Watt v Mahony[2003] QDC 400

CIVIL JURISDICTION

JUDGE ROBERTSON

and

MAROOCHYDORE

..DATE 19/02/2003

JUDGMENT

HIS HONOUR: There are two applications before the Court. It is appropriate that the defendant's application to join three parties as third parties to the action be dealt with first.

The effect of the submissions advanced on behalf of the defendant by Mr Pyk this morning is that apart from his client's application, the matter is otherwise ready for trial. It follows then that if his application is unsuccessful, the plaintiff's application to dispense with the defendant's solicitor's signature on the request for trial date should succeed.

The plaintiff's claim is for damages for personal injuries alleged to have been sustained on the 12th of January 1998. As at that date, the plaintiff was present on a building site at Chancellor Park performing work involving the fixing of plasterboard sheets at the second storey. A stairwell had been left exposed at that level. The plaintiff fell into the aperture left by the exposed stairwell and landed on the floor below and was injured.

The plaintiff's claim was commenced by plaint on the 8th of December 1998 and thereafter, relevantly, the claim has proceeded as follows:

The particulars of negligence pleaded in the plaint are set out in paragraph 8 and focus on the failure of the defendant to guard against potential injury by virtue of the exposed stairwell.

Mr Mahony, the defendant's solicitor's affidavit filed by leave today exhibits the draft third party statement of claim which pleads, in summary, that the defendant had contracted Muchbury Proprietary Limited to undertake the plasterboard work at the house and Muchbury, in turn, had subcontracted with the proposed third parties to perform the work.

The alleged negligence of the proposed third parties is particularised in paragraph 9 of the third party statement of claim and centres upon the failure of the proposed third parties to provide the plaintiff with a safe system of work. The material indicates that Muchbury has been deregistered. The plaintiff opposes the application on the grounds that his claim is ready for trial and if the third parties are now joined, there be an intolerable delay.

Mr Grant-Taylor, on behalf of the plaintiff, submits that the defendant has had ample opportunity before now to take this step and that, in any event, the defendant has not been conscientious in complying with Court orders in the past. An example he gave is the defendant having sworn and served answers to interrogatories over four weeks beyond the period allowed by the order of Judge Shanahan on the 20th of August 2001.

Mr Grant-Taylor further submits that the defendant's solicitor's estimate of a three month delay in the event of joinder is unsustainable given that the joining of three extra parties will have the potential of converting a simple occupier's liability case into a much more complex and multifaceted action.

He points to the potential for further considerable delay in that the proposed third parties may wish to have the plaintiff further medically examined thus delaying the matter further.

On the admissible evidence before me, there is no substantial reason given for the defendant's delay in seeking to join the proposed third parties.

Mr Grant-Taylor objected to paragraph 15 of Mr Baker's affidavit sworn on the 5th of February 2003 which addresses this issue on the ground that he could not, unless he disclosed his source of information, depose to what had occurred prior to his firm assuming conduct of the matter on behalf of the defendant in October 2002.

Mr Pyk, for the defendant, conceded that the objection to that extent was valid and it was upheld and he did not seek an adjournment to rectify the situation.

Mr Grant-Taylor also argues, by reference to Exhibits 1 and 5 to Mr Baker's affidavit, that the defendant, in any event, is maintaining that the plaintiff's claim, as pleaded, is doomed to failure and will certainly fail.

An application made pursuant to rule 194, sub-rule 1 of the Uniform Civil Procedure Rules for leave to file, out of time, a third party notice involves an exercise of discretion. As a rule, the discretion will not be exercised in favour of an applicant where the effect of granting it would be to embarrass or delay the plaintiff. For example, see Bell v D & C R Baker & Another, 1953, State Reports, Queensland 303 and per Mackenzie J in Just GI Pty Ltd & Others v Pig Improvement Company Australia Proprietary Limited, [2000] QSC 163; on appeal [2001] QCA 48. Leave will ordinarily be refused where the inconvenience of the plaintiff, through delay, caused by late joinder, outweighs the inconvenience to a defendant of not having the claim of the plaintiff and the claim against the proposed third party heard at the same time.

In my view, the proceedings will clearly be made more complex by the joinder of three proposed third parties and there will be considerable delay for the plaintiff, which I, agree, in all the circumstances, is intolerable. The long delay in making the application, given the history of the claim, and the simple nature of the claim and particularly having regard to the detailed interlocutory steps taken, including now the unusual step of interrogatories is also a factor which bears on the exercise of discretion.

In those circumstances, the defendant's application is refused with costs and the plaintiff's application is granted with costs.

I will order that the signature of the defendant and his solicitors on the request for trial date be dispensed with.