Legislative Assembly for the ACT: 2008 Week 09 Hansard (Thursday, 21 August 2008) . . Page.. 3498 ..
I want to thank the officials who attended my office this morning and briefed my staff and I want to thank the Chief Minister’s office for facilitating that briefing.
MR MULCAHY (Molonglo) (5.28): Mr Deputy Speaker, I have taken more than a casual interest in this piece of legislation from when we previously considered it. I understand Mr Stefaniak may be going to introduce an amendment to meet a midway point in terms of the date for the regulations.
I share his concern that with the territory going into caretaker mode and the distraction of the next eight weeks that the date of 1 October to settle this matter is ambitious. I do not think it will enable due consideration of some of the issues that I am having raised with me and no doubt that he has had raised by the ACT Law Society; so some midpoint between what the Chief Minister has initially indicated and where Mr Stefaniak started I think would be prudent.
I am also very supportive of clause 5 of his bill in relation to the three-month issue. I think I was a lone voice on this when it came up previously. I think I was told that I was just helping the lawyers. I think that was what I was accused of doing. Whether I am helping the lawyers or not, I am more interested in the clients of the lawyers. I flagged that this was an issue then. It is still an issue. The Chief Minister has indicated that he will be conscious of problems that might occur. We were told there are improvements in the way the police play a role. But I am advised that it isn’t just there that the problems exist.
As recently as Sunday I received representations on this very issue. I want to highlight several matters. I know that the specialist adviser to the government is in the gallery today. I hope he will take on board some of these issues, some of which we canvassed previously and some are new matters that have been raised with me that I think need to be carefully examined in the context of the regulations, because the problem has already been identified.
On the issue of the nominal defendant, I am advised—I knew this—that if a claim is not brought within three months then the rights of recovery against the nominal defendant are extinguished. The problem is that there is no discretion available to either the insurer or a court to extend the time limit and this can create obvious problems. For example, the question was raised: what occurs when a claim is initially brought against a policy but that turns out to be the wrong vehicle? In such circumstances if this occurs outside the time limit there is no right of compensation.
The act now allows claims to be brought against the nominal defendant as long as there is a sufficient connection with the ACT. Also the exclusions relating to road or related area have now been narrowed to circumstances where the injured person was a trespasser or the vehicle was owned or registered by the commonwealth. The difficulty is that these changes have significant potential to flood the nominal defendant scheme. Firstly, given the harsh limitation problems it is anticipated that the plaintiff lawyers will bring a claim both against the identified vehicle and the nominal defendant whilst the issue is resolved.
Secondly, given the very wide scope of claims that can be brought against the nominal defendant, claims with even a tenuous link to the ACT will be brought. Again, this