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Carello v Council of the Shire of Johnstone

 

[2002] QSC 439

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

JONES J

No S160 of 2001

ANDREW CARELLO, LUIGINA PAULINA CARELLO

 

KATHRYN DIANE BLANCKENSEE and JOHN RAY BLANCKENSEE

Applicants/Plaintiffs

and

 

THE COUNCIL OF THE SHIRE OF JOHNSTONE

Respondent/Defendant

CAIRNS

DATE 11/11/2002

JUDGMENT

HIS HONOUR: This is an application by the plaintiff to have the action set down for trial, or in the alternative, an order for mediation pursuant to rule 320 of the Uniform Civil Procedure Rules.

The respondent opposes the matter being set down for trial on the basis that it still requires to undertake studies preparatory to obtaining an expert engineering report. The action has been on foot for over 12 months. In that time expert reports obtained by the applicant have been duly passed on to the respondent. The applicant complains that the respondent has been inactive in obtaining reports for itself.

Mr Jonsson, who appeared for the respondent before me, both in submissions and in reliance on the material in his affidavit, satisfies me that the respondent has not being entirely inactive, but that it has in the course of that 12 months been in negotiations with a third party with a view to resolving questions of liability which might exist between it and a third party based on possible liability to the applicants.

There is still a number of matters to be resolved obviously, but the starting point is, of course, having expert opinion upon which the parties are prepared to rely. The question really comes down to how long the respondent should have to obtain its expert reports. The main report is that of a hydrological engineer. His report might depend on further flood plain modelling, which I am informed will take some time to undertake.

It seems to me, however, that given the past delays and given also the fact that quite a lot of preparatory work has been done, upon which the applicant's engineers have expressed their opinions that the engineer to be retained on behalf of the respondent should be able to prepare a report within a period of approximately two months. I propose to order that the engineering reports to be relied upon by the respondent, be provided to the applicant on or before the 20th of January, 2003. This will allow the opportunity for the respondent's expert reports to be considered by the applicant's experts before the matter comes before me again on 31 January 2003.

I would expect that there would be some consultation between engineers, if they are not in agreement, to try to limit the areas of dispute. If that has not occurred then I will give consideration to directing experts to confer as a prelude to the making of an order for mediation. These matters can be further reviewed when the case is listed again on the 31st of January 2003, the date to which I now adjourn the application.

Costs of and incidental to this hearing today will be reserved.

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Editorial Notes

  • Published Case Name:

    Andrew Carello v Council of the Shire of Johnstone

  • Shortened Case Name:

    Carello v Council of the Shire of Johnstone

  • MNC:

    [2002] QSC 439

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    11 Nov 2002

Litigation History

No Litigation History

Appeal Status

No Status