Ruspandini v Summernats Pty Ltd

Whether leave is required

5. Leave is sought under s 79(1) of the Civil Law (Wrongs) Act. That section provides: 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.

6. In Maletic v Calvary Healthcare ACT Limited [2022] ACTSC 231, I interpreted the existence of that power as an indication that Parliament intended to constrain the commencement of proceedings otherwise (that is, except where the court is satisfied that there is an urgent need to begin the proceeding). Without foreclosing other circumstances in which the court might be satisfied in those terms, it has been held that there is an urgent need to begin proceedings where the limitation period was about to expire (Maletic) and where the plaintiffs’ grief resulting from the consequences of the alleged negligence (the death of an infant) and subsequent delay in completing the Ch 5 procedures had contributed to their becoming suicidal: Rees-Wlodek v Calvary Healthcare ACT Limited [2025] ACTSC 162. Other obvious examples are the case of a claimant with a short life expectancy or a respondent taking steps to evade responsibility for a claim. I emphasise that this is by no means an exhaustive list. Each case will of course turn on its own facts.

7. In Maletic at [12], I stated that a claimant commencing proceedings despite noncompliance with Ch 5 should include within the prayers for relief an application for leave to commence them and should provide evidence explaining the urgency.

8. I take this opportunity to correct something I said in the same paragraph which is wrong and should not be followed. I said that a stay of proceedings is not the automatic result of the grant of leave. I had in mind a stay granted in the discretion of the court. However, I overlooked section 79(3) of the Civil Law (Wrongs) Act, which provides that, if leave is given under s 79(1) to begin a proceeding, the proceeding is stayed until the claimant complies with Ch 5 or the proceeding is discontinued or otherwise ends.

9. Mr Richards, who appears for the plaintiffs in the present case, invited me to reconsider my conclusion in Maletic that leave is required to commence proceedings in circumstances where the pre-trial processes have not been complied with. He submitted that there is a contrary indication in s 51(1) of the Act, which provides: Before a claimant brings a proceeding against someone else (a respondent) based on a claim in relation to a personal injury, the claimant must give the respondent written notice of the claim.

10. Mr Richards submitted based on the terms of that section that the only requirement of a claimant before commencing proceedings is to serve a complying notice of claim. He submitted that, once a notice of claim has been accepted or deemed to be a complying notice, a claimant is entitled to commence proceedings without leave, regardless of whether the remaining requirements of Ch 5 have been complied with.

11. The same point was argued, but not required to be determined, in Rees-Wlodek. In my decision in that case, I expressed the view (by way of obiter dicta) that, on the proper construction of the legislation, leave is required to commence proceedings prior to the completion of all of the pre-trial procedures specified in Ch 5, not just the requirement to serve a complying notice of claim. It is necessary to decide that question in the present case and I remain of that view.

12. It is convenient to repeat the summary of the scheme of the legislation I set out at [16]- [25] of that decision. Chapter 5 is divided into four parts. Part 5.1 is preliminary.

13. Part 5.2 specifies the procedures for making a claim. Section 51, in addition to requiring a claimant to give the written notice of the claim before bringing proceeding based on the claim, specifies the information that must be included in a notice of claim. Section 52 makes provision for a respondent to give a preliminary response to a notice of claim seeking further information if it cannot decide on the information in the notice of claim whether it is properly a respondent to the claim. That section further provides for the claimant either to provide the further information sought or to insist (my word) that it considers the respondent to be properly a respondent to the claim and requires it to respond to the claim in accordance with s 54. Section 53 protects a respondent by making plain that an admission that it is properly a respondent to the claim is not an admission of liability.

14. Section 54 requires a respondent to respond to a notice of claim. As with s 51, that section specifies the information that must be included within a response. Sections 55 to 58 make provision for the addition of other respondents.

15. Section 59 provides that, if a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless the respondent has given notice accepting that the claim is complying or waives any noncompliance or the court declares that the claimant has remedied the noncompliance or authorises the claimant to proceed further with the claim despite the noncompliance. As I noted in Rees-Wlodek at [24], that section provides a remedy for a claimant faced with the contention that their notice of claim is noncomplying.

16. Section 61 imposes obligations on a respondent to investigate and attempt to resolve a claim within six months after receiving a complying notice of claim.

17. I accept that, considered in isolation, s 51(1) appears to suggest that the only requirement of a complainant prior to the commencement of legal proceedings is to serve a complying notice of claim. However, as is orthodox, it is necessary to read the statute as a whole and to endeavour to give meaning to each separate provision. Section 51 falls within Part 5.2 of the Act, which specifies the pre-court claims procedure, that is, the procedure for making a claim prior to commencing proceedings. Parts 5.2 and 5.3 are also concerned with pre-court procedures. Part 5.3 supports the respondent’s obligation under s 61 in Part 5.2 to attempt to resolve the proceedings. Section 78 confers power on the court to enforce compliance with Parts 5.2 and 5.3, while s 79 confers power to grant leave to begin proceedings despite non-compliance with “this chapter” (the whole of Ch 5).

18. Reading Ch 5 as a whole, it is clear that Parliament intended to create a regime that would serve to resolve claims for damages for personal injury in a manner that would avoid the cost and delays that attend the adversarial system of justice. The obligations of disclosure, cooperation and attempted resolution imposed by Ch 5 are plainly calculated to be less expensive and more efficient than proceedings in court.

19. Mr Richards submitted that, if a claimant is precluded from commencing proceedings until the Ch 5 processes are complied with, there is no remedy to protect a claimant from a recalcitrant respondent who is not doing its part to comply with those procedures. He submitted that the Ch 5 processes can be continued alongside the processes of the Court and that, if a claimant has acted unreasonably in bringing legal proceedings, the respondent’s remedy is in costs, as contemplated under s 62. However, as I noted in Rees-Wlodek, there is a remedy under the statute for a claimant faced with a recalcitrant respondent, which is to bring an application under s 78.

20. For those reasons, I remain of the view expressed tentatively in Rees-Wlodek that a claimant who wishes to begin legal proceedings “despite noncompliance” with the Ch 5 procedures requires leave under s 79(1) of the Civil Law (Wrongs) Act to begin the proceedings.

Noncompliance with Chapter 5

21. It remains necessary, however, to consider the content of the requirement for compliance with Ch 5. During argument in the present proceedings, Mr Richards accepted that the Ch 5 processes have not been completed as between the plaintiffs and Reddawn. However, that is because, before the commencement of the proceedings, Reddawn denied that the two security officers were its employees and the plaintiffs accepted that denial. In any event, the question posed by s 79 is not whether the Ch 5 procedures have been completed but whether there has been noncompliance. In some instances, a party’s capacity to comply with the requirements of Ch 5 is dependent on the conduct of another party.

22. The relevant chronology of events in the present case is as follows. Notices of claim were served on Reddawn on behalf of both plaintiffs on 17 April 2024. After requesting and receiving further information from the plaintiffs, including the names of the two security officers, Reddawn’s solicitor wrote to the plaintiffs’ solicitor on 6 September 2024 contending that the two security officers were in fact employees of the third defendant, Canberra Security Company Pty Ltd. Reddawn’s solicitor provided a copy of an alleged subcontract agreement pursuant to which Canberra Security Company agreed to provide personnel to Reddawn as an independent contractor (meaning that Canberra Security Company would be the entity that was vicariously liable for the conduct of the security officers).

23. On 26 September 2024, acting on the information provided by Reddawn, the plaintiffs served notices of claim on Canberra Security Company. On 9 October 2024, the plaintiffs informed Reddawn that they would not be pursuing a claim against them. The solicitor acting for Reddawn accordingly closed her file.

24. Section 52 of the Civil Law (Wrongs) Act makes provision for the circumstance where there is a dispute as to whether a respondent to a notice of claim is a proper respondent to the claim. In particular, under s 52(2) of the Act, a claimant met with the contention that the respondent to the notice of claim is not properly a respondent to the claim can “tell the respondent, in writing, that the claimant considers the respondent to be properly a respondent to the claim and requires the respondent to give notice to the claimant under section 54”. However, it plainly would have been futile for the plaintiffs to do that in the present case as Reddawn had denied that the two security officers who assaulted the plaintiffs were its employees. As it turned out, that was wrong. A mistake in the completion of timesheets gave Reddawn to believe that the two security officers were employed by Canberra Security Company whereas they were in fact employees of Reddawn. The subcontract provided to the plaintiffs by Reddawn on 6 September 2024 was accordingly irrelevant to the plaintiffs’ claim.

25. However, none of that was known to the plaintiffs.

26. In November 2024, a director of Canberra Security Company rang the solicitor for the plaintiffs disputing any liability on the part of Canberra Security Company. The plaintiffs’ solicitor informed him that he had served the notice of claim because he had received a subcontract stating that Canberra Security Company was a subcontractor to Reddawn at Summernats and that two of Canberra Security Company’s security officers had assaulted the solicitor’s clients at Summernats.

27. The company director responded that “[s]omething dodgy” was going on. He denied having had any employees at Summernats.

28. The plaintiffs commenced proceedings on 15 November 2024. The affidavit relied upon by the plaintiffs in support of the application for leave does not address the decision to commence proceedings on that date. Given how quickly proceedings were commenced after the conversation between the solicitor for the plaintiffs and the director of Canberra Security Company, it may be inferred that a draft statement of claim had been prepared at the time of that conversation. Conversely, it is reasonable to infer that the decision to file the statement of claim was made in circumstances where the plaintiffs’ solicitor was aware that both Reddawn and Canberra Security Company were denying employment of the two named security officers who had pleaded guilty to assaulting the plaintiffs.

29. Although I have reached the conclusion that a claimant is ordinarily required to do more than just serve a complying notice of claim before being entitled to commence legal proceedings without leave, the question as to what amounts to “noncompliance” with Ch 5 (in particular, what if any further steps the claimant is required to take) must necessarily be determined according to the circumstances of the case at hand.

30. In the present case, the plaintiffs believed that the men responsible for assaulting them were employees of Reddawn because, apart from anything else, they were wearing the Reddawn uniform. However, the solicitor acting for Reddawn had denied that her client employed the two security officers and had provided documentary evidence, albeit inconclusive, identifying a different company as the employer of the two men. That company had in turn disputed that it was the employer of the two men and had informed the solicitor acting for the plaintiffs that “[s]omething dodgy” was going on.

31. I am satisfied that, in those circumstances, there was nothing more the plaintiffs were required to do in order to comply with Ch 5. The solicitor for Reddawn submitted that, after being informed by Canberra Security Company that they disputed what Reddawn had told the plaintiffs’ solicitor, the solicitor should have gone back to Reddawn so that they could “go away and complete these investigations well before we get anywhere near a courtroom”. I do not accept that submission. Chapter 5 is highly prescriptive as to what a claimant is required to do. There is no warrant in the language of the statute for superimposing additional requirements. The mistake as to employment of the two security officers was Reddawn’s mistake. The plaintiffs were entitled to proceed on the basis of the information provided to them by Reddawn’s solicitor. The position adopted by Reddawn had the effect that there was nothing further for the plaintiffs to do in order to comply with Ch 5.

32. In all the circumstances, I am satisfied that the plaintiffs were entitled to begin the proceedings without leave of the Court.

33. Before the plaintiffs filed their application for leave to begin the proceedings, Reddawn filed an application for a stay. That application was overtaken by the subsequent filing by the plaintiffs of their application for leave to begin the proceedings. Had leave been required and granted, there would have been a stay by force of s 79(3) of the Act.

34. Notwithstanding my conclusion that there is no requirement for leave, the fact remains that Reddawn (as a result of its own error) has not had an opportunity to investigate and resolve the plaintiffs’ claims through the pre-court procedures contemplated in Ch 5. That is in circumstances where, as it now appears, its employees have pleaded guilty to assaulting the plaintiffs, which would suggest that the claims may well be able to be resolved. In the circumstances, I will hear the plaintiffs as to why Reddawn should not be granted a stay for at least some period (not necessarily the six months sought). It will also be necessary to hear the parties as to costs.

Orders

35. For those reasons I make the following order: (1) The plaintiffs’ application in proceeding dated 11 March 2025 is dismissed, there being no requirement for the leave sought.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: