Bennett v Kayal Nominees Pty Ltd
[2005] QDC 325
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- Unreported Judgment
- Bennett v Kayal Nominees Pty Ltd[2005] QDC 325
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Bennett v Kayal Nominees Pty Ltd[2005] QDC 325
Bennett v Kayal Nominees Pty Ltd[2005] QDC 325
DISTRICT COURT OF QUEENSLAND |
|
CITATION: Bennett v Kayal Nominees Pty Ltd [2005] QDC 325
PARTIES:
TRACEY LEANNE BENNETT | Plaintiff |
v
KAYAL NOMINEES PTY LTD | Defendant |
FILE NO/S: D3443/2004
DIVISION:
PROCEEDING: Application
ORIGINATING COURT: District Court, Brisbane
DELIVERED ON: 15 September 2005
DELIVERED AT: Brisbane
HEARING DATE: 15 September 2005
JUDGE: McGill DCJ
ORDER: Defendant's application dismissed; plaintiff's application adjourned; defendant to pay costs
CATCHWORDS:
PRACTICE – Third party notice – application for leave to issue out of time – relevant considerations – application dismissed
UCPR r 194
Just GI Pty Ltd v Nomoheith Pty Ltd [2000] QSC 163 - followed
COUNSEL: | A.J. Macklin for the plaintiff M.J. Brady for the defendant T. Matthews for the proposed third party |
SOLICITORS: |
DISTRICT COURT | No D3443 of 2004 |
CIVIL JURISDICTION
JUDGE MCGILL SC
TRACEY LEANNE BENNETT | Plaintiff |
and
KAYAL NOMINEES PTY LTD ACN 065 200 946 | Defendant |
BRISBANE
..DATE 15/09/2005
ORDER
HIS HONOUR: This is an application for leave to issue a third party proceeding in an action which was commenced in September 2004. Although we are now up to the second amended statement of claim which was filed only in May 2005, the action has, in other respects, proceeded rapidly, and the application for leave to issue a third party notice was filed really in response to a signed request for trial date having been provided by the plaintiff's solicitors to the defendant's solicitor in August this year.
It is conceded by the defendant's counsel that if the third party notice is not to be issued, then this action is effectively ready for trial.
No doubt the speed with which the matter has been prepared for trial is attributable to the fact that the action is one covered by PIPA, so that a good deal of the preparation took place before the proceedings commenced. There was a compulsory conference involving the parties, and indeed some other people, under PIPA, late last year, and no doubt the parties were required to go through the solemn farce of certifying at that time they were ready for a trial which would be unlikely to take place before next year in any event. So, in those circumstances, although the actions proceeded reasonably quickly, that should not be seen as an unusual situation for a claim of this nature under the current regime.
For what it is worth, there is also the consideration that there is now really no backlog in the District Court civil list in Brisbane, so that as soon as the matter is placed on the call over list, and there is a call over, it should be given a trial date.
Accordingly, although the matter is not actually listed for trial, it is close to being listed for trial as it stands.
The plaintiff's claim is, on its face, a fairly straightforward one, that one morning she was walking up a ramp from a car park to a medical centre, to have her six month old child inoculated, when she fell on the ramp and suffered an injury. She alleges that the ramp was hazardous, for a variety of reasons, but essentially that it was hazardous so that it ought not to have been in that state.
The ramp is a relatively new one I gather, having been constructed not long before the 16th of October 2001, when the plaintiff fell. It was only in use from the 18th of September, so for about a month; however, even in that short time, there had been a previous fall on the same ramp which took place on the 3rd of October, when an elderly woman fell, and the defendant admits that the following day, it consulted architects as to the situation. After the second fall, the ramp was reconstructed, which is some evidence that the ramp in its previous state was unsafe, and the plaintiff alleges that between the first fall and the time when she fell nothing was done, either to make the ramp less hazardous, or to prevent her from using it by erecting a temporary barrier, or to give her some warning of its hazard by painting it in a bright colour, or I suppose, although I do not think this is actually referred to in the pleading, putting up a big sign saying, “Danger, hazardous ramp”.
Although the plaintiffs, in slip and fall cases, these days, probably do not fare as well as they used to, insofar as one can tell on the face of the pleadings, thise seems to be a fairly promising, and I would have thought, a fairly straightforward claim from the point of view of the plaintiff. Although the plaintiff has alleged a lot of things in the second amended statement of claim, including a failure to construct in accordance with approved plans, or in accordance with the local authority standards, and things like that, it appears to me that the crucial issue is whether the ramp, as it existed on the date of the fall, was hazardous, and whether the defendant knew about that, and ought to have taken steps to do something about it, and as I say, it seems to me that that is not a matter which ought greatly to trouble the plaintiff at a trial, again, so far as I can tell, simply by looking at the pleadings and seeing what I have seen by way of outlines of argument at the moment. It may prove to be less compelling if one is more fully exposed to the relevant facts.
The defendant is proposing seeking to join the building company that constructed the premises, including relevantly the ramp, alleging that it is entitled to contribution on the basis that the builder is also liable to the plaintiff on the basis of the builder's liability for constructing a dangerous work which was available for use by members of the public who use in that state and who are injured as a result. That is not a claim which is currently being pursued by the plaintiff. Although the proposed third party, the builder, was involved in the PIPA proceeding, the plaintiff has chosen only to sue the defendant, no doubt deciding the defendant is the easiest party against which to prove a case.
The defendant is also proposing to allege against the third party that the ramp was not constructed in accordance with the contract or in accordance with the standards and requirements of the local authority and so on, and, independently, that there was a breach of the contractual obligation of the builder not to build something which was hazardous to members of the public in its final state.
It is also alleged that there is a contractual entitlement to an indemnity, pursuant to a particular provision in the building contract, the operation of which would seem to me to give rise to somewhat different issues from the issue of whether the defendant is liable to the plaintiff, although no doubt the existence of liability from the defendant to the plaintiff would be one of the factors relevant to determine whether there is an entitlement to an indemnity under that clause.
The proposed third party opposes the joinder and, what may be perhaps of more significance, is threatening if joined to join two fourth parties. That this should be taken seriously is confirmed by the fact that those proposed fourth parties were also involved in the PIPA process and also involved in the compulsory conference.
The defendant submits that as a result they should be able to be involved in a litigation quickly so that the litigation would not be greatly delayed, and points to the fact that because they were involved in the PIPA process they should also be ready for trial. Indeed, one of them has certified that it was ready for trial sometime last year. I have commented elsewhere on the absurdity of that statutory requirement and I do not think that the operation of the discretion under this rule should be distorted by that absurdity. But it is certainly the case that the proposed third party and the proposed fourth parties will not be coming into the litigation cold, and the litigation could proceed more quickly than would have been the case if they were. But the litigation without them can proceed more quickly than litigation of this kind used to.
In circumstances where PIPA requires a whole lot to be done before litigation commences, it means that there is less to be done after it commences, so litigation proceeds more quickly. Although no doubt a claim involving all these extra parties can be brought on relatively quickly for such a claim, it would be a claim which would be brought on a good deal less quickly than simply the action by the plaintiff against the defendant.
The other consideration is that it will change the action from a two party action into an action of five parties, and I think that that consideration should be faced head on and not answered simply by saying that all that the defendant is trying to do at the moment is change it from two parties to three parties. If the third party is now joined then it would seem to me to be difficult to deny it the right to join fourth parties. So, I think it is realistic to look at the overall effect of joining the third party as one which would turn a two party action into an action with at least five parties.
It emerged in the course of an argument that there is at least someone else around who might, in certain circumstances, possibly be sued by the defendants. So maybe there will be more than five parties at the end of the day if the third party is joined.
It seems to me that that inevitably would turn what, on the face of it, is a fairly simply and straight forward personal injury action, from the point of view of the plaintiff, into a lengthy and complicated matter, a much more complex case. The plaintiff will become, almost inevitably, enmeshed in what looks like turning into something of a building dispute, particularly if one is going to get into detailed arguments about whether or not the works were done in accordance with the contract, which would likely lead to disputes as to who said what to whom about changing things and doing things differently from the contract in the course of the building work. I think that that would certainly turn what seems to be a relatively simple action into what I would expect to be a relatively complex one.
I do not think that this is something which should be assessed simply by looking broadly at the issues raised in the pleadings. I think it is necessary to take a more practical and realistic view of what is likely to happen with actions of this kind if they actually come to trial. An estimate is that if the plaintiff's action against the defendant on its own actually comes to trial it will be short and straightforward, whereas if the proposed third party proceedings and the proposed fourth party proceedings are added into it, it will be, by the standards of this Court, relatively long and relatively complex.
It might mean it might turn a one day trial into a four or five day trial but that is a matter which would be a problem for the plaintiff, and in circumstances where the defendant has not issued third party proceedings in accordance with the requirements of the rules, so that it is a matter of discretion as to whether the defendant should be allowed to take that step now, that is a relevant consideration.
The considerations that have to be balanced were referred to in Just GI Pty Ltd v. Nomoheith Pty Ltd [2000] QSC 163 by Mackenzie J who cited authority for the proposition that the public policy sought to be advanced by allowing a third party to be joined in an action is the need to ensure finality and litigation and to avoid multiple proceedings with their associated extra costs.
Further, by preventing the same question being tried twice, the possibility of different decisions on the same issues being given by differently constituted Courts is avoided, that possibility being a matter calculated to bring the administration of justice into disrepute. Nevertheless, it is a matter of balancing the inconvenience to the plaintiffs of the inevitable delay which will be caused by a late joinder against the inconvenience to the defendant of having claims to the plaintiff's and its claim against the other parties not heard at the same time.
The delay in making the application after the defence was delivered is perhaps not all that great but as I say, standards are different now under the post-PIPA regime. Actions move more quickly and a higher standard of promptitude is required.
The explanation for the delay was partly because other counsel was dilatory in responding to a brief, which is not a particularly good excuse and because there was a query being raised as to the existence of an insurance policy. That was, no doubt, a relevant matter to be asking the third party about but it is not apparent to me why the third party claim could not have been proceeded with while waiting for a response to that issue. It really does not seem to me to provide much of an excuse at all.
But I think that the delay in itself is significant more because it means that the matter becomes a matter of discretion and because it means that the plaintiff's action is now virtually ready to be tried. It means that the delay associated with getting the other parties up to that point is a matter of some consequence.
I must say though that I think the most important factor overall is what would be a change from a relatively straight forward matter in a practical sense to a relatively complicated one, and I do not think that the plaintiff should be put to that difficulty.
I am conscious of the approach adopted in Just GI, which was not overturned on appeal [2001] QCA 48, and indeed by what was said by the Court of Appeal, and attempting to apply that approach, although I am satisfied that on the face of it the matter falls within rule 192, as a matter of discretion, I would refuse leave to issue the third party notice.
...
HIS HONOUR: That means that the defendant's application is dismissed.
...
HIS HONOUR: I will order the defendant pay the costs of the plaintiff and CMC Brisbane Proprietary Limited of the defendant's application.
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HIS HONOUR: The plaintiff's application, I will just adjourn it to a date to be fixed but order the defendant to pay the plaintiff's costs of the plaintiff's application to be assessed.
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HIS HONOUR: The plaintiff's application is adjourned to a date to be fixed, and I order the defendant pay the plaintiff's costs of the adjourned application to be assessed.
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