Wendy Lloyd v Ned Vujanovic[2006] QSC 411

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

JONES J

Claim No 166 of 2006

CAIRNS

DATE 11/12/2006

JUDGMENT

HIS HONOUR: In this matter there are two applications which are somewhat interlinked. In the first application, the second defendant applies for leave to file and serve a third party notice and third party statement of claim on Denis Farnell. The first defendant has already joined Farnell as a third party, so the claims made against him by the first defendant are identical to those now proposed to be made by the second defendant.

The plaintiff has opposed the granting of this application on the basis that this step will cause delay to the plaintiff pursuing her claim and prejudice resulting from her having to deal with new allegations and find other witnesses. I find there is no substance to this latter claim since the same issues have already arisen in respect of the first and third party notice.

The incident in respect of which the plaintiff claims is for damages to an injury to the plaintiff's right foot occasioned when she attempted to kick a sliding glass door which she said had become stuck. The defendants are respectively the owner of the unit where the incident occurred and the body corporate of the unit complex. By their respective defences they allege that the door was not stuck, that the plaintiff did not attempt to open the door, but that the plaintiff sustained her injury in the course of a heated argument with Denis Farnell who was the tenant of the unit.

The issues to be litigated thus seem to me to be somewhat confined and whatever inquiries needed to be undertaken are not particularly extended by the filing of a further third party notice. The plaintiff also complains about the delay consequent upon the granting of the this application.

The pre-Court procedures required by the Personal Injuries Proceedings Act (PIPA) have by their nature resulted in time being spent in identifying the issues and proceeding to compulsory conference, but the purpose of the application I am concerned with only impacts on the additional delay to the current position.

While some delay is inevitable, its effect has to be weighed against the reasons why third party proceedings are permitted, namely to have all relevant issues between all parties concerned to be dealt with at the same time. See Rule 192 Uniform Civil Procedure Rules.

The grant of leave is discretionary. The plaintiff relies particularly on the remarks of Kearney J in Phonesivorabouth v. Tops Services Pty Ltd (1992) 106 FLR 471, which remarks were followed by McKenzie J in Just GI Pty Ltd v. PIG Improvement Company Australia Pty Ltd (2000) QSC 163.

Kearney J said at paragraph 23:

The second application is made by the plaintiff seeking directions about medical examinations and other matters and also an adverse costs order pursuant to section 48.2(2) of PIPA. The basis for this latter claim is that the second defendant ought, during the pretrial proceedings, to have raised the issue now introduced by the third party notice. The plaintiff alleges that there was ample time during this process for investigations to have been made. Now, the costs incurred in undertaking a compulsory conference when all of the issues were not known, are wasted.

The other part of the application relates to directions for medical examinations proposed to be undertaken on behalf of the first defendants. The prospect of such a medical examination was first mooted in the plaintiff's correspondence on the 30th of November 2004, but no response was made by either defendant until 24 August 2006 when the second defendant indicated an intention to arrange the examinations. By this time the defendants had received copies of the plaintiff's medical experts' reports on 31 May 2005, and a request for trial date dated 24 August 2004.

The plaintiff argues that the arrangement for medical examinations ought to have been undertaken in the pre-Court procedures as directed by PIPA. Again, this failure on the part of the defendants has impacted on the efficacy of those proceedings. The defendants argue that in the circumstances, both the request for medical examination and the tendering of a request for a trial date are premature.

Although the Court proceedings only commenced on 21 April 2006, the plaintiff is justified in its complaints about the delay in arranging medical examinations since then. The plaintiff now requests directions about further progress of this claim and these directions should be given.

The applications for directions and assigning of a trial date in my view are not premature, having regard to the pre-Court history and the expressed wish by the plaintiff for the defendants to move quickly and undertaken what surely is a very simple step of arranging medical examinations.

The issues raised in the third party proceedings if they are established are quite serious and suggest that the plaintiff is making a fraudulent claim. Such issues should not now be subject to close assessment by the Court. The circumstances are such that the joinder of the issues between the second defendant and Mr Farnell, having regard to his joinder by the first defendant, is an obvious step and one that should not have been lightly resisted by the plaintiff. In the exercise of my discretion, I grant the second defendant leave to issue the third party proceedings against Denis Farnell.

As to the adverse costs application, the better course it seems to me is not to make an order for adverse costs at this stage but rather to leave the consideration of the application to the general consideration of costs at the conclusion of the trial. Then it will be known whether there is any substance to the defendants' assertion that this is a fraudulent claim or whether the plaintiff's claim is rightly brought and if so, whether the delays occasioned in the pre-Court procedures should be considered with an adverse costs order.

I propose to make directions concerning the response by the third party to the new third party notice. I will make those directions basically in the terms as was submitted to me during the hearing although I have altered the compliance dates. There seemed to be no argument amongst the parties as to the suitability of the timelines there suggested. I should mention that the short timeline of seven days for the third party to file his defence was arrived at because he has already filed a defence to the identical allegations made against him. So my orders will be as follows:

I have not made any direct order for medical examinations in the expectation that the parties will do that in the ordinary course of preparation for trial. In other words, I overrule the plaintiff's stated objection to undertaking medical examinations arranged by the defendants. I refrain from doing that in a formal sense because I have not heard whether the plaintiff maintains that objection in the light of the arguments that were raised before me.