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1. Sarvan Sami (the Appellant) appeals against the summary dismissal of his claim for damages for personal injuries filed on 4 September 2025.

2. The Appellant’s claim arises out of a motor vehicle accident which occurred on 7 September 2020 in which the First Respondent’s car ran into the rear of the Appellant’s car. Liability is not in dispute. The Second Respondent is the insurer for the purposes of the Appellant’s claim.

3. This particular application commences with the Appellant’s claim for Quality of Life Benefits pursuant to the provisions of Motor Accidents Injuries Act 2019 (ACT) (the Act) which governs the process by which a person may claim damages for injuries arising from motor vehicle accidents.

4. Once the claim for Quality of Life Benefits was made, it fell to the insurer to arrange for a Whole Person Assessment (WPI) of the Appellant. The purpose of the assessment is to evaluate and report on a claimant’s injuries to determine the WPI resulting from the injuries.

5. Here, the dispute sitting behind the Magistrate’s decision appealed from is the assessment of the Appellant’s WPI and the process by which it occurred.

The legislative context

6. The award of damages for injuries sustained in motor vehicle accidents is governed by the Act. It provides for different kinds of damages for people injured in a motor vehicle accident. The damages are payable by the relevant insurer, here, the Second Respondent.

7. The Act by its terms imposes a threshold to bring a common law claim for damages, that is that the claimant must have been assessed as having a WPI of at least 10%. The Act also provides for other steps precedent to filing a claim but for the purposes of this Appeal, they are not relevant.

8. The process of assessment of a claimant’s WPI is provided by the Act. A claimant’s WPI determines whether they are entitled to Quality of Life Benefits which is in the form of lump sum compensation and the amount paid is linked both to the amount of that compensation and to whether the claimant is entitled to bring a common law claim for damages for their injuries.

9. In short, a claimant must have a WPI of at least 5% to entitle them to Quality of Life Benefits or at least 10% to entitle the claimant to bring a common law claim.

10. The WPI is first assessed by an Independent Medical Examiner (IME) appointed by an Independent Medical Examiner Provider. The IME appointed must meet the qualifications referred to in s 149 of the Act, namely a person who has been trained as required by the WPI assessment guidelines and who has been selected by the IME provider to conduct the assessment.

11. The assessment having been conducted, the IME must provide the assessment report to the relevant insurer (s 152 of the Act).

12. Where the assessment by the IME is less than 5% WPI, the insurer must give the assessment report to the claimant (s 154 of the Act). The claimant must notify the insurer whether they agree or disagree with the assessment.

13. Where the claimant is dissatisfied with the WPI assessment, the claimant may seek a second WPI to be arranged by the claimant at their own expense from a Private Medical Examiner (PME). The PME must conduct the assessment in accordance with the WPI assessment guidelines (s 158 of the Act).

14. Having been assessed by the PME, the claimant may provide that report to the insurer. If the claimant provides the second assessment to the insurer and where the second assessment is higher than that made in the first WPI report, the insurer may give a copy of the second WPI report to the IME who provided the first assessment and request that the IME review the first WPI report.

15. Where that occurs, the IME may either affirm the original assessment or increase the assessment of the claimant’s WPI (s159(4) of the Act)

16. Section 160 of the Act provides that where an insurer receives a second WPI assessment, the insurer must decide a WPI for the purposes of making a final offer to the claimant. Where the insurer has requested the IME provider to arrange a review of the first WPI report, the final offer WPI must be not less than the affirmed or increased assessment of WPI depending on the decision of the IME who provided the first WPI.

Background

17. On 13 October 2022, the Appellant lodged a claim for Quality of Life Benefits and as a result, the Second Respondent arranged to have a WPI assessment of the Appellant. The Appellant was referred to Dr Laws an orthopaedic surgeon whose report dated 3 February 2022, assessed the Appellant as having a WPI of 5%.

18. The Appellant was dissatisfied with that assessment and a PME, Dr Lee, was arranged. Dr Lee’s report dated 29 March 2023, assessed the Appellant’s WPI at 25%.

19. The Second Respondent provided Dr Lee’s report to Dr Laws who affirmed his original assessment of 5%.

20. On 20 July 2023, the Appellant commenced proceedings in ACAT to challenge the basis on which Dr Laws conducted his assessment of the Appellant.

21. After that application had been filed, the solicitors for the Appellant were notified by the Second Respondent that Dr Laws did not have the requisite qualifications necessary to conduct the first WPI and said that, as a result, the Second Respondent was not in a position to “meaningfully respond” to the ACAT application and requested it be discontinued to allow a further assessment by an IME. The ACAT application was discontinued.

22. On 16 September 2024 the solicitors were informed by the Second Respondent that as a result of Dr Laws not being qualified to conduct the first WPI assessment: MLCOA arranged for a further review of the Claimant by a specialist with the necessary qualifications. MLCOA arranged for this further review to be undertaken by Dr Jan Tomlinson. This assessment was conducted on a desktop basis, in the interest of minimising inconvenience to the Claimant Dr Tomlinson’s review resulted in a WPI assessment of 4% being less favourable to the Claimant that Dr Law’s assessment of 5% WPI. MLCOA advised that a further assessment separate to Dr Tomlinson’s is not required, and suggested [the Second Respondent] take no action to amend its QOL [Quality of Life] benefits position or offer.

23. The email continued and refuted the claim by the Appellant’s solicitor that the Second Respondent had not adhered to its obligations under the Act and suggested that if the Appellant remained dissatisfied with the WPI and “maintains his rejection” of the Second Respondent’s final offer, the Appellant could make another application to ACAT.

24. It is tolerably clear that the Second Respondent understood that the Appellant did not accept the WPI assessment nor the process by which it was conducted. Nevertheless, on 20 February 2025 the Second Respondent paid benefits to the Appellant referrable to the WPI assessment of 5% directly into the Appellant’s bank account.

Proceedings in the ACT Magistrates Court

25. On 4 September 2025 a Statement of Claim was completed on the Appellant’s behalf seeking damages for personal injuries arising from the accident. Relevantly, under the heading “Entitlement to Damages” the Appellant wrote: 21 The plaintiff was assessed as having a Whole Person Impairment of 22% by Dr Yuk Kau Lee in his report dated 23 November 2021 and therefore is entitled to be awarded damages in relation to the accident pursuant to section 239 of the Act.

26. On 16 September 2025 the Appellant filed an Application in Proceeding seeking the following orders: 1. The plaintiff is granted leave nunc pro tunc pursuant to section 79(1) of the Civil Law (Wrongs) Act 2001 (the Act) to bring these proceedings. 2. Pursuant to s79(3) of the Act, the proceedings are stayed until the parties comply with the pre-court procedures in Part 5.7 of the Motor Accident Injuries Act 2019 … or the proceeding is discontinued or otherwise ends 3. Alternatively, pursuant to section 259(1) of the Motor Accident Injuries Act 2019, the compulsory conference is dispensed with, and the plaintiff is granted leave to commence these proceedings notwithstanding non-compliance with the Pre-Court Procedures.

27. The affidavit supporting the Application in Proceedings identified that the limitation period was fast approaching and further that the parties were then in dispute as to the Appellant’s right to bring a common law claim and, as a result, the necessary pre-court procedures could not be completed.

28. It is to be observed that the limitation period for the commencement of proceedings prescribed in s 16AA of the Limitation Act 1985 (ACT) is 5 years from the date of the accident, here 7 September 2020. The Statement of Claim was signed within the limitation period.

29. It is also to be observed that the Statement of Claim was completed before the publication of the decision of McCallum CJ in Stewart v Kirk [2026] ACTSC 33.

30. The Application in Proceedings came before the Magistrate first on 22 October 2025. On that occasion the Magistrate sought further submissions from the parties. The impending decision in Stewart v Kirk was raised in the Appellant’s submissions and, as a result, the Magistrate adjourned the proceedings to await that decision. The decision was handed down on 16 February 2026 and that the Magistrate sought further submissions from the parties on 24 February 2026.

31. The matter returned to his Honour on 6 March 2026 on which date he summarily dismissed the Appellant’s claim.

The hearing before the Magistrate

32. In the hearing and consequent on the decision in Stewart v Kirk, the parties made submissions to his Honour. Counsel for the Second Respondent submitted that the decision was “fatal” to the application then before the Court (that being the Appellant’s application for leave to commence proceedings and a stay) because Stewart v Kirk is authority for the proposition that a WPI from a private examiner does not satisfy the requirements of s 239 of the Act

33. Counsel for the Second Respondent submitted that the basis for the claimed entitlement to damages pleaded in the Statement of Claim was defective.

34. As to the impending limitation period, it was submitted for the Second Respondent that s 16AA of the Limitation Act provides an “exception” and said that there was “no limitation problem” facing the Appellant and it was submitted that this is a matter his Honour could take into account in considering the exercise of his discretion.

35. Next, it was submitted for the Second Respondent that the application does not “explain” why the Appellant had not sought a review of the WPI decision in ACAT.

36. When asked whether the application of the Second Respondent for dismissal was in relation only to the Application in Proceeding, counsel submitted that “the whole thing’s got to go”. In fact, the Statement of Claim had not been filed, it being the subject of the Application in Proceedings. However, the effect, if that application was summarily dismissed would be that the Statement of Claim was not filed.

37. His Honour observed that the Second Respondent was seeking a summary dismissal where the Chief Justice says “…that the assessment relied upon is not valid for the purposes of conducting a common law proceeding”.

38. Counsel for the Appellant submitted that there was an ongoing dispute between the parties about the process by which the WPI assessment was made. Counsel pointed out that the Second Respondent’s assertion about the limitation issue was somewhat equivocal.

39. Counsel submitted that the issues between the parties about the WPI assessment process needed to be resolved but in circumstances where the Appellant’s claim does not become statute barred. It was argued that the resolution of the WPI assessment must occur before there can be any consideration of pre-court procedures.

The Magistrate’s reasons

40. After noting the above matters, his Honour said: … Significantly both parties conceded – in particular the plaintiff- that her Honour’s decision was critical to the decision that I was to make in that her Honour held that the assessment relied upon for the whole person injury assessment by the plaintiff in Stewart v Kirk was not valid under the Act for the purposes of commencing common law proceedings under section 239. Mr Jones who appeared for the plaintiff, submitted that it was still in the interests of justice for me to grant the orders sought as he submitted there was some ambiguity as to whether or not the limitation period had expired in respect of his client’s claim. Mr Wilson for the defendant submitted that this was not an issue as both the Motor Accidents Injury Act and the Limitation Act specifically allow the commencement of proceedings following the completion of the whole person injury assessment process under the MAI Act. Ultimately it’s not for me to determine whether or not there are issues with the limitation period for the plaintiff’s claim because of the fundamental defect the current claim has before the court. The claim cannot proceed as the plaintiff’s action is not supported by the requisite whole of person injury assessment being more than 10 per cent under section 239. To allow the claim to proceed by way of granting the plaintiff’s orders would be, in my view, to effectively ignore her Honour’s decision in Stewart v Kirk. In the circumstances, there being a fundamental defect in the plaintiff’s application, that originating application must be dismissed.

41. His Honour dismissed the Appellant’s Application and ordered the Appellant to pay the Respondent’s costs of the proceedings.

42. Much then turns on the decision of Stewart v Kirk.

Stewart v Kirk

43. The facts in Stewart v Kirk bear some similarity with the present facts. In Stewart v Kirk, Mrs Stewart’s claim for injury was both physical and psychological. In relation to her physical injuries, the WPI was assessed by an IME at 0%. As to her psychological injuries, they were assessed at 5% WPI. Obviously, both assessments fell below the threshold necessary for the commencement of proceedings. Mrs Stewart obtained second opinions from two Private Medical Examiners. Dr Righalgh who assessed her physical injuries happened to be qualified as an IME, although did not assess Mrs Stewart in that capacity. That assessment was of 14% WPI. The assessment of Mrs Stewarts psychological WPI was 15%. Mrs Stewart provided the reports of the PMEs to the insurer who gave them to the doctors who had conducted the original assessments. It appears that neither increased their assessment having regard to the reports of the PMEs.

44. Mrs Stewart took the dispute to ACAT although that hearing was discontinued. The insurer made a final offer based on the assessments of the IME which was rejected. Mrs Stewart sought that the insurer participate in a compulsory, pre-court conference which it declined. She brought an application pursuant to s 258(4) of the Act to have the court appoint a time and place for the compulsory conference. The insurer responded seeking that the application be dismissed.

45. The issue for determination in Stewart v Kirk was whether, as Mrs Stewart advanced, Dr Ridhalgh’s assessment engaged the threshold for commencing proceedings because he was an IME at the time he conducted his assessment of her.

46. Her Honour’s reasons set out the provisions of the Act and how the process by which a WPI is arrived at. In particular, the course of analysing that process her Honour said at [28]-[29]: Where a second WPI assessment is undertaken, the private medical examiner must carry out the second WPI assessment in accordance with the WPI assessment guidelines and must prepare and provide to the injured person a WPI report about the second WPI assessment. The injured person is entitled (but not required) to provide a copy of the second WPI report to the relevant insurer. In turn, where the relevant insurer receives a second WPI report with a higher WPI assessment than in the first WPI report, the insurer is entitled but not required to provide the second WPI report to the IME provider and independent medical examiner who arranged and carried out the first WPI assessment and request the IME provider to arrange a review of the first WPI report. In response to the second WPI report, the independent medical examiner may either affirm the original assessment of the injured person’s WPI or increase the assessment of the injured person’s WPI. The IME provider is then required to give notice to the relevant insurer of the affirmation or increase of the injured person’s WPI. Where the independent medical examiner increases the assessment of the injured person’s WPI, the relevant insurer is bound by the increased assessment.

47. Her Honour said that while the text of the section may support Mrs Stewart’s argument, when read in context of the whole of the regime provided by the Act, it is the task of the IME appointed to determine whether the statutory threshold for commencing an action had been met.

48. Her Honour concluded at [54]-[55]:

In summary, the initial WPI assessment is binding on both parties, subject to the injured person’s right to dispute it. If the injured person seeks a second assessment, that is not binding on either party, but if the injured person chooses to provide it to the insurer and the insurer chooses to provide it to the initial independent medical examiners for review and the independent medical examiners increase the assessed WPI as a result, the increased assessment is binding. It may be seen from this analysis that the only role played by the second WPI assessment is to afford an opportunity to the injured person to persuade the independent medical examiner to increase their WPI assessment in light of the assessment of a fellow professional. The insurer is not bound by the second assessment; the insurer can only be bound by a revised upwards assessment of the original independent medical examiner. That contextual analysis militates against the construction of the Act contended for by the plaintiff. The result would be that the WPI assessment of the private medical examiner would bind the insurer for the purpose of ascertaining whether the statutory precondition for an award of damages is met but for no other purpose. As submitted by the insurer, the statutory scheme contemplates that the final WPI assessment will emanate from the independent medical examiner first appointed by the IME provider.

49. Her Honour accepted that the obtaining of an assessment by a PME is “part of the overall process” by which WPI is determined and concluded that the provisions of the Act creates a scheme in which: … the authority to determine the degree of WPI on the independent medical examiner appointed by the IME provider at the request of the insurer. The Appeal

50. This is an appeal brought pursuant to Pt 4.5 of the Magistrates Court Act 1930 (ACT). The appeal is conducted as a re-hearing and it is necessary for the court to conduct a real review of the proceedings to determine whether the Magistrate erred in fact or law.

51. The Notice of Appeal advanced two grounds, that the Magistrate failed to give adequate reasons for dismissing the proceedings and his Honour erred in determining that the decision in Stewart v Kirk was fatal to the Appellant’s statement of claim and therefore it had to be dismissed.

Ground 1 failure to give reasons

52. The ground contends that his Honour’s reasons were inadequate because he failed to address the Appellant’s case that the absence of a WPI of at least 10% did not render the proceedings a nullity such that they could not be sustained

53. Further it was argued that his Honour’s reasons do not indicate why, in his view, the decision in Stewart v Kirk dictated that the proceedings should be dismissed nor did he address the significant prejudice to the Appellant if the proceedings were dismissed in view of the expiration of the limitation period.

54. As his Honour’s reasons indicate, he had the advantage of written submissions from both the Appellant and the Second Respondent.

55. The Second Respondent argued that while there was some “economy” in his Honour’s reasons, given the demands of a Magistrate sitting in a busy court, his reasons should be ready bearing that in mind. While it is no doubt correct that reasons delivered ex tempore are afforded latitude by appeal courts because of that, here, his Honour had received written submissions and heard oral submissions and then reserved his decision albeit for a week or so. His Honour’s reasons ought to be considered in that light.

56. The Second Respondent further argued that there is no doubt that the Magistrate found that the Appellant’s failure to have a valid WPI to found the claim to damages was a “fatal defect”. Were his Honour’s reasons inadequate?

57. The obligation to give reasons is well known and requires no great elucidation. A trial judge’s reasons must, “as a minimum...be adequate for the exercise of a facility of appeal”: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P. Nor should an appeal court be left to speculate as to the basis of a particular finding. (Soulemezis per McHugh J at 280)

58. There is no doubt as to the fact of his Honour’s finding, however his reasons do not indicate why it was fatal or how the decision in Stewart v Kirk led him to that conclusion or how, in his Honour’s words to allow the claim to proceed would be to “…ignore her Honour’s decision in Stewart v Kirk”.

59. Secondly, his Honour’s reasons do not indicate if he considered the failure to have a WPI a fatal flaw, why it was necessary that proceedings should be summarily dismissed rather than stayed until a time in which they could be regularised.

60. The decision to order summary dismissal is an exercise of judicial discretion. There is nothing in his Honour’s reasons which demonstrates that he turned his mind to any matter which might operate against summary dismissal, albeit he referred to submissions on the issue of whether the Appellant would become statute barred, but then decided, for reasons not explained that it was not a matter for him to consider.

61. His Honour’s reasons were inadequate.

Ground 2 the effect of the decision in Stewart v Kirk

62. It was contended that the Magistrate erred in deciding that the decision in Stewart v Kirk was fatal to the continuation of the Appellant’s claim. That is, the Appellant’s reliance on the WPI of Dr Lee being the basis for the claim for damages. It is to be observed that the Statement of Claim was completed and the Application in proceedings filed before the decision in Stewart v Kirk was decided.

63. For the Appellant it was argued that Stewart v Kirk was readily distinguished from the present case because in this case, there has been no proper assessment of WPI because of the irregularity by which the process occurred. It was submitted that the irregularity could be cured.

64. Next it was argued that s 239 of the Act did not, by its terms, create a prohibition to commencing proceedings but provides that an award of damages cannot be made without the necessary WPI.

65. Section 239 is in the following terms: (1) An award of damages in a motor accident claim may be made only if the injured person to whom the motor accident claim relates— (a) has made a quality of life benefits application under division 2.6.2 (Quality of life benefits—application) and either— (i) an assessment has been conducted by an independent medical examiner under division 2.6.3 (Quality of life benefits—WPI assessment) and the person has been assessed as having a WPI of at least 10% as a result of the accident; or ….

66. Counsel relied on the decision of Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [34]-[36] which concerned the operation of s 151C of the Workers Compensation Act 1951 (ACT) and the requirement that proceedings be commenced within a particular time and where it was said: The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court's jurisdiction or because the court has no jurisdiction except to accede to a defendant's application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court. The construction advanced by counsel for the worker should be accepted. Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The "right" which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court. 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". …

67. Counsel further observed that the relevant section of the Workers Compensation Act said that without compliance a worker was “not entitled to commence court proceedings” distinguishing it from s 239 of the Act which addresses itself to the ultimate outcome of proceedings not its commencement.

68. Thus, it was argued that if it be accepted that s 239 of the Act does not prevent the commencement of proceedings but speaks to the entitlement to an award of damages, the proceedings could be validly commenced and ought not to have been summarily dismissed. It was then argued that the dispute as to the determination of WPI could be resolved without the Appellant’s claim becoming statute barred.

69. The respondent contends that the basis on which the Appellant asserted a right to damages, namely the WPI of Dr Lee, was, following the decision of Stewart v Kirk, incapable of satisfying s 239 of the Act because the Appellant could not meet the right to damages.

70. The Second Respondent argued that this represented a fundament defect in the Statement of Claim which of necessity required it to be dismissed and his Honour was correct in finding it was a fundamental defect

Was the assertion of the Appellant’s claim to damages based on the WPI of Dr Lee a “fundamental defect” that was inimical to the maintenance of the filed Statement of Claim.

71. It is to be recalled that the application before the Court in Stewart v Kirk was an application seeking the appointment of a time for a compulsory conference, based, as it is clear on Mrs Stewart’s assertion that the IME’s assessment of WPI was sufficient to engage that process. That assertion having been rejected, the Court dismissed the application.

72. Stewart v Kirk by its terms is not authority for the proposition that commencing proceedings without a WPI of not less than 10% is “fatal” to the proceedings continuing.

73. It is relevant too that the Appellant’s claim was filed at a time before the decision in Stewart v Kirk was delivered and thus, the Second Respondent’s argument that the claim did not address the Appellant’s current entitlement is somewhat hard to understand. The Appellant’s position, post Stewart v Kirk was for the Claim to be stayed pending resolution of the questions surrounding the WPI process.

74. I accept the submission that the terms of s 239 of the Act do not of themselves create a prohibition on commencing proceedings if they are not satisfied but as the High Court said in Berowra: “… does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction.”

75. I am of the view that the decision of Stewart v Kirk did not create a “fatal defect” in the Appellant’s pleadings such as to render them a nullity and his Honour was in error in finding that it did.

Notice of Contention

76. The Second Respondent filed a Notice of Contention. It asserts: • The Appellant’s Quality of Life Benefits application was finalised on 20 February 2025 when the Second Respondent deposited funds into the Appellant’s bank account equivalent to a 5% WPI; • The Appellant has not established that the limitation period had or was about to expire given the operation of section 166 of the Act; • Leave to file should have been refused in any event because the Appellant did not indicate why it did not take the dispute about the WPI to ACAT and or how it was intended to resolve the asserted dispute about the WPI; • Leave sought pursuant to s79(1) and (3) of the Civil Law (Wrongs) Act ought to have been refused because the non-compliance related to the Motor Accident Injuries Act. The resolution of the Appellant’s Quality of Life Benefits.

77. The Second Respondent argued that the “dispute” surrounding the determination of WPI was concluded by its payment to the Appellant of the sum reflected in the WPI of 5%. While the Act required the Second Respondent to pay to the Appellant that sum in the context of what appears to be a process of determining the WPI entirely at odds with the statutory regime, it could not, with respect be properly regarded as bringing the controversy to an end. It was clear at all relevant times as between the parties and made clear in the written and oral submissions of the Appellant to his Honour that the issue of WPI was irregular and needed to be resolved.

Limitation period

78. It was accepted that s 16AA of the Limitation Act provides a limitation period of 5 years in which to commence proceedings. However, the notes to s 16AA of the Limitation Act refer to s 166 of the Act which says that a person who has had a WPI assessment, has three months in which to make a motor accident claim from the date on which the injured person receives a notice pursuant to s 141(5) or of receipt of a notice under s 157(3) or s 164(2) of the Act.

79. The Second Respondent said that these provisions provide an exception for the Appellant in relation to the limitation period.

80. I do not agree.

81. Both s 157 and s 164 of the Act refer to someone who has had a WPI of at least 10% and on the Second Respondent’s case have no relevance to the Appellant. Further, even if that limited extension did apply to the Appellant, the time has passed.

82. On this point, it is to be observed that in submissions to the learned Magistrate, counsel for the Second Respondent asserted that there was no limitation issue but at another stage considered that there may be an issue.

83. On its face, the provisions of s 16AA of the Limitation Act applied to the Appellant and the Appellant was entirely correct to urge the Magistrate to make the orders to preserve the Appellant’s right.

Failure of the Appellant to indicate how or in what way the dispute as to the assessment of the WPI was to be resolved.

84. The thrust of this point as argued to the Magistrate and on appeal is that without indicating how the Appellant proposed to resolve the dispute, the stay was, in effect, open ended.

85. During submissions before the Magistrate, counsel for the Appellant conceded that there was an option to challenge the WPI assessment at ACAT but said that it was “late” by which I infer he was referring to bringing the challenge for administrative decision. He continued and said that there was an option of bringing proceedings in the Supreme Court to quash or set aside the determination or by review in ACAT and those options needed to be considered in light of the decision in Stewart v Kirk. Counsel for the Appellant argued that the dispute about the WPI needed to be resolved before the question of the Appellant’s claim could proceed.

86. To the extent that it was incumbent on the Appellant to indicate how the dispute about the WPI was to be determined or at least to indicate to the Magistrate that any stay would not be open ended, he fulfilled that requirement in the submissions.

Leave pursuant to s79(1) of the Civil Law (Wrongs) Act should have been refused.

87. In written submissions to the Magistrate the parties addressed the applicability of s 79 to claims brought under the Civil Law (Wrongs) Act 2002 (ACT). Section 79 by its terms provides for commencement of proceedings despite non-compliance with procedural or other steps. The Appellant called this section in aid because of the impending expiration of the limitation period.

88. The Second Respondent argued that the Civil Law (Wrongs) Act has no application to proceedings under the Act and asserted that the authorities on which the Appellant relied did not refer to proceedings under the Act.

89. Whether or not s 79 of the Civil Law (Wrongs) Act could be deployed by the Appellant, it was not argued to his Honour that he had no power otherwise to order the Statement of Claim be filed nunc pro tunc even though procedural matters remained uncompleted nor do the exchanges between his Honour and the parties indicate that his Honour was unsure of whether he had the power to make the order. His Honour’s decision to dismiss the application rested on what he regarded as the fatal defect in the proposed Statement of Claim.

90. None of the matters in the Notice of Contention persuade that the appeal ought not be allowed.

91. The Appeal will be allowed and his Honour’s orders set aside.

92. Turning then to what orders should be made. Having regard to the evidence before the Magistrate and what I consider to be the very real prospect that without the filing of the Statement of Claim, the Appellant’s claim may be statute barred, and having determined that because of the decision of Stewart v Kirk or for any other reason, the failure to have completed all of the procedural steps required by the Act does not present a fatal defect to the commencement of the proceedings, the Statement of Claim should be filed nunc pro tunc.

93. The dispute as to the regularity and thus the validity of the WPI assessment needs to be resolved and to that end the proceedings should be stayed until resolved or pending further order.

94. The orders sought in the Appellant’s Notice of Appeal appear to rest on the assumption that the Statement of Claim dated 4 September 2025 had in fact been filed. If it had not, then the appropriate order would be to order its filing nunc pro tunc and then stay its operation.

95. The Appellant will be directed to provide a minute of orders reflecting these reasons within 7 days of publication of the reasons.

Orders

96. The orders of the Court are: (1) The Appeal from the decision of the Magistrate made on 6 March 2025 is upheld and his Honour’s orders are set aside. (2) Within 7 days of publication of these reasons, the Appellant must file and serve a minute of orders reflecting the decision. (3) The Second Respondent to pay the Appellant’s costs of and incidental to the Appeal. (4) Liberty to restore on the question of costs on the giving of 14 days’ notice.

I certify that the preceding ninety-six [96] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: