Fafoutellis v The Blockage Bloke Pty Ltd
[2017] VSC 480
•18 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 02687
| NICKOLAOS FAFOUTELLIS | Plaintiff | |
| v | ||
| THE BLOCKAGE BLOKE PTY LTD & LEND LEASE SERVICES PTY LTD | Defendants | |
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JUDGE: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 August 2017 |
DATE OF JUDGMENT: | 18 August 2017 |
CASE MAY BE CITED AS: | Fafoutellis v The Blockage Bloke Pty Ltd & Ors |
MEDIUM NEUTRAL CITATION: | [2017] VSC 480 |
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PRACTICE AND PROCEDURE – Application to join a third party – delay – Aon Risk Services v Australian National University (2009) 239 CLR 175 referred to – whether granting the application consistent with overarching obligations in Civil Procedure Act 2010 (Vic) s 7 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r11.01 and 11.05.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Griffin | Ellis Palmos & Co |
| For the First Defendant For the Second Defendant | Ms B Meyers - | Wisewould Mahony Wotton & Kearney |
JUDICIAL REGISTRAR CLAYTON:
The First Defendant’s application to join a third party is not granted.
The First Defendant is to pay the Plaintiff’s costs of the application.
Introduction
This is an application brought by the First Defendant, The Blockage Bloke Pty Ltd (“the Blockage Bloke”) pursuant to r11.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“the Rules”) to join Yarra Valley Water (“YVW”) as a third party to the proceedings (“the application”). This proceeding is fixed for trial on 2 October 2017.
The application is supported by an Affidavit of Suzanne Margaret Squire sworn 24 July 2017 (“the Squire Affidavit”).
The Plaintiff, Mr Fafoutellis, opposes the application on the basis that the Blockage Bloke had sufficient time to join YVW to the proceedings, and to join them now will cause the trial date to be vacated.
The Second Defendant, Lend Lease Services Pty Ltd (“Lend Lease”), neither consents to, nor opposes, the application.
At the hearing on 4 August 2017, Counsel for Mr Fafoutellis handed up a voluminous Affidavit sworn by Kathy Karadimas on 4 August 2017 (“the Karadimas Affidavit”). Counsel for the Blockage Bloke submitted that her client was not aware of Mr Fafoutellis’ intention to file this Affidavit, she had had no opportunity to consider or respond to its contents and that no weight should be attached to it.
I reserved my decision and directed that the Blockage Bloke have an opportunity to consider the Karadimas Affidavit and file any submissions or further affidavits by 11 August 2017. Neither party filed any further submissions or affidavits.
Background
Lend Lease was engaged by YVW for maintenance of pipes, drains and manholes. Lend Lease and the Blockage Bloke entered into a contract for the maintenance of the water infrastructure owned by YVW.
Mr Fafoutellis was employed by the Blockage Bloke as a jet truck operator, and received directions directly from Lend Lease on where, when and what work he was to carry out.
In his Further Amended Statement of Claim[1] Mr Fafoutellis alleges that he suffered injuries as a result of, amongst other things, moving and replacing heavy concrete manhole covers and pulling water hoses.
[1] Filed on 24 February 2017.
Both defendants deny liability for Mr Fafoutellis’ injuries and claim contributory negligence. The defendants also have contribution proceedings on foot.
The Blockage Bloke’s Arguments
The Blockage Bloke argues that YVW should be joined to the proceeding on the basis that it was the owner of, or responsible for, the maintenance of the water infrastructure in which Mr Fafoutellis was required to work. The Blockage Block alleges that YVW owed Mr Fafoutellis a duty to take reasonable care and breached that duty, causing his injuries. It seeks indemnity or contribution in respect of any amount it is required to pay Mr Fafoutellis.
The Blockage Bloke says that on 15 February 2017 it received Lend Lease’s Affidavit of Documents which included the Maintenance Service Agreement between YVW and Lend Lease (“Maintenance Agreement”). It received a copy of the Maintenance Agreement on 28 March 2017 and it was only after that time that it was aware of the specific terms of the agreement between Lend Lease and YVW.
The Squire Affidavit sets out that YVW attended a Statutory Conference in this matter in May 2016 and has been aware of the claim since that time.
Nevertheless, counsel for the Blockage Bloke conceded that if this application was granted, it was likely that YVW would seek to vacate the trial date.
Mr Fafoutellis’ Arguments
Mr Fafoutellis argues that the Blockage Bloke should be denied leave to join a third party as it has taken no steps to do so earlier, despite holding the view that YVW might be liable, and that granting such leave at this late stage would inevitably result in the vacation of the trial date.
Whether YVW should be a party to this proceeding has been an issue between Mr Fafoutellis and the Blockage Bloke since at least 2 February 2016, which pre-dates these proceedings being issued.
The Blockage Bloke provided to Mr Fafoutellis a Circumstance Investigation Report dated 24 December 2013 (“Investigation Report”) and indicated by telephone conversation on 2 February 2016 that, in its view, both Lend Lease and YVW ought to be in the proceeding.[2]
[2] Exhibit KK1 and KK2 of the Karadimas Affidavit.
On 3 February 2016, Ms Squire, solicitor for the Blockage Bloke, advised Mr Fafoutellis that if he did not join those parties to the proceeding, she would seek instructions to bring them in by way of a Third Party Notice.[3]
[3] Ibid Exhibit KK2.
On 12 February 2016 Mr Fafoutellis’ solicitor contacted Ms Squire and advised that she had instructions to join Lend Lease to the proceeding.[4]
[4] Ibid Exhibit KK4.
On 4 May 2016 a Section 134AB(12)[5] Statutory Conference was held between the parties. Legal representatives of YVW also attended.
[5]Accident Compensation Act 1985 (Vic).
By letter dated 31 May 2016, the solicitor for YVW set out the reasons why her client should not be joined as a party in this proceeding.[6] YVW made an offer to Mr Fafoutellis ‘to bear its own costs on the proviso that no claim is pursued against it’.[7] Mr Fafoutellis accepted this offer and executed a Deed of Release on 28 June 2016.[8]
[6] Exhibit KK7 of the Karadimas Affidavit.
[7] Ibid.
[8] Ibid Exhibit KK10.
Decision
From at least 28 June 2016, and probably earlier, the Blockage Bloke was aware that Mr Fafoutellis would not be pursuing YVW. The Blockage Bloke would have known at that time that any claim against YVW would have to be made by way of a Third Party Notice.
The Blockage Bloke appeared to be hoping that Lend Lease would join YVW as a third party, but when this had not happened by July, the Blockage Bloke brought this application.
The Blockage Bloke submitted that it was not until 28 March 2017, when it obtained the Maintenance Agreement, that it could properly plead and particularise its claim against YVW.
I do not accept that. The Blockage Bloke had formed a view about the prospects of a claim against YVW in February 2016. It had the Investigation Report which appears to be the basis upon which it formed that view. A Third Party Notice could have been filed within the time allowed under r11.05 of the Rules. No satisfactory explanation has been provided as to why a Third Party Notice was not issued at that time.
Whilst it was submitted that the Maintenance Agreement was essential to properly particularising the Blockage Bloke’s claim against YVW, it was not put that the claim could not be made in its absence. Had the Blockage Bloke considered that obtaining the Maintenance Agreement was an essential part of determining the viability of its claim against YVW, it could have made an application for earlier discovery of that document. It did not do so. In fact it appears clear that the Blockage Bloke had already formed a view about the liability of YVW and that view did not change upon receipt of the Maintenance Agreement.
Having obtained that document in March 2017 it waited until 25 July 2017 to file a Summons to make this application. No satisfactory explanation for the delay between March and July was offered.
In exercising its discretion, the Court must balance the competing interests of Mr Fafoutellis to have his claim proceed as soon as possible, and the Blockage Bloke’s entitlement to seek indemnity or contribution from YVW. This balancing exercise must always consider the requirement to provide a just, efficient, timely and cost effective resolution to the real issues in dispute.[9]
[9]Civil Procedure Act 2010 (Vic) s 7.
If the application was granted it is inevitable that YVW would seek to vacate the trial date of 2 October 2017.
An application that results in a vacation of a trial date might more readily be granted in circumstances where the trial date can be adjourned for just a short period.[10] In this case, it is difficult to see that the vacation could be for a period less than 6 months and would likely be longer. Indeed Counsel for the Blockage Bloke conceded as much when she argued that, even if this application had been brought in March when her client obtained the Maintenance Agreement, it is likely that YVW would still have applied to vacate the trial date.
[10]Pierides v Monash Health [2017] VSC 426.
An application made by YVW in March to vacate a trial date in October would have been easier to resist. Even if granted, the adjournment could have been for a short period. An application in late August to vacate a trial date in early October would be hard to resist. The trial would be likely to go off for at least six months and probably longer.
Any vacation of a trial date has the potential to cause a degree of irreparable prejudice[11] that cannot be remedied by costs. There is an element of stress and anxiety that hangs over all parties to litigation until the litigation is finalised. The longer the adjournment of the trial, the greater the potential prejudice. According to his Further Amended Statement of Claim, Mr Fafoutellis has been unable to work since May 2014. He is entitled to have his matter heard by a Court as soon as possible.
[11]AON Risk Services v Australian National University (2009) 239 CLR 175.
Not granting the application does not prevent the Blockage Bloke pursuing its claim against YVW by issuing proceedings against it. Whilst it would be more efficient for the Blockage Bloke to pursue YVW in a third party claim, some of those inefficiencies can be mitigated by orders ensuring that, for example, discovery in one proceeding can be used in the other, and that evidence in the primary proceeding can be relied upon in the related proceeding. Such orders are commonplace in recovery proceedings brought by statutory authorities and can be sought by the parties and considered at the relevant time.
On balance, even though it might be more cost effective for the Blockage Bloke, I am not satisfied that granting the application would be in the interests of the just, efficient and timely resolution of this case.
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