Brown v Noosa Shire Council

DISTRICT COURT OF QUEENSLAND

CITATION:

Brown v Noosa Shire Council & Anor [2002] QDC 089

PARTIES:

CHRISTIAN BROWN (plaintiff)

-v-

NOOSA SHIRE COUNCIL(defendant)

ENERGEX LIMITED (third party)

FILE NO/S:

D467/01

DIVISION:

Maroochydore District Court

PROCEEDING:

Application

DELIVERED ON:

9 May 2002

DELIVERED AT:

Maroochydore

HEARING DATE:

22 April 2002

JUDGE:

K S Dodds DCJ

ORDER:

Judgment for the third party against the defendant on the third party claim together with costs of the third party proceedings and the application.

CATCHWORDS:

General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125;

Jaensch v Coffey (1964) 155 CLR 549;

McPhee v Zarb [2002] QSC 4;

Sullivan v Moody (2001) 75 ALJR 1570;

Uniform Civil Procedure Rules, rr 149(1) & (2), 171, 193, 293.

COUNSEL:

Mr A S Kitchin for the third party

Mr S T Farrell for the defendant

SOLICITORS:

Carter Newell for Energex Limited

Barry & Nilsson for the Noosa Shire Council

1. This is an application by the third party for summary judgment against the defendant: rule 293 Uniform Civil Procedure Rules (UCPR); alternatively that the defendant’s third party notice be struck out: rule 171 UCPR.

1. According to the plaintiff’s pleading, the plaintiff was walking from Noosa Drive, a roadway in the defendant’s local authority area, into some parkland adjacent to Noosa Drive during the hours of darkness.  The parkland was under the control of the defendant and was enclosed by a perimeter fence.  There was a vehicular entranceway into the parkland through which the plaintiff intended to pass.  As he did so he tripped over a piece of chain 20 centimetres or so off the ground which was stretched across the entranceway as a barrier and suffered injury. 

1. At the material time three metres or so away from where the plaintiff tripped and on Noosa Drive was a light pole containing a street light.  It is because of this that the defendant’s claim against the third party seeks contribution or indemnity from the third party to or against any liability it may be found to have to the plaintiff.

1. To have any chance of success, the defendant’s claim against the third party must be able to show that the third party owed a duty of care to the plaintiff.

1. Rule 193 UCPR requires that a third party notice must have attached to it a statement of claim unless the court otherwise orders.

1. Rule 149(1) provides inter alia that a pleading “must –

(b)        contain a statement of all the material facts on which the party relies   but not the evidence by which the facts are to be proved; and

- - -

(d)        subject to rule 156, state specifically any relief the party claims.”

Rule 149(2) provides, inter alia, that “ a party may plead a conclusion of law - - - if the party also pleads the material facts in support of the conclusion - - -.”

1. The third party statement of claim pleads that a duty of care was…