Crisp v Crooks Michell Peacock Stewart P/L & Ors

[1998] QSC 219

IN THE SUPREME COURT

OF QUEENSLAND

No 1545 of 1994

Brisbane

Before the Hon. Justice Atkinson

[Crisp v.  Crooks Michell Peacock Stewart P/L & Ors]

BETWEEN:

DERRICK ARTHUR CRISP
  Plaintiff
AND:

CROOKS MICHELL PEACOCK STEWART PTY LTD
  (ACN 000 912 630)
  and
  WILLIAMS BROS ENGINEERING PTY LTD
  (ACN 000 789 426)
  TRADING AS WILLIAM BROS CMPS JOINT VENTURE

Defendant

AND:

CHEVRON NIUGINI PTY LTD

Second Defendant

AND:

WB-CMPS PNG PTY LTD
  Third Defendant
AND:

WORKCOVER QUEENSLAND
  First Third Party
AND:

HIH CASUALTY & GENERAL INSURANCE LIMITED
  (ACN 008 492 291)
  Second Third Party

REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 9 October 1998

CATCHWORDS:     PROCEDURE - Supreme Court Procedure - Queensland - Practice under Rules of Court - parties - third party and similar proceedings - leave for third party to defend - RSC O.17 r.4(4) - leave given on terms so as not to delay trial.

Counsel:SC Williams QC with AJ Kimmins for the plaintiff

JA Griffin QC for the first third party

Solicitors:Eardley & Motteram Lawyers for the plaintiff

Corrs Chambers Westgarth for the first and third defendants
Gadens Lawyers for the second defendant
Pender & Whitehouse, Solicitors for the first third party

Hearing Date:              17 September 1998

REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 9 October 1998

1. On 17 September 1998, WorkCover Queensland, the first third party in this action, made an oral application at a directions hearing, to be given leave to defend the plaintiff’s action.  Directions were given for the parties to provide written submissions on the question of whether the first third party, as an insurer, ought to be granted leave to defend the action between the plaintiff and defendants.  The application for leave to defend is made pursuant to RSC O.17 r.4(4) which provides:

   “On an application for directions under this rule the Court or a Judge may give a third party leave to defend the action, either alone or jointly with any defendant, upon such terms as may be just, or to appear on the trial and take such part therein as may be just, and generally may make such orders and give such directions as appear to the Court or Judge proper for having the rights and liabilities of the parties most conveniently determined and enforced and as to the extent to which the third party is to be bound by any judgment or decision in the action.”

   Such an order may be varied or rescinded by the court or a judge at any time.

2. The first third party, WorkCover Queensland, has conceded that on 14 January 1998 counsel appearing on its behalf at a directions hearing indicated in response to a question from the Judge that it did not intend to seek leave to defend the plaintiff’s action.  However it appears that that question was asked in the context of a referral of the matter to case appraisal.

3. Since then, the first third party submits that it has become particularly concerned about the extent to which the other parties on the defence side of the record propose to contest the issue of the plaintiff’s quantum of damages.  It appears to the first third party that the defendants are content to adopt the approach of seeking to advance the contention that, at the time the accident the subject of the proceedings occurred, the first defendant was the plaintiff’s employer, with the consequential outcome that the first third party will be the entity ultimately liable in respect of the plaintiff’s damages.

4. In support of this contention the first third party refers to the fact that the usual investigations by the defence side as to matters relating to the quantum of damages appear to have been neglected, and in particular they have not ensured that the plaintiff has provided updated statements of loss and damage and they have not sought any medical examination of the plaintiff.

5. Although the first third party declined indemnity to the first defendants, as a result of being joined as a third party they are now exposed to a full indemnity of the first defendant in respect of its liability to the plaintiff and therefore are exposed to the full measure of the plaintiff’s quantum of damages.

6. As against this the plaintiff argues that there are a number of factors against the first third party’s being granted leave to defend.  The plaintiff says that the first third party has clearly made an election not to seek leave to contest the plaintiff’s action and refer to the delay in making this application and the statement by counsel for the first third party at the directions hearing referred earlier.  However I do not accept that either of those constitutes an unequivocal election.

7. The plaintiff submits that it may well be prejudiced if the first third party was at this stage permitted to contest the action at this stage particularly by now seeking independent medical examinations which may require the plaintiff to obtain responsive medical reports which may not be possible before the trial on 7 December 1998.  These and other matters submitted by the plaintiff can be dealt with by appropriate directions.  The plaintiff says that the application is made too late and that it should not be the practice to allow such applications after trial dates are set.  This argument has much merit.  However I shall take account of it in the conditions which I attach to an order giving leave to defend.

8. Accordingly I intend to allow the first third party leave to defend the action upon terms to be decided at a directions hearing of which the first third party will have to pay the costs.