McLaughlin v Electrolux Home Products Pty Ltd
[2009] QDC 120
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- Unreported Judgment
- McLaughlin v Electrolux Home Products Pty Ltd[2009] QDC 120
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McLaughlin v Electrolux Home Products Pty Ltd[2009] QDC 120
McLaughlin v Electrolux Home Products Pty Ltd[2009] QDC 120
DISTRICT COURT OF QUEENSLAND
CITATION: | McLaughlin v Electrolux Home Products Pty Ltd [2009] QDC 120 |
PARTIES: | Daniel McLaughlin (plaintiff) v Electrolux Home Products Pty Ltd (ACN 004 762 341) (defendant) |
FILE NO/S: | 2594 of 2005 |
DIVISION: | Applications |
PROCEEDING: | Applications to include a party and add a new cause of action after the limitation period has expired; to transfer proceedings to the Supreme Court; and for experts to meet. |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 15 May 2009 |
DELIVERED AT: | Warwick |
HEARING DATE: | 29 April 2009 |
JUDGE: | Kingham DCJ |
ORDER: | 1.Mrs McLaughlin is joined as a plaintiff to these proceedings. 2.Leave is granted to amend the claim to add a cause of action by Mrs McLaughlin relating to property owned by her alone. 3.Upon amendment of the claim to seek damages beyond this court’s jurisdiction, these proceedings are transferred to the Supreme Court for determination. 4.The experts are directed to meet and confer with a view to resolving any areas of disagreement and to produce a joint report. The terms of the meeting and the requirements of the report are those specified in these reasons. 5.Electrolux is to pay the plaintiff's costs of and incidental to this application assessed on the standard basis. |
CATCHWORDS: | APPLICATION – TO JOIN PLAINTIFF – where limitation period has expired – whether r 69(2) applies to a limitation period imposed by the Trade Practices Act 1974 (Cth) – whether r 69 otherwise allows joinder – whether party necessary to enable court to adjudicate – where amendment would add a new cause of action – where arises from same facts or substantially the same facts JURISDICTION – TRANSFER TO SUPREME COURT- where claim is amended exceeds this court’s monetary jurisdiction APPLICATION – meeting of experts – whether premature – whether likely to be productive District Court of Queensland Act 1967 (Qld), s 68, s 72. Judiciary Act 1903 (Cth), s 79 Trade Practices Act 1974 (Cth), s 75AO, s 82 Uniform Civil Procedure Rules 1999 (Qld), r 63, r 69, r 376, r 429B, schedule 4 Borsato v Campbell & Ors [2006] QSC 191, cited Draney v Barry [2002] 1 Qd R 145, cited Greig & Anor v Australian Building Industries Pty Ltd (in liq) [2002] QSC 298, considered Greig (as liquidator of Australian Building Industries Pty Ltd (in liq)) v Australian Building Industries Pty Ltd (in liq); Greig (as liquidators of Australian Building Industries Pty Ltd (in liq) v Stramit Corp Pty Ltd (Unreported, Supreme Court of Queensland Court of Appeal, Williams, Jerrard JJA and Fryberg J, 18 July 2003), followed Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184, considered Montgomery v Pickard [2007] QCA 203, cited Ramsay v McElroy, [2003] QCA 208, applied |
COUNSEL: | D Kelly for the plaintiff J Chapple for the defendant |
SOLICITORS: | RBJ Lawyers for the plaintiff McCullough Robertson for the defendant |
- [1]In the early hours of the morning of 1st of December 2003 Mr McLaughlin’s house caught fire and was extensively damaged, along with some furniture and personal items. He commenced proceedings against Electrolux Home Products Pty Ltd ("Electrolux"), the manufacturer and supplier of a Hoover clothes dryer which Mr McLaughlin claimed was defective and caused the fire. He sought reimbursement of the cost of rebuilding the home, the value of the damaged furniture and personal goods and the cost of temporary accommodation.
- [2]He commenced the claim, as he had to, within three years.[1] Now, after that limitation period has expired, he has applied for orders to include his wife as a plaintiff and to increase the quantum of his claim to an amount beyond this court’s jurisdiction. Because Electrolux did not consent to the claim being determined in this forum, Mr McLaughlin seeks an order to transfer the proceedings to the Supreme Court. He also seeks an order the parties’ experts meet to try to resolve any disagreement between them about the cause of the fire. Electrolux opposed all those orders being made.
- [3]Although it does not appear from the proposed amendments, the furniture and personal items damaged in the fire include some items Mrs McLaughlin purchased with her husband and some she owned outright. Mr McLaughlin argued his wife had to be joined so he could maintain his claim for damage to jointly owned property. He made the same argument about the cost of temporary accommodation which was a cost jointly incurred. To that extent, Mr McLaughlin has claimed relief to which his wife is entitled jointly with him and she must be included as a party to the proceedings.[2] That was not seriously disputed by Electrolux.
- [4]However, the effect of amending the claim and statement of claim, as Mr McLaughlin proposes, is to include a further claim for damage to property owned by Mrs McLaughlin alone. It was uncontroversial that, to that extent, the proposed amendments would include a new cause of action.[3] Mr McLaughlin argued this was permissible under the rules.
- [5]During argument the two issues became intertwined: whether Mrs McLaughlin should be joined as a plaintiff and whether the claim should be amended to include a new cause of action. That is not surprising. However, the questions are distinct. Mr McLaughlin’s application to include his wife does not depend on her ability to pursue an individual claim for damage to property she owned. It rests on his claims to relief to which she is jointly entitled. A possible result is that his wife is included as a party to the proceedings but that leave is not granted for the claim to be amended so as to add her claim for damage to property owned by her alone. Different rules and different considerations apply and they are treated as distinct applications in these reasons.
Should Mrs McLaughlin be included as a plaintiff?
- [6]Mr McLaughlin relied on r 69(1) in his application to join his wife. That rule allows the court to include a person as a party if their presence is either necessary or would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute.
- [7]Electrolux argued r 69 did not allow the court to order Mrs McLaughlin is included as a plaintiff because the limitation period, imposed by s 75AO Trade Practices Act 1974 (Cth) (TPA), has expired. There are two prongs to that argument. One is that the terms of r 69(2) itself preclude the court including Mrs McLaughlin as a party. The other is that the requirements of r 69(2)(f), upon which the applicant relied in argument, has not been fulfilled.
- [8]The second point can be conveniently and quickly disposed of first. Rule 69(2) prohibits the court from including a party after a limitation period has expired unless one of a number of factual scenarios applies. Mr McLaughlin argued that the scenario outlined in r 69(2)(f)(i) applies: that a claim made in the proceeding before the end of the limitation period cannot be maintained unless the party is included. Electrolux did not dispute Mr McLaughlin could not pursue his claim for damage to property jointly owned or expenses jointly incurred unless his wife is joined as a party. As parties jointly entitled to the relief claimed, she should be included.[4]
- [9]Electrolux raised a more fundamental point for the court’s consideration. It argued r 69 does not provide a source of power to include Mrs McLaughlin as a party because the limitation period imposed by s 75AO has expired.
- [10]Electrolux submitted r 69(2) only applies to a limitation period imposed by the Limitation of Actions Act 1974 (Qld) (LOA), not, as here, one imposed by the TPA. Electrolux urged the court to apply the reasoning of Mullins J, at first instance, in Greig & Anor v Australian Building Industries Pty Ltd (in liq).[5] In that case, Her Honour considered whether r 69(2) allowed a party to be joined to an application by a liquidator, pursuant to s 588FF(1) of the Corporations Act 2001 (Cth), to set aside transactions as voidable, after the end of the period prescribed in s 588FF(3). Her Honour noted r 69(2) used the term "limitation period", a term defined in the UCPR to mean a limitation period imposed by the LOA.[6] She considered there was nothing in the context or subject matter of the rule to indicate that definition should not apply to the rule.[7] Her reasoning on that issue was not disturbed on appeal.[8]
- [11]In a judgment handed down before the decision on appeal in Greig, a differently constituted Court of Appeal decided, in Ramsay v McElroy, a party could be included after a non LOA limitation period had expired.[9] In that case the limitation period was provided for in s 82(2) TPA. It seems the definition of limitation period was not adverted to in argument before the court.
- [12]More recently, in Montgomery v Pickard, Williams JA declined to determine whether r 69(2) allowed the court to include a party after the limitation period imposed by s 82(2) had expired.[10] While there is still some uncertainty then in the authorities, Her Honour’s reasoning that r 69(2) does not apply where the limitation period is not imposed by the LOA was apparently accepted by the Court of Appeal in Greig and I have applied that reasoning to this decision.
- [13]Yet it seems to me that Electrolux’s reliance on that interpretation presents, somewhat, as a double-edged sword. It only favours Electrolux if r 69(2) is the only source of power to include a party after a limitation period has expired. That was the interpretation of r 69 favoured by Mullins J. She said:
"By setting out the circumstances in which a party can be joined after the end of the limitation period, r 69(2) impliedly authorises the inclusion of a party after a limitation period has expired. As r 69(2) does not apply to s 588FF(3) of the Act, as that provision does not provide for a limitation period under the Limitation of Actions Act 1974, there is nothing in r 69 itself to rely on to empower the Court to join a party outside the limitation period specified in s 588FF(3).”[11]
- [14]An alternative interpretation is that r 69(2) is not the source of the power to include a party to proceedings but merely limits the circumstances in which the general power conferred by r 69(1) may be exercised after a LOA limitation period has expired. Mullins J’s conclusion that r 69 did not, outside r 69(2), confer a power to include a party after a non-LOA period had expired, was not adopted by the Court of Appeal in Greig.
- [15]Williams JA appeared to accept Her Honour's reasoning regarding r 69 in totality.[12] Fryberg J, in dissent, did not. He said:
"In my judgment that analysis of the rule is not correct. Rule 69(1) establishes a general power to order the inclusion as a party of any person described in para (b) of the rule. Subr (2) cuts down or limits the ambit of that power. It is not the source of a power to do anything. It lists the circumstances when the Court must not exercise the general power conferred by subr (1). Its effect is that the power conferred in subr (1) may not be exercised after the expiry of a limitation period except as specified. Because of the definition of the limitation period subr (2) has no application in the present case. It follows that, subject to the effect of any common law to the contrary, rule 69 conferred power to include Stramit as a respondent".[13]
- [16]Jerrard JA found Fryberg J’s reasoning “very persuasive for the view that r 69(1) of the UCPR could be relied upon as a source of power to add” the relevant party.[14] The matter, however, had not been argued in full on the appeal. For reasons not relevant to this application, His Honour decided that even if r 69(1) were available for use, the relief under that section would be futile in the circumstances of that case.
- [17]In the absence of binding authority on the point I prefer the reasoning of Fryberg J to that of Mullins J on that issue.
- [18]The remaining question is whether r 69 is incompatible with other provisions of Commonwealth law. In determining this claim under the TPA, the court will be exercising federal jurisdiction. Section 79 of the Judiciary Act 1903 (Cth) provides the laws of a State, including those relating to procedure, apply to a court exercising federal jurisdiction, except as otherwise provided by the laws of the Commonwealth.
- [19]In Ramsay the court was asked to determine whether the operation of r 69 was excluded because s 82(2) TPA imposed a limitation period and had, therefore, otherwise provided. Justice White, with whom the other members of the court agreed, rejected the argument that s 82(2) was a provision which otherwise provided, so as to exclude the State procedural rules, including r 69(2). Her Honour concluded s 82(2) was not inconsistent with a power to include a party after the limitation period had passed. The limitation period is not an ingredient of the cause of action but a provision which barred the remedy.[15]
- [20]Subsequently, in Interline Hydrocarbon Inc v Brenzil Pty Ltd ,[16] Muir J applied Ramsay and determined s 79 of the Judiciary Act allowed the operation of r 69(2) and included a party after the s 82(2) TPA limitation period had expired.
- [21]In summary, Greig's case is not binding authority that r 69 provides no source of power to include a party after a non-LOA limitation period has expired. Ramsay is authority for the proposition that s 82(2) TPA does not otherwise provide so as to exclude the operation of r 69(2).
- [22]There is no relevant distinction between s 82(2) and s 75AO of the TPA. Both use permissive language; an action may be commenced at any time within the limitation period. This contrasts with the language used in the provision under consideration in Greig's case. Section 588F(3) provided an application to set aside transactions as voidable can only be made by a liquidator within a specified time. The use of the word "only" was regarded as significant by Mullins J, at first instance, as well as by both Williams JA and Jerrard JA on appeal. Williams JA considered the language used in that section indicated commencement within time was an ingredient of the cause of action, not a bar to its remedy, and failure to take action within time could not be remedied by a general power to extend time.[17] Jerrard JA agreed a general power would not be applicable to such a specific limitation period.[18]
- [23]That is not the case here. In Ramsay, the court concluded a provision in materially similar terms to s 75AO did not exclude the operation of r 69.
- [24]I am satisfied Mr McLaughlin can have recourse to r 69 in his application to include his wife as a party despite the limitation period imposed by s 75AO having expired. Mr McLaughlin cannot maintain certain aspects of his claim for damages unless she is included. Her presence before the court is necessary to enable it to adjudicate effectively and completely on all matters in dispute. Mrs McLaughlin should be joined as a plaintiff.
Should leave be granted to amend the claim and statement of claim to add a new cause of action by Mrs McLaughlin alone?
- [25]To the extent Mr McLaughlin’s proposed amendments would add a new cause of action after the limitation period has expired, he asked for leave to amend under r 376(4). That rule allows the court to amend a claim to add a new cause of action only if it considers it appropriate to do so and if the new cause of action arises out of the same facts or substantially the same facts as a claim already made within time.
- [26]Rule 376(4) is not beset with the same difficulties attendant upon r 69(2). It allows an amendment after a "relevant period of limitation" has ended. That phrase is not a defined term. It is similar to the phrase used in s 81 of the Supreme Court of Queensland Act 1991 considered by Mullins J in Greig's case, at first instance. Section 81 uses the phrase "period of limitation". Her Honour decided it would be inappropriate to confine those words to mean a limitation period imposed by LOA.[19] Likewise, it would be inappropriate to read down the words "relevant period of limitation" to apply only to a limitation period imposed by that Act.
- [27]The new cause of action arises out of the same facts, or substantially the same facts, as that already pleaded by Mr McLaughlin. Her property was damaged in the same fire and the basis for liability alleged against Electrolux is the same. The only additional fact relates to Mrs McLaughlin’s ownership of some of the property.[20]
- [28]Electrolux has not alleged any particular prejudice would be caused by the addition. It has no novel legal argument to contend with and the additional evidentiary burden is of little consequence. Leave is granted to amend the claim and Statement of Claim to add a cause of action by Mrs McLaughlin relating to property owned by her alone.
Should the proceedings be transferred to the Supreme Court?
- [29]
Should the experts be required to meet?
- [30]Finally, Mr McLaughlin seeks an order from the court that the parties’ experts meet with a view to resolving any disagreement between them about the cause of the fire and to the extent they disagree, to identify the reasons for their disagreement. Electrolux argued there is no relevant disagreement and that a meeting at this stage would be premature and unproductive.
- [31]Mr McLaughlin engaged Mr Nash who concluded there were two possible causes of the fire: an electrical malfunction; or ignition of lint built up at the element located at the rear of the dryer. Mr Denham, engaged by Electrolux, concluded the fire was caused either by ignition of a build up of lint around the element or by spontaneous combustion of oil residues in the clothes being dried.
- [32]Mr Nash has since produced a further report in which he has referred to other fires involving the same or a similar model of clothes dryer. Mr Denham has been asked to, but has not yet, provided a report in response. He would prefer to meet with Mr Nash as Mr McLaughlin has proposed.
- [33]Electrolux says there is no relevant disagreement between the experts. Based on their reports, it could not be said the experts have yet agreed upon a single or the most probable cause of the fire. It does appear that might be clarified and perhaps resolved after discussion as both identify the ignition of built up lint as a possible cause. Further, it is not clear to me whether each has addressed the question of how the lint came to be so built up and whether that is attributable to the routine operation of the machine. That may well be Mr Nash’s purpose in referring to other fires involving this or similar model machines.
- [34]The position Electrolux has taken on this application is not consistent with its pleadings. Mr McLaughlin identified ignition of lint as the cause of the fire, Electrolux pleaded alternative causes. At this stage there is a conflict between the parties on the pleadings and while the potential for the experts to agree is evident from their reports, their conclusions are not yet in accord.
- [35]Electrolux argued a meeting of experts is premature. Mr Nash's second report referred to a number of other fires and, it argued, there would need to be disclosure of documents and details about those fires before the experts could usefully discuss his new report. It has not sought an order for disclosure and has queried the relevance of other fires to this case. That objection may well prove sound in time but, at this stage the court is not in a position to determine that question and has not been asked to.
- [36]The self evident purpose of r 429B, which empowers the court to order experts to confer, is to reduce the issues in dispute and to limit the scope of expert and other evidence at trial. That purpose is consistent with the overarching philosophy of the UCPR that the rules should facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. In the absence of contrary evidence, a meeting of experts presents as a cost-effective means, in this case, to clarify their opinions and to identify any areas of disagreement and the reasons therefore.
- [37]Consistent with the practice adopted in other jurisdictions, the meeting of experts will take place in the absence of the legal representatives for the parties who must not instruct the experts about how they may conduct themselves at the meeting. At the conclusion of the meeting, the experts must produce a joint report which identifies those matters upon which they agree, those upon which they disagree, and their reasons for disagreement.
Costs
- [38]Given the potential for argument arising from judicial consideration of the interaction of r 69(2) with Commonwealth law it was not unreasonable for Electrolux to resist the application to join Mrs McLaughlin as a plaintiff. Nevertheless, Mr McLaughlin has succeeded on obtaining each of the orders he sought. It is appropriate that Electrolux pay Mr McLaughlin's costs of and incidental to this application assessed on the standard basis.
Orders
- [39]I order:
1.Mrs McLaughlin is joined as a plaintiff to these proceedings.
2.Leave is granted to amend the claim to add a cause of action by Mrs McLaughlin relating to property owned by her alone.
3.Upon amendment of the claim to seek damages beyond this court’s jurisdiction, these proceedings are transferred to the Supreme Court for determination.
4.The experts are directed to meet and confer with a view to resolving any areas of disagreement and to produce a joint report. The terms of the meeting and the requirements of the report are those specified in these reasons.
5.Electrolux is to pay the plaintiff's costs of and incidental to this application assessed on the standard basis.
Footnotes
[1] Trade Practices Act 1974 (Cth), s 75AO.
[2] Uniform Civil Procedure Rules 1999 (Qld), r 63.
[3] Borsato v Campbell & Ors [2006] QSC 191.
[4] Uniform Civil Procedure Rules 1999 (Qld), r 63.
[5] [2002] QSC 298.
[6] UCPR Schedule 4.
[7] Ibid, n 5 at [67]; Acts Interpretation Act 1954 (Qld), s 32A.
[8] Greig (as liquidator of Australian Building Industries Pty Ltd (in liq)) v Australian Building Industries Pty Ltd
(in liq); Greig (as liquidators of Australian Building Industries Pty Ltd (in liq) v Stramit Corp Pty Ltd
(Unreported, Supreme Court of Queensland Court of Appeal, Williams, Jerrard JJA and Fryberg J, 18 July
2003).
[9] [2003] QCA 208.
[10] Montgomery v Pickard [2007] QCA 203 at [45].
[11] Greig & Anor v Australian Building Industries Pty Ltd (in liq) [2002] QSC 298 at [68].
[12] Greig (as liquidator of Australian Building Industries Pty Ltd (in liq)) v Australian Building Industries Pty Ltd
(in liq); Greig (as liquidators of Australian Building Industries Pty Ltd (in liq) v Stramit Corp Pty Ltd
(Unreported, Supreme Court of Queensland Court of Appeal, Williams, Jerrard JJA and Fryberg J, 18 July
2003) at [76].
[13] Greig (as liquidator of Australian Building Industries Pty Ltd (in liq)) v Australian Building Industries Pty Ltd
(in liq); Greig (as liquidators of Australian Building Industries Pty Ltd (in liq) v Stramit Corp Pty Ltd
(Unreported, Supreme Court of Queensland Court of Appeal, Williams, Jerrard JJA and Fryberg J, 18 July
2003) at [159].
[14] Ibid at [128].
[15] Ramsay v McElroy [2003] QCA 208 at [34].
[16] [2006] QSC 184
[17] Greig (as liquidator of Australian Building Industries Pty Ltd (in liq)) v Australian Building Industries Pty Ltd
(in liq); Greig (as liquidators of Australian Building Industries Pty Ltd (in liq) v Stramit Corp Pty Ltd
(Unreported, Supreme Court of Queensland Court of Appeal, Williams, Jerrard JJA and Fryberg J, 18 July
2003).
[18] Ibid.
[19]Greig & Anor v Australian Building Industries Pty Ltd (in liq) [2002] QSC 298 at [77].
[20] Draney v Barry [2002] 1 Qd R 145.
[21] District Court of Queensland Act 1967 (Qld), s 68.
[22] Ibid, s 72.