Dumschat v Watpac Australia Pty Ltd

[2005] QDC 264

[2005] QDC 264

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD4484 of 2003

WAYNE ALLEN DUMSCHAT	Applicant
and
WATPAC AUSTRALIA PTY LTD (ACN 010 462 816)	First Respondent
and
HYSFINE PAINTING AND WATERPROOFING CONTRACTORS (ACN 080 647 294)	Second Respondent

BRISBANE

..DATE 25/08/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 78, r 489 - "application on the papers" for consolidation of two claims by an injured plaintiff arising from the same accident - separate claims attributable to separate statutory regimes which led to different deadlines for claims.

HIS HONOUR:  This is an application on the papers pursuant to rule 489 which was listed for the 23rd of August 2005, on which day the pressure of other business in the applications list meant there was no time for dealing with it. 

The Court notes the courtesy of Mr Monro who appeared on the "return date" notwithstanding the nature of the application, having efficiently noted that the matter was listed in the Court's published law list not only as an application on the papers, which would not have required any appearance, but also as part of the ordinary applications list which might well have required an appearance.  That latter listing was not appropriate.  Mr Monro was excused from further attendance.

The applicant is in the increasingly familiar difficult circumstances of a plaintiff who has claims regulated by multiple statutory regimes.  He was injured in a work accident when he fell off a ladder on 20th of December 2002.  He wished to claim against the defendant, Watpac Australia Pty Ltd, as the head contractor in control of the relevant building site (whose foreman he accuses of refusing to supply him with an appropriate scaffold) and also his employer, Hysfine Painting & Waterproofing Contractors.

In respect of Watpac, the Personal Injuries Proceedings Act 2002 provided the applicable statutory regime - there is a mistake here the - I am reading from the outline of submissions produced by Hall Payne Lawyers to comply with the rules which states, "an accident dated 20th December 2002". The true date is 20th of December 2000 which is the explanation for the plaintiff's having to commence a proceeding, namely this proceeding, before the limitation period expired - which he did on the 18th of December 2003.

The proceeding was commenced pursuant to section 43 of the Personal Injuries Proceedings Act. There was service on Watpac on the 3rd of March 2005.

So far as Hysfine is concerned, the applicable statutory regime was the WorkCover Queensland Act 1996. The effect of its provisions was to delay the commencement of any proceeding with protection against limitation problems being provided.

On the 3rd of March 2005 Claim 720 of 2005 was started against the employer.  It is unsatisfactory from any point of view to have two proceedings in the Court in respect of the same work accident and injury, but it is not easy to see how the difficulty could have been avoided.  At least that is so if joining Hysfine in the Watpac proceeding was thought either too inconvenient or too risky.

Watpac's solicitors sent a letter dated 20th of May 2005 asserting that the situation constitutes:

"an abuse of process and which is causing our client to incur a duplication of costs.  We require your client to take immediate action to consolidate the two claims."

As foreshadowed, Watpac has supplied an affidavit of Ms Ruffin, filed on the 15th of August, confirming Watpac's consent to the terms of paragraphs 1 and 2 of a draft order supplied under the Rules.  There is proof of the consent of Hysfine in the form of its solicitor's letter of 24th of June 2005 exhibited to Mr Hall's affidavit. 

The order consented to was that the Court consolidate the two proceedings, no order being made about costs.  The relevant rule is rule 78.  Plainly, the order sought should be made as "(a) the same for substantially the same question is involved in all the proceedings", and "(b) a decision in one proceeding will decide or affect the other proceeding or proceedings." 

It may well be considered appropriate in due course for other steps to be taken to tidy up the now consolidated proceedings, for example by preparation of a single statement of claim incorporating allegations against both defendants.  It seems likely there will be contribution proceedings between the defendants.

The Court makes an order in terms of the initialled draft from which I have deleted "3.  Any other orders the Court considers appropriate."

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