Hanan Al-Rawahi v Mohammad Ali Niazi  ACTSC 84 (15 September 2006)
The ACT Supreme Court has recently considered the relevance of the right to a fair trial under s 21 of the Human Rights Act 2004 (ACT) to the extension of time limits in civil proceedings.
The applicant, an overseas student, suffered serious injuries when she was struck by a car while walking across a pedestrian crossing in February 2004. Although she instructed solicitors in relation to the matter in March 2004, notice of the claim was not served upon the respondent and his insurer until 16 August 2005.
Under s 51 of the Civil Law (Wrongs) Act 2002 (ACT), the applicant was required to serve a notice of claim upon the respondent within nine months of the date of the accident, or to provide a reasonable excuse for the delay. In this case the delay had been caused in part by difficulties in serving the respondent, who was overseas for some time. It also took many months to obtain a copy of the police report of the incident. There was then some confusion as to whether the respondent’s insurer had been notified of the claim, as the insurer was handling the claim of another person injured in the same incident. However, the insurer did not accept that these factors amounted to a reasonable excuse, and rejected the claim.
The applicant then applied to the Court for an order under s 59 of the Civil Law (Wrongs) Act authorising her to proceed further with a claim for damages for personal injury despite her non compliance with the time limit in s 51 of the Act.
Master Harper considered that the applicant did not have an objectively reasonable excuse for the failure to serve notice of claim upon the respondent as, despite the various difficulties, there had been a window of opportunity in which the applicant could have served notice on the respondent within time. However, he decided to grant the application to allow the applicant to proceed with her claim under s 59 of the Civil Law (Wrongs) Act, notwithstanding her non-compliance with the statutory time limit for serving the claim.
Master Harper noted that he had a broad discretion under s 59 of the Civil Law (Wrongs Act), which allowed him to consider the interests of justice generally, and was not limited to cases in which the applicant had a reasonable excuse for non-compliance.
He noted that:
as the discretion [in s 59] is conferred by statute it is also appropriate when exercising it to have regard to the Human Rights Act 2004. Section 21 of that Act provides for the right to a fair trial. The section relevantly provides that ‘Everyone has the right to have … rights and obligations recognised by law … decided by a competent, independent and impartial court or tribunal after a fair and public hearing’. In an application such as this, where the claimant’s right to bring an action for damages for personal injury is at stake, this provision suggests that if there is any doubt, the Court should err in favour of ordering that the claimant be allowed to pursue her claim. (at )
Master Harper noted that no prejudice had been caused to the respondent as a result of the delay, and that if the application was refused this would be unjust to the applicant, given the seriousness of her injuries and the circumstances of the accident:
This is a case where a pedestrian has been struck on a marked crossing by a car. Without seeking to prejudge the issue of liability, I note from the police report that the respondent was to be prosecuted for ‘furious/reckless/dangerous driving’. If I were to refuse the order sought, the applicant would go without a remedy for her apparently serious injuries, including a fractured pelvis, and the respondent would escape civil liability. So would the insurer, which has accepted a premium for the very risk which has eventuated. (at )
For these reasons, he granted the application, but ordered costs in favour of the respondent.
The decision is available at http://www.courts.act.gov.au/supreme/judgments/al-rawahi.htm.
Gabrielle McKinnon is the director of the ACT Human Rights Act Research Project at the ANU. Project website: http://acthra.anu.edu.au