Hardell Pty Ltd t/a Reinbott Farming v Christofides
[2006] QDC 323
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- Hardell Pty Ltd t/a Reinbott Farming v Christofides[2006] QDC 323
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Hardell Pty Ltd t/a Reinbott Farming v Christofides[2006] QDC 323
Hardell Pty Ltd t/a Reinbott Farming v Christofides[2006] QDC 323
[2006] QDC 323
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 175 of 2001
HARDELL PTY LTD TRADING AS REINBOTT FARMING ACN 010 687 233 | Plaintiff |
and | |
CONSTANTINE ARTHUR CHRISTOFIDES and CONSTANTINE JOHN CHRISTOFIDES and BURDEKIN CROPCAIR PTY LIMITED and GREGORY BRUCE BRAZEL | First Defendants Second Defendant Third Defendant |
Catchwords
Uniform Civil Procedure Rules r69, r371, r376, r389 - plaintiff applying for leave to amend claim after end of limitation period -plaintiff ascertained after filing claim and statement of claim, but well within limitation period, that the "farmers" using the original defendants' land who engaged allegedly negligent cropsprayers included additional entities now sought to be included as parties - application dismissed
TOWNSVILLE
DATE 06/07/2006
JUDGMENT
HIS HONOUR: The plaintiff has applied to the Court for (1) leave to join Sugarlands Seaforth Pty Ltd and Sugarlands Ivanhoe Pty Ltd, formerly trading as Christofides Group, as the fourth defendants; (2) leave to join Sugarlands Investments Pty Ltd and Sugarlands Developments Pty Ltd, trading as Christofides Brothers, as the fifth defendants; (3) more generally, leave to amend its statement of claim to include the amendments shown in a document provided to the Court - with costs to be reserved.
Items (1) and (2) invoke rule 69(2) of the Uniform Civil Procedure Rules and it is said on the basis of Howard v. WorkCover Queensland [2001] 1 Queensland Reports 388 that rule 376(2) is also available.
The six year limitation period has expired, the cause of action having arisen on or about the 3rd of September 1998, when the plaintiff claims its crop was damaged by drifting of chemicals being sprayed on the first defendants' property. The statement of claim filed on the 4th of June 2001 contains the following:
"3. At all material times the First Defendants were the registered proprietors of a property near Ayr in the State of Queensland being described as Lot 1 on RP702264 County of Gladstone Parish of Antill and known as 'Minuzzo's Farm' ('Minuzzo's Farm')."
"5. At all material times the Second Defendant carried on the business of aerial crop spraying using crop duster aircrafts."
"8. At all material times the First Defendants used Minuzzo's Farm for the purpose of farming."
"10.At all material times the Defendants knew or ought to have known that the Plaintiff's principal farming activity carried out upon [its nearby] land was the growing of cucubits and that there stood upon the land a crop of cucubits being honeydew melons which crop by its very nature was exposed to the elements and vulnerable to airborne contaminants. Alternatively, the Defendants knew or ought to have known that there stood on the land a crop which by its very nature was exposed to the elements and vulnerable to airborne contaminants.
11. Prior to 3 September 1998 the First Defendants retained the Second Defendant to conduct aerial crop spraying ('the aerial spraying') of the herbicides known as Gesapax Combi and Diurex ('the herbicides') on a portion of Minuzzo's Farm which lay approximately 800 metres north-east of the land at its closest point."
"17. By reason of the retainer the Second Defendant was the agent of the First Defendants when carrying out the aerial spraying and the First Defendants were vicariously liable for all acts and omissions of the Second Defendant when it was carrying out the aerial spraying.
18. At all material times the Third Defendant:
- (a)Was the managing director and chief pilot of the Second Defendant;
- (b)Was an employee, and/or servant and/or agent of the Second Defendant;
- (c)Physically carried out the aerial spraying of the herbicides on behalf of the Second Defendant."
"26. Further, the Third Defendant was negligent in that he:
- (a)failed to stop or otherwise control the aerial spraying so that it ceased before spray drift occurred, or in such manner as to avoid spray drift occurring.
- As a consequence of the negligence of the Defendants the Plaintiff has suffered loss and damage and continues to suffer loss and damage, as pleaded below.
- (a)The crop was severely damaged by the herbicides and as a result the yield and quality of the crop were severely affected..."
It was hardly late-breaking news to the plaintiff that the proposed new defendants might be involved. The defence of the first defendants, who along with them resist the application, all represented by Mr White (the second and third defendants abiding the Court's order), was filed on 22nd October 2001 and states:
"8. As to the allegations contained in paragraph 8 of the statement of claim, the first defendants admit that in partnership with others they used Minuzzo's Farm for the purpose of farming."
"11. As to the allegations contained in paragraph 11, the first defendants admit that they retained the second defendant to conduct aerial spraying and that a Combi-mix was to be sprayed, which also included 2.4-D."
After months of confusion as to the implications of paragraph 8 and the roles of multiple entities potentially involved, it took the accountants, Price Waterhouse Coopers, to clarify matters in a communication of the 12th of December 2002 addressed to and subsequently passed on by the first defendants' solicitors.
"The land referred to as 'Minuzzo's Farm' is owned by Constantine John & Constantine Arthur Christofides. The owners of the land had a cultivation agreement with Christofides Group, a partnership of two companies, Sugarlands Ivanhoe Pty Ltd and Sugarlands Seaforth Pty Ltd.
Christofides Group does not own any farming equipment. It contracted the partnership known as Christofides Brothers, a partnership of two companies, Sugarlands Investments Pty Ltd and Sugarlands Developments Pty Ltd. Christofides Brothers was contracted to provide farming inputs for Christofides Group who in turn had the cultivation agreement with the owners of the land."
The response was preparation of an amended statement of claim, bringing in Christofides Group and Christofides Brothers as fourth and fifth defendants. On the 24th of March 2003 the solicitors sent a copy of the proposed amended claim and statement of claim to the various solicitors for all defendants on the record, seeking consent to the changes, in a commendable exercise of seeking to limit costs of the obtaining of the necessary leave from the Court. The proposed amended statement of claim now provided to the Court incorporates subsequent changes made by Miss Borrie in late 2005, and by Mr Kelly in April 2006.
There was no response to the communication of 24th March 2003 from the first defendants' solicitors, at all events. The plaintiff did nothing about obtaining leave until filing of the present application on the 29th of March 2006. It was originally returnable on the 10th of April 2006 and adjourned on the basis that the defendants would take no point for the purposes of rule 389 of the UCPR in reliance on the further time expired.
The plaintiff's view was that the last step in the proceeding was the late provision of expert reports to the defendants on the 15th of April 2004. I am not persuaded by Mr White's submission by reference to McKenzie v. Glenville and Elizabeth Honnery v. Council of the Shire of Flinders [2001] QSC 255 at page 3, that the step taken on the 15th of April 2004 was not a true step on the basis that it was late and thus not a step "in accordance with the rules" - the consequence of which was said to be that the rule 69 application failed because it did not seek the leave of the Court required after two years delay under rule 389. At page 3 of his reasons Cullinane J disregarded "steps" taken without leave, not only after more than two years delay since the previous step, but also after the defendant had filed an application for dismissal of the proceedings for want of prosecution.
Other cases relied on by Mr White in this connection were Dunseath v. Febriway Pty Ltd [2001] QCA 104 and Citicorp Australia Limited and Metropolitan Public Abattoir Board [1992] 1 Queensland Reports 592 at 593. The reference in Dunseath was to page 9. The effect of rule 371, like that of its predecessors, explained in Perez v. Transfield (Qld) Pty Ltd [1979] QdR 444, has been to validate the step taken, however late, in the absence of a successful defendant's application to disallow it. No such application has been made, not even one instanter at the hearing on the 5th of July 2006.
The Court may consider the application under rule 69 without having to consider whether rule 389 leave should be granted. Such leave is not necessary. If I thought it were, I would grant it. The difficulty the plaintiff faces is the prohibition in rule 69(2) against including or substituting parties after the end of a limitation period. But for that consideration, the argument in favour of the inclusion of the proposed new defendants would be compelling. See MAM Mortgages Limited (in liquidation) v. Cameron Bros. (a firm) [2002] QCA 330. See paragraph 27. Rule 69(2) provides for exceptions. It was amended in 2004 as part of a wider set of changes clearly designed to make it more difficult for the statute of limitations to be circumvented by adding new defendants in a proceeding begun in time.
Section 81 of the Supreme Court of Queensland Act 1991 was amended following Draney v. Barry [2002] 1 QdR 145, which found there an independent basis for circumventing or effectively extending limitation periods. Rule 69(2) used to admit an exception where the court thought doing so "just". An early illustration of the consequences of its repeal is Reed v. Gumeta Pty Ltd [2005] QDC 224. Compare Howard v. WorkCover Queensland [2001] 1 QdR 388, in which reliance was placed on the former paragraph (g).
Mr Quirk, for the plaintiff, relies on rule 69(2)(a)(iii) and (iv):
"(a) the new party is a necessary party to the proceeding because -
- (iii)the proceeding was started in or against the name of the wrong person as a party and if a person is to be included or substituted as defendant or respondent the person is given notice of the court's intention to make the order; or
- (iv)the court considers it doubtful the proceeding was started in or against the name of the right person as a party and if a person is to be included or substituted as defendant or respondent the person is given notice of the court's intention to make the order."
He says:
"8. With respect to r. 69(2)(a)(iii) and (iv), the original Statement of Claim sought, in paragraph 8, to name the person that was conducting the farming on the First Defendants' farm. In the First Defendants' Defence, the First Defendants, in response to paragraph 8 of the Statement of Claim, stated:
'As to the allegations contained in paragraph 8 of the Statement of Claim, the First Defendants admit that in partnership with others they used Minuzzo's Farm for the purpose of farming.'
- The First Defendants did not state who the other partners were. When the Plaintiff received the information in Exhibit 'F' to Mr Long's Affidavit, it was then clearer who the other partners were.
- It was not until Exhibit F was obtained that the Applicant was, and could be aware, that the farming operation may have involved up to five people.
- The Court would therefore find that it is either doubtful that the proceeding was started in or against the right person as a party, or that it was started against the wrong person as a party, in that the party that was person who was carrying on the farming appears to be five people, including the First Defendants, trading as a partnership."
The Court has to decide whether in naming the first defendants the plaintiff used "the name of the wrong person as a party" (for (iii)) or whether it is "doubtful" that it adopted "the name of the right person" (for (iv)). All other requirements have been satisfied. In my opinion it is straining the language to hold that it covers the omission of others who might have been named along with existing defendants who have been correctly identified and named. It may be accepted that it is "sometimes difficult to determine whether there is a mistake [or possible mistake] in name or a mistake in identity" made by the plaintiff in a case like this. See Bridge Shipping Pty Ltd v. Grand Shipping SA (1991) 173 CLR 231, 245 per Dawson J. See also per Toohey J at 251. Much reliance was placed on McHugh J's statement in the leading judgment at 261, where he said of the Victorian rule, "It should be interpreted to cover not only cases of misnomer, clerical error and misdescription, but also cases where the plaintiff, intending to sue a person he or she identifies by a particular description was mistaken as to the name of the person who answers that description." The Court of Appeal approved and applied that statement in Howard v. WorkCover at 389.
In my opinion the proper outcome here is that indicated by the actual outcome in Bridge Shipping. Here, the plaintiff was not wrong or mistaken in naming the first defendants. The error was not to name additional defendants. Mr Quirk's argument is clever, but in the end I do not think it is clear at all that the intention of the plaintiff's paragraph 8 (or of its claim generally) was to catch every person or entity using Minuzzo's Farm for the purpose of farming. That is an end of the possibilities of recourse to rule 69.
In respect of rule 376(2), there are similar difficulties. The rule applies to an application for leave to make an amendment if a relevant period of limitation current at the date a proceeding was started has ended. By subrule (2) the court may give leave to make an amendment correcting the name of a party, even if the effect of it is to substitute a new party, on restrictive conditions, namely:
"(a) the court considers it appropriate; and
(b) the court is satisfied that the mistake sought to be corrected:
- (1)was a genuine mistake; and
- (2)was not misleading or likely to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued."
This is not a case of substitution, because there is proposed to be retention of existing defendants not brought into the proceeding by mistake, and addition of new defendants. I cannot detect in the original paragraph 8 any intention to include every person or entity farming on the first defendants' property. Nor can it be said there is no reasonable doubt but that the proposed new defendants were intended to be sued as well.
Reference was made to the list of factors for consideration in circumstances analogist to the present in Tyler v. Custom Credit Corporation Limited [2000] QCA 178. I observe that there would be no prejudice to the proposed new defendants apart from that of facing a proceeding from which the statute of limitations would protect them, once the plaintiff's time ran out. Their links with the first defendants are close and include directorships. They may be treated as having anticipated facing the claim almost from the beginning of it. On the other hand, it is difficult to sympathise with the plaintiff, which has failed to seek leave under rule 69 within the limitation period, although fully aware for years of the need to do so. It is unclear to what extent its solicitors, by recounting difficulties associated with changing personnel and other developments in the firm, are accepting responsibility for the omission.
In the circumstances there is little to be said for an argument that the plaintiff ought not to suffer for its solicitor's conduct by being shut out against the proposed new defendants. It is not at risk of failing entirely in the claim. The second and third defendants are properly in the action, along with the first defendants. So the plaintiff has potential recourse against those individual defendants, who may well be more capable of meeting a judgement than companies. Further, those individuals have effectively accepted, to the extent that the farmer of Minuzzo's Farm may be liable, that the liability is theirs. It does not matter that they may have had partners who are not included in the proceeding.
For its purposes, there is an admission which the court will be able to act upon even if it does not accord with the full detail of the true facts. Mr White accepted, and I am confident, that the first defendants would not be able to withdraw from their admission, at least with a view to establishing that the proposed new defendants, rather than themselves, should have been sued.
It might be observed that the proceeding has never gone to sleep, despite the infrequency of formal steps calculated to advance it. There has been continuing correspondence of some significance and utility, including a suggestion of mediation after the last "step" identified above.
The application should be dismissed, and presumably with costs.
...
HIS HONOUR: Application dismissed, with costs.