Searle v Solid State Security Pty Ltd
[2016] QDC 193
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- Unreported Judgment
- Searle v Solid State Security Pty Ltd[2016] QDC 193
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Searle v Solid State Security Pty Ltd[2016] QDC 193
Searle v Solid State Security Pty Ltd[2016] QDC 193
DISTRICT COURT OF QUEENSLAND
CITATION: | Searle v Solid State Security Pty Ltd and Ors [2016] QDC 193 |
PARTIES: | IVAN MICHAEL SEARLE (plaintiff) v SOLID STATE SECURITY PTY LTD trading as FRANKLYN BLINDS AWNING SECURITY (ACN 002431530) (first defendant) and LUMA AMEN and ANWAR DAWOOD (second defendant) And THE TRUSTEE FOR THE ODORICO BRICKLAYERS TRUST trading as ODORICO BRICKLAYING (ABN 71 432 129 204) (third defendant) |
FILE NO/S: | 2713/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 3 August 2016 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 27 July 2016 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | PRACTICE AND PROCEDURE – should the court exercise its discretion to permit the issue of a third party notice out of time, but within limitation period Australian Consumer Law s 60 Law Reform Act 1995 (Q) s 6 Personal Injuries Proceedings Act 2002 (Q) s 16 Uniform Civil Procedure Rules 1999 (Q) r 194 Just GI Pty Ltd and Ors v Pig Improvement Co Aust Pty Ltd [2001] QCA 48 MGM Containers Pty Ltd v Wockner [2006] QCA 502 Suncorp Metway Insurance Ltd v Clonmel Pty Ltd & Ors [2000] QSC 135 |
COUNSEL: | Mr M Eliadis for the plaintiff Mr M O'Sullivan for the first defendant Ms R Treston QC for the second defendants Mr R Morton for the third defendant |
SOLICITORS: | Shine Lawyers for the plaintiff Jensen McConaghy for the first defendant Carter Newell Lawyers for the second defendant DLA Piper Australia for the third defendant |
Introduction
- [2]This is an application by the second defendants for the court to grant leave for them to issue a third party notice to the first defendant.
Background
- [3]The plaintiff on 17 July 2014 issued proceedings for damages for personal injuries and other loss as a result of the negligence of the defendants. The total sum of $746,748.50 together with interest and costs is claimed.
- [4]The plaintiff, who alleges that he was employed by the first defendant as a security blind and door installer, says in the statement of claim that on 30 December 2011 at 10.00 am he attended 46 Aspen Street, Carindale where a residential dwelling was being constructed. That property was owned by the second defendants.
- [5]He crossed trenches which had been constructed by the third defendant for a front fence and as a result of stepping over one of the trenches suffered a tear to the right calf muscle. He alleges as a result of the incident he has sustained a torn right calf muscle with superficial peroneal nerve palsy, peripheral nerve neuropathy, L5/S1 disc protrusion with nerve root compression, and an adjustment disorder with depressed mood.
- [6]He alleges in the statement of claim that his employer, the first defendant, was negligent and/or in breach of contract in failing to provide inter alia a safe place of work and to take reasonable precautions for his safety whilst he was carrying out his work.
- [7]He alleges that the second defendants were negligent in failing to ensure the site was safe and, further, the third defendant was negligent by inter alia in failing to ensure the site was safe.
- [8]The second defendants propose to issue a third party notice against the first defendant.
- [9]The proposed third party notice is Exhibit TL 31 to the affidavit of Tina Lung filed 8 June 2016.[1] In the third party notice it is alleged:
- (a)That the second defendants were “consumers” under the Australian Consumer Law and the contract between them and the first defendant was for the supply and insulation of six Crimsafe hinged doors and adaptors;
- (b)There were implied terms under s 60 of the Australian Consumer Law concerning this contract;
- (c)The second defendants say that the plaintiff’s injury was caused or contributed to by the negligence, breach of contract or breach of guarantee of the first defendant;[2] and
- (d)In the circumstances, relief is sought pursuant to s 6 of the Law Reform Act, damages for breach of contract or breach of guarantee, interest and costs.
Submissions of the parties
Second defendant’s submissions
- [10]The second defendants submit:
- (a)That at all material times the first defendant was aware that contribution were to be sought against the first defendant;
- (b)There is explanation for the delay, namely that the parties did not participate in a joint compulsory pre-court conference until 20 May 2014; there was delay because there were issues as to whether WorkCover was going to accept other injuries alleged to be sustained by the plaintiff; a notice of claim for damages on WorkCover was not served until 8 November 2013; there were medical investigations concerning the plaintiff’s injuries and new counsel was retained;
- (c)The allegations are not new;
- (d)The claim is not out of time;
- (h)Delay has been explained;
- (i)No prejudice can be alleged to been suffered by the first defendant; and
- (j)If third party proceedings were not issued then there is a possibility of multiple actions.
First defendant’s submissions
- [11]The first defendant submits:
- (a)The application is well and truly out of time;
- (b)The first defendant is only entitled to seek indemnity from WorkCover Australia concerning the calf muscle injury;
- (c)Allegations in the proposed third party notice include allegations of breaches of the Australian Consumer Law which have never previously been raised;
- (d)The late application to serve the third party notice will require the first defendant to seek independent legal advice and he may require further legal representation in respect of matters not indemnified by WorkCover Australia.
- (e)In the circumstances the order should not be made.
Principles
- [12]Rule 194 of the Uniform Civil Procedure Rules 1999 (Q) provides that a third party notice must be filed within 28 days of the time limited for the filing of the defence or, if the plaintiff agrees, during the agreed extended period.
- [13]However, in Suncorp Metway Insurance Ltd v Clonmel Pty Ltd & Ors[3] Muir J accepted that the extension to which the plaintiff might agree only related to the filing of the defence and did not extend to the filing of the third party notice.
- [14]The discretion conferred by r 194(1) of the UCPR was considered by the Court of Appeal in MGM Containers Pty Ltd v Wockner.[4]Chesterman J said:“The applications called into question two conflicting principles. The first is that there are good reasons why a third party should be joined in an action where a defendant has an arguable case for contribution or indemnity from the third party against a plaintiff’s claim. Such a joinder ensures finality in litigation, avoids multiple proceedings with associated extra cost, and obviates the possibility that there might be different decisions given on the same issues if tried by different courts. The second principle is that a plaintiff should be allowed to prosecute its action and obtain judgment without being delayed or inconvenienced by the defendant’s endeavours to offset its liability. See Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471.”As was said in Just GI Pty Ltd and Ors v Pig Improvement Co Aust Pty Ltd[5] a balancing exercise is called for.
Discussion
In this case the history of the matter is relevant. The affidavit of Tina Lung[6] a solicitor employed by the second defendants’ lawyers point out that on 14 March 2012 the plaintiff served a notice of claim pursuant to the Personal Injuries Proceedings Act 2002 (Q) (“PIPA”) on the second defendants.[7] On 19 July 2012 the second defendants issued a contribution notice against the first defendant pursuant to s 16 of PIPA claiming contribution under section 6 of the Law Reform Act 1995 (Q) against the first defendant.[8] On 20 September 2012 a response was received from the first defendant’s then lawyers with respect to this notice.[9] Further, on 28 November 2013, the second defendants’ lawyers by letter sent a further s 16 notice to the first defendant/WorkCover.[10]It may be seen then that the issue on whether the second defendants were seeking contribution from the first defendant was well and truly raised early on in the history of this matter. Additionally, on 12 August 2014 the second defendants issued a notice claiming contribution pursuant to s 6 of the Law Reform Act 1995 (Q) on the first defendant. In the absence of material alleging any prejudice (on the part of the first defendant,) a clear inference may be drawn in this case that there is no prejudice. The first defendant was apprised of these issues in 2012 and, thus, was in a position to make enquires with witnesses etc. at that time. The next issue, of course, is the question of the delay in these proceedings. I am satisfied that there is an explanation for the delay. The fact is that despite the PIPA notice being served by the plaintiff on 14 March 2012, the parties did not participate in a joint compulsory pre-court conference until 20 May 2014. I accept, on the evidence, the delay in convening this conference was caused by disputes between the plaintiff, first defendant and WorkCover (the insurer for the first defendant with respect to workers compensation) on whether the plaintiff’s WorkCover claim should be accepted and whether WorkCover accepted the plaintiff suffered a secondary back injury.[11] The plaintiff did not serve a notice of claim for damages on WorkCover until 8 November 2013. The issues between WorkCover and the plaintiff with respect to the plaintiff’s back injury claim remained unresolved even at the time of the compulsory conference held on 20 May 2014.[12] It remains an issue in the pleadings,[13] WorkCover made a decision to reject the plaintiff’s claim for psychiatric injury on 23 September 2014 although the second defendants were not advised of this until 5 March 2015.[14] The Medical Assessment Tribunal, on 1 August 2015, rejected the plaintiff’s claim for a lower back injury. It seems clear that medical investigations have continued, including independent medical examinations.[15] It was agreed between the parties that a further mediation occur but this was delayed until 8 March 2016.[16] I was informed that counsel who previously had conduct for the action on behalf of the second defendants retired from practice and a new counsel briefed. On 12 May 2016 counsel recommended that a third party claim be commenced against the first defendant for breach of contract and the first defendant was immediately notified of this on 13 May 2016.[17] The plaintiff consented to this course.[18] It seems to me, in all of those circumstances, that delay is satisfactorily explained. I also accept that terms of the third party statement of claim are similar to the allegations made in the PIPA contribution notice dated 19 July 2012[19] and in the PIPA contribution notice of 28 November 2013[20] and they are consistent with allegations made in the pleadings to date, although it is true the Australian Consumer Law allegations appear new. Also relevant is the fact that the claim is not out of time and can be commenced as of right elsewhere. I consider the matters proposed by the third party proceedings will not unduly complicate or prolong the proceedings as they are substantially the same matters which were already in dispute between the parties; in particular the second defendants and the first defendant are partially covered by the existing contribution proceedings. The interpretation of the contract between the first defendant and the second defendants will involve minimal evidence. Additionally, if the second defendants are not permitted to issue these proceedings it may necessitate separate proceedings against the first defendant. If these were heard separately there would be likely to be considerable duplication of evidence, additional costs, and, potentially, the undesirable prospect of conflicting decisions. In respect of the argument by the first defendant, there is the possibility that the first defendant may require separate representation. It must be borne in mind that, of course, this was always likely to be an issue in light of the non-accepted conditions by WorkCover concerning injuries aside from the torn calf muscle. In any event, it is not unusual for one set of lawyers to act on behalf of different insurers.[21] In those circumstances, I do not consider that this potential flow on effect produces irreparable damage. In the result, having considered the arguments of both parties, it is my determination in the exercise of the Court’s discretion that leave should be given to the second defendants to issue the third party notice against the third defendant.
Costs
I have found in favour of the second defendants on the issue of leave. The reality is that some of the delay here was on occasioned by counsel who did not advise the second defendants to issue the third party notice earlier. On the other hand, the first defendant could have easily consented to the issue of the third party notice (as did the third defendant). In my view, having weighed up all matters and in the exercise of the court’s discretion, I have determined to make no order as to costs.
Other matters
It was agreed between the parties that all of the other matters the subject of application were to be resolved by way of consent order. It was agreed that the parties would await this decision so as to incorporate its terms in to the consent orders. I therefore permit the parties to consult as to the terms of the order and once agreement is reached I am prepared to make an order in terms of a draft which is emailed to my associate once agreed.
Orders
The second defendants are given leave pursuant to r 194 (1) of the Uniform Civil Procedure Rules 1999 (Q) to file the proposed third party notice and statement of claim against the first defendant.
- There is no order as to costs.
- I will otherwise sign an agreed consent order as to the remaining matters.
Footnotes
[1]Document 23.
[2]Paragraph 12 of the proposed third party notice.
[3][2000] QSC 135 at [7].
[4][2006] QCA 502 at [27].
[5][2001] QCA 48 at [17].
[6]Filed 8 June 2016, Document 23.
[7]Paragraph 2.
[8]Exhibit TL1 to affidavit of Tina Lung filed 8 June 2016, Document 23.
[9]Exhibit TL2 to affidavit of Tina Lung filed 8 June 2016, Document 23.
[10]Exhibit TL3 to affidavit of Tina Lung filed 8 June 2016, Document 23.
[11]See paragraph 6 of the affidavit of Tina Lung filed 8 June 2016, Document 23.
[12]Paragraph 8 of affidavit of Tina Lung dated 8 June 2016, Document 23.
[13]First defendant’s defence, paragraph 17, Document 7.
[14]Affidavit of Tina Lung filed 8 June 2016, paragraph 15, Document 23.
[15]Paragraphs 19-29 of affidavit of Tina Lung filed 8 June 2016, Document 23.
[16]Paragraphs 30 and 33 of affidavit of Tina Lung filed 8 June 2016, Document 23.
[17]Affidavit of Tina Lung filed 8 June 2016, paragraph 37, Document 23.
[18]Affidavit of Allison Bailey sworn 26 July 2016, filed by leave - Exhibit AB1.
[19]Ex TL1 to affidavit of Tina Lung filed 8 June 2016, document 23.
[20]Ex TL3 to affidavit of Tina Lung filed 8 June 2016, document 23.
[21]See matters raised in the affidavit of Anthony Forester sworn 26 July 2016, filed by leave.