Brittany Farinola

Golden gavel

On 18 May 2020, the Uniform Civil Rules 2020 came into operation in South Australia.

Prior to the commencement of the Uniform Civil Rules 2020, the Magistrates Court, District Court and Supreme Court were each governed by their own individual set of rules.

The object of unifying the rules between each State court is ‘to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings governed by these Rules’ (rule 1.5).

Although the Uniform Civil Rules have brought about a number of changes to the process of litigation, the most notable and significant change in the context of personal injury claims is the introduction of more stringent and onerous requirements for pre-action steps. In particular, the following should be noted:

Early Notice of Personal Injury

  • An injured person must, within 6 months after the day on which the incident giving rise to the injury occurred, provide written notice to the person potentially liable setting out the details of the injured person, the particulars of the injury, the reasons why the person is potentially liable and any medical records required (rule 61.6(2)).

 

  • If a person is not aware that they have suffered injury, that the injury has caused material loss or damage or was caused by the negligence of the person potentially liable, the time to provide written notice is extended until one month after the person becomes aware (rule 61.6(3)).

 

  • Within six weeks of a person receiving a notice of injury, that person must provide to the injured person their contact details, a copy of any requested medical records, an explanation as to why liability is denied if the claim is one of medical negligence and suggestions for next steps (rule 61.6(4)).

 

Pre-Action Exchanges and Offers

  • Before commencing a claim, an injured person must serve on each proposed respondent a pre-action claim (rule 61.7). A pre-action claim must identify each proposed cause of action, make an offer to settle the claim and propose a pre-action meeting.

 

  • Within 30 days of receiving the pre-action claim, the proposed respondent must serve on the proposed applicant a pre-action response either accepting or rejecting the offer, making an offer to settle the claim and agreeing to the proposed pre-action meeting or suggesting alternative details (rule 61.9).

 

Pre-Action Meeting

  • Within 21 days after the last pre-action document has been served, or at such time as agreed by the parties, the parties must attend a pre-action meeting (rule 61.12(3)).

 

  • At the pre-action meeting, the parties are to identify the main issues in dispute and negotiate in good faith with a view to resolving the dispute (rule 61.12(5)).

 

  • If the matter cannot be resolved at the pre-action meeting, the parties must draw up and sign a pre-action meeting report setting out the details of the meeting and any agreement reached about the future conduct of an alternative dispute resolution process or litigation (rule 61.12(6)).

 

Special Directions Hearing

  • If the pre-action requirements have not been complied with and proceedings have been instituted, the Court will list the proceeding for a special directions hearing to determine whether orders should be made in regards to the non-compliance (rule 61.14(2)).

 

  • Unless good reason exists, where a party has failed to comply with the requirements of the pre-action steps, that party must pay the costs of the other party’s attendance at the special directions hearing on an indemnity basis (rule 61.14).

 

  • It should be noted that a proposed applicant is exempted from complying with serving a pre-action claim where the statutory time limit is due to expire in 3 months or less (rule 61.8(1)(f)), however this exemption does not apply if the proposed applicant is aware of the claim prior to this time period.

You may be wondering, what does the introduction of more stringent and onerous pre-action requirements mean for me?

It means that if you have been involved in an incident where you believe you have sustained an injury, you should be prompt in seeking legal advice so that where there is a claim to pursue, any repercussions of failing to comply with the pre-action requirements can be avoided.

Contact one of our experienced personal injury lawyers today to discuss your claim.