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  • Unreported Judgment

Geary v Downer EDI Mining Pty Ltd

 

[2009] QSC 288

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

11 September 2009

DELIVERED AT:

Townsville

HEARING DATE:

7 September 2009

JUDGE:

Cullinane J

ORDER/S:

1. The applicant/defendant’s claim for judgment or striking out is dismissed with costs.

2. The application for directions in relation to expert witnesses and for an order that the matter be placed on the callover list is adjourned to a date to be fixed.

3. Actions SC No 212 of 2008 and SC No 550 of 2008 are to be tried together.

4. The defendant/applicant to pay the plaintiff/respondent’s costs of and incidental to the application for judgment or to strike out to be assessed.

CATCHWORDS:

CIVIL LAW – APPLICATION – Where first defendant seeks judgement against the plaintiff pursuant to r 293 of the Uniform Civil Procedure Rules 1999 – whether statement of claim discloses cause of action – where plaintiff seeks an order that the trials of action 550/08 and 212/08 be heard together – where plaintiff seeks directions relating to the calling of expert evidence – where plaintiff seeks an order that the court dispense with the signature of the first defendant to the request for trial date

Uniform Civil Procedure Rules 1999 (Qld), r 293

COUNSEL:

SOLICITORS:

CULLINANE J:

[1] The applications in this matter were heard together with applications in number 212/08. 

[2] In this matter the first defendant seeks judgment against the plaintiff pursuant to rule 293 of the Uniform Civil Procedure Rules or alternatively an order that the statement of claim be struck out as not disclosing any reasonable cause of action or is frivolous and vexatious.

[3] The plaintiff seeks an order that the trial of this action 550/08 be heard together with the trial of action number 212/08.  In addition he seeks certain directions relating to the calling of expert evidence and an order that the court dispense with the signature of the first defendant to the request for a trial date. 

[4] The claim arises out of an injury which the plaintiff sustained in the course of his employment with REJV Services Pty Ltd on 17 August 2005. 

[5] In proceedings instituted in action number 212/08 the plaintiff claimed damages against his employer and a number of other parties in respect of the same incident.  Three of the four defendants sued in action number 212/08 instituted third party proceedings against the first defendant and it was following that development that the plaintiff started this action.

[6] The plaintiff alleges that he had driven a haul truck in the course of his employment to a position where material was to be loaded by means of a mechanical shovel into the truck.  The shovel was being operated by a co-employee and it is alleged that in the course of loading the haul truck the co-employee lifted the bucket of the shovel from the tray of the haul truck after depositing material therein and as it was lifted a large rock fell from the bucket of the shovel onto the rear of the haul truck causing a violent jarring and shaking of the haul truck which jarring and shaking force was transferred to the plaintiff who in consequence sustained injury.

[7] The plaintiff alleges that the incident occurred as a result of the defective manufacture of a wear plate (manufactured by Bradken Resources Pty Ltd) and the defective fitting of the wear plate to the bucket, something which the material before me reveals was performed by United Group Limited.  Both Bradken Resources and United Group are defendants in action number 212/08. 

[8] Zimfex Century Limited is the owner of the mine.  It is a defendant in action number 212/08

[9] The other defendant to these proceedings, Capena Surface Mining Pty Ltd is in administration and although it is a party, no steps have been taken against it.

[10] It is alleged in the statement of claim that the first defendant carried on the business, (either alone or with others) as a mining operator and manager and a similar allegation is made against the second defendant. It is also alleged that the first and second defendants were responsible for the management and mining operations of the mine pursuant to an alliance agreement with the mine owners Zimfex Century Limited.

[11] In paragraph 6 it is alleged that the first and second defendants entered into a sub contract agreement with the plaintiff's employer, REJV Services Pty Ltd pursuant to which that company agreed to provide labour at the mine and it was in the course of his employment with that company that the plaintiff was injured.

[12] Paragraph 11 alleges that the shovel was supplied by the mine owner to the first and second defendants to be used by them in the performance of their contractual duties and that it was provided to or made available to the plaintiff’s employer by the first defendant pursuant to the agreement referred to to be used by the employer and its employees for the purposes of carrying out work under the contract at the mine.

[13] It is alleged in paragraph 12 that the manufacture and/or fitting of the bucket was/were defective with the consequence that the material became constrained in the bucket rather than being able to flow freely from it.

[14] It is alleged that the first defendant owed a duty of care to the plaintiff and that this duty was breached by the supply of a defective shovel to the plaintiff's employer for use by its employees.  The particulars of negligence are contained in paragraph 14of the statement of claim.

[15] It does not seem to me that there can be any real argument given the allegations made in the statement of claim that the plaintiff has a cause of action against the respondent/defendant if it establishes the matters alleged.  Some complaint was made about the absence of any allegation that the first defendant knew or ought to have known about the defective character of the equipment provided but given the allegation of the existence of a duty to and the breach of that duty I am not persuaded that there is any validity in this claim.

[16] In these circumstances the application for judgment or to strike out must fail.

[17] The applicant/defendant’s claim for judgment or striking out is dismissed with costs.

[18] It is common ground that I should make an order that the trial of action no 212/08 be heard together with that or action number 550/08.

[19] The application so far as it relates to a claim for directions in relation to expert witnesses and for an order that the matter be placed on the callover list is adjourned to a date to be fixed.

[20] I order that actions number 212/08 and 550/08 be tried together.

[21] I order the defendant/applicant to pay the plaintiff/respondent’s costs of and incidental to the application for judgment or to strike out to be assessed.

Close

Editorial Notes

  • Published Case Name:

    Geary v Downer EDI Mining P/L & Anor

  • Shortened Case Name:

    Geary v Downer EDI Mining Pty Ltd

  • MNC:

    [2009] QSC 288

  • Court:

    QSC

  • Judge(s):

    Cullinane J

  • Date:

    11 Sep 2009

Litigation History

No Litigation History

Appeal Status

No Status