The South Australian Courts Administration Authority intends to introduce the new Uniform Civil Procedure Rules (Uniform Rules), which unify the court rules between the Magistrates, District and Supreme jurisdictions in the state, with immediate effect including to existing proceedings from 27 April 2020.
One of the most significant changes to the current rules are the more stringent requirements for pre-action steps in personal injury claims.
Key requirements to remember include:
- 6 months after the incident giving rise to the injury: injured person serve on persons potentially liable a notice identifying injured person’s details, circumstances of the injury, why the person is potentially liable and identifying medical records required (R61.6(2))
- Within 6 weeks of receiving written notice: recipient must provide contact details, requested medical records, position on liability (if medical negligence claim) and suggest next steps (R61.6(4))
- Prior to commencing a claim: injured person must serve a pre-action claim (complying with requirements in R61.7(1)(a)-(l) and (2)(a) – (g)) setting out the claim, making an offer to settle and proposing a pre-action meeting on the respondent to a pre-action claim
- Within 30 days of receiving a pre-action claim: a respondent must respond (complying with requirements in R61.9(1)(a)-(i) and (2)(a) & (b)) accepting or rejecting the claim and suitability of the pre-action meeting details
- Within 21 days of last pre-litigation response as later as agreed: parties to participate in pre-action meeting in accordance R61.12 with a view to setting out the main issues in dispute and negotiating settlement of the claim if possible.
Where a claim is initiated and pre-action steps are not complied with, the parties will participate in a special directions hearing regarding that non-compliance.
The default rule is that the party in default pays the costs of the other parties’ attendance at the special directions hearing on an indemnity basis (R61.14).
The Courts have further discretion to take non-compliance into consideration when making cost orders after the final determination of the matter.
While there is an exemption for statutory limitation dates of less than 3 months, the mere expiry of a limitation date will not absolve the parties of compliance with the pre-action requirements if there was knowledge of the claim before then.
Commentary from the judiciary has been that previous compliance with pre-action steps has been unsatisfactory and therefore we expect that adherence to the new Uniform Rules will be more strictly enforced.
Given the extraordinarily short timeframes provided for in the pre-action steps, insurers and practitioners alike should take active management steps to avoid non-compliance with the new Uniform Rules.
Given the current situation with the COVID-19 pandemic, the Law Society of South Australia has made submissions to the Chief Justice of the Supreme Court in relation to delaying the commencement to the Uniform Rules. However, there has been no statement from the Courts Administration Authority regarding any delay in the commencement of the Uniform Rules and Insurers should consider that they will commence as intended on 27 April 2020.
Since publication, the Courts Administration Authority has advised the commencement of the Uniform Civil Procedure Rules will be delayed until 18 May 2020.