Queensland Judgments


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  • Unreported Judgment

Robinson v Fig Tree Pocket Equestrian Club Inc


[2005] QSC 52




No S8540 of 1999






First Defendant




Second Defendant




Third Defendant




Fourth Defendant




Fifth Defendant




Sixth Defendant




Seventh Defendant




Eighth Defendant


DATE 02/03/2005


HIS HONOUR: The eighth defendant in this action seeks, amongst other things, an order that the first, second, third and fifth defendants' statement of claim against it, filed on 18 February 2005, be struck out pursuant to rules 376 and alternatively rule 171 of the Uniform Civil Procedure Rules.

Those defendants to whom I will refer, for the sake of convenience, as the respondents bring a cross-application for leave to commence third party proceedings against the eighth defendant (“the applicant”) by issue of a third party notice and statement of claim. The statement of claim is in terms of that referred to in the applicant's application.

In very broad terms, proceedings were commenced in September 1999 by the plaintiff against eight parties including the applicant and the respondents for damages for personal injury sustained by him in an accident he suffered whilst driving a slasher powered by a tractor on the land of the first and second defendants, the Fig Tree Pocket Equestrian Inc., and the Fig Tree Pocket Pony Club Inc.

The plaintiff alleged against the applicant that his injuries were caused by the negligence of the Corrective Services Commission for whose acts the applicant is vicariously liable. The negligence of the Commission was particularised as:

“(a) failing to warn the plaintiff of the presence of (a) concrete box (into which the plaintiff drove the tractor); (b) failing to provide a seat belt in the said tractor; (c) failing to ensure the plaintiff was skilled at driving at tractor with slasher attached; (d) failing to provide the plaintiff with any adequate instructions in relation to the operation of the tractor and slasher.”

The respondents, as they were entitled to do under rule 208 of the UCPR, delivered a notice claiming contribution against the applicant under section 6 of the Law Reform Act 1995. The claim specifically relied on the allegations made against the applicant in the statement of claim.

It concluded with the words:

“Unless you wish to rely on some matter not pleaded by you in your defence to the plaintiff's statement of claim, you need not plead to this notice and this claim will be taken to be an issue.”

That was on 8 October 2002. In January 2005, the respondents delivered a statement of claim against the applicant in which they allege in paragraph 8:

“Any personal injuries, loss and damage suffered by the plaintiff as a consequence of the said incident was caused by the breach of duty of the Correctional Services Commission, for which the eighth defendant is liable.”

That allegation does not occasion any difficulty. The applicant's concern is with the particularisation of the allegation. Six particulars are provided; the first repeats the particulars of negligence alleged in the plaintiff's statement of claim. There can be no difficulty with that. The further particulars though, diverge considerably from the allegation of negligence in the statement of claim.

In the statement of claim the case was centred around an alleged failure to give proper instructions so as to ensure that the plaintiff could perform his tractor driving tasks safely. The first two particulars were also concerned directly with safety matters, it being explicitly accepted that there was no difficulty in the plaintiff being required to perform a role as tractor driver.

The new particulars, though, are concerned with conduct of the applicant at unspecified times. The first of them alleges failing to identify by means of audits, inspections and the like the nature of the work being undertaken by persons upon land pursuant to community service orders. That particular is not itself distinguished by particularity. It fails to specify what the pleader alleges ought to have been done.

It is also quite general in its terms and does not relate specifically to any conduct of the applicant in relation to the plaintiff. It also seems to be based on a premise that it was in breach of the applicant's duty in the first place to require the plaintiff to use a tractor and slasher. The particular is inconsistent with the original case, which remains pleaded.

The next particular, (c), is general in terms. It alleges failure to provide proper direction but impermissibly does not assert what the proper direction ought to have been.

Particular (d) alleges a failure to instruct the respondents not to permit the plaintiff to use the tractor and slasher. It therefore makes a rather different case to the one pleaded prior to the amendment unless all that is being said is that absent the matters already particularised, the applicant ought to have instructed the respondents not to permit the plaintiff to use the tractor. Unfortunately, it contains no such limitations. Similar comments may be made about particular (e).

The final particular, (f), alleges a failure to communicate to the respondents a policy decision of the corrective services commission made in October 1995 that persons engaged upon activities pursuant to a community service order were to be prohibited from using tractors. That, in itself, is a dubious particular of the negligence alleged although it may perhaps have some evidentiary force.

Mr Quinn, who appears for the applicant asserts, correctly in my view, that many of these allegations cast in the guise of particulars are material allegations which, if they are to be made, need to be pleaded as material facts.

One obvious difficulty with placing material facts in a pleading as particulars is that the other party is not required to and ought not plead to them. Subject to various technical points to which I will come in a moment, what I have said thus far is sufficient to dispose of this application. In my view, paragraph 8 of the statement of claim does not comply with the rules and cannot stand.

The major assault though on the statement of claim was on the basis that it introduced a new cause of action after expiry of the limitation period and required the grant of leave under rule 376(4). It was submitted that such leave could not be given as it gave rise to a new cause of action which did not arise “out of the same facts or substantially the same facts” as the cause of action the subject of the notice claiming contribution. I am not convinced that these submissions are correct.

The claim is made under section 6(c) of the Law Reform Act 1995. The limitation period in respect of that is in section 40 of the Limitation of Actions Act 1974. It requires that “An action for contribution… shall not be brought after the expiration of” and the limitation periods are then specified.

The argument assumes that an amendment to a claim for contribution brings about a new “action for contribution” within the meaning of s 40(1). It equates the proceedings under section 40 to other claims based on a cause of action. Even if those submissions were to be accepted there is difficulty in concluding that the new pleading sets up a new cause of action.

The classic formulation of the meaning of “cause of action” is to be found in the reasons of Brett J in Cooke v. Gill (1873) 8 LRCP 107 at 116:

“Cause of action has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed - every fact which the defendant would have a right to traverse.”

On a narrow view then of the meaning of cause of action the addition of material facts may bring about a fresh cause of action even though the allegations of the nature of the duty of care, the circumstances in which injury occurred and the nature of the injuries and the parties remain unchanged. As I observed though in the course of argument, that is not the way in which Courts have traditionally approached this problem. I refer, for example, to Pianta v. BHP Australia Coal Limited [1986] 1 Q DR 65, Allonnor Pty Ltd v. Wayne Doran [1988] QCA 372, Black v. City of South Melbourne (1964) 38 ALJR 309 and Harris v. Raggatt (1965) VR 779, particularly at 785. I do not find it necessary, however, to explore this question any further.

Returning to the fresh allegations, I accept the submission of Mr Quinn that to allow them after the lapse of time that has occurred could cause irretrievable prejudice to the applicant. As I have said, quite a different case is now sought to be made out. It involves the internal workings of the Department of Corrective Services over an unspecified period of time.

The relevant personnel will need to be identified and proofed. If they can be located, they may or may not have any or any useful recollection of matters in question.

Documents also may or may not be able to be located. As was pointed out by Mr Quinn in submissions, the former case, by virtue of paragraph 13 of the plaintiff's statement of claim, alleges a duty of care owed by the applicant as at 15 July 1997. That is now sought to be expanded.

Once again, I do not need to elaborate further on this aspect of the matter having regard to my earlier conclusions as to the problems with the pleadings. For this reason I will not expand further on the type of prejudice almost invariably now relied on on these occasions identified by McHugh J in Brisbane South Hospitals Board.

Going back now to the contentions of Mr Farrell based on the Rules, in his, if I may say so, precise and clear submissions, he contends that the subject amendment may be made without leave under Rule 378, because it is one for which leave of the Court is “not required under these Rules”.

The Rules require amendment to originating processes to be made with leave of the Court (Rule 377). Mr Farrell submits, and I accept that the notice claiming contribution does not seem to come within the description of originating process.

Where the argument falls down, though, is that it treats the delivery of the only statement of claim by defendants claiming contribution as an amendment. I do not accept that it is an amendment of the notice claiming contribution.

On its face, it purports to be the respondent's statement of claim against the eighth defendant. There had already been an election under Rule 208 not to deliver a statement of claim when the notice claiming contribution was delivered.

In my view then, the amendment rules on which the respondents rely are of no assistance to them but even if they were, in order to determine this matter on the merits, I would as I mentioned in the course of submissions, have no difficulty in treating this as an application by the applicant under Rule 379 and I so do.

HIS HONOUR: I order that the statement of claim filed 18 January 2005 of the respondents against the applicant be struck out.

I give leave for the respondents to file and serve an amended statement of claim within 21 days of today's date.

I dismiss the respondent's application.

I order that the applicants costs of an incidental to the application made by it filed 17 February 2005 and the respondents' application filed 24 February 2005 be the applicant's costs in the cause against the respondents.

I make that costs order because the application, in my view, has had some general beneficial effect in the progressing of this litigation and because the applicant's success cannot be said to have been complete.


Editorial Notes

  • Published Case Name:

    Mark James Bruce Robinson v Fig Tree Pocket Equestrian Club Inc

  • Shortened Case Name:

    Robinson v Fig Tree Pocket Equestrian Club Inc

  • MNC:

    [2005] QSC 52

  • Court:


  • Judge(s):

    Muir J

  • Date:

    02 Mar 2005

Litigation History

No Litigation History

Appeal Status

No Status