These issues were discussed in the recent interlocutory decision of the Supreme Court of the Australian Capital Territory of Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171. In this case, her Honour Chief Justice McCallum provided helpful guidance in respect of the operation of the pre-trial procedures provided for in Chapter 5 of the ACT's Civil Law (Wrongs) Act 2002 (CLA) and how parties should comply with these pre-trial procedures.
Background
The plaintiffs attended Summernats, a renowned car festival in the ACT on 6 January 2024, when they were allegedly assaulted by two security officers. They brought legal proceedings against the defendant operator of the festival by claiming damages for personal injury pursuant to the CLA arising from the assaults.
Chapter 5 of the CLA requires a person bringing a claim for damages for personal injury to complete certain pre-trial procedures before commencing legal proceedings.
The plaintiffs sought leave to commence proceedings under section 79(1) of the Act that 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.
Before they filed their application for leave to begin the proceedings, the defendant filed an application for a stay.
Whether leave is required under Section 79(1) of the Act
Her Honour said that on the proper construction of CLA, leave is required to commence proceedings prior to the completion of all of the pre-trial procedures specified in Chapter 5 and not just the requirement to serve a complying notice of claim.
Her Honour summarised the pre-trial procedures specified in Chapter 5 as including:
Section 51 - the claimant to give written notice of the claim.
Section 52 - the 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, and the claimant either to provide the further information sought or insist that it considers the respondent to be properly a respondent to the claim and requires it to respond to the claim in accordance with section 54.
- Section 53 - an admission by a respondent that it is properly a respondent to the claim is not an admission of liability
- Section 54 - requires a respondent to respond to a notice of claim
- Section 59 - 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 of the court declares that the claimant has remedied the noncompliance or authorises the claimant to proceed further with the claim despite the noncompliance
- 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
- Section 78 - confers powers on the court to enforce compliance with Parts 5.2 and 5.3.
Her Honour stated:
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.
The plaintiffs submitted that, if a claimant is precluded from commencing proceedings until the pre-trial procedures in Chapter 5 are complied with, there is no remedy to protect a claimant from a respondent who, in turn, is "not doing its part" to comply with those procedures. In response, her Honour noted there is a remedy under section 78 for a claimant faced with a recalcitrant respondent.
Informed by her consideration of the above matters, her Honour concluded that a claimant who wishes to begin legal proceedings "despite noncompliance" with the pre-trial procedures specified in Chapter 5 requires leave under section 79(1) of the Act.
Had there been non-compliance with Chapter 5 of the CLA
Her Honour found that the plaintiffs had complied with Chapter 5 of the CLA in circumstances where the defendant's solicitor had denied that the defendant had employed the two security officers and had mistakenly identified a different company as the relevant employer, with that company in turn disputing that it was the relevant employer.
Based on the timeline above, her Honour agreed that the plaintiffs had done everything they needed to do to meet the requirements of Chapter 5.
The defendant submitted that, after being informed by the different company that they disputed what the defendant had told the plaintiffs, the plaintiffs should have reverted to the defendant so that they could "go away and complete these investigations well before we get anywhere near a courtroom".
Her Honour did not accept that submission, stating:
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.
Ultimately, her Honour found that, because the plaintiffs had complied with Chapter 5, they were entitled to begin the proceedings without leave of the court.
Her Honour also found that the defendant (as a result of its own error) had not had an opportunity to investigate and resolve the plaintiffs' claims through the pre-court procedures contemplated in Chapter 5. Her Honour noted that the defendant's employees had pleaded guilty to assaulting the plaintiffs and this suggested that the plaintiffs' claims may well be able to be resolved. In the circumstances, her Honour invited the plaintiffs to be heard as to why the defendant should not be granted a stay for at least some period.
Implications
The decision is a reminder of the importance of:
- Being aware of and complying with the "highly prescriptive" nature of the pre-court procedures provided for in Chapter 5 of the CLA, and other pre-action protocols
- Recognising that an assessment as to whether there has been compliance with the pre-court procedures provided for in Chapter 5 of the CLA and whether a plaintiff has an entitlement to commence proceedings despite "noncompliance" will turn on the Court's careful consideration of the specific facts of the relevant case
- Taking care to ensure the accuracy of the information provided in compliance with Chapter 5 of the CLA in circumstances where the other party or parties are entitled (subject to the specific factual circumstances of the relevant case) to proceed on the basis of the information provided to them
- To maximise the benefits available from engaging in pre-action protocols, parties - both plaintiffs and defendants - must proactively engage in the process rather than "ticking" the box of compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
