Weismann & Anor v Weismann & Ors (No 2)
[2009] QDC 190
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- Weismann & Anor v Weismann & Ors (No 2)[2009] QDC 190
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Weismann & Anor v Weismann & Ors (No 2)[2009] QDC 190
Weismann & Anor v Weismann & Ors (No 2)[2009] QDC 190
[2009] QDC 190 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE ROBIN QC | |
No 498 of 2008 | |
DESLEY WEISMANN and DARREN ARCH | Plaintiffs |
and | |
NOEL VICTOR WEISMANN | First Defendant |
and | |
PAUL SIMPSON and WENDY SIMPSON TRADING AS WELD CRAFT | Second Defendants |
BRISBANE | |
DATE 23/06/2009 | |
ORDER |
CATCHWORDS: | District Court of Queensland Act s 68, s 85 - Uniform Civil Procedure Rules r 668 order substituting second defendants for original party set aside as made without jurisdiction - no need for an appeal - the claim and statement of claim did not demonstrate that the claim fell within the court's monetary jurisdiction - court declined to consider issues of striking out claim or transferring it to the Supreme Court in the absence of the first defendant. |
HIS HONOUR: The Court is asked by the second defendants, who were substituted in the proceeding for the original second defendant, to set aside its order of the 30th January 2009 by which that substitution was made. The reasons are recorded at [2009] QDC 153.
The basis of the current application was rule 668 and the passing away of the male second defendant, Mr Simpson. He had been diagnosed with cancer, which unfortunately after January this year became more aggressive and spread to other parts of his body. He is plainly the crucial witness so far as the second defendants' presentation of their best case is concerned.
I accept that Mrs Simpson couldn't contribute anything useful. Their involvement goes back to the early 1990s when it seems that they, rather than the original second defendant company, were running the business which supplied a gate which many years later failed with disastrous consequences for the plaintiffs' young son.
The authorities on rule 668 and it predecessors are difficult to understand. I would have some problems about setting aside the former order on the basis that the changed circumstances brought about by the death had substantially increased the difficulties of the second defendants' participation in the litigation. Those difficulties undoubtedly would be increased. It's very much part of our system that causes of action survive death of plaintiffs or defendants in many cases.
Rockett v. The Proprietors "The Sands" Building Units Plan number 82 [2002] 1 QdR 307 indicates some of the limitations on rule 668. It's not necessary and, indeed, it may be inappropriate for the Court to embark on a rule 668 application because another basis appears for the setting aside of the order.
The claim was commenced pursuant to leave granted by Judge Brabazon under section 43 of the Personal Injuries Proceedings Act 2002. His Honour would not have expected that the proceeding instituted pursuant to that leave was defective for failing to be demonstrably with the District Court's jurisdiction. That's a requirement long established by appellate decisions, in particular Startune Pty Ltd v. Ultra Tune Systems (Aust) Pty Ltd [1991] 1 QdR 192.
The claim and statement of claim filed in the Court in the early part of 2008 make no mention of any amount being claimed and that constitutes the deficiency which that according to Startune which binds me, precludes the court's making any order within the proceeding. I reject the suggestion made somewhat tentatively by Mr Green (for the plaintiff) that the court's having entertained the plaintiffs' application on 30 January 2009 establishes its jurisdiction - conclusively as otherwise.
The next question requiring consideration now is whether the District Court has jurisdiction to deal with the irregularity or whether an appeal must be instituted. I have come across and referred the parties to Judge McGill's decision in Australia Meat Holdings Pty Ltd v. Higgs [2006] QDC 81, which appears to me to cover this case.
His Honour held that the District Court had jurisdiction to set aside an order which he had earlier made. The circumstances concerned a pre-action determination for the purposes of the WorkCover Queensland Act 1996, which it emerged ought to have been in the Supreme Court, given the financial dimensions of the matter, rather than in the District Court.
I propose to follow that decision which means that the order of the 30th January 2009 by which the second defendants were brought into this proceeding will be set aside. Mr Green, in submissions I'm content to go along with, argued that it oughtn't to be held against his clients that they proceeded in the District Court when it subsequently became clear that the extent of their claims went beyond District Court jurisdiction.
It has become apparent that before the 30th January this year the plaintiffs were desirous of obtaining a financial outcome in excess of the District Court's jurisdiction. That comment's made based on the amounts set out in a notice or notices under the Personal Injuries Proceedings Act not made available to the second defendants until after 30 January.
The plaintiffs' solicitor has indicated a view that the sums appearing there represent ambit claims, so to speak, expressing her professional opinion that in the case of one of the plaintiffs, at least, the claim has always been and still is within the District Court's jurisdiction. That is not her assessment now in respect of the other plaintiff whose circumstances according to medical assessments have relevantly deteriorated.
I find it difficult to hold that there was an obligation on the plaintiffs on the 30th January last to inform the Court that the claim, or the claims combined, might exceed the District Court's jurisdiction. One wonders whether the Personal Injuries Proceedings Act and similar legislation have in contemplation that parties will inflate their claims for negotiation purposes. Mr Green referred me to what was said at page 4 in Suncorp Metway Insurance Ltd v. Snowdon [2005] QDC 312 as acknowledgment by the Court that there may be a practice of inflating claims.
Whether that's so or not, the jurisdictional limit in dollar terms is clearly going to embarrass the plaintiffs now. In Gallagher v. Lovejoy [1972] QJPR 96 Judge Nicholson determined that for purposes of applying section 68 of the District Court of Queensland Act, then section 66, the aggregate of the claims of multiple plaintiffs is used to determine whether a proceeding is within the Court's jurisdiction. That decision resolved the question which had been left open in Taylor v. Mathieson [1970] QWN 5.
It's not matters of kind I've just been alluding to which are fatal to the survival of the order of the 30th January, but rather the technical Startune point that the proceeding which the plaintiffs chose to commence didn't demonstrate by reference to dollar amounts or by use of some phrase such as "within the limits of the Court's monetary jurisdiction" to show District Court jurisdiction.
Startune contemplates that amendment might be made to get a proceeding in order. That hasn't occurred here and I wouldn't, in the circumstances, entertain the possibility of an amendment to retrospectively cure what went wrong on 30th January 2009 - and I suppose I have to concede in part because of my own failure to scrutinise the originating proceeding.
Needless to say the parties didn't refer to the matter.
What is to happen from here on? The plaintiffs, it would seem to me, are free to make a renewed application of the kind determined last January. That will be decided by the Court on the basis of the changed circumstances since Mr Simpson's death.
Should anything happen to the proceeding? Much was said by counsel about this, Mr Evans, for the second defendants, submitting that the Court ought to strike out the proceeding on the basis of section 85 of the District Court of Queensland Act as it now stands.
The Court has a discretion, in the event that it's not persuaded that the plaintiffs in a blameworthy way commenced in the District Court, to send the matter to the Supreme Court. That contrasts with the former position in which the District Court had no option, and was obliged to order a transfer in circumstances like the present ones.
I am strongly of the view that nothing ought to be done about the proceeding generally in the absence of the first defendant. The Court has had placed before it a letter from his solicitors indicating they don't wish to take any part in the hearing of this application; it's thought to be one in which the first defendant "has no direct involvement". So the attitude of neither consenting nor opposing is taken. Although I accept from Mr Evans that the firm which provided him with that letter to tender as Exhibit 1 may have been provided with all of the very helpful written submissions I have from counsel, it's not clear to me that I ought to take from the letter that the first defendant has no wish to be heard...
MR EVANS: Your Honour, might I correct something in the judgment. They've been provided with the first set of submissions.
HIS HONOUR: Thank you. Has no wish to be heard in respect of the fate of the proceeding as to whether it is struck out, remains in the District Court or goes to the Supreme Court. I wouldn't entertain at all Mr Evans' submission that the plaintiffs should be placed in the invidious position of having the proceeding struck out as a whole although the first defendant may perhaps be advised to seek that relief. I think that's a matter for him.
The circumstances aren't as straightforward as just suggested. Mr Green has submitted that the current state of medical assessments of his clients are such that it may be appropriate for one to proceed in the District Court and the other in the Supreme Court. That would appear to me to require two separate proceedings. It wasn't explained how the proceeding could be split.
Doing that is hardly going to suit the convenience of anybody. No-one knows yet what a sensible, practical approach by the practitioners and the clients might lead to. One possibility is consent from the first defendant to an increase in the District Court's jurisdiction.
As indicated already, the only order the Court need make of substance is one setting aside the order of the 30th January 2009 joining the second defendants in the proceeding. Is there anything further?
MR EVANS: No, your Honour. His Honour reserved costs because his Honour did not know whether there was any power to make them. I would simply ask that your Honour do the same.
HIS HONOUR: Well, reserve costs. You're foreshadowing you might think about it. I reserved them last time, didn't I?
MR EVANS: You made them costs in the cause, your Honour.
HIS HONOUR: All right.
MR GREEN: The plaintiffs' costs in the cause I think it was, your Honour.
MR EVANS: No, no. They were made costs in the cause. It doesn't matter.
HIS HONOUR: Well, that order is not worth the paper that it's printed on, is it?
MR GREEN: It does indicate the way your Honour was persuaded.
HIS HONOUR: Costs reserved. Thank you, gentlemen.