Cottee v Cobham Aviation Services Australia Pty Ltd - [2022] QDC 251

DISTRICT COURT OF QUEENSLAND

CITATION:

Cottee v Cobham Aviation Services Australia Pty Ltd & others [2022] QDC 251

PARTIES:

JACINDA COTTEE
(applicant)

v

COBHAM AVIATION SERVICES AUSTRALIA PTY LTD
ABN 34 003 469 574
(first respondent)

COBHAM AVIATION SERVICES ENGINEERING PTY LTD
ABN 74 099 287 117
(second respondent)

ROLLS-ROYCE DEUTSCHLAND LTD & CO KG
ABN 70 098 164 121
(third respondent)

NATIONAL JET SYSTEMS PTY LTD
ABN 11 008 279 203
(fourth respondent)

FILE NO:

2081 of 2022

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

18 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2022

JUDGE:

Rosengren DCJ

ORDERS:

1. The second and third respondents be joined in District Court proceedings 553/21.

2. The applicant pay the second and third respondents’ costs of and incidental to the application with the execution of the costs order to be delayed until the conclusion of the proceeding.

CATCHWORDS:

PROCEUDRE – CIVIL PROCEEDINGS IN QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – where applicant seeks to join second and third respondents – where application brought outside limitation period – whether application to join falls within r 69(2) Uniform Civil Procedure Rules 1999 (Qld)

PROCEUDRE – CIVIL PROCEEDINGS IN QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – where applicant’s solicitors made a mistake in filing a statement of claim without a claim – whether court had power under r 371 of the Uniform Civil Procedure Rules 1999 (Qld) to make declaration that statement of claim filed in the registry was effective in joining second and third respondents

Personal Injuries Proceedings Act 2002 (Qld) ss 18, 43
Uniform Civil Procedure Rules 1999 (Qld) rr 5, 14, 69, 156, 371, 376

Althaus v Australia Meat Holdings Pty Ltd [2007] 1 Qd R 493
Australian Golf Management Corporation Pty Ltd v Logan City Council [2021] QSC 291
Bates v Queensland Newspapers [2001] QSC 83
Cottee v Eastern Australia Airlines Pty Ltd [2022] QDC 112
Crayford Freight Services Ltd v Coral Seatel Navigation (1998) 82 FCR 328
Cropper v Smith (1884) 26 Ch D 700
Emanuele v Australian Securities Commission (1997) 188 CLR 114
Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184
Jess v Scott (1986) 12 FCR 187
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

COUNSEL:

C Donnan for the applicant
T Crydon (sol) for the first and second respondents
S Williams KC and M Eade for the third respondent
B Pool (sol) for the second defendant in BD 553/21

SOLICITORS:

Slater and Gordon Lawyers for the applicant
Sparke Helmore Lawyers for the first and second respondents
HFW Australia for the third respondent
HWL Ebsworth Lawyers for the second defendant in BD 553/21

Introduction

The applicant has made a claim for personal injuries in Brisbane District Court claim number 553 of 2021. On 26 August 2022, she filed this application relevantly seeking:
(i)Leave pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QDC 251
Decision Date: 18 November 2022

CaseChat Overview and Summary

The applicant, Cottee, sought to join two additional respondents in proceedings against Cobham Aviation Services Australia Pty Ltd. The application was made outside the limitation period and also involved a procedural error where the statement of claim was filed without the actual claim. The court was tasked with deciding whether the application to join the respondents was permissible under Rule 69(2) of the Uniform Civil Procedure Rules 1999 (Qld) and whether it had the power to declare the statement of claim effective in joining the respondents under Rule 371 of the same Rules.

The court considered the statutory provisions and case law to determine if the application to join the respondents could be accepted despite being outside the limitation period. It found that the discretion under Rule 69(2) could be exercised in exceptional circumstances, and in this case, there were compelling reasons to allow the joinder. Additionally, the court examined whether it had the authority to declare the statement of claim effective in joining the respondents, despite the procedural error, and concluded that it did have such power under Rule 371.

Based on its findings, the court granted the application to join the second and third respondents in the existing proceedings. It also ordered that the applicant pay the costs of and incidental to the application, with the execution of the costs order to be delayed until the conclusion of the proceeding.

The final orders of the court were that the second and third respondents be joined in District Court proceedings 553/21 and that the applicant pay the second and third respondents’ costs of and incidental to the application, with the execution of the costs order to be delayed until the conclusion of the proceeding.

Orders

Orders of the court

1. The second and third respondents be joined in District Court proceedings 553/21.

2. The applicant pay the second and third respondents’ costs of and incidental to the application with the execution of the costs order to be delayed until the conclusion of the proceeding.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cottee v Cobham Aviation Services Australia Pty Ltd & others [2022] QDC 251
PARTIES:	JACINDA COTTEE (applicant) v COBHAM AVIATION SERVICES AUSTRALIA PTY LTD ABN 34 003 469 574 (first respondent) COBHAM AVIATION SERVICES ENGINEERING PTY LTD ABN 74 099 287 117 (second respondent) ROLLS-ROYCE DEUTSCHLAND LTD & CO KG ABN 70 098 164 121 (third respondent) NATIONAL JET SYSTEMS PTY LTD ABN 11 008 279 203 (fourth respondent)
FILE NO:	2081 of 2022
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	18 November 2022
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2022
JUDGE:	Rosengren DCJ
ORDERS:	1. The second and third respondents be joined in District Court proceedings 553/21. 2. The applicant pay the second and third respondents’ costs of and incidental to the application with the execution of the costs order to be delayed until the conclusion of the proceeding.
CATCHWORDS:	PROCEUDRE – CIVIL PROCEEDINGS IN QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – where applicant seeks to join second and third respondents – where application brought outside limitation period – whether application to join falls within r 69(2) Uniform Civil Procedure Rules 1999 (Qld) PROCEUDRE – CIVIL PROCEEDINGS IN QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – where applicant’s solicitors made a mistake in filing a statement of claim without a claim – whether court had power under r 371 of the Uniform Civil Procedure Rules 1999 (Qld) to make declaration that statement of claim filed in the registry was effective in joining second and third respondents Personal Injuries Proceedings Act 2002 (Qld) ss 18, 43 Uniform Civil Procedure Rules 1999 (Qld) rr 5, 14, 69, 156, 371, 376 Althaus v Australia Meat Holdings Pty Ltd [2007] 1 Qd R 493 Australian Golf Management Corporation Pty Ltd v Logan City Council [2021] QSC 291 Bates v Queensland Newspapers [2001] QSC 83 Cottee v Eastern Australia Airlines Pty Ltd [2022] QDC 112 Crayford Freight Services Ltd v Coral Seatel Navigation (1998) 82 FCR 328 Cropper v Smith (1884) 26 Ch D 700 Emanuele v Australian Securities Commission (1997) 188 CLR 114 Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184 Jess v Scott (1986) 12 FCR 187 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
COUNSEL:	C Donnan for the applicant T Crydon (sol) for the first and second respondents S Williams KC and M Eade for the third respondent B Pool (sol) for the second defendant in BD 553/21
SOLICITORS:	Slater and Gordon Lawyers for the applicant Sparke Helmore Lawyers for the first and second respondents HFW Australia for the third respondent HWL Ebsworth Lawyers for the second defendant in BD 553/21