Binns v A L and C R Farnham Pty Ltd

[1995] QCA 341

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 61 of 1995
Brisbane [Binns v. A.L. & C.R. Farnham P/L]
BETWEEN:

STEPHEN BARRY BINNS

(Plaintiff) Respondent

AND:

A.L. & C.P. FARNHAM PTY LTD

(Fourth Defendant)	Appellant
FITZGERALD P. MCPHERSON J.A.

MOYNIHAN J.

Judgment delivered 11/08/1995

JOINT REASONS FOR JUDGMENT OF FITZGERALD P. AND MOYNIHAN J.,

SEPARATE CONCURRING REASONS OF MCPHERSON J.A.

APPEAL ALLOWED AND SUMMONS DISMISSED, WITH COSTS TO BE TAXED.

CATCHWORDS:	CIVIL LAW - limitation period - whether special and peculiar circumstances existed to justify the exercise of any discretion which may have existed to join the appellant as defendant and to back date that joinder to the date of issue of the writ in order to defeat the bar presented by the limitation period
MARITIME LAW - Admiralty Act 1988, ss. 4(3), 5(1)(b), 37 - extension of limitation period
Hayward v. Darling Downs Aircraft Services [1993] 2 Qd.R. 153
Counsel:	K.C. Fleming Q.C. for the Appellant R. Stenson for the Respondent
Solicitors:	Connor O’Meara McConaghy for the Appellant Flower & Hart for the Respondent
Date(s) of Hearing:	02/08/1995
IN THE COURT OF APPEAL	[1995] QCA 341
SUPREME COURT OF QUEENSLAND	Appeal No. 61 of 1995
Brisbane
Before	Fitzgerald P. McPherson J.A. Moynihan J.

[Binns v. A.L. & C.R. Farnham P/L)

BETWEEN:

STEPHEN BARRY BINNS

(Plaintiff) Respondent

AND:

A.L. & C.P. FARNHAM PTY LTD

(Fourth Defendant) Appellant

REASONS FOR JUDGMENT - FITZGERALD P. AND MOYNIHAN J.

Judgment delivered 11/08/1995

The respondent alleges that he was injured on 6 December 1991, when he dived from a motor vessel shortly after it had docked at South Stradbroke Island. The vessel was registered under the Shipping Registration Act as the “Aussie Islander”, and the appellant was registered as owner. However, the vessel was more commonly known as the “M.V. Gold Coaster”. The respondent’s searches in relation to a vessel of that name were unsuccessful.

By the end of January 1992, that is less than two months after the respondent says that he was injured, he and his solicitors were in possession of a substantial amount of information which would have permitted them to commence an action and deliver a statement of claim. This included information that on the occasion when the respondent was injured, the vessel was operating as the KROQ Party Boat. It was operated for that purpose by either a Gold coast radio station (the third defendant) or TDR Promotions (the second defendant), which had chartered the vessel from Jetaway Cruises, a business name of which the appellant was owner, which provided the crew and organisation. The respondent had purchased his ticket from another business, Ticketworld.

The business name “Jetaway Cruises” was never searched by or on behalf of the respondent. Nor did he ever ascertain the vessel’s registered number and conduct a search by reference to that number. There is no suggestion that it was difficult to locate or, if necessary, inspect and photograph the vessel. There was considerable material placed before the Court, but, apart from what has been stated, it showed little of relevance other than that at least by early 1993 - and perhaps considerably earlier - the respondent had also been told by one Kiealley that the vessel was his. There was no suggestion of deliberate dishonesty by Kiealley, who was a director of the appellant and obviously speaking colloquially. Indeed, much of the information which the respondent had earlier obtained, including that the charterer was Jetaway Cruises, had been supplied by Kiealley.

On 11 March 1994, the respondent caused a writ to be issued, no. 351 of 1994, against Kiealley as first defendant and the other defendants to which reference has been made. Kiealley was not served with the writ until between 1 and 8 February 1995. On the latter date, the respondent’s solicitor was advised that the appellant, not Kiealley, was the owner of the vessel.

No statement of claim has yet been delivered, but a draft, which is included in the material before the Court, alleges that Kiealley was the owner of the vessel and, as such, under a duty to ensure that reasonable care was taken for the respondent’s safety, including providing competent persons to conduct the KROQ Party Boat and give reasonable warnings of any danger inherent in activities undertaken by the respondent while attending. Further, it is alleged that the crew on the vessel were employees or agents of either Kiealley as vessel owner or one of the other defendants, and that the respondent was injured as a result of negligent advice given by a member of the crew.

On 14 February 1995, an application was made to the Chamber Judge for leave to add the appellant as a fourth defendant and, on 16 March 1995, his Honour made such an order and further ordered that the action against the appellant be deemed to have commenced as at 11 March 1994 (the date when the writ was first issued). The latter order was necessary because, otherwise, the respondent’s action against the appellant would be outside the period of limitation prescribed by the Limitation of Actions Act 1974.

The Chamber Judge said that he considered that there were special and peculiar circumstances which justified the orders which he made. He did not identify those circumstances, and the respondent could point to nothing other than the confusion about the name and ownership of the vessel, which he sought to attribute to inadvertent misleading by Kiealley.

We are prepared to assume that the orders made by the Chamber Judge were within power if the respondent had shown special and peculiar circumstances in order to justify those orders: cp. Hayward v. Darling Downs Aircraft Services Pty Ltd [1993] 2 Qd.R. 153. However, in our opinion, the matters pointed to by the respondent do not constitute such circumstances, and the orders should not have been made. More could have been done on behalf of the respondent to establish the correct position before the writ was issued, or the action could have been started much earlier, when the appellant’s ownership of the vessel - if that is relevant - could have been obtained within the limitation period either voluntarily or by discovery.

Accordingly, in our opinion the appeal should be allowed and the summons should be dismissed, with costs to be taxed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 61 of 1995

Brisbane

Before Fitzgerald P.

McPherson J.A.

Moynihan J.

[Binns v. Farnham Pty. Ltd.]

BETWEEN

STEPHEN BARRY BINNS

(Plaintiff) Respondent

AND

A.L. & C.R. FARNHAM PTY. LTD.

(Fourth Defendant) Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 11th day of August 1995

According to the plaintiff's draft statement of claim, which is a place from which the issues on this appeal can best be gathered, the plaintiff claims in 1991 to have entered into a contract with either the first defendant Kieally or the third defendant Gold Coast Radio Broadcasting Co. Pty. Ltd. ("the company") to travel on a boat from Tiki Village, which is on the Nerang River, to South Stradbroke Island, which is in Moreton Bay. It is alleged to have been an implied term of the contract that reasonable care would be taken for the safety of the plaintiff while he was participating in a function known as the "KROQ Party Boat". KROQ is the name or acronym under which the company's radio station broadcasts. The injury in respect of which the plaintiff brings this action was sustained when the plaintiff dived off the boat into the water at Stradbroke Island.

The matters alleged appear to bring the claim within para.(f) of s.4(3) of the Admiralty Act 1988 of the description of a general maritime claim, as being:

"(f) a claim arising out of an agreement that relates to the carriage of ...
persons by a ship ....".

By s.5(1)(b) the Admiralty Act applies to all maritime claims wherever arising. The expressions "maritime claim" and "general maritime claim" have the meanings given in s.4, which of course includes s.4(3)(f).

The fact that the claim here is a maritime claim does not appear to affect either the form of the action or the court in which it has been brought by the plaintiff. It does, however, mean that the matter of joinder of A.L. & C.R. Farnham Pty. Ltd. ("Farnham") needs to be considered in the light of the provisions of that Act. Farnham's joinder is sought on the basis, as I understand it, that it is the owner of the boat and may therefore have been the employer of the crew members who are alleged to have failed to warn the plaintiff not to dive where he did. On that basis, the claim against Farnham may also constitute a maritime claim in terms of s.4(3)(d) of the Act. Whether or not that is so, it remains possible to say that the proposed claim against Farnham is itself a claim arising out of an agreement that relates to the carriage of persons by a ship.

The matter of the limitation periods applicable to a proceeding brought under the Act is regulated by s.37. The plaintiff's claim is not constituted as action in rem, but it appears to be "a proceeding ... brought under the Act on a maritime claim". That being so, s.37(1)(a) provides that it may be brought at any time before the end of the limitation period that would have been applicable in relation to the claim if a proceeding on the claim had been brought otherwise than under the Act. The evident intention of the provision is to attract the provisions of the State law governing limitation of actions. See Civil Admiralty Jurisdiction (ALRC Report No. 33), at 206- 208. Being an action for damages for personal injuries, the limitation period in Queensland under s.11 of the Limitation of Actions Act 1974 is three years.

There is further provision in s.37(3) investing the court with power in respect of maritime claims, to extend, "in the same way and in the same kinds of circumstances", the limitation period under s.37(1)(a), which is the limitation period applicable under State law. By s.31 of the Limitation of Actions Act 1974 (Qld.) the court has power to extend the limitation period applicable to an action of this kind provided certain requirements are satisfied. In the present case, however, the plaintiff's application did not rely on that provision, but on O.3, rr.11 and 13 of The Rules of the Supreme Court Those rules are concerned with joinder by adding a defendant to, or substituting a defendant in, an action. Order 3, r.13 has nevertheless been held to enable the court in making or substituting such a defendant to overcome a limitation bar. It is the rule under which the primary judge acted in joining Farnham as a defendant to the plaintiff's action in this instance. The order was "backdated" to the date on which the writ issued.

In Hayward v. Darling Downs Aircraft Services Pty. Ltd. [1993] 2 Qd.R. 153, this Court left open the question whether O.3, r.13 authorised the "backdating" of the order in this way, and whether doing so operated to defeat the operation of a limitation provision. Because of s.37 of the Admiralty Act, a further question arises in this instance whether the practice of "backdating" the joinder of a defendant in this way is, strictly speaking, "a power to extend a limitation period" or the exercise of such a power, even assuming that it may have that effect or consequence in practice.

I think it useful to draw attention to these questions, which were not raised before the primary judge nor on the hearing of the appeal before us, in order to show that they have not been overlooked. In the end, however, and quite apart from the difficulties they may present, I am persuaded that the plaintiff did not make out a sufficient case to justify the exercise of any discretion which may have existed to join Farnham as defendant and to "backdate" that joinder to the date of issue of the writ in order to defeat the bar presented by the limitation period. In that regard, I agree with the reasons of Fitzgerald P. and Moynihan J., which I have had the advantage of reading.

No special circumstances were shown that would justify the order that was made here. In particular, it is difficult to understand why the business name "Jetaway Cruises" was not the subject of a search at any relevant time; or even why, undesirable as it no doubt generally is to follow that course, the name "Jetaway Cruises" was not simply included as a defendant, leaving it to some later occasion to identify the particular person who traded under it. Moreover, if it was not the correct name of the defendant Farnham, it might at least have served as a means to taking advantage of the provisions of O.32, r.1(2) of The Rules of the Supreme Court: cf. Bridge Shipping Pty. Limited v. Grand Shipping S.A. (1991) 173 C.L.R. 231. All of these considerations combine to show that there was nothing "special" about the case that would justify the orders made below.

I agree with the order proposed.