Dwyer v Goldamere Pty Ltd
[2004] TASSC 78
•27 July 2004
[2004] TASSC 78
CITATION: Dwyer v Goldamere Pty Ltd & Anor [2004] TASSC 78
PARTIES: DWYER, Donna Ruth
v
GOLDAMERE PTY LTD ACN 073 634 581
HENRY WALKER ELTIN CONTRACTING PTY LTD
ACN 009 625 138
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 764/2001
DELIVERED ON: 27 July 2004
DELIVERED AT: Hobart
HEARING DATES: 23 June and 15, 16 and 21 July 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Supreme Court procedure – Tasmania – Practice under Rules of Court – Parties – Third Party Notice – Leave to issue – Considerations – Exercise of discretion.
Supreme Court Rules 2000 (Tas), rr202 and 208.
Furness v Pickering [1908] 2 Ch 224; English Scottish & Australian Bank Ltd v Sulzberger (1970) Tas SR 287 (NC14); Butler v Dunn Monumental Masons Pty Ltd & Anor and TGIO Ltd (1996) 5 Tas R 487; Bowen v Hartley (1876) 1 QBD 652; Wasley v Frost (1974) 7 SASR 506; Phonesivorabouth & Ors v Tops Services Pty Ltd (1992) 106 FLR 471; Edwards v Edwards (1913) VLR 30; Barclay’s Bank v Tom (1923) 1 KB 221; AMP Insurance Co Ltd v Dixon (1982) VR 833 and Ross Ambrose Group Pty Ltd v Renkon & Ors TAS U/R A55/1996 referred to.
Aust Dig Procedure [271]
REPRESENTATION:
Counsel:
Plaintiff: R J Phillips
First defendant: D J Gunson SC
Second defendant: C P Hill
Caterpillar of Australia Pty Ltd: P W Tree SC
Solicitors:
Plaintiff: Phillips Taglieri
First defendant: Gunson Williams
Second defendant: Piggott Wood & Baker
Caterpillar of Australia Pty Ltd: Simmons Wolfhagen
Judgment Number: [2004] TASSC 78
Number of Paragraphs: 14
Serial No 78/2004
File No 764/2001
DONNA RUTH DWYER v GOLDAMERE PTY LTD ACN 073 634 581 and
HENRY WALKER ELTIN CONTRACTING PTY LTD ACN 009 625 138
REASONS FOR DECISION MASTER S J HOLT
27 JULY 2004
The second defendant delivered its defence to the plaintiff’s statement of claim in December 2003, and now applies for leave to file a third party notice and serve it on Caterpillar of Australia Pty Ltd (“Caterpillar”). Supreme Court Rules 2000, r202, is as follows:
“(1) Subject to subrule (2), a defendant who claims as against any person not already a party to the action to be entitled to contribution or indemnity or any relief or remedy relating to, or connected with, the original subject matter of the action, may file and serve on that person a third party notice directed to that person.
(2) A defendant may file and serve a third party notice –
(a) without leave at any time before delivering the defence; and
(b) at any other time with the leave of the Court or a judge.”
If it appears to the court or a judge that there is a question proper to be tried as to the liability of a proposed third party to make contribution or indemnity or for any relief or remedy relating to or connected with the primary action leave to issue a third party notice may be granted. The question of whether it is just and reasonable to allow the defendant to bring a claim under the third party procedure rather than by way of independent action can be appropriately deferred for consideration at a third party directions hearing under r208. By then the third party will have been served and, if r203 has been complied with, the third party notice will disclose the nature and grounds of the claim or the nature of the question or issue sought to be determined and the third party will also have been served with a copy of the writ in the primary action and all the pleadings. It is only after the third party has been so informed and all the interested parties have an opportunity to advance their arguments concerning matters such as the potential of the third party proceedings to embarrass or delay the trial of the plaintiff’s action and the desirability of having all related disputes determined in the one action that a decision can be made as to whether the third party claim is best heard as part of the original action in the interests of finality and the avoidance of a risk of inconsistent outcomes or is best left to be the subject of a separate action because of lack of sufficient connection with the primary action or a propensity to embarrass or delay the plaintiff: Furness v Pickering [1908] 2 Ch 224; English Scottish & Australian Bank Ltd v Sulzberger (1970) Tas SR 287 (NC14) and Butler v Dunn Monumental Masons Pty Ltd & Anor and TGIO Ltd (1996) 5 Tas R 487.
Here, the ordinary course has not been followed in that the second defendant has chosen to serve Caterpillar with its application and the proposed third party notice. Accordingly, upon the hearing of the leave application the court had before it all the necessary parties with each in a position to fully canvass their arguments for or against the appropriateness in the circumstances of the use of the third party procedure. It is for this reason that extensive argument occurred at the time leave was sought rather than detailed consideration being deferred until the third party directions hearing.
The plaintiff claims to have slipped and fallen from an elevated platform accessing the driver’s cabin on a mine truck in the course of her employment as a truck driver thereby suffering personal injury. She says that she was negligently exposed to the risk of falling. She claims against the first defendant as her employer and against the second defendant as the company responsible for the supply and condition of trucks used by the first defendant in its mining operations. The second defendant by the proposed third party notice wishes to allege that the fall was the result of a defect in the manufacture of the mine truck, in particular the construction on it of a narrow platform without proper railing for which it is said Caterpillar has responsibility.
Mr Phillips for the plaintiff and Mr Gunson SC for the first defendant oppose the use of the third party procedure on grounds that the primary action which it is said is almost ready for trial will be delayed and the delay is likely to be extensive. It was submitted that on the present state of the evidence the third party action appears to be speculative and complex both factually and legally, with potential to prolong the trial and increase the cost of it. Embarrassment and delay to the plaintiff are important considerations and sometimes determinative against permitting a third party claim. In Bowen v Hartley (1876) 1 QBD 652, Mellish LJ said at 656:
“But this power is a discretionary one, and in the exercise of its discretion the Court ought to consider whether the Plaintiff’s interests will be prejudiced or affected, and, if the Plaintiff will be prejudiced or delayed, the power ought not to be exercised.”
In Wasley v Frost (1974) 7 SASR 506, the plaintiffs who were suffering hardship by delay obtained an order for the early trial of their action for the week commencing 7 May 1974. The application for leave to issue third party proceedings was not filed until March 1974. Mitchell J said at 508:
“On balance it seems to me the inconvenience to the plaintiffs of having the action delayed outweighs the inconvenience to the defendant of having her application for leave to join third parties refused. In saying this I take into consideration that the refusal is occasioned by the lengthy delay on the part of the defendant in making the application. The third parties could have been joined without leave in the month of February 1973 when the defence was first filed. The delay therefore was a delay of more than twelve months.”
See also Phonesivorabouth & Ors v Tops Services Pty Ltd (1992) 106 FLR 471.
Caterpillar supports the plaintiff and the first defendant in their opposition to the proposed proceedings agreeing that delay is likely. Mr Tree SC for Caterpillar in addition submitted that the court cannot be satisfied on the evidence that there is a question proper to be tried between the second defendant and Caterpillar: Pontifex v Foord (1884) XII QBD 152. In addition, it was submitted that Caterpillar is protected by a time bar under the Wrongs Act 1954, and the expiry of a limitation period is reason to refuse leave: Safety Council of Australia Victoria Division (in Liq) v Fordham SC (Vic) McDonald J, No 5195/89, 18 September 1992, unreported. Finally, on behalf of Caterpillar it was submitted that the primary action is a “simple slip and fall claim” and allowing the third party procedure would modify it into a “products liability claim” and that accordingly the proposed claim would be best dealt with by separate proceedings.
Mr Hill for the second defendant said that third party proceedings were appropriate as a matter of policy to avoid the same questions being tried twice with added expense and with possibly different results: Edwards v Edwards (1913) VLR 30 at 32; Barclay’s Bank v Tom (1923) 1 KB 221 at 224; AMP Insurance Co Ltd v Dixon (1982) VR 833 at 835 and Ross Ambrose Group Pty Ltd v Renkon & Ors TAS U/R A55/1996 at 425.
By her writ filed 29 June 2001, the plaintiff claimed against her employer damages for personal injuries suffered on 15 November 2000. In her statement of claim she alleges that her employer operated a mine at Savage River in Tasmania and that her injuries occurred whilst in the course of her employment as a truck driver she was cleaning the windows of a “Caterpillar 777 mine truck”. She alleged that she was walking on a platform at the front of the truck which was narrow and which was not fitted with rails when she slipped and fell to the ground with resultant injury (the evidence at the hearing was that Caterpillar 777D mine trucks are extremely large with the driver’s cabin and the access platform being approximately three metres above ground level). The employer joined as a third party a company which the employer alleges supplied the truck for use by the employer at the mine and an appearance in the third party proceeding was filed on 7 June 2002. On 16 October 2003, a consent order was made joining the third party company as second defendant. The writ and statement of claim were amended accordingly and the third party proceedings then continued as contribution proceedings between defendants. In her amended statement of claim the plaintiff alleges against the second defendant that it had hired the truck in question to the first defendant on terms that the truck hired would be “provided in a condition that made it safe for the First Named Defendant’s employees”. The second defendant in its defence filed 4 December 2003 admitted that “… it was an express, or in the alternative, an implied condition of the agreement that the Second Named Defendant was responsible for ensuring that all reasonable measures were taken to minimise any safety risks associated with the use of the mine truck”.
I have been told from the bar table, without objection, that the plaintiff, subject to the second defendant complying with an order to give further and better discovery by 3 August 2004, is ready to have her action set down for trial. The pleadings are closed and the plaintiff has delivered proofs of expert evidence and particulars of injury, loss, expense and damage. The first defendant has had the plaintiff medically examined and the second defendant has made appointments for the plaintiff to be medically examined on its behalf on 28 July 2004. There are co-defendant proceedings which will be ready for trial after the second defendant has made further and better discovery as ordered and the defendants have administered interrogatories to each other and had them answered. But for the possibility of the second defendant being permitted to bring its claim against Caterpillar by third party proceedings rather than separate action it appears that the plaintiff’s and the co-defendant proceedings will be able to be set down for trial within a month or so.
The proposed third party notice is annexed to the application. It claims that the second defendant is entitled to be indemnified by Caterpillar. Firstly, it asserts that Caterpillar was negligent in that it “manufactured” the mine truck:
“without a platform at the front of the truck that was sufficiently wide …”
“without rails or a barricade at the outer edge of the platform to prevent (drivers) from falling from the platform”
“without warning … of the danger” and
“without affixing … a secure point to which a safety harness could be attached”.
Secondly, the proposed notice asserts breach of contract and says that Caterpillar sold the mine truck to the second defendant and then without identifying any terms of the contract alleged to be breached simply repeats the negligence allegations mentioned above. Thirdly, it asserts breaches of the Trade Practices Act 1974, but without identifying the provisions said to be breached and again simply repeats the earlier negligence allegations. Fourthly, it contains a claim for an indemnity for workers compensation payments paid to the plaintiff by the first defendant in respect of which the first defendant in the co-defendant proceedings seeks to recover from the second defendant.
The solicitor having carriage of the matter on behalf of the second defendant was cross-examined by Mr Tree SC and the following exchange occurred:
“Do you have to hand easily a copy of the proposed third party notice? It’s appended to the interlocutory application of 31 May, 2004, if that’s of assistance to you, I just don’t have a spare copy. ………I believe I have that in front of me now.
Is that a document you’re familiar with, the proposed third party notice?……..In honesty, not as much as it would be if I had drafted it myself.
So it’s not your document?………It began as my document, it was amended in my absence during illness and I did some of the document.
I see. Could I refresh your memory of it just by taking you through it. ……….Mm.
The particulars of negligence which are asserted comprise, I want to suggest to you, solely of allegations of manufacturing and/or sale of the truck? For instance, if you look at (a) manufactured b) manufactured (c) manufactured (d) manufactured (e) manufactured (f) manufactured (g) manufactured (h) manufactured (i) manufactured, j, the same, k, the same, l, the same, m, the same, n, the same, o, the same, p, the same, they’re all allegations of manufacture?……..That certainly is the case.
We then go to the particulars of breach of contract, (a) manufactured and sold?……..Mm.
(b) manufactured and sold?……….Mm.
(c) The same, (d) the same, (e) the same, (f) the same, (g) we revert just to manufacturing again?……..Mm.
Similarly for (h), manufactured and sold (i), (j), (k), (l), (m), (n), (o) and (p)?…….Mm.
To (sic) claim under the breach of the Trade Practices Act solely dependent upon Caterpillar Australia Pty Ltd being the manufacturer?……….Yes.
You do not believe that Caterpillar of Australia Pty Ltd was the manufacturer of the truck do you?……No, I don’t.
You do not believe that Caterpillar of Australia Pty Ltd sold the truck to Henry Walker Elton Contracting Pty Ltd, you believed it to be William Adams?………Correct.
It therefore follows, does it not, that you do not have a belief that any of the particulars contained in the third party notice are correct?……..Yes, that’s correct.
You have a belief that all of the particulars contained in the third party notice are incorrect?…….That is correct.”
Under the terms of the proposed third party notice unless Caterpillar was the manufacturer (or is deemed to be the manufacturer: see the Trade Practices Act 1974, ss74A, 75AB, 75AD and 75AE) or sold the truck to the second defendant, there can be no entitlement to the indemnity as claimed. Mr Hill for the second defendant submitted that there was no requirement to make out a prima facie case, but even if there was such a requirement there was enough in the rest of the evidence presented on the hearing of the application to show a possibility that the second defendant might succeed against Caterpillar. For the reasons which follow I do not need to consider the point save to say that if third party proceedings are permitted they are likely to involve pre-trial investigation of the asserted manufacture and sale of the truck by Caterpillar. If there is ultimately evidence of manufacture or sale by Caterpillar to the second defendant there is likely to be argument which will not concern the plaintiff as to whether Caterpillar did or even could owe a duty of care to the plaintiff in respect of a truck which had long since left its possession and which arguably contained a patently obvious safety hazard.
Looming large over all this is a limitation point. The proposed claim against Caterpillar is under the Wrongs Act 1954. Section 3(5) provides that proceedings for contribution are to be commenced within the period of twelve months following service of the writ or such extended time as the court may allow. The second defendant was served with the originating process which resulted in it being added as a third party in mid-2002. Mr Hill on behalf of the second defendant contends that the clock was set running again within the last twelve months when his client was added as a defendant to the plaintiff’s claim and served with the amended writ. Mr Tree SC for Caterpillar says that there is nothing in the Wrongs Act to suggest that when the status of an existing party to litigation is altered time starts to run again. He submitted that the second defendant’s proposed action was futile without an extension of time being granted and as yet there has been no extension of time given. I have no doubt that this point has the potential to cause significant delay to the plaintiff if third party proceedings are permitted. Presumably, if served, Caterpillar will plead the limitation period. The second defendant may ask for the point to be tried as a preliminary issue and then if unsuccessful may then apply for an extension of time. There may be appeals.
The proposed third party proceedings if allowed to proceed and allowed to be heard and determined at the same time as the plaintiff’s action are likely to prolong the trial and cause material delay in the plaintiff having her case listed. The plaintiff and the first defendant do not want to be involved in proceedings concerning Caterpillar. Caterpillar does not want to be involved in the proceedings between the plaintiff and the defendants. The plaintiff’s claim is for damages for injuries suffered about four years ago. She has no entitlement to interest on the damages awarded. Her claim is now almost ready to be set down for trial. Accordingly, she will suffer prejudice if third party proceedings are permitted and delay the trial. If they are not permitted the second defendant can still bring a claim against Caterpillar in a separate action, but will suffer the prejudice occasioned by having two trials with the attendant added expense and the risk of inconsistent findings. However, the prejudice which the second defendant may suffer will have occurred because of its delay in making the claim against Caterpillar. The second defendant has been a party to the action since about June 2002 and its application for leave to issue third party proceedings was not brought until the plaintiff’s claim was almost ready for trial. Notwithstanding the policy lying behind procedures enabling questions to be dealt with in the one action it would be unjust to leave the plaintiff to suffer the prejudice caused by delay which she has done nothing to cause and relieve the defendant of any consequence resulting from its delay. I am of the opinion that the balance of convenience favours the plaintiff. The application for leave to file and serve a third party notice is dismissed.