Bluewater Cove Pty Ltd v Sykes

[1997] QCA 198

[1997] QCA 198

COURT OF APPEAL

DEMACK J
DOWSETT J

MACKENZIE J

Appeal No 4138 of 1997

BLUEWATER COVE PTY LTD	Appellant (Defendants)
(ACN 063 915 917)
and
IAN DOUGLAS SYKES	Respondent (Plaintiff)

BRISBANE
..DATE 16/06/97
160697 D.1 T13/LE9 M/T COA129/97
DEMACK J: This is an application for leave to appeal from a
judgment of a Judge of District Court. The plaintiff,
Sykes, sued as defendant in an action Bluewater Cove Pty Ltd
trading as Water Force Irrigation Engineering. He alleged
that in the course of his employment with that entity he was
injured on three occasions. The first of these was on 31
January 1994, the second on 24 November 1994, and the third
on 8 June 1995.
His plaint in which these allegations were made was issued
on 11 December 1996.

At the time when the plaint was issued it appears that the plaintiff's solicitor had done a search of the register of business names. That search revealed and it should have been apparent that as at the time of the first injury the company, Bluewater Cove Pty Ltd, was not trading as Water Force Irrigation Engineering but in fact two individuals, Michael Joseph Barker and Paul Frederick Kleinschmidt were the people who were trading as Water Force Irrigation Engineering.

Consequently an application was made to add those two men as defendants to the action. The affidavit in support of the application for that amendment did not disclose why the action was commenced in the way it was. The District Court Judge who heard the application held that there were special circumstances in which the order could be made but by the time he dealt with the matter on 11 April this year the first cause of action had arisen more than three years earlier.

160697 D.1 T13/LE9 M/T COA129/97

The order that he made was that leave be granted pursuant to rule 23 of the rules for Michael Joseph Barker and Paul Frederick Kleinschmidt to be joined as defendants in this action and that pursuant to rule 25 of the rules the proceedings against the said defendants be deemed to have commenced on 13 December 1996.

The applicant's argument here turns on the assertion that there is an important question arising in this case because it is one of both law and justice which occurs not infrequently in personal injury actions. The way in which the question is framed is:

"Is the unexplained failure or negligence of the plaintiff's solicitor within the limitation period to appreciate facts requiring the joinder of another defendant peculiar or special circumstances warranting the joinder of an additional party after the expiration of the relevant limitation period."

It is asserted that in Lynch v. Keddell (1985) 2 QdR 103 at page 109 the matter was not finally concluded.

It is not suggested other than that behind the defendants stands Work Cover. It is clear that the plaint raised the question of injury in the course of employment on specified dates. There can be no confusion about the correct identity of the people who were involved. Consequently what has happened here is some carelessness in the selection of the people who were appropriately sued in respect of the three incidents.

While the matter before the learned District Court Judge was
conducted rather untidily, it does not seem to me that in
160697 D.1 T13/LE9 M/T COA129/97
the final result any injustice has occurred to the
applicants here.

While there may be some significant point of law hiding behind this rather untidy mess I am not satisfied that this is the case in which leave to appeal should be granted so that that point of law can be ventilated.

In my view the application should be refused.

DOWSETT J: I agree in the order proposed. The basis for criticism of the decision was that there was no justification for the District Court Judge to backdate the effective commencement of proceedings as against the newly joined defendants.

Those defendants had been made aware of the proceedings against Bluewater Cove Pty Ltd before the expiry of the limitation period as against them. They also knew or ought to have known, as a result of service of that process, that at least one of the relevant incidents had occurred whilst they were trading on their own behalf. There was sufficient justification for backdating the effective date of commencement of the proceedings pursuant to rule 25.

MACKENZIE J: I agree for the reasons that have been given.

DEMACK J: The order of the Court is application for leave

to appeal is refused with costs. 160697 D.1 T13/LE9 M/T COA129/97 MR HACKETT: Could I be heard on the question-----

DEMACK J: Yes, Mr Hackett.

MR HACKETT: If the Court does not wish to hear from me I do not want to labour the point but given the unsatisfactory nature of the proceedings below my client was entitled to make this application. I concede that it has failed but really through no fault of its own in respect of material that was below. In my submission it would be an appropriate order for no order as to costs.

DEMACK J: No, you have come along and made your application and lost so the order will be the application's refused with costs.

-----