Benjamin Mitchell v Australian Capital Territory

• Jurisdiction: South Australia
• Judge: Penfold J,Burns J,Wigney J
• Judgment Date: 12 October 2018
• Court: Full Supreme Court
• Date: 12 October 2018
• Docket Number: File Number: SCA 56 of 2015

[2018] ACTSCFC 1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY FULL COURT

Before:

Penfold, Burns and Wigney JJ

File Number: SCA 56 of 2015

Benjamin Mitchell

(Appellant)

and

Australian Capital Territory

(Respondent)

Representation:

Counsel

Mr N Hutley with Mr S Hausfeld (Appellant)

Dr K Rewell SC with Mr D Crowe (Respondent)

Cases Cited:

Insurance Australia Ltd v Albrecht [2015] ACTSC 68

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27

Barker v Gifford and Anor [2005] ACTSC 55; 192 FLR 347

Benjamin Mitchell v Australian Capital Territory [2015] ACTMC 1

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

House v The King [1936] HCA 40; 55 CLR 499

Insurance Australia Limited v Albrecht [2015] ACTSC 68

Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355

Smalley v Motor Accident Authority of New South Wales [2013] NSWCA 318; 85 NSWLR 580

Steen v Senton [2017] ACTCA 5

Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149

Legislation Cited:

Civil Law (Wrongs) Act 2002 (ACT) ch 14

Legislation Act 2001 (ACT) ss 139, 140

Motor Accidents Compensation Act 1999 (NSW) s 81

Motor Accident Insurance Act 1994 (Qld) ss 39 (repealed), 41, 51C, 88

Road Transport (Third Party Insurance) Act 2008 (ACT) ss 5A, 76, 84, 85, 88, 90, 96, 97, 99, 100, 101, 104, 105, 127, 136, 140, 141, 143, 145, 146, 147, 148, 149, 155, 156, 158, 159, 161, 162, 269; ch 4; pts 4.8, 4.9, 4.9A, 4.9B, 4.10, 4.10A

Road Transport (Third Party Insurance) Regulation 2008 (ACT) regs 27, 28, 30

Personal Injuries Proceedings Act 2002 (Qld)

Supreme Court Act 1933 (ACT) s 13

Texts Cited:

Explanatory Statement, Road Transport (Third-Party Insurance) Bill 2007 (ACT)

The Australian Concise Oxford Dictionary (Oxford University Press, 4 ^th ed, 2008)

APPEAL — Applicable legislation — Road Transport (Third Party Insurance) Act 2008 (ACT) — Republication 12

PERSONAL INJURY — Motor Vehicle Accident — relevance of the terms of s 97 of the Act to determining the correct interpretation of s 141 of the Road Transport (Third Party Insurance) Act 2008 (ACT) — whether a respondent to a motor accident claim can deny liability prior to the commencement of court proceedings and still make a mandatory final offer to settle a claim in a sum greater than $0

STATUTORY INTERPRETATION — objects of the Act — legislative scheme — encourage the speedy resolution of personal injury claims arising from motor vehicle accidents — whether a respondent is entitled to make a mandatory final offer without making some admission of liability — “denying liability altogether” — whether there was a basis for the appellant to give the respondent a compliance notice under s 158 of the Act

Decision

See [196]

Penfold J

Introduction

1 This is an appeal from a decision of the Magistrates Court that was referred to a Full Court under s 13 of the Supreme Court Act 1933 (ACT).

2 It concerns the interpretation of a provision of the Road Transport (Third Party Insurance) Act 2008 (ACT) (the 2008 Act). Among other things, that Act sets up a scheme for dealing with personal injuries claims arising out of motor vehicle accidents. The scheme provides that court proceedings to enforce such claims may not be commenced until there have been extensive, structured, exchanges between people claiming damages for such injuries (claimants) and those responsible for compensating injured people under third party insurance arrangements (generally, insurers or the Nominal Defendant, referred to as respondents).

3 The provision in question in this case (s 141 of the 2008 Act) relates to one of the last steps in those structured exchanges, the step which usually involves the exchange of mandatory final offers (MFOs) if the matter has not resolved at a compulsory conference.

Applicable legislation

4 As explained by Mossop AssJ in Insurance Australia Limited v Albrecht [2015] ACTSC 68 ( Albrecht) at [21], the version of the 2008 Act applicable to motor accident claims arising from motor accidents before 1 January 2013 is the Act as in force immediately before then, which is set out in Republication 12. There have been minor amendments to the Act since then, but none apparently applicable or relevant to this case.

Background

5 The appellant, Mr Mitchell, claims that on 23 October 2009 he suffered injuries while travelling as a passenger on an ACTION bus. The ACTION bus service is run by the ACT government, making the ACT (the respondent in this appeal) the appropriate defendant in Mr Mitchell's negligence action. To avoid confusion between the parties to this appeal and the claimants and respondents referred to in the 2008 Act, I shall refer to the parties to this appeal as Mr Mitchell and the ACT.

6 On 26 November 2009 solicitors for Mr Mitchell made a claim on his behalf against the ACT, alleging that he suffered his injuries due to the negligence of the bus driver.

7 The parties exchanged various documents and letters in the next 14 months; importantly, on 31 May 2010, the ACT wrote to Mr Mitchell's solicitors denying liability for the purposes of s 97(1)(b) of the 2008 Act. No claim of contributory negligence was made under s 97(1)(b)(ii). It is agreed between the parties that this was a denial of liability under s 97(1)(b)(i), and that the ACT has not sought to resile from this denial at any point.

8 Little or nothing happened in the matter for most of the 21-month period from January 2011 until October 2012.

9 In October 2012, shortly before the expiry of the relevant limitation period, Mr Mitchell's solicitors commenced a proceeding against the respondent in the ACT Magistrates Court, claiming damages under the 2008 Act. Before the commencement of that proceeding, the parties had not participated in a compulsory conference in accordance with s 136 of that Act, and nor had they taken steps under s 141 of that Act.

10 No issue is taken in this matter about the fact that, despite s 145 of the 2008 Act, proceedings were commenced before there had been a conference or action under s 141 (see Albrecht at [24]–[38] for a discussion of this approach). In October 2012 Mr Mitchell consented to a stay of the Magistrates Court proceedings to enable the parties to participate in a compulsory conference and to take steps under s 141.

11 Little progress was made in 2013, but in the course of 2014 each party obtained two medical reports.

12 The compulsory conference took place on 11 March 2015, but the claim was not settled at the conference.

13 At the conclusion of the conference on 11 March, and relying on s 141(2) of the 2008 Act, Mr Mitchell's solicitor gave the ACT's solicitor an MFO of $45,000 plus costs. Over the next few days, Mr Mitchell's solicitors conveyed to the ACT the view that because it denied liability in relation to the claim, the ACT was not entitled to serve an MFO and was only entitled, and was required, to serve a mandatory final notice ( MFN) under s 141(3) of the 2008 Act.

14 Despite this, on 16 March 2015, the ACT served what was described as a mandatory final offer of $25,000 on the appellant. No issue is taken in this matter about the fact that the ACT's offer was not served “at the end of the compulsory conference” (s 143(1)(b) of the 2008 Act).

15 The ACT filed its defence on 26 March 2015; it denied that Mr Mitchell suffered the specific injuries alleged, or that any such injuries were caused by negligence on the part of the bus driver, and further asserted contributory negligence on Mr Mitchell's part. However, the ACT did admit that if it was established that it had breached the duty of care owed to the appellant, that breach of duty caused the appellant's injury, loss and damage. The defence was served by letter dated 31 March 2015.

16 On 2 April 2015 Mr Mitchell's solicitor wrote to the ACT requiring it to provide an MFN within 7 days.

17 On 22 April 2015 Mr Mitchell's solicitors filed an application in the Magistrates Court seeking judgment in his favour under pt 4.10 of the 2008 Act, because the ACT had failed to comply with its obligation under s 141(3) of the 2008 Act to provide an MFN to Mr Mitchell following the compulsory conference.

Magistrates Court proceedings

18 Mr Mitchell's application was heard by Magistrate Morrison on 5 May 2015. His Honour dismissed the application on 23 June 2015 ( Benjamin Mitchell v Australian Capital Territory [2015] ACTMC 1), ruling in essence that s 141(3) of the 2008 Act only requires a defendant to provide a final notice when the defendant declines to make any offer of settlement.

19 By a notice of appeal dated 29 June 2015 the appellant appealed to the Supreme Court from Magistrate Morrison's decision. On 19 October 2015, that appeal was referred for hearing by a Full Bench.

Notice of appeal

20 The notice of appeal sets out 15 “appeal grounds”, of which 13 are complaints about the decision given in the Magistrates Court, as follows:

• b) The learned Magistrate at first instance (“ His Honour”) erred in concluding that a settlement offer other than a Mandatory Final Offer (“ MFO”) or a Mandatory Final Notice (“ MFN”) would undermine arrangements in the Act about costs disclosure and/or undermine the Act's encouragement of settlement claims: see particularly paragraph 64 of His Honour's reasons for decision (“ Reasons”).

• c) Further, His Honour erred by failing to provide adequate reasons for his conclusions referred to in ground b) above.

• d) His Honour erred in rejecting the Plaintiff's/Appellant's submissions as to the interpretation of “ denying liability altogether” by reference to s97 of the Act: see paragraphs 32 and 35 Reasons.

• e) His Honour erred in concluding that...