Inglis v Connell[2003] QDC 29

[2003] QDC 029

DISTRICT COURT

CIVIL JURISDICTION

JUDGE MCGILL SC

and

SUNCORP METWAY INSURANCE LIMITEDSecond Defendant

BRISBANE

DATE 04/04/2003

ORDER

HIS HONOUR: This is an application to join additional defendants to a proceeding which commenced in the District Court in Southport with the filing of a claim and statement of claim on 11 October 2001. At that stage the plaintiff alleged that she had suffered personal injury as a result of negligent of the first defendant for which the second defendant is liable as insurer.

The plaintiff now wishes to allege, in the alternative, that the injury that she suffered was caused or contributed to by the negligence of one or more of three additional proposed parties and seeks to have those parties joined as defendants in the present action. The plaintiff's claim against the existing defendants was subject to the restrictions imposed by the Motor Accident Insurance Act 1994, and presumably those requirements were complied with by the plaintiff prior to commencing the proceeding.

The plaintiff's injuries are alleged to have occurred on 7 April 2000, and accordingly the limitation period is due to expire very shortly. However, it has not at the moment expired and, subject to considerations arising under the Personal Injury Proceedings Act 2002, it would be open to the plaintiff to file a separate claim and statement of claim against the proposed additional defendants. It would obviously be desirable for all claims to be dealt with in one proceeding and, subject to an issue arising under that new Act to which I have referred, the first respondent at least does not object to a joinder in the existing proceeding. If that can not be effected prior to the expiration of the limitation period there will certainly be substantial difficulties in the way of the plaintiff pursuing the claim.

I should say that the other two proposed additional defendants have been served but have not really had an opportunity to formulate a response. However, it may be that there was no need to serve them anyway. And if there is some particularly compelling reason why it was inappropriate for them to be joined then that is a matter they can deal with later. One of them has not appeared in relation to the application and one has appeared and has sought an adjournment on the ground that there is not sufficient time to respond. But, in relation to that, the position seems to me to be clear enough. The argument against joinder has been advanced on behalf of the other proposed additional defendant and I doubt whether anything more could have been said by the other parties.

The argument on behalf of one of the proposed additional defendants, the State of Queensland, is that these parties cannot be joined to the existing proceeding because the Personal Injury Proceeding Act 2002 applies and the requirements to be complied with prior to commencing proceedings under that Act have not been complied with. That in turn depends on the correct interpretation of section 6(3)(a) of that Act. That provides -

"This Act, other than section 58, does not apply to personal injury in relation to which a proceeding was started in a Court including in a Court outside Queensland or Australia before 18 June 2002."

I interpret that section as saying that the Act does not apply in relation to the personal injury suffered by the plaintiff which is the subject of the existing proceeding, and therefore there is no impediment to joining additional defendants in the existing proceeding.

It was submitted on behalf of the State of Queensland however that the Act on its true construction applies in the case of any proposed defendant who is not the subject of an existing proceeding, and that subsection 3(a) really only excludes the application of the Act in relation to a proceeding against an existing defendant in respect of the personal injury.

This is derived, not so much for the terminology of subsection 3(a), but from the purpose of the Act which was to impose various requirements for procedural steps prior to commencing proceedings, steps which were designed to increase the prospect of claims being settled without their having to proceed to litigation.

It was submitted that it would be contrary to the basic purpose of the legislation, which is set out in a little more detail in section 4 of the Act, to interpret section 3(a) other than as excluding from the operation of the Act existing proceedings against existing defendants.

It seems to me, however, that when the legislature was deliberately providing that this Act had a retrospective operation some provision had to be made to accommodate the fact that that was inconsistent with the position of existing proceedings, because existing proceedings almost certainly would not have complied with the requirements of the Act. The legislature has chosen to do that in relation to existing proceedings in section 3(a), but not by reference to the existing proceedings as they were at the time of the commencement of the Act - or indeed as they were as at the 18th of June 2002 - but by reference to a particular injury.

The Act is not made inapplicable to the proceeding but made inapplicable to the injury, provided there is an injury in relation to which a proceeding was started in a Court before 18 June 2002. There is no doubt that there was a proceeding started in a Court before that date in relation to the particular injury, the subject of the existing proceeding, and it seems to me therefore that it necessarily follows, from subsection 3(a) on a literal interpretation, that the Act does not apply to that injury. If the Act does not apply to that injury then it follows that it does not apply to any claim based on that injury, including claims against persons other than the persons who are defendants to the existing proceeding.

The possibility of a proceeding being amended to include additional defendants is one that the legislature ought to have been alive to but no specific provision has been made to deal with that. In addition, creating a situation where the Act applied to some defendants but not others in existing proceedings would produce a variety of complications because the Act is not concerned only with matters arising prior to litigation. It would also produce difficulties if the Act applied and the plaintiff sought to proceed against additional defendants. If the plaintiff had to comply with the pre-litigation proceedings in relation to those additional defendants that would inevitably produce some delay in being able to join those defendants in the action, which would be inconsistent with the obligation, imposed for example by Rule 5 of the Uniform Civil Procedure Rules, to carry on the existing proceeding expeditiously and without delay.

There would be inevitably some conflict between that requirement and the requirement to complete pre-litigation proceedings against the proposed additional defendants before they could be joined. Indeed, the whole concept of completing the pre-litigation proceedings against additional defendants seems to me to be somewhat impracticable, in so far as those procedures are intended to produce a settlement of the claims if that can be achieved without litigation. There would be no point, in my view, in requiring a plaintiff to go through those procedures in relation to proposed additional defendants if the existing defendants were not going to be involved as well, and there is no mechanism in the Act to get them involved.

It is not to the point that the pre-litigation proceedings would have been dealt with concerning the existing defendants before the existing proceeding was commenced. It may be that those procedures did not produce a settlement because the existing defendants were unhappy about their involvement, or sought to reject their liability, on the ground that the persons who were really liable were the people who are now sought to be joined as defendants.

It would seem to me, frankly, to be likely to be no more than a waste of time to engage in a pre-litigation proceeding involving proposed additional defendants if the present defendants were not also involved, and there is certainly no mechanism in the Act for that to occur. It seems to me therefore that there is nothing in the purpose of the Act, the object of the Act or the way in which the Act would work which would make it unreasonable or impracticable for section 3(a) to receive its literal interpretation. On the contrary, that seems to me to be a reasonable and appropriate interpretation for that subsection to receive, and what I regard as the obvious interpretation that was intended by the legislature.

In my view the subsection operates by reference to the personal injury rather than by reference to a particular cause of action or a particular defendant or a particular recipient of a claim, and so long as there is a proceeding on foot prior to the cut off date in relation to that particular personal injury then one forgets about the Act. If one does that there is no reason not to join these proposed additional defendants.

...

HIS HONOUR: There are two defendants already - Connell is the first defendant, Suncorp Metway Insurance Limited is the second defendant - so State of Queensland is joined as third defendant in the proceeding, Parsons Brinker Hoff Australia Proprietary Limited is joined as fourth defendant and Happy Group Contractors is joined as fifth defendant.

...

Strictly speaking, the plaintiff should pay the costs of the application but not including the costs of resisting the application, and the costs of resisting the application should follow the event, but in circumstances where almost all the costs which would have been incurred in relation to the application would be costs of resisting the application, bearing in mind the matter had to be brought on in hurry, I think in all the circumstances it is appropriate to make no order as to costs.

In so far as the application was resisted the resistance was unsuccessful and I think that, although it might have been reasonable to advance that particular construction advanced by the State of Queensland, I don't think that that's an argument which should particularly assist that party in relation to costs.

So, I make no order as to costs. Order in terms of the draft.