Dispensing with the requirement for compulsory pre-court processes - Clarke v Angove [2021] ACTSC 121

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By Louise Cantrill, Partner and Kate Heremaia, Paralegal

On 11 June 2021, Elkhaim J of the ACT Supreme Court has provided guidance on when a court may agree to expedite proceedings to hearing and dispense with compulsory alternative dispute resolution processes.

Background

Mr James Clarke (the claimant) is an 85-year-old male who allegedly suffered injuries as a result of a motor vehicle accident prior to 1 February 2020.

The claimant asserted that he was subject to several health conditions including ischaemic heart disease and “probable Myelodysplastic disorder of his blood”. The claimant contended that the average lifespan for a male of his age was only expected to be a further 6.51 years, and his conditions may “severely” reduce that expectation. As such, he applied for leave from the court to dispense with pre-court alternative dispute resolution processes pursuant to s 150 of the Road Transport (Third-Party Insurance) Act 2008 (ACT) (the Act) (now repealed).

The Respondent claimed that the conditions suffered by the claimant were to be expected of a person of his age and therefore were not so marked that there was an urgent need for expedition of proceedings.

Compulsory pre-court processes

Pursuant to Chapter 4 the Act, a Respondent is required to try to resolve a motor accident claim by following a set pre-court procedure. Prior to litigation arising from the motor vehicle accident claim, the parties must actively engage in a compulsory conference (ss 136 and 140) (sometimes facilitated by a mediator, see s 138) unless the court is satisfied that there is a good reason to dispense with the requirement and other orders would be more appropriate in the circumstances.

If the claim is not resolved at compulsory conference, or if the need for one has been dispensed with, then the parties must exchange mandatory final offers (or if a Respondent denies liability altogether, a mandatory final notice) (s 141) unless excused from doing so by the court (s 142). A claimant must wait until the expiration of the offers (generally 14 days) before bringing proceedings (s 145).

As a result of these pre-court procedures, claims disputes can be protracted. When introducing the Motor Accident Injury Bill 2019 (ACT) (a proposal to reform CTP processes by instituting a no-fault system) to the Legislative Assembly for the ACT, Minister Andrew Barr, Member for Kurrajong, asserted that the average claim dispute in the ACT took two years to resolve and some had taken in excess of seven years to resolve.

In circumstances where liability is denied or there is a dispute regarding the reasonableness or value of medical treatment or incapacity payments, a claimant can be significantly disadvantaged by the length of pre-court and court proceedings as it may result in a delay in receiving surgical intervention, non-Medicare therapies or incapacity payments.

Pursuant to s 151(4), however, the court can grant leave to a claimant to begin proceedings despite noncompliance with Part 4 of the Act, if the court is satisfied that there is an urgent need to begin the proceedings because:

  1. The claimant is suffering from a terminal condition; and
  2. The trial of the proceedings should be expedited.

If proceedings are commenced on this basis, the parties will enjoy priority in the allocation of a hearing date.

It is this power of the court that the claimant relied upon to enliven his court proceedings and dispense with the pre-court formalities.

Consideration

Justice Elkaim found a report from the claimant’s long-term general practitioner to be particularly compelling. He determined that it was the totality of the conditions and their effects that was relevant. Given that the claimant’s conditions, taken together, “severely affect his lifespan”, Elkaim J determined that the claimant’s need to bring proceedings was pressing. However, Elkhaim J also considered that the Respondent was entitled to participate in a compulsory conference and exchange mandatory final offers. Nevertheless, although he set down a timetable for the completion of pre-court processes, the orders otherwise had the effect of vastly expediating the process for the claimant.

In summary, while the relevance of alternative dispute resolution measures continues to be recognised, the case provides guidance for when the Court may agree to dispense with some or all of those requirements.

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