Tomlin v Rolleston Coal Pty Ltd
[2012] QDC 329
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- Tomlin v Rolleston Coal Pty Ltd[2012] QDC 329
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Tomlin v Rolleston Coal Pty Ltd[2012] QDC 329
Tomlin v Rolleston Coal Pty Ltd[2012] QDC 329
[2012] QDC 329
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 164 of 2012
TREVOR TOMLIN | Plaintiff |
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ROLLESTON COAL PTY LTD | First Defendant |
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MSS SECURITY PTY LTD | Second Defendant |
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HASTINS DEERING (AUSTRALIA) PTY LTD | Third Defendant |
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MSS SECURITY PTY LTD | Third Party |
BRISBANE
DATE 18/10/2012
DAY 1
ORDER
CATCHWORDS | Uniform Civil Procedure Rules r 70, r 113, r 191(2), r 194(3) Application by third defendant to commence third party proceedings out of time - only plaintiff contends matter is ready for trial - claim based on actions of third party's agent which the plaintiff pleaded the second defendant should have directed be performed differently - desirability of a single hearing outweighs the disadvantages of uncertain delay to plaintiff |
HIS HONOUR: The court's made an order in terms of an initialled draft, which grants leave to the third defendant to commence third party proceedings against a business, apparently unregistered, called Emerald Couriers, which once was operated by an eponymous company with Pty Ltd added, but is no longer operated in that way.
Mr George, representing the applicant/third defendant, tells the court that his instructors are confident they know the place of business of Emerald Couriers where proceedings may be served under rule 113. That aspect is of interest today because I've taken the view that the delay, which the bringing in of a third party will inevitably cause the plaintiff, can be ameliorated if a limit, such as the seven days referred to in the order, is placed on the time available to the third defendant to effect service.
The third defendant requires leave under rule 194 because of the time which has elapsed since the filing of its notice of intention to defend and defence on the 17th of February 2012.
The proceeding is one arising out of facts of an everyday kind which, within their legal working out, produce an intricate situation.
The plaintiff was employed as a security person by the second defendant at a mine in Central Queensland, operated by the first defendant.
The third defendant was engaged to provide services to the mine and, in that connection, on the day when the plaintiff alleges he hurt his back while working at the mine, the 25th of March 2010, a delivery of items that the third defendant required was being made, it is thought by the proposed third party. There is some uncertainty about that because the person behind the third party, with whom contact has been made, advised that in recent flooding in Emerald, almost all records were lost.
Information has been obtained suggesting that the third defendant is probably on the right track. It's clear that the third party, from time to time, was engaged to provide courier services for it and, indeed, that the proposed third party may have made a delivery to the mine on the day in question.
Mr Tomlin appears to have been in the wrong place at the wrong time, and to have paid the price for acting as a Good Samaritan. When the female courier driver arrived at the gatehouse with the items to be delivered to the third defendant, she asked Mr Tomlin to unload the item because she considered it was too heavy for her.
The pleading contains an allegation against the second defendant that it breached a duty of the plaintiff by failing to direct the courier driver to deliver the consignment to the warehouse at the mine or directly to the third defendant, that it failed to direct the courier driver to park the courier van immediately next to a particular table, rather than in the location adopted, which required the consignment to be carried over unsealed, uneven ground covered with numerous loose stones and gravel.
The plaintiff elected not to proceed against the courier firm for reasons unknown. Although I would be among the last to require would‑be plaintiffs to sue every potential defendant in sight, I note that the plaintiff had a worthwhile cause of action which would still be within the limitation period against the courier, and that the third defendant may have a viable claim. So much is established by Oxley County Council v. MacDonald [1999] NSWCA 126 at paragraph [60], for example.
The rules require service on the plaintiff of the present application. That occurred and, in consequence, he's represented by counsel, Mr Sewell, today, opposing the granting of the relief sought, essentially on the basis of the delay that threatens to the progress of his claim which, from his point of view, is ready for trial.
On the 21st of September 2012, a request for trial date, having been signed by the plaintiff's solicitors, was forwarded to the other parties. It seems that none of them has responded by signing. The document proffered to the third defendant was returned with advice that, from its point of view, the matter is not ready for trial because it wished to join the courier as a third party.
It's clear that the plaintiff was aware of an intention held by the third defendant to make this application. It may well be that transmitting the request document has spurred the third defendant into action. There's criticism of it which may be just, depending on the alacrity with which one thinks litigation ought to proceed, for not applying sooner, it having known for six months or so as of today, in consequence of disclosure exercises, of the existence of the proposed third party and its potential availability to be brought into the proceedings.
The trial is likely to be a longer affair with the introduction of another represented party, assuming that that's how matters develop.
The third defendant's claim against it is one in contract, focusing on a contract with which the proceeding to this point has nothing to do. In my judgment, nothing about that is likely to cause the proceeding, as the trial to be more protracted in a concerning way. I think it would be highly inconvenient, given the nature of the plaintiff's allegations as outlined above, if there had to be a separate proceeding as, in theory, there could be, brought by the third defendant against the third party. With a separate proceeding, there's always a risk of inconsistent outcomes, and the third defendant falling between stools.
As it happens, the authorities relied on by Mr George are examples of leave to join third parties being refused. As he says, that is probably because it's in the instances where leave is refused, at first instance, that one encounters appeals. In the ordinary course, applications like the third defendant's usually succeed. Mr George can point to useful lessons that can be drawn from the reasons in the authorities mentioned where the reasons published offer statements of principle.
Both parties accept MGM Containers Pty Limited v. Wockner [2006] QCA 502 as the leading case for today's purposes. Leave was refused by Philippides J, at first instance, and her decision was affirmed on appeal. At paragraph 20 of the judgment of the Court of Appeal, which was given by Chesterman J, one finds set out and, in effect, approved a statement of the factors requiring consideration by the court. It could be expected to look at delay, at whether the issuing of third party proceedings would unduly complicate the hearing of the action, adding to the complexity of issues to be determined, as well as the length and cost of proceedings.
The desirability of avoiding duplication of proceedings ought to be borne in mind, and also how distinct the issues in separate proceedings might be. The court would look at whether the proceeding in which it sought to bring in a third party is ready for hearing and what the interests of justice may have to say about further delay.
In this case, there's been some delay by the plaintiff, which doesn't attract criticism. It took 22 months for the plaintiff to approach the court, in part because he was obliged to comply with statutory requirements that prelitigation procedures be gone through. A delay of some months occurred before the plaintiff was able to identify the third party. I accept that there's been the delay since April this year by the third defendant, which isn't explained.
I'm not troubled by considerations of the trial being lengthened. Those effects are not at all unusual, and I do not think the trial is likely to be more complex or complicated by the introduction of new issues.
Conversely, I think that having a separate trial, with the story of the courier's visit to the mine rehearsed all over again by the witnesses there on the day, would be highly inconvenient. It's not possible to be satisfied that the proceeding is ready for trial. Only the plaintiff of the four parties has asserted that it is ready for a hearing. We're at a late stage of the year. Mr Sewell accepts there's no possibility of a trial this year. Uncertain, as I sit here today, what delaying effects, if any - and I accept there are likely to be some - bringing in a third party will occasion, I proceed on the basis that the plaintiff can still expect a trial fairly early in the New Year.
The factors against the third defendant are, in my view, weaker than those in cases such as MGM Containers, where the delay was in the order of years. Chesterman J, at paragraph 28, noted that, even in those circumstances, the decision could have gone either way, and would've been justified by one or other of the principles mentioned.
The other Court of Appeal decision canvassed was Just GI Pty Ltd [2001] QCA 48, affirming [2000] QSC 163. One interesting feature, not reflected here, encountered in both of those cases was that multiple third parties were desired to be brought in. I note the two single Judge decisions relied on by Mr Sewell: Villinger Group Limited v. Redmond [2009] QSC 60, particularly at 11 to 15, and Ladini v. Hayward [2011] QDC 293. Those examples of leave refused are, of course, not binding precedents. For reasons I've given, I've exercised the discretion the court has favourably to the third defendant in this instance.
Mr Sewell, at the beginning of the hearing, raised some doubt as to whether the applicant had served other parties as required. He drew attention to the letters, typically sent by e‑mail, which he acknowledged was, in practical terms, acceptable to solicitors for the existing parties. That sent to the plaintiff forwarded documents "by way of service" which was accepted to satisfy rule 191(2). Those sent to the other defendants omitted the quoted words. It strikes me as somewhat pedantic, but it may be correct to say service was not being effected.
The recipients were clearly invited to attend at today's hearing, and, indeed, Mr Crouch who in acting in the interests of the second defendant, is in court observing what happens; he told me he didn't wish to make any submissions.
Rule 194(3) allows the court to require service on other parties. In the circumstances, there's no reason to do that. There's no requirement in the third party rules, corresponding with that in rule 70, requiring service on persons sought to be brought in as plaintiffs or defendants.
In the circumstances, I am satisfied that the application is procedurally in order. There'll be an order in terms of the initialled draft.