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[2025] ACTSC 505
General information, not legal advice.
Supreme Court of the ACT
2025-11-17
Muller AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Moy v ACT Citation: [2025] ACTSC 505 Hearing Date: 5 September 2025 Decision Date: 17 November 2025 Before: Muller AJ Decision: (1) The application in proceeding dated 1 August 2025 is dismissed. (2) The first defendant is to pay the costs of the plaintiff and of the second defendant in respect of the application. (3) I give the parties liberty to apply within 3 days of the date of judgment in respect of any alternative costs order. Catchwords: CIVIL PROCEDURE – JURISDICTION, PRACTICE AND PROCEDURE – Claim for personal injury compensation – pre-court procedures under Ch 5 of the Civil Law Wrongs Act 2002 (ACT) – proceedings commenced before completion of pre-court procedures – whether leave to commence required under s 79 – non-compliance by defendant does not make proceedings a nullity – no action by plaintiff to address defendant’s non-compliance – no leave required STATUTES – INTERPRETATION - Civil Law Wrongs Act 2002 (ACT), Ch 5 – whether Ch 5 pre-court procedures are procedural or substantive rules – provisions of CLW Act based on equivalent Queensland statute – comparison with provisions of Personal Injuries Proceedings Act 2002 (Qld) – Ch 5 rules are procedural CIVIL PROCEDURE - JURISDICTION, PRACTICE AND PROCEDURE – Application for stay of proceedings – overarching purpose of civil procedure rules – no abuse of process identified – application dismissed Legislation Cited: Civil Law (Wrongs) Act 2002 (ACT), Ch 5, Pts 5.2, 5.3, ss 49, 51, 52, 54, 59, 61, 62(1)(b), 64. 68, 78, 79 Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT) Court Procedures Act 2004 (ACT), s 5A Court Procedures Rules 2006 (ACT), rr 40, 111, 1450 District Court Rules 1973 (NSW) Limitation Act 1985 (ACT), s 16B Personal Injuries Proceedings Act 2002 (Qld), ss 7, 18, 43, 44 Workers Compensation Act 1987 (NSW), s 151C Cases Cited: Allen v ACT [2025] ACTSC 48 Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 Clyne v NSW Bar Association (1960) 104 CLR 186; ALR 574 Coffey v State of Queensland [2005] QSC 212 Cook-Bateman v Adham [2025] ACTSC 173 Findex Group Ltd v McKay [2022] ACTSC 192 Hamilton v Merck & Co Inc [2006] NSWCA 55; 66 NSWLR 48 Homes v Adnought Sheet Metal Fabrications Pty Ltd [2003] QSC 321 Jago v District Court of NSW (1989) 168 CLR 23; 63 ALJR 640 Johnson v Gore Wood & Co [2002] 2 AC 1 (UK) Kerr v Calvary Health Care ACT Ltd [2025] ACTSC 106 Maletic v Calvary Healthcare ACT Ltd [2022] ACTSC 231 McGregor v Franklin [2006] ACTSC 69 McKenna v JWLand Construction Pty Ltd [2025] ACTSC 315 PNJ v The Queen [2009] HCA 6; 83 ALJR 384 Rees-Wlodek v Calvary Healthcare ACT Ltd [2025] ACTSC 162 Ruspandini v Summernats Pty Ltd [2025] ACTSC 83 Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 UBS AG v Tyne [2018] HCA 45; 265 CLR 77 Wilson v Allen (No 2) [2024] ACTSC 13 Texts Cited: Commonwealth of Australia, Review of the Law of Negligence: Final Report (September 2002) Practice Direction No 2 of 2014, ACT Supreme Court Parties: Benjamin Moy (Plaintiff) Australian Capital Territory (First Defendant) Icon Water Ltd (Second Defendant) Representation: Counsel B Jullienne (Plaintiff) J Henry (First Defendant) I Meagher (Second Defendant) Solicitors Ken Cush & Associates (Plaintiff) ACT Government Solicitor (First Defendant) BAL Lawyers (Second Defendant) File Number: SC 192 of 2025 MULLER AJ: Introduction
The plaintiff alleges that he suffered injury on 1 June 2022 when he tripped and fell on a protruding hydrant cover whilst jogging along the footpath adjacent to Ellerston Avenue, Isabella Plains, ACT. He asserts injury to his neck and right side, together with psychological consequences, as a result of the fall.
On 30 May 2025 the plaintiff commenced this proceeding against the first defendant, the Australian Capital Territory (the Territory), and the second defendant, Icon Water Ltd (Icon), asserting as against each of them responsibility for the loss and damage flowing from his injury. The timing of the commencement of proceedings was not coincidental. A three-year limitation period applies to a cause of action for damages for personal injury arising in these circumstances pursuant to s 16B of the Limitation Act 1985 (ACT). There is no power under that Act for leave to be given to extend the limitation period in a claim such as this. The plaintiff was therefore in the position, as of 30 May 2025, that there was some very real urgency about commencing proceedings.
The Territory had been on notice of the claim for some considerable period, having first been issued with a personal injury claim notification (PICN) on 27 July 2022. Icon received its notification at a later time, but it is the interactions between the plaintiff and the Territory that are primarily relevant for the purposes of this application.
The initial response of the Territory to receipt of the PICN was to the effect that the protruding hydrant cover was the responsibility of Icon, and the Territory was therefore not a proper respondent to the claim. That issue was then the subject of ongoing contention between plaintiff and the Territory, culminating in the Territory accepting that it had become a proper respondent to the claim, but only after receiving further correspondence from the plaintiff on the day prior to proceedings being commenced.
It is therefore unsurprising that the parties did not have the opportunity in the period after the Territory’s acknowledgement and prior to the commencement of proceedings to attend to all of the pre-court activity envisaged by Ch 5 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act).
As a consequence, the Territory adopts the position that the claimant was non-compliant with the pre-court requirements at the time of commencement of proceedings and, in accordance with the approach taken in a number of decisions of this Court commencing with Maletic v Calvary Healthcare ACT Ltd [2022] ACTSC 231 (Maletic), there is a requirement for the plaintiff to seek leave retroactively to commence proceedings notwithstanding his non-compliance. In addition, the Territory seeks a stay of proceedings, relying on the general powers of the court in r 40 of the Court Procedures Rules 2006 (ACT) (the CPR), for such period as is necessary for any continuing non-compliance to be addressed.
Chronology
The legislation
59 Claimant’s failure to give complying notice of claim (1) If a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless— (a) the respondent to whom notice of the claim was purportedly given— (i) has given the claimant a written notice to the effect that the respondent is satisfied the notice is a complying notice of claim or the claimant has taken reasonable action to remedy the noncompliance; or (ii) is presumed, under section 54 (3) (Respondent’s response to notice of claim), to be satisfied the notice is a complying notice of claim; or (b) the respondent has waived any noncompliance; or (c) the court, on application by the claimant— (i) declares that the claimant has remedied the noncompliance; or (ii) authorises the claimant to proceed further with the claim despite the noncompliance. (2) An order of the court under subsection (1) (c) may be made on conditions the court considers necessary or appropriate to minimise prejudice to a respondent from the claimant’s noncompliance.
79 Need for urgent proceeding (1) The court, on application by a claimant, may give leave to the claimant to begin a proceeding in the court for damages based on a liability for personal injury despite noncompliance with this chapter if the court is 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 begun by leave is stayed until the claimant complies with this chapter or the proceeding is discontinued or otherwise ends. (4) However, the proceeding is not stayed if— (a) the court is satisfied that— (i) the claimant is suffering from a terminal condition; and (ii) the trial of the proceeding should be expedited; and (b) the court orders the proceeding be given priority in the allocation of a trial date. (5) If, under subsection (4), the proceeding is not stayed, this chapter (other than this section) does not apply in relation to the personal injury.
As McCallum CJ identified in Rees-Wlodek v Calvary Healthcare ACT Ltd [2025] ACTSC 162 (Rees-Wlodek) at [31]: As explained at the outset of this judgment, there is a tension between, on the one hand, the terms of s 51, which suggests that the only precondition to commencing proceedings is the service of a complying notice of claim, and the terms of s 79, which contemplates that a claimant cannot bring a proceeding except in an urgent case (and then only with leave) until they have complied with all of their obligations under ch 5.
In Rees-Wlodek, her Honour found it unnecessary to resolve the tension because in that case there was clearly an urgent need to commence proceedings, such that the requirements of s 79 were able to be satisfied. The effect of her Honour’s decision was however that, notwithstanding the identified tension, the better view of the Chapter as a whole was that leave was required to commence proceedings where there was a non-compliance with any part of the Chapter.
In McGregor v Franklin [2006] ACTSC 69, in respect of the operation of ss 59 and 79, and after referring with approval to the decision of the High Court in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 (Berowra Holdings), where the High Court was dealing with a statutory precondition to commencing proceedings under the Workers Compensation Act 1987 (NSW) (Workers Compensation Act), Harper M observed at [28]-[30]: 28. It seems to me that the reasoning of the High Court applies with equal force to section 51 of the Wrongs Act. Non-compliance by the plaintiff does not render the proceedings a nullity but exposes the plaintiff to an application, as has been made here, seeking that the action be dismissed. 29. This construction of the legislation is supported by the inclusion in the Act of section 59, which gives the Court in which proceedings are commenced the power, on application by the claimant, to declare that the non-compliance has been remedied, or to authorise the claimant to proceed further with the claim despite the non-compliance. Court is defined in section 49 to mean the court in which a proceeding has been begun, or, if no proceeding has been begun, a court with jurisdiction to hear the claim. It seems to me that section 59 contemplates an application to a court in which a proceeding has been begun, for a declaration or authorisation under subsection (c), an interpretation inconsistent with the conclusion that a proceeding commenced in contravention of section 51 is a nullity. 30. Counsel for the defendant argued that the plaintiff, before instituting proceedings, should have sought leave under section 79 to begin the proceeding despite the non-compliance, on the basis that there was an urgent need to do so. True it is that the limitation period was within days of expiring when proceedings were commenced. I accept that it would have been open to the plaintiff to make an application under section 79, but there is nothing in the section or elsewhere in the Act which leads me to the conclusion that the existence of section 79 removes the power of the Court to make an order under section 59(1)(c).
44 Starting urgent proceeding by agreement (1) The purpose of this section is to enable a claimant to avoid the need to bring an application under section 43. (2) Without limiting section 43, if the claimant believes there is an urgent need to start a proceeding for a claim despite noncompliance with this part, the claimant may, in the claimant’s notice of claim— (a) state the reasons for the urgency and the need to start the proceeding; and (b) ask the person or persons against whom the proceeding is proposed to be started (proposed respondent) to allow the claimant to start the proceeding despite noncompliance with this part. (3) The claimant’s lawyer may sign the notice of claim on the claimant’s behalf if it is not reasonably practicable for the claimant to do so. (4) However, if the claimant’s lawyer signs the notice of claim, the claimant must sign the notice personally and give it to the proposed respondent as soon as practicable. (5) The claimant’s notice of claim may be given electronically in any way provided for under a regulation. (6) A proposed respondent must advise the claimant, in the approved form, that the proposed respondent agrees or does not agree to allow the claimant to start the proceeding despite noncompliance with this part. (7) The advice must be given to the claimant before the end of 7 days after the proposed respondent receives the notice of claim signed by the claimant’s lawyer. (8) If each proposed respondent agrees to allow the claimant to start the proceeding despite noncompliance with this part— (a) the claimant may start the proceeding; and (b) the proceeding is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.
In a number of Queensland Supreme Court decisions dealing with the pre-court procedures in the PIPA, s 7 has been applied to result in proceedings commenced in non-compliance with the pre-court procedures being determined to be void or otherwise not validly constituted (see Homes v Adnought Sheet Metal Fabrications Pty Ltd [2003] QSC 321 at [25]; Coffey v State of Queensland [2005] QSC 212 at [21]). The failure to obtain leave prior to the proceedings having been commenced was regarded as a shortcoming that deprived the court of jurisdiction to consider the matter. As it was a failure to satisfy a substantive requirement, the court considered itself unable to address the issue on a nunc pro tunc basis. Whether as a consequence of the well-recognised limitations on the use of self-characterising provisions like s 7 in the PIPA (see the observations of Spigelman CJ in Hamilton v Merck & Co Inc [2006] NSWCA 55; 66 NSWLR 48 (Merck) at [36]-[45]), or otherwise, the legislature in the Territory elected not to include a comparable provision in Chapter 5.
In Ruspandini v Summernats Pty Ltd [2025] ACTSC 83 (Ruspandini (No 1)), McCallum CJ considered the issue of jurisdiction in the context of the notice requirement in s 51, noting at [2] that: … the requirement to give notice of a claim prior to commencing proceedings is arguably jurisdictional, that is to say, proceedings commenced without notice having been given and the steps required under ch 5 having been taken would be incompetent.
However, in subsequent decisions of the court, orders have been made pursuant to s 79 of the CLW Act on a retroactive basis, notwithstanding the failure to seek leave prior to the commencement of proceedings (see in particular Rees-Wlodek at [39]).
It seems to me that the pre-court procedures are intended to be procedural, rather than substantive. I take that view because the provisions appear to be directed to encouraging parties to engage in an early exchange of information with a view to resolution prior to commencing court proceedings, rather than to the question of whether a particular individual does or does not have a right to pursue a cause of action. The introduction of the Ch 5 provisions did not create a new cause of action or substitute a legislative scheme for the common law rights that existed prior to the enactment of the Chapter. In that sense, the comments of Spigelman CJ in Merck at [60]-[61] and [67] as to the nature of the PIPA provisions are apposite: 60. … [T]he operation of the PIPA Provisions may be said to correspond to the category referred to by Dixon J of “rights … which have an existence and a purpose although the remedy be suspended or wanting”. Such a provision may not fall within the scope of matter affecting “enforceability”, as that word is used in John Pfeiffer. 61. The formulation found in each of s9 and s36, requiring that steps be taken “before starting a proceeding in a court”, is capable of constituting a condition precedent that can be characterised as substantive. That would be the correct conclusion if that formulation were employed in a legislative scheme that creates a new right or, as a matter of construction, entirely substitutes a legislative scheme for pre-existing common law rights. … … 67. It cannot, in my opinion, be said that the PIPA Provisions as a whole, or the scheme of Div 1 in particular, can be characterised as either creating a new right or substituting a legislative scheme for common law rights. PIPA modifies the common law in a number of respects, both procedural and substantive, but does not substitute a new regime. Once it is accepted, in line with the approach taken in Berowra Holdings, that the proceedings are not a nullity, and the procedural law of the court is engaged with the filing of the originating process, those proceedings continue until such time as the defendant chooses to exercise any rights it may have in respect of the plaintiff’s failure to comply with the pre-court process. The timing and circumstances of any application by the defendant to engage with the non-compliance may be significantly determinative of its outcome.
Recent consideration of Ch 5 requirements
Maletic
The decision in Maletic involved similar factual circumstances to the present case. Maletic concerned commencement of an originating claim shortly before the expiry of the relevant limitation period. McCallum CJ noted that the difficulty arising in that case was that proceedings had to be commenced in order to avoid the expiration of the limitation period. However, because the plaintiff had not yet complied with the pre-court procedures under Ch 5, proceedings could not be commenced without leave of the court. The plaintiff did not file an application for leave under s 79 with their originating claim, and the defendant thereupon lodged an application in proceeding seeking a stay of proceedings to allow the plaintiff to comply with Ch 5.
Her Honour found that the urgency created by the imminent expiry of a limitation period could justify the grant of leave under s 79, but that would require an application by the claimant for leave to commence or application by either party for leave to stay proceedings, with evidence put before the court to explain the delay in bringing proceedings. That is, the legislative intent was to constrain the commencement of proceedings in circumstances where there was not an urgent need to begin them. In light of the statutory obligation imposed on parties by s 5A(4) of the Court Procedures Act 2004 (ACT) (the CPA) to facilitate the timely and efficient disposal of proceedings, and the purpose of Ch 5 consistent with that obligation, such an order could not be made as a matter of formality, by consent or short minutes. Rees-Wlodek
In the subsequent judgment of Rees-Wlodek, McCallum CJ considered the interaction of s 51 and s 79 of the CLW Act more closely. In those proceedings, the plaintiffs had served two sets of complying notices of claim in respect of the first plaintiff on the respondent, but were not able to serve the second plaintiff’s complying notice of claim until after the time limit for notice specified in s 51(3) of the CLW Act. Following further delays in completion of the Ch 5 steps, the plaintiffs commenced proceedings, to which the defendant responded by filing a conditional notice of intention to respond, alleging non-compliance with the requirements of Ch 5. Out of an “abundance of caution”, the plaintiffs applied for leave nunc pro tunc to bring proceedings, notwithstanding their stance that leave was not required.
At the outset, her Honour noted that the language of s 79 “does not sit comfortably” with a construction of s 51 that service of a complying notice of claim on a respondent was all that was needed for a claimant to bring proceedings. Counsel for the plaintiffs in Rees- Wlodek contended that s 51(1) set out the only requirement necessary to begin proceedings without leave and that, having provided the defendant with complying notice of their claims, there was no need to seek leave.
After examining each of the provisions of Ch 5, McCallum CJ made several observations about the interaction of the Ch 5 provisions. Her Honour noted that ss 59 and 78 are both silent as to whether an application under either section is to be brought before or after the commencement of personal injury proceedings. Notably, the definition of “court”, in relation to a claim, contained in s 49 of the CLW Act, indicates that the term “claim” can apply both before and after the commencement of proceedings. It is therefore not immediately clear whether ss 59 and 78 refer to one of or both the pre-trial processes and proceedings in court.
Ruspandini (No 1) and Ruspandini (No 2)
The factual circumstances in Ruspandini (No 1) and Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171 (Ruspandini (No 2)) involved a suit claiming damages for personal injury arising from assaults on the two plaintiffs by security officers at a festival. The second respondent in those proceedings was unable to comply with all the steps required under Ch 5 before proceedings were brought by the plaintiffs, due to a dispute over whether the second respondent was the employer of the security officers, and hence, the proper defendant to the claim. The plaintiffs therefore sought leave nunc pro tunc to commence proceedings under s 79.
In Ruspandini (No 1), McCallum CJ referred to the requirement to give notice of a claim before starting proceedings as “arguably jurisdictional”; that is, proceedings commenced without notice being given or compliance with the steps required by Ch 5 would be incompetent. Her Honour’s conclusion was fortified by s 79 of the CLW Act, allowing the court to give leave to a claimant to begin proceedings despite non-compliance with Ch 5 if satisfied there was an urgent need to begin proceedings.
In Ruspandini (No 2), McCallum CJ again engaged with the issue raised in Rees-Wlodek, in relation to whether proceedings could be commenced without leave only where all of the requirements of Ch 5 had been complied with. Her Honour emphasised that s 51 needed to be read in light of the entirety of the CLW Act and Ch 5, which appeared to be intended to create a regime for resolving damages for personal injury claims in a cost-effective and expedient manner. Accordingly, her Honour, albeit in apparently obiter remarks, remained of the view expressed in Rees-Wlodek that compliance with the entirety of Ch 5 was required before proceedings could be brought without leave.
Her Honour identified a distinction between non-compliance with the Ch 5 procedures and mere failure to complete the procedures, noting that in some instances, a party’s capacity to comply with Ch 5 would be dependent on the conduct of another party. What amounts to non-compliance with the Ch 5 processes must therefore be assessed in the circumstances of each case. In that case, the conduct of the second respondent, in mistakenly maintaining it was not the proper defendant for a period of time, had resulted in the plaintiffs not complying with their Ch 5 obligations. The plaintiffs’ failure to comply was based on mistaken reliance on documentary evidence provided by the second respondent. Her Honour concluded that the plaintiffs were entitled to proceed on the basis of the information provided, and that there was therefore nothing further for the plaintiffs to do to comply with Ch 5 at the time proceedings were commenced. Accordingly, there was no requirement for leave to be sought under s 79.
Her Honour clarified (correcting an error made in Maletic) that if leave were granted under s 79, a stay would automatically follow until Ch 5 was complied with or proceedings were discontinued.
Cook-Bateman v Adham
In Cook-Bateman v Adham [2025] ACTSC 173, Baker J considered circumstances where no complying notice of claim had been served before the time limit for service provided by s 51(3) of the CLW Act. Her Honour concluded (at [25]) that s 59 “should not operate as a de facto limitation period”, and authorised the plaintiff to continue with the pre-court procedures under s 59 and to commence proceedings under s 79(1). Her Honour appeared to approve of the view adopted by McCallum CJ in Rees-Wlodek in relation to whether compliance with the entirety of Ch 5 was required: see [15]; [25]-[30].
Baker J also considered the operation of the automatic stay of proceedings instituted by s 79(3) where leave is granted under s 79(1). Her Honour noted that an automatic stay would apply only until the claimant complied with Ch 5, even though the application of a stay appears to be consequent upon non-compliance with Ch 5 by either party. That is, the stay would cease to apply where it was only the respondent who was in breach of obligations under Ch 5. Her Honour also emphasised that many of the obligations on the claimant under Ch 5 arise only upon a request by the respondent, creating significant uncertainty as to when an automatic stay would come to an end.
Other judgments
Summary of authority
Submissions of the Territory
The Territory’s unconditional notice to respond
Under r 111(2), upon filing an unconditional notice, the defendant is taken to have submitted to the court’s jurisdiction and waived any irregularity in the proceeding. The plaintiff’s submission is that the Territory is prevented from seeking a stay, having entered an unconditional notice and consequently having waived any irregularity arising from the plaintiff’s failure to seek leave under s 79 of the CLW Act.
The issue turns on whether the asserted failure to comply with Ch 5 of the CLW Act constituted an “irregularity” within the meaning of the CPR. There is no definition of “irregularity” contained in the CPR.
The Territory submitted that the wording of r 1450 of the CPR suggested that an irregularity is a failure to comply with the CPR, or on a broader reading, a failure to comply with “procedure or requirements or forms or things of that nature”. In this case, the Territory submitted that it was not asserting any failure to comply with the CPR or a procedural matter, and that it was instead asserting the existence of a substantive obligation by the plaintiff to obtain leave under s 79 to commence proceedings. The Territory noted that it had continually maintained its position that an application under s 79 was necessary, and that in those circumstances, the filing of an unconditional notice could not absolve the claimant of the obligation to seek leave.
Requirement for leave under s 79
The Territory submitted that Maletic, Rees-Wlodek and Ruspandini (No 2) made clear that: (a) A claimant needed to comply with all pre-court procedures specified in Ch 5 of the CLW Act, and that it was not sufficient to merely provide a complying notice of claim prior to commencing proceedings; (b) If there was non-compliance with Ch 5, a claimant required leave of the court to commence proceedings; (c) The court must be satisfied there is an urgent need to commence proceedings; (d) Leave must be sought by way of application by the claimant; and (e) Where leave is granted, a stay will automatically follow until the claimant complies with Ch 5 or the proceeding is discontinued.
The Territory submitted that: (a) There were a number of outstanding non-compliances with Ch 5 as of the date the proceedings were commenced, including obligations on the claimant which could not be attended to until the Territory and Icon had complied with their obligations under the Chapter. These included obligations of disclosure, co-operation and attempted resolution of the dispute. It submitted that the plaintiff had seemingly acknowledged that there was a non-compliance in a letter to the respondents dated 25 July 2025. The Territory had now taken “all outstanding steps” to remedy its non-compliance with Ch 5. (b) In accordance with correspondence it had exchanged with the plaintiff between 14 October 2024 and 28 May 2025, the plaintiff had failed to comply with his obligation under s 52(4) any earlier than the day before proceedings were commenced. It was difficult to see how the Territory could have properly become a respondent to the claim the day before proceedings would commence, or in the circumstances, how it could be said there was compliance as between the Territory and the plaintiff at the time of commencement. (c) There was an urgent need to commence proceedings, having regard to the expiry of the limitation period and the date on which proceedings were commenced. (d) The requirement for a stay of proceedings stemmed from the scope of the plaintiff’s allegations in the pleaded statement of claim, which the Territory asserted had considerably widened from that set out in the PICN. The most efficient and effective mechanism for it to properly investigate the broadened allegations was through means such as discovery and notices for non-party production. Notwithstanding the proposed stay, the process of complying with Ch 5 and the process of proceedings following commencement should be run side by side, by agreement of the parties: citing Rees-Wlodek at [39].
Submissions of the plaintiff
Counsel for the plaintiff’s submissions sought that the application be dismissed with costs and addressed three main points. At the outset of oral submissions, counsel identified the issue before the Court as “jurisdictional” in nature.
The plaintiff submitted: (a) That the Territory, in filing an unconditional notice of intention to respond, had submitted to the court’s jurisdiction, and as a result, could not now raise an irregularity. A failure to comply with Ch 5 of the CLW Act and a failure to seek leave following non-compliance created a jurisdictional irregularity, as opposed to a nullity: citing Rees-Wlodek at [39]; Ruspandini (No 1) at [2]. A defendant asserting a jurisdictional point needed to follow the procedure set out in r 111 of the CPR, including by filing a conditional notice of intention to respond. By instead filing an unconditional notice, the Territory had waived any objection to the court’s jurisdiction and could now no longer argue in relation to non-compliance. (b) A further consequence of the Territory waiving the right to object to the court’s jurisdiction was that, even if the plaintiff was non-compliant with Ch 5, there was no longer a requirement to seek leave. This was based on the proposition that the issue of leave is one to be raised by the parties. (c) The raising of an irregularity at the present point in proceedings was not in keeping with the overarching purpose under s 5A of the CPA. Proceedings were now underway and a first directions hearing had been conducted on 28 July 2025, with a defence due to be filed by 8 September 2025. (d) Section 79 only required a claimant to seek leave where the claimant had not complied with Ch 5. That is, leave under s 79 would only be required where the claimant specifically was in non-compliance. Section 79 does not use the words defendant or respondent, suggesting a legislative intention that only the requirement for the claimant to comply should be applicable. Counsel also noted that s 79(3) appears to impose a stay on proceedings until the claimant (and no other party) complies with Ch 5. (e) The core issue was whether the Territory had been properly notified that the plaintiff considered it to be a proper respondent to the plaintiff’s claim, under s 52(4) of the CLW Act (see relevant chronology of interactions between the plaintiff and the Territory at [9]): (f) The plaintiff’s letter dated 23 August 2023 was sufficient to put the Territory on implied notice that the plaintiff considered the Territory to be a proper respondent, although the letter could have been worded more clearly. However, the plaintiff’s letter dated 16 September 2024 was then clearly sufficient to comply with s 52(4) of the CLW Act. The letter of 16 September 2024 had stated that the plaintiff considered the letter of 23 August 2023 to constitute notice under s 52(4), and was sufficient to amount to giving express notice to the Territory under s 54. (g) Even if it were accepted that the wording of the 16 September 2024 letter was insufficient to comply with s 52(4), the letter dated 29 May 2025 was enough to conclusively establish that compliance, because it expressly requested a response from the Territory pursuant to s 54. This was a circumstance of the type referred to in Ruspandini (No 2), in that there were no further actions for the plaintiff to take at that point, pending the Territory fulfilling its corresponding obligations under Ch 5. There was therefore no need to make an application under s 79. (h) The investigative steps required to be undertaken by the Territory and Icon, as envisioned by s 61 of the CLW Act, could be accommodated by seeking extra time through court processes or by the defendants in each case putting on an application for a stay. (i) The circumstances did not justify a stay of proceedings. The application for a stay in this instance would be relying on the general powers of the court to order a stay to prevent an abuse of process, rather than the automatic stay instituted where a plaintiff seeks leave under s 79. (j) Consideration would need to be given to the overarching purpose set out in s 5A of the CPA, and that the Territory would need to particularise the exact abuse said to have been performed or caused by the plaintiff filing the proceeding. In that regard, the issues of non-compliance identified by the Territory had since been rectified, and the Territory had stated in the grounds of the application that it considered the investigation of the plaintiff’s allegations to be better sought through court processes such as seeking discovery and filing notices for non-party production. As a result, there appeared to be no proper basis identified by the Territory for ordering a stay.
Submissions of Icon
The substance of the submissions made by Icon are drawn from a letter from Icon’s solicitor to the plaintiff and the Territory, dated 18 July 2025. The position adopted by Icon was that the plaintiff had not complied with the Ch 5 pre-court procedures, but that nevertheless, there was no requirement to bring an application under s 79 of the CLW Act. Icon supported the submissions of the plaintiff in relation to the specific issue of whether leave was required under s 79.
Icon submitted the plaintiff had not complied with his obligations under Practice Direction No 2 of 2014 to provide proposed directions for the first directions hearing of the matter and a list of experts for the plaintiff, but did not assert any current non-compliances with Ch 5 as between Icon and the plaintiff. To the extent that Icon did actively allege non-compliance with Ch 5, it was from the period between 22 September 2023 (when Icon requested particulars of the claim) and 27 May 2025 (when the request for particulars was answered by the plaintiff). The plaintiff did not engage with pre-court procedures during this period and was therefore not in compliance, but the appropriate relief was in the form of costs to be sought under s 62(1)(b) of the CLW Act, rather than by requiring an application under s 79.
In relation to the Territory’s application for a stay, Icon submitted that the Territory was seeking a stay to address the fact that the Territory had been in non-compliance until shortly after the expiration of the limitation period on 1 June 2025. Icon acknowledged the possibility that the Territory’s non-compliance was contributed to by the non-compliance of the plaintiff, but submitted that s 79 did not require a claimant to seek a stay of proceedings to address compliance by the respondent.
Icon further argued that requiring the bringing of an application under s 79 would add undue cost to the proceedings, in circumstances where any prejudice to the defendants from the plaintiff failing to comply with his obligations could be addressed by adjusting the case timetable. Were a stay granted, it would almost immediately be lifted given the plaintiff was already in the process of complying with the pre-court procedures, and that it was therefore not in the interests of s 5A of the CPA to put a stay in place.
Icon disagreed with the plaintiff’s construction of r 111 of the CPR, and submitted that a provision in the CPR could not take away from a party’s obligations under other legislation such as the CLW Act.
Is there a non-compliance for the purposes of s 79?
The PICN that the plaintiff provided to the Territory on 27 July 2022 was compliant with the plaintiff’s obligations under s 51 of the CLW Act. The Territory does not suggest otherwise. It is in relation to the conduct thereafter, following the Territory’s response to the plaintiff, to the effect that the Territory was not a proper respondent to the claim, that the Territory raises an issue of compliance with Ch 5.
The particular categories of non-compliance as at the date of commencement that are relied upon by the Territory are set out in the application in proceeding at par 13 of the application grounds: As at the time the originating process was filed, the parties had not complied with their broader obligations of disclosure, cooperation and attempted resolution of the dispute as required by Chapter 5. Notably: a. the first defendant had not provided notice pursuant to section 54; b. the parties had not provided disclosure in accordance with their obligations under sections 64 and 68 respectively; c. the first defendant had not issued any contribution notices pursuant to section 57; d. the first defendant had not articulated its position on liability or contributory negligence, pursuant to section 61(1)(b); and e. no settlement offers had been invited, made, rejected and/or countered by either the plaintiff or the first defendant, as per sections 61(1)(c)-(f). Additionally, based on correspondence in the matter, we do not understand that the requirements of Chapter 5 had been complied with as between the plaintiff and the second defendant as at the date this proceeding was commenced.
The non-compliance matters identified were almost entirely failings on the part of the Territory rather than the plaintiff. In written submissions, the Territory identified that those non-compliance matters had, by the time of the hearing of the application, largely been addressed. As against the plaintiff, it was asserted that there had been a failure to provide disclosure in accordance with the obligations arising under s 64, and a failure to invite any offers of settlement. In terms of the obligations under s 64, the PICN was accompanied by a number of photographs of the area where the incident occurred. There is no suggestion arising from the material before me that there were other reports or documents in the possession of the plaintiff at the relevant time that would indicate any non-compliance on the plaintiff's part with his obligations under s 64. As far as a request for any further information pursuant to s 64 is concerned, the Territory’s request for information pursuant to s 64 was made on 2 July 2025, after proceedings had been commenced.
As to the obligation to engage in settlement negotiations, the mandatory obligations arising under s 61 of the CLW Act are almost entirely obligations that are imposed on the defendant. It is the defendant that must: (a) Take reasonable steps to investigate the accident; (b) Give written notice of whether liability is admitted or denied; (c) Assess contributory negligence; and (d) Deal with any settlement offers received and, if no offer has been received, invite the claimant to make an offer.
The effect of the unconditional notice of intention to respond
As a consequence of the reasons given above, I am not required to address this issue. Had I been required to do so, I would have rejected the argument proffered by the plaintiff. That is because the commencement of proceedings invoked the jurisdiction of the court. The filing of a notice of intention to respond by the Territory in these circumstances did no more than engage with that jurisdiction. Were it the case that there was a failing on the part of the plaintiff to comply with its obligations under Ch 5, there was nothing arising from the defendant’s filing of a notice of intention to respond that would have prevented it from seeking in an appropriate application to ventilate the non-compliance issue. To suggest that the filing of an unconditional notice constituted some form of waiver of that right is, in my view, unhelpful. As the majority observed in Berowra Holdings at [39]: It is one thing to speak of the waiver of a legal, equitable or statutory right or privilege. However, once it is appreciated that the court has jurisdiction and that its procedural rules have been engaged, concepts such as "waiver" (and acquiescence and estoppel) are confusing and imprecise. This was pointed out by Dawson J in Verwayen and Lord Browne-Wilkinson in Roebuck v Mungovin. The conduct of pending proceedings by a party is relevant upon an application by that party for the exercise in its favour of a power of the court. The outcome of such an application depends not upon the exercise of the right of a litigant or upon its denial, but upon the exercise of a discretionary power given to the court. The decision of the court often will depend upon many different factors. An outcome favourable to one party cannot be described adequately in terms of the waiver of the legal, equitable or statutory rights of the unsuccessful party. (Footnotes omitted.) The application for a stay
Rule 40(1)(g) provides a statutory power to stay proceedings. The Supreme Court also holds inherent jurisdiction to order a stay, in order to avoid an abuse of process: Jago v District Court of NSW (1989) 168 CLR 23; 63 ALJR 640; Clyne v NSW Bar Association (1960) 104 CLR 186; ALR 574. What constitutes abuse of process is “insusceptible of a formulation which comprises closed categories” or comprehensive definition, but can be identified by reference to circumstances in which the use of a court’s procedure would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [25]; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [9]. Whether there is an abuse of process depends on the circumstances of the case and requires “a broad, merits-based judgment”: Johnson v Gore Wood & Co [2002] 2 AC 1 (UK) at 31 (Lord Bingham); cited approvingly in UBS AG v Tyne [2018] HCA 45; 265 CLR 77 (Tyne) at [7] (Kiefel CJ, Bell and Keane JJ), [69] (Gageler J), [110] (Nettle and Edelman JJ).
In PNJ v The Queen [2009] HCA 6; 83 ALJR 384, the High Court identified (at [3]) the following as relevant indicia of an abuse of process: It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics: (a) the invoking of a court's processes for an illegitimate or collateral purpose; (b) the use of the court's procedures would be unjustifiably oppressive to a party; or (c) the use of the court's procedures would bring the administration of justice into disrepute. (Footnotes omitted.)
Orders
I certify that the preceding seventy-three [73] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller. Associate: Date:
Moy
ACT [2025] ACTSC 505
(1960) 104 CLR 186
(1989) 168 CLR 23
The plaintiff has declined to accept the Territory’s invitation to make an application for leave pursuant to s 79 of the CLW Act.
With that background, and having adopted the position that the Territory itself has no power to make such an application, the Territory filed the application in proceeding that is now before the court, seeking a stay of the proceedings until such time as the plaintiff has made an application seeking leave pursuant to s 79, and the court has exercised its discretion to grant such leave.
In Berowra Holdings, the High Court was concerned with the operation of s 151C of the NSW Workers Compensation Act. The section provided that a person to whom compensation was payable under the Workers Compensation Act was not entitled to commence court proceedings for damages in respect of the subject injury until six months had elapsed since notice of the injury was given to the employer. The plaintiff, Mr Gordon, had commenced proceedings in contravention of that section. The court rejected the suggestion that the proceedings commenced in non-compliance with s 151C were invalid or a nullity. The majority noted that the institution of proceedings engaged the procedural law of the court found primarily in the relevant court procedure rules (being the District Court Rules 1973 (NSW)). Choice as to the action to then be taken rested primarily with the parties, and the court’s power of decision or order would generally be exercised upon the application of a party. The High Court stated at [15]: Generally there is in law no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.
In conclusion as to the effect of the statutory precondition, the majority observed at [36]- [37]: 36. Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a "nullity". Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject-matter with which the statute deals is "rights" in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims. 37. The upshot is that the effect of non‑compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court. Where the defendant requires an order by the court for the defendant to give effect to a point as to s 151C, in exercising its discretion the court will take into account numerous factors. Not all of these (as Lord Griffiths recognised in Ketteman v Hansel Properties) may be measured in economic terms. (Footnotes omitted.) The background to Ch 5
Chapter 5 was incorporated into the legislation as a component of a suite of amendments contained in the Civil Law (Wrongs) Amendment Act 2003 (No 2) (ACT), which commenced on 9 September 2003.
The Explanatory Statement released in support of the amendment bill made no secret of the fact that the pre-court procedures were developed in response to the notification and open disclosure provisions forming recommendation 9 of the Ipp Report (Commonwealth of Australia, Review of the Law of Negligence: Final Report (September 2002)), and were based on the Personal Injuries Proceedings Act 2002 (Qld) (PIPA).
In respect of those changes, the ACT Court of Appeal in Cleary v Rinaudo [2013] ACTCA 32; 8 ACTLR 71 observed at [49]: The Explanatory Statement to the Civil Law (Wrongs) Amendment Bill 2003 (ACT), which inserted ch 5 into the Act, indicates that the requirement for early notification to defendants of a client’s instruction to proceed with a claim was modelled on the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”). Indeed, a comparison of ch 5 of the Wrongs Act with the PIPA leads irresistibly to the conclusion that the debt to Queensland was much greater. Of the comparable provisions of that legislation Keane JA (with whom MacKenzie J agreed and Jerrard JA generally agreed) noted in Watkins v State of Queensland [2008] 1 Qd R 564 (at [67]): The purpose of div 1 to div 4 of pt 1 of ch 2 of the PIPA is to ensure that sound claims are admitted and unsound claims are abandoned; in this way, unnecessary litigation of those claims is to be avoided. … The evident purpose of these provisions of the PIPA inevitably inform the actions of those who act in conformity with their requirements. That purpose is to ensure that good claims are paid and bad claims are abandoned before proceedings are commenced in court; that is to say, the “dominant” purpose is that there should not be litigation of the claim at all if that is reasonably possible. (Emphasis added.)
Some provisions of significance were not adopted from the PIPA. The ACT scheme has no equivalent to ss 7 and 44 of the PIPA, which provide: 7 Provisions of this Act that are provisions of substantive law (1) Provisions of this Act that provide for the kinds of damage, and the amount of damages, that may be recovered by a person, and the provisions of chapter 2, part 1, divisions 1, 1A, 2 and 4, are provisions of substantive, as opposed to procedural, law. (2) Despite subsection (1), notice of a claim is to be given in the form approved for a notice of a claim when the notice is given. (3) Also, subsection (2) has effect for notice of a claim given before the commencement of this subsection.
Section 44 of the PIPA provides a mechanism whereby non-compliance issues may be resolved between the parties without the need to make application to the court pursuant to s 43. Section 43 of the PIPA is in identical terms to s 79 of the CLW Act. For reasons that are not apparent, the legislature of the ACT determined not to give parties the option of resolving non-compliance issues without the court's involvement. Having said that, the power of the parties to resolve non-compliance issues in that way under the PIPA remains limited to circumstances in which there is an urgent need to begin proceedings.
The decision of the legislature in the ACT to not include a provision akin to s 44 of the PIPA, in the CLW Act, and thus to deny parties the right to resolve non-compliance issues themselves without court intervention in the pre-litigation phase, is consistent with the intention that the pre-court procedures in the CLW Act are interpreted as being procedural in nature, requiring intervention from the court following commencement of proceedings only in circumstances where the responding party invokes the jurisdiction of the court in challenging the conduct of the non-complying party.
Section 59 of the CLW Act is in substantially the same terms as s 18 of the PIPA. Section 59 provides a mechanism for a party that has failed to give a complying notice of claim to proceed further with the claim, notwithstanding that non-compliance, in circumstances where either: (a) The respondent expresses satisfaction with the notice or with the claimant’s efforts to remedy the non-compliance, or the respondent is conclusively presumed to be satisfied because of their failure to raise any objection to the notice within the time provided; (b) The respondent has waived compliance with the requirement; or (c) The court declares that the claimant has remedied the non-compliance or authorises the claimant to proceed further with the claim despite the non-compliance.
In each of s 59 of the CLW Act and s 18 of the PIPA, the remedy is, on its face, limited to default in relation to the notice of claim itself and does not extend to remedying broader non-compliance issues under the relevant part. “Claim” is defined for the purposes of Ch 5 in s 49 of the CLW Act, which provides: 49 Definitions—ch 5 In this chapter: claim means a claim (however described) for damages based on a liability for personal injury, whether the liability is based in tort or contract or on another form of action (including breach of statutory duty), and, for a fatal injury, includes a claim for the dead person’s dependants or estate.
There is nothing arising from the definition of claim or from the plain words of s 59 to suggest that the power given to the court in that section, is limited to circumstances in which proceedings have not yet been commenced.
It was not ultimately necessary for McCallum CJ to resolve the inconsistency between s 51 and s 79, as her Honour was satisfied there was an urgent need to commence proceedings in that case. However, in obiter dicta remarks, her Honour observed that Ch 5 appears sufficiently flexible to accommodate disputes under the CLW Act that cannot be practically resolved within the time limits envisioned by the Act and does contemplate commencing proceedings before completion of the pre-court procedure. Her Honour noted that there was no clear wording in the CLW Act to indicate proceedings commenced without leave were a nullity, but was of the opinion that s 79 did impose a requirement to seek leave, with the effect of such a grant being that proceedings would be stayed until the claimant complied with Ch 5.
Her Honour concluded that the “better view” of ss 51 and 79 was that leave would be required to commence proceedings before the Ch 5 procedure had been completed, but that the claimant could enforce compliance by way of application under s 78 to compel a defendant to comply with its obligations.
It is also the defendant’s obligation to make a fair and reasonable estimate of the damages to which the claimant would be entitled.
The only mandatory obligation imposed on a claimant by s 61 is, pursuant to s 61(4), to respond to any written offer or counteroffer of settlement received. In this instance there was no such offer from the Territory.
As a consequence, I am not satisfied that at the time proceedings were commenced, there was any relevant non-compliance on the part of the plaintiff with his obligations arising under Ch 5. Whilst there was clearly non-compliance at that time on the part of the Territory, the plaintiff has, at the time of the hearing of this application, taken no action in respect of such non-compliance.
In line with the High Court's approach in Berowra Holdings: (a) The proceedings commenced by the plaintiff notwithstanding the Territory's non-compliance with Ch 5 at the time of commencement are not a nullity; (b) The proceedings once commenced, albeit in contravention of Ch 5, engage the jurisdiction and procedural rules of the court; (c) To the extent that the proceedings are commenced in contravention of Ch 5 there is nothing in that Chapter that denies legal effect to either the proceedings or to the steps later taken by the parties pursuant to the CPR with respect to the proceedings; and (d) In the absence of some positive step on the part of the plaintiff to address the issue, no action is required by the court in respect of the Territory’s non-compliance.
In considering whether the actions of a party would constitute an abuse of process, the court must have regard to the overarching purpose found in s 5A of the CPA, namely the need to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible: Tyne at [128] (Gordon J); Findex Group Ltd v McKay [2022] ACTSC 192 at [67]; Wilson v Allen (No 2) [2024] ACTSC 13 at [28]-[30].
For the reasons given above, I am not satisfied that there is any proper basis for the imposition of a stay in this case. As the Territory conceded in its written submissions: …the most efficient and effective mechanism for it to properly investigate these broadened allegations will be through use of Court processes such as discovery and the issuing of notices for non-party production.
Mindful of the regard that must be had to the overarching purpose found in s 5A of the CPA, it seems to me that the imposition of a stay in these circumstances would only impede the identified purposes in s 5A.