Weismann v Weismann[2009] QDC 153

HIS HONOUR: On the 15th of March 2005, a tragic accident occurred at the premises of the first defendant. A nine-year-old boy, the son of the plaintiffs and grandson of the first defendant, was found crushed under a large metal gate weighing some 300 kilograms which was intended to slide on a track across the entrance to the first defendant's place. It had come off the track and nobody knows how. The female plaintiff was in the house. The male plaintiff was out of town. Both claim damages for nervous shock attributable to their learning of the accident, which, if I haven't made it clear already, culminated in the nine-year-old boy's death when his life support was turned off.

The second defendant was sued as the supplier of the gate. There is material before the Court suggesting that the first defendant undertook some of the installation himself. He certainly appears to have undertaken the maintenance of the gate and may well have made some changes to it since its installation which it seems occurred in 1991 although it may have been later.

The Personal Injuries Proceedings Act 2002 applies to the claim. The filing of the proceeding occurred pursuant to an order of his Honour Judge Brabazon QC pursuant to section 43 which acknowledged the stay required by the Act to apply until the pre-litigation steps mandated by it were attended to. The claim and statement of claim were duly filed before the expiration of the three-year limitation period. By that time a Part 1 notice of claim under the Act had gone to the second defendant, Heritage Ironwork Pty Ltd, as well as one going to the first defendant.

It has subsequently emerged that the second defendant may be the wrong party, that at the relevant time the business known as Weldcraft, which the first defendant indicated, presumably correctly, was the supplier of the gate, was conducted by the respondents to this application, Mr and Mrs Simpson, who have been ably represented by Mr Evans of counsel to resist it. They present to the Court, according to Mr Littler's affidavit, as uncertain whether they had any, if so what, insurance. That consideration ought not to affect the outcome but it may explain why the application before the Court which was filed on the 28th of November last year as one seeking substitution of them as second defendant was resisted so strongly. Because of difficulties of service on them, the application has come on for hearing only today.

It is uncertain on the material, because it conflicts, when in relation to the supply of the gate Heritage Ironwork Pty Ltd took over the business of Weldcraft which had previously been the Simpsons'. A business name search indicates that the changeover occurred on the 30th of June 1992. However, Mr Littler's affidavit suggests that it was the 30th of June 1991. The Simpsons certainly took control of the company, becoming sole directors with Mrs Simpson the secretary, from June 1991: they are its shareholders.

No business name search was conducted by the plaintiffs' lawyers, for which they came under criticism from Mr Evans as they also came under criticism for their unwillingness to approach the first defendant for information about the supply of the gate when the proceeding was instituted. Indeed, when the application to Judge Brabazon was made, the lawyers had information indicating that the company was the proprietor of the business name. A company search was done to establish that it had been registered at an early enough date to satisfy that role.

Information in the form of a loss assessor's report obtained for the first defendant, which became available only late in July last year, alerted the lawyers to the problem, hence this application. The links between the respondents and the present second defendant are plainly close. The loss assessor's report indicates that the second defendant is in possession of the quote of $11,000 for supply of the gate which went to Mr Weismann and indeed a copy of it is attached to the report. There seems some confusion in it as to detail of the transfer of the business from the Simpsons to the company.

The objections they raise to being brought into the proceeding are centred on the unfairness from their point of view of being brought into the matter so long after they supplied the gate on the basis, according to the quotation document, that the warranty offered was limited to 10 years, more particularly so as it appears to be the case that the condition of the gate may have come to owe much to work that the first defendant did or did not do after it passed out of their control.

Finally, there is the loss, if the Court acts under Rule 69, of the protection of the limitation period. It's submitted that the stay which section 43 enacts stands in the way of the Court making any orders whatever in this proceeding. I've marked Exhibit 2 the order proposed by Mr Evans which would entitle the plaintiffs to proceed in a separate claim to filed at some time in the immediate future against the Simpsons; so proceeding would or might allow them to raise a limitations defence and would protect them against the loss of any that they might otherwise have. It hardly requires saying that the Simpsons would prefer not to be sued. The court today has to decide whether to allow its processes to be used for a claim against them, not whether the claim is likely to succeed - it cannot be said to be bound to fail.

Exhibit 1 is a letter of Barry and Nilsson, Solicitors for the defendants on the record indicating their willingness that the order sought be made and explaining their non-appearance today. It's a coincidence that the two defendants presently on the record happen to use the same insurer.

The stay mandated by section 43 is a statutory one. The Act refers to some circumstances in which the stay- which, I might observe, appears by the statutory terms to be directed to ensuring that no trial occurs‑ may be lifted. Whatever might have been the intention, I think that the section 43 stay effectively prevents any step from being taken in the relevant proceeding which would advance it.

I accept Mr Green's argument for the plaintiffs that what they are seeking to do relates to the constitution of the proceeding, by getting into it the correct parties, rather than advancing it in any material way. I think the decision in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 is helpful in indicating that in identification of parties intended to be brought into litigation regard may be had to particulars of the role that the intended party played. I have little difficulty in assimilating the Simpsons to the second defendant in the sense that the company took over their business with them the individuals exercising control. The Personal Injuries Proceedings Act itself seems to acknowledge the scope there is for such notions in section 9(7), which provides:

"If a proceeding based on a claim may be started against 2 or more persons, the person to whom part 1 of a notice of a claim is given must, within the period prescribed under a regulation or, if no period is prescribed, within 1 month after receiving it—

1. (a)
   give a copy of it to each other person known to the person who may be a person against whom a proceeding might be started by the claimant based on the claim; and
2. (b)
   advise the claimant of each other person to whom a copy of it has been given and give the claimant a short statement of the person’s reasons for considering the other person may be a person against whom a proceeding might be started based on the claim."

The reality of the situation would seem to be that the Part 1 notice of claim which was directed to the second defendant company must have gone in the physical world to the Simpsons or to one of them at least. Section 9(7) appears to create an obligation on the recipient to get such a notice of claim to the intended entity and, further, advise the claimant.

Considerations arising out of that provision tend to weaken Mr Evans' submissions against alternative relief being granted to the plaintiffs under section 59 of the Personal Injuries Proceedings Act on the basis that no complying Part 1 notice of claim was given. The complaints regarding the notice of claim are that it was not compliant because it came too late by reference to the time periods following the plaintiffs engaging a lawyer and following the accident and that it did not include a diagram. I have some difficulty in understanding how a diagram in the present situation would have been helpful. One was apparently supplied later on request, presumably by Barry and Nilsson.

It's not necessary, in the view I take of the application, which is that it is entitled to succeed in its Rule 69 aspect, to determine anything in respect of section 59 of the Act, although I observe that the plaintiffs have an arguable case there.

An amended application was filed on the 9th of January 2009 which brought in an alternative claim for relief based on section 59. It also seeks by way of amended relief that the stay imposed by Judge Brabazon's order of the 11th of March be lifted and that the applicants have leave to start a proceeding for damages against the Simpsons on the basis of section 43. That's very much the least preferred relief, Mr Green tells me. It corresponds with what Mr Evans was suggesting was appropriate. I ought to note his argument that given its status in the hierarchy of legislation, Rule 69 ought not to be allowed to prevail over the statutory regime established by the Act, by section 43 in particular.

For reasons I've endeavoured to explain above, I don't think it does that. Essentially, all that is happening is the bringing in of the entity or entities which ought to have been the subject of the leave granted by Judge Brabazon, which identified the second defendant on the basis of flawed information. It seems to me that every consideration points to their replacing the second defendant whose involvement is now, according to the plaintiffs and their lawyers, seen to be erroneous.

There ought to be orders in terms of paragraphs 1, 2 and 3 of the original application filed on the 28th of November 2008. Paragraph 3 makes costs costs in the cause. Paragraph 2 may appear to offend section 43. It grants leave to the plaintiffs to file an amended claim and statement of claim naming Paul Simpson and Wendy Simpson trading as Weldcraft as the second defendant in the proceeding, but effectively that does nothing other than change the title of the proceeding. What has all along been alleged against the "second defendant" is now going to be alleged against the Simpsons.

Are you content with relief as per the original application?

MR GREEN: Yes, your Honour.

HIS HONOUR: That's the outcome.