Jacobson v Martello[2008] QDC 201

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an application by the plaintiff to join Aatlantis Fencing Company Pty Ltd (Aatlantis) as a defendant. The plaintiff relies on rule 69(2)(a)(iii) and (iv) of the Uniform Civil Procedure Rules.

For the purposes of rule 69(1)(b)(ii) Aatlantis concedes that its presence before the Court would be desirable, just and convenient. Otherwise it opposes the application. The third defendant doesn't oppose it and the first and second defendants did not appear.

The plaintiff alleges she suffered personal injuries on 21 November 2001 when she fell on internal stairs in her rented unit after the hand rail gave way.

On 27 and 28 November 2002 she served notices of claim pursuant to the Personal Injuries Proceedings Act 2002 (PIPA) on the first defendants, the owners of the unit, the second defendant, the body corporate, and the third defendant, a building company which carried out renovations to the unit including the installation of the hand rail. These parties were not, of course, defendants then.

By notice dated 13 September 2004 the third defendant's insurer claimed indemnity or contribution from Aatlantis on the basis that it was responsible for the construction of the stairs.

By letter dated 18 October 2004 the solicitors for Aatlantis advised the solicitors for the plaintiff, then the claimant, that they were acting for Aatlantis, "a contributor to the claim", and requested copies of "any medical information". The plaintiff appears to have done nothing as a result of this letter to explore the circumstances of the claim against Aatlantis.

The extended limitation period expired on 9 January 2005.

The present proceedings were instituted in the Southport Magistrates Court on 5 January 2005 against the three defendants who had been served with PIPA notices. Aatlantis was not a defendant. The proceedings have since been transferred to the District Court at Southport.

Aatlantis was subcontracted by the third defendant to install the hand rail to the stairs and further subcontracted the work to G & M Fencing, whose employee, Michael McGuire, did the work or arranged for it to be done. All of this was apparent from a report from Beachtide Investigations dated 9 November 2004, Exhibit ALH5 to the affidavit of Alison Hunt, filed on 13 August 2008. This report was prepared for the solicitors for Aatlantis and they sent a copy to the third defendant's insurer by letter dated 19 January 2005. An invoice from G & M Fencing to Aatlantis for the work, and a handwritten letter from Mr McGuire were attached to the investigator's report.

By letter dated 9 February 2005, Exhibit 1, the third defendant's insurer wrote to the plaintiff's solicitors in the following terms.

 "PUBLIC LIABILITY INCIDENT

 Our Insured:  Paul Griffin Homes

 Claimant:  Maris Jacobson

 Date of Incident:  21 November 2001

 We refer to previous communications in this matter.

 Pursuant to and in compliance with Section 9(7)(b) of the Personal Injuries Proceedings Act 2002 ("the Act"), we have provided a copy of your client's Form 1 to Aatlantis Fencing Company Pty Ltd, as we consider Aatlantis Fencing Company Pty Ltd to be a "person" against whom your client might start a proceeding based on the claim.

 The reasons for this are set our [sic] below.

    Aatlantis Fencing Company Pty Ltd was responsible for the construction of the subject stairs.

 In the meantime in accordance with our obligations as set out by Section 27 of the Act we enclose copy investigation report from Beachtide Investigations dated 9 November 2004."

The plaintiff's solicitors appear to have done nothing as a result of this letter.

Correspondence occurred in 2005 between the third defendant's insurer and G & M Fencing about the latter's alleged contribution to the accident.

On 4 May 2005 the plaintiff received a letter from the third defendant containing a contribution notice served on G & M Fencing on 24 February 2005.

The plaintiff's solicitor deposes (paragraph 57) that, "As a result of disclosure in 2006 I became aware that the third defendant had sent a contribution notice to Aatlantis Fencing Company Pty Ltd in September of 2004". This is clearly not correct; the plaintiff's solicitors were informed of this fact by letter dated 18 October 2004 and did nothing about it.

No facts not known by the plaintiff before the expiration of the limitation period are proposed to be pleaded against Aatlantis. In his affidavit filed on 7 July 2008 the plaintiff's solicitor deposes that the following amendments are proposed to the statement of claim should Aatlantis, the proposed fourth defendant, be added as a defendant:-

"(6) In 1999, the fourth defendant was engaged by the third defendant as a subcontractor to install hand rails for stairs on the premises.

(10) At all material times the third defendant, as contracted builder of the refurbishment at the premises and the fourth defendant as the third defendant's contractor

1. (a)
    owed to the plaintiff..."

These are not new facts learned only very recently.

A compulsory conference was held on 22 November 2007. The plaintiff's solicitor deposes (paragraphs 56 and 58) that at that conference the plaintiff became aware of a new material fact of a decisive character, namely the work Mr McGuire did for Aatlantis, and his relationship with Aatlantis. The plaintiff's solicitor deposes that as a result of this information it only then "became clear" that Aatlantis should be joined as a defendant.

No relationship between McGuire and Aatlantis is proposed to be pleaded and no allegations are proposed to be made against G & M Fencing.

I cannot accept that it was not until 22 November 2007 that the plaintiff was aware of the existence of a claim by the plaintiff against Aatlantis.

The solicitors for the plaintiff were aware, before the limitation period expired, of the fact that Aatlantis had been joined as a contributor to the plaintiff's claim and did nothing about that fact. They should have, and if they had, they would have easily learned of the third defendant's claim against Aatlantis and the basis for it and of the desirability of then including Aatlantis as a defendant to the plaintiff's claim.

Mr H G S Trotter, counsel for the plaintiff, made the following submissions in paragraphs 34 and 35 of his written submissions:

"34. Such is the case, where the Plaintiff has correctly claimed against the 'builder' of the faulty stairs and handrail, however, as a result of continuing investigations and ultimately at the compulsory conference, it has been brought [sic] the Plaintiff/Applicant's attention, by the builder (Third Defendant) that the works that directly caused the Plaintiff's damages were subcontracted to Aatlantis. Said compulsory conference was not held until November 2007.

35. Further, it is important to note that, at the time of filing the claim and statement of claim, the Plaintiff/Applicant did not know, and could not reasonably have been expected to know that the third Defendant (the Builder) had a subcontractor. By the time it was brought to the attention of the solicitors for the Plaintiff/Applicant that there might reasonably be a negligence claim against Aatlantis, the proceedings had already been stayed pending the completion of all of the pre-court requirements under PIPA. This application is the first step to be taken following the completion of these pre-court requirements and as such, the Plaintiff/Applicant has sought to include Aatlantis at the first opportunity."

I cannot accept that it was not until the compulsory conference that the plaintiff became aware of the involvement of Aatlantis. In fairness to Mr Trotter, he appeared quite surprised when the letter, Exhibit 1, was produced by Ms McClymont, counsel for Aatlantis.

In my view the plaintiff knew, or ought to have known, of sufficient facts to claim against Aatlantis before the limitation period expired and for this reason rule 69 does not provide a basis for now including Aatlantis as a party to the proceeding.

If I am wrong about that and rule 69 does allow Aatlantis to be now added as a party, in my view, the discretion should be exercised against that happening.

Whilst an explanation for the failure to do so within time, or earlier than now, may not be a pre-condition to the power to add it it is relevant to the exercise of the discretion. The failure to do so within time, and to apply to do so until now, has not only not been satisfactorily explained, the explanation proffered is plainly wrong and disingenuous.

There is no question of any complications or confusion about parties or their relationship. The facts here are quite straightforward and distinguishable from those in Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184, and Montgomery v Pickard [2007] QCA 203.

In the latter case, the Judge at first instance said (para [32]):-

"However some eight or nine years has passed since the relevant events. This passage of time necessarily impacts upon the capacity to obtain a fair trial. In addition the matter cannot simply be approached by comparing the position at that time and now."

Reference was then made by the Judge to the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541, especially passages from the judgment of McHugh J at pages 552, 554 and 555. The Court of Appeal said (para [34]) that the considerations referred to by McHugh J are relevant on an application such as the present and continued:-

"Those considerations can be shortly stated. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive to a defendant to allow an action to be brought long after the circumstances giving rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them once the limitation period has expired. In other words limitation periods are important and ought not lightly be overruled. Such considerations are clearly relevant to the question of whether or not in the exercise of discretion the new parties should be joined, and if so, on what terms."

Ms McClymont relied on these considerations. She submitted that Aatlantis would be prejudiced by the extreme length of time since the date of  the plaintiff's injury notwithstanding its involvement by other means in the proceeding since 13 September 2004. She also relied on the fact that Mr McGuire refers in his letter, already referred to, to a limited recollection of events and the absence of "any documents relating to the incident". She also refers to his letters dated 30 October 2007 and 8 November 2007, Exhibits ALH10 and 11 to Ms Hunt's affidavit. She referred to "nearly 7 years of unexplained delay" and the fact that "once questions of prejudice arise, it is prejudice over the entire period".

There is substance in these submissions. Mr Trotter really had no response to these considerations. He conceded that knowledge of Aatlantis, before proceedings were instituted, would "certainly give reason to investigate the matter" further.

In my view no sufficient reason has been shown for now adding Aatlantis as a party to the proceeding.

For these reasons the plaintiff's application to do so will be dismissed. I order that the plaintiff pay the costs of Aatlantis in relation to the application to join it as a defendant, those costs to be assessed on the standard basis unless otherwise agreed. There will be no order in relation to the third defendant's costs of appearing in support of the plaintiff's application.

On the application to transfer the proceedings the costs of all parties will be costs in the cause.

On the application for leave pursuant to rule 389 of the Uniform Civil Procedure Rules I order that the plaintiff pay the third defendant's costs to be assessed on the standard basis unless otherwise agreed. There will be no order for costs in relation to the first defendants and the second defendant in relation to that application.