F.A. Pidgeon & Son Pty Ltd v Permafab Pty Ltd

[1991] FCA 410

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JUDGMENT No ..-........ ..... . , , / , .

IN THE FEDERAL COURT OF AUSTRALIA )	No. QG 45 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	)

BETWEEN: F.A. PIDGEON & SON PTY. LTD.

Applicant

AND: PERMAFAB PTY. LTD.

First Respondent

AND: COMMERCIAL UNION ASSURANCE COMPANY

OF AUSTRALIA LTD.

Second Respondent

AND: PERMAFAB PTY. LTD.

Cross-Claimant

AND: F.A. PIDGEON & SON PTY. LTD.

First Cross-Respondent

AND: LINDORES HOLDINGS PTY. LTD.

Second Cross-Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	18 JULY 1991
WHERE MADE:	BRISBANE
THE -COURT ORDERS THAT:
NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

1.    The motion be dismissed.

2.   The applicant pay the respondents' costs of and incidental to the motion.

IN THE FEDERAL COURT OF AUSTRALIA	1	No. QG 45 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: F.A. PIDGEON & SON PTY. LTD.

Applicant

AND: PERMRFAB PTY. LTD.

First Respondent

AND: COMMERCIAL UNION ASSURANCE COMPANY

gF AUSTRALIA LTD.

Second Respondent

AND: PERMRFAB PTY. LTD.

Cross-Claimant

AND: F.A. PIDGEON & SON PTY. LTD.

First Cross-Respondent

AND: L~NDORES HOLDINGS PTY. LTD.

Second Cross-Respondent

-:  PINCUS J.

M: BRISBANE

DATE: 18 JULY 1991

REASONS FOR JUDGMENT

This is a notice of motion seeking a stay of a cross-claim. There are two suits in being having to do with related matters. The first in time is No. 1520 of 1990 in the Supreme Court of Queensland, and the second QG 45 of 1991 in this Court. It is, I think, desirable to set out, at least in a general way, the issues so far raised.

In the Supreme Court proceedings, F.A. Pidgeon & Son Pty. Ltd. as plaintiff ("Pidgeon") sued Lindores Holdings Pty. Ltd. ("Lindores") and Ernest John Blain as defendants for damages. The statement of claim in that suit set up that Lindores contracted in 1989 for the dismantling of certain cranes belonging to Pidgeon. It alleged that while this work was being done, one of the cranes collapsed and damaged a building project known as the Oasis on Broadbeach. Pidgeon said in its pleading that this was due to a breach of contract and negligence, and it claimed damages being the cost of rectifying the damaged crane as well as the cost of rectifying the damaged building. Mr. Blain was sued as personally liable in negligence.

In its defence delivered in the Supreme Court suit, Lindores raised a question about the status of Mr. Blain, saying that he had been working at the direction of both Pidgeon and Lindores. Lindores also said that it was the term of the arrangement between Pidgeon and Lindores that Pidgeon

would supply some labour and equipment for the performance of	the contract and that Pidgeon's employees caused or
contributed to the collapse.
In this Court, Pidgeon sued for repayment of monies lent or damages for misleading and deceptive conduct. The respondents in this Court are Permafab Pty. Ltd. ("Permafab")
and Commercial Union Assurance Company of Australia Ltd. ("Commercial Union"). The statement of claim which Pidgeon
delivered in this Court set up that Permafab agreed to supply and install certain fabric at the building construction project mentioned above - namely, the Oasis on Broadbeach - and that when that work was partially completed, the crane collapse damaged the work and that Permafab was obliged under its contract to rectify the damage. The statement of claim also alleged that Permafab asked Pidgeon to lend it money and physical assistance to assist in the repair, and that Pidgeon did so but was not paid. The misleading conduct case pleaded was that Permafab told Pidgeon that it had made a claim against its insurer, Commercial Union, in respect of the damage to the works and that the claim had been accepted. Pidgeon also complained against Commercial Union, being Permafab's insurer, that Commercial Union had made misleading statements suggesting that it would pay out under the policy and that Pidgeon paid Permafab money in reliance on that.
Permafab and Commercial Union filed a joint defence in this Court denying that Permafab was obliged to rectify the
damage to the works caused by the crane collapse. The defence set up that the work Permafab did to repair the damage was
done under a contract with Pidgeon and that the monies received by Permafab were not by way of loan, but payments of the price under the contract.
By a cross-claim, Permafab alleged against Pidgeon and Lindores that the crane collapse was caused by the negligence of Pidgeon or the negligence of Lindores. As Mr. Keim, counsel for Pidgeon, points out, the details of Permafab's allegations of negligence resemble those made by the parties in the Supreme Court proceedings, but I do not see that anything flows from this and, in particular, do not assume that the allegations of negligence are not made in good faith or not intended to be pursued.
It can be seen that each of the suits, as presently constituted, raises a question as to who is legally responsible for the collapse of the crane.
The notice of motion which I have to consider seeks orders that any cross-claim by either Permafab or Commercial Union against Lindores be stayed until the determination of all issues between Pidgeon, on the one hand, and Permafab and Commercial Union, on the other, and that any such cross-claim be tried separately. I find it difficult to see the point of this. As I have mentioned, the cross-claim which raises the question of the cause of the crane collapse alleges negligence
motion were acceded to, this Court would still have to against both Pidgeon and Lindores, so that if the notice of consider the question of responsibility for the crane collapse.
In a letter dated 29 May 1991, Pidgeon's solicitors said that it would have been more convenient if Permafab and Commercial Union had sued Lindores in the Supreme Court of Queensland. Again, I find it hard to see why that is so. It
would be more convenient if all these claims were in the one Court and I might have expected one of the parties to ask for an order having that effect - for example, an order that the proceedings in this Court be transferred to the Supreme Court.
I assume that the parties intend that the Supreme Court
proceedings will remain in abeyance; that appeared to be implicit in Mr. Keim's submissions. There is, as I think the explanation of the issues in the two Courts demonstrates, plainly a need to ensure that this Court and the Supreme Court do not each deal with aspects of the collection of disputes.
Mr. Keim contended that the claim for payment of money made by Pidgeon in this Court in reliance on the general law as well as the Trade Practices Act 1974 would involve a separate issue of no great complexity. But if this Court were to accede to Pidgeon's notice of motion, that would not be so, for there would still be left Permafab's claim against Pidgeon, saying that the crane collapse was Pidgeon's fault. Perhaps what was intended was to apply by notice of motion for such relief as would defer consideration, not only of the claim by Permafab against Lindores, but also the claim by Permafab against Pidgeon alleging that Pidgeon was responsible
for the collapse. However, I would not find that proposition attractive either.
There seems to be no convenient way of cutting this essentially triangular dispute up so as to try one of the
issues in advance of others. The motion will be dismissed
with costs.

I certify that this and the

five preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

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