasion to determine a similar question in McGregor v Franklin [2006] ACTSC 69. The plaintiff in that action had commenced proceedings despite not having complied with section 51 of the Civil Law (Wrongs) Act 2002 (ACT). She had not given written notice to the defendant before the commencement of the action. Section 59 of that Act provided that a claimant who had not given such a notice could not proceed further with the claim without obtaining a declaration that the non-compliance had been remedied, or an authorisation to proceed despite the non-compliance. It was argued on behalf of the defendant in that application that the action, having been commenced without notice, was a nullity. I held that it was not, and that the court had power to authorise the plaintiff to proceed with her claim. I referred to a number of authorities, some of which were cited by counsel once more on the present application.
8. Counsel for the defendant placed some reliance on a decision of Moynihan J of the Supreme Court of Queensland, State of Queensland v Coffey [2005] QSC212, in which His Honour acceded to an application to strike out the originating process and statement of claim, in circumstances where the plaintiff had failed to give notice before action as required by the Personal Injuries Proceedings Act 2002 (Qld). The plaintiff was not legally represented. His action had arisen out of injuries he allegedly suffered in prison. He was in default in respect of a number of statutory provisions in addition to his failure to give notice before action. The decision is one of a single judge (though a very experienced and greatly respected judge) but it does not appear that Moynihan J specifically considered whether the court had any discretion to forgive the plaintiff's failure to give notice, perhaps because the plaintiff's action for other reasons was doomed in any event.
9. The appellant in Emanuele v Australian Securities Commission [1997] HCA 20; (1997) 188 CLR 114 was resisting the winding up of a company on the ground of insolvency. The corporations law then in force provided that certain applicants, including the ASC, could apply for a winding up only with the leave of the court. The ASC had not applied for leave: it had been subsequently granted nunc pro tunc by the full Federal Court. The High Court held by majority (Dawson, Toohey and Kirby JJ; Brennan CJ and Gaudron J dissenting) that the failure to obtain leave was a mere defect or irregularity not affecting the validity of the winding-up order. The irregularity could be cured by granting leave nunc pro tunc, even by an appellate court. Kirby J said at 147, "a feature of the administration of justice in more recent times has been a general disfavour towards procedural rigidities and a preference for a somewhat more flexible approach to statutory preconditions where these are of a procedural character." His Honour quoted McHugh JA in Woods v Bate (1986) 7 NSWLR 560 at 567:

In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition. Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory, unless the purpose of the provision can only be achieved by invalidating the result of any departure from it irrespective of the circumstances or resulting injustice.

1. Berowra Holdings Pty Limited v Gordon [2006] HCA 32; (2006) 80 ALJR 1214 was an appeal to the High Court from the Court of Appeal of the Supreme Court of NSW. A plaintiff had commenced proceedings in the NSW District Court for damages for a work injury less than six months after giving notice to his employer, in contravention of a provision of the Workers Compensation Act 1987 (NSW). The section read:

151C(1) - A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until six months have elapsed since notice of the injury was given to the employer.

1. The contravention of the section had not been pleaded by the defendant in its defence. It was raised for the first time on the day before the hearing was to commence. The judge in the District Court accepted the defendant's submission that the plaintiff's failure to comply with the section rendered the proceeding a nullity. This decision was overturned by the Court of Appeal. The High Court dismissed an appeal from the Court of Appeal, describing the section as one imposing on a claimant a duty of imperfect obligation. The statute did not spell out the consequences of non-compliance. If it were the intention of the legislature to attach a consequence of nullity to non-compliance, one would expect plain words in the Act to that effect. Further, the language of the section imposed a duty on the claimant but did not contain any injunction directed to a court.
2. It was also relevant that whilst a proceeding in a court of limited statutory jurisdiction such as the District Court might be held to be a nullity, this was not a possibility in a superior court of unlimited jurisdiction such as the Supreme Court of NSW. The section referred to the commencement of proceedings in any court, not differentiating between courts in those two categories. This militated against a construction that non-compliance might in some circumstances cause proceedings to be a nullity. Hence the provision did not inevitably result in the invalidity of proceedings commenced in contravention of it. The section did not extinguish rights or create new rights, but rather postponed the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The proceedings commenced by the plaintiff had engaged the jurisdiction and procedural rules of the court in question, although the proceedings were vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal. The effect of non-compliance would depend in each case on the approach taken by the defendant in the context of the applicable rules of court.
3. It appears to me that the pre-trial provisions of the Road Transport (Third Party Insurance) Act are of the same nature as the provision considered by the High Court in Berowra Holdings Pty Limited v Gordon. I am satisfied that the action which has been commenced is not a nullity. The jurisdiction of this court has been validly engaged. The court is not obliged to strike the action out, but has a discretion to do so, or to make other orders in the light of the plaintiff's non-compliance.
4. In the particular circumstances of this case, the interests of justice will be met adequately by imposing a stay until the plaintiff has complied with the pre-trial requirements contained in chapter 4 of the Road Transport (Third Party Insurance) Act. Recognising that there may be some room for difference of opinion between the parties as to when that point has been reached, I propose to order a stay of the action until further order, and to grant liberty to the parties to apply.
5. Although the defendant has not obtained the order it seeks, its application was reasonably made. The plaintiff's application has not been entirely successful either, though the plaintiff has succeeded in keeping his action alive. The plaintiff, being in default, needed the indulgence of the court to permit him to proceed, and in those circumstances should be liable for the costs of both applications. Having regard to the plaintiff's status as an individual and the defendant's as an insured under a statutory policy, it seems to me reasonable that the recovery of those costs should be postponed until final orders are made in the action.

I certify that the preceding fourteen (14) numbered paragraphs are

a true copy of the Reasons for Judgment herein of the Master.

Solicitors for the plaintiff: Paul Edmonds & Associates