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  • Unreported Judgment

O'Shea v Thompson

 

[2002] QSC 453

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

JONES J

No 1 of 1999

CLAIRE MARY O'SHEA

Plaintiff

and

 

MYLES THOMPSON

First Defendant

and

 

WILLIAM JAMES ROYDS

Second Defendant

CAIRNS

DATE 06/12/2002

JUDGMENT

HIS HONOUR: This is an application by the defendants for leave to deliver a third party claim against a Mr William O'Shea who is the son of the plaintiff and also her litigation guardian.

There is some evidence that the plaintiff suffers from Alzheimer's disease and it seems that all the negotiations relating to the defendants' retainer were carried out by William O'Shea.

The complication arises that there is now an issue between the defendants and William O'Shea as to the nature of the information which he gave to the defendants in the course of retaining them on behalf of the plaintiff. It is not necessary to identify the areas of this allegation but suffice to say it has been raised largely in an amended defence filed on the 6th of November 2002.

The application is opposed on behalf of the plaintiff on the grounds that her claim against the defendants is ready for trial, and that a trial date would be soon available. The delay is compounded by the fact that the bringing of third party proceedings against William O'Shea means that the plaintiff has to arrange for a new litigation guardian, and that person would have to be informed by William O'Shea as to what happened in his dealings with the defendants.

William O'Shea will obviously have to have separate legal representation to look after the allegations made against him about his conduct and his failure to disclose to the defendants all matters relevant to the performance of their retainer.

So there are complications but it seems to me that these are complications which can be handled by the parties taking proper legal advice.

The other question of delay because of the third party proceedings must be seen in the light that William O'Shea is fully appraised of all of the details, both of the retainer and of the complaints made against him, and he ought therefore to be in a position to make quick response to those allegations. That would lead me to conclude that any delay by reason of the third party proceedings should be of relatively short duration.

Further to that, because neither the northern Judge nor myself is able to hear the matter, the defendants being solicitors having practiced for a long time in Cairns and known personally to each of us, it would mean that a Judge presumably from Brisbane would have to try the matter. There is a Judge available to deal with the matter in the second week in February.

I would expect that with proper application by solicitors and barristers to the task of representing Mr William O'Shea as third party that a trial date could be arranged as early as February, thus it seems to me that the delay in the plaintiff litigating her action would be not greatly different to her proceeding to trial without the third party proceedings.

The basis upon which my discretion is mainly guided however is the desirability that all conflicts arising out of the same transactions should be dealt with in the one proceeding, and the third party proceedings, in the circumstances of this case, can achieve that. That is obviously to be preferred to the institution of separate proceedings by the defendants after the conclusion of the plaintiff's action against them.

For those reasons I will grant leave for the third party to be joined. Mr Traves of counsel has indicated that it is proposed to deliver a separate third party statement of claim rather than relying on the amended defence, and that seems to me to be warranted in these circumstances.

I propose, as I have said, therefore to permit the institution of third party proceedings, but I would like indication from counsel as to any time limits for delivery of third party statements of claim.

HIS HONOUR: I will allow 21 days for the delivery of the defence by the third party.

MR COLLINS: Obviously I don't act for the third party, and that's a matter obviously we can - there's no - there's no difficulty with us passing the orders on to the third party because he provides us with instructions.

HIS HONOUR: Yes.

MR COLLINS: But one thing-----

HIS HONOUR: That will be the 10th of January.

MR COLLINS: 10th of January. One matter I - I would note which is a - a possibility is that he may represent himself. Now, that's obviously - that may or may not create problems with pleadings. I just thought I should make your Honour aware of that.

HIS HONOUR: Yes. Thank you.

MR COLLINS: Thank you.

HIS HONOUR: And if we have disclosure to be finalised by the 17th of January.

HIS HONOUR: The costs will be reserved.

HIS HONOUR: It will be set down in the week commencing the 10th of February 2003.

HIS HONOUR: I will mention the matter for review perhaps on Friday the 31st of January 2003.

So, just to summarise my orders they will be as follows:

1.The defendants have leave to file and serve third party notice and statement of claim against William James O'Shea on or before the 11th of December 2002;

2.The third party file and serve his defence to the third party statement of claim on or before the 10th of January 2003;

3.Parties complete disclosure to all other parties on or before the close of business on the 17th of January 2003;

4.This matter be listed for trial at Cairns commencing on the 10th of February 2003; and

5.The matter will be further mentioned for review on Friday, the 31st of January 2003 at 10 a.m.; costs of and incidental to the application will be reserved.

Close

Editorial Notes

  • Published Case Name:

    Claire Mary O'Shea v Myles Thompson

  • Shortened Case Name:

    O'Shea v Thompson

  • MNC:

    [2002] QSC 453

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    06 Dec 2002

Litigation History

No Litigation History

Appeal Status

No Status