Fitzgerald v the Boonah Gliding Club

[1995] QSC 76

IN THE SUPREME COURT
OF QUEENSLAND

No. 2039 of 1994

Brisbane

[Fitzgerald v. The Boonah Gliding Club & Ors]

BETWEEN

ROBYN LORRAINE FITZGERALD

Plaintiff

AND

THE BOONAH GLIDING CLUB

(A.C.N. 009 796 543)

First Defendant

AND

DENIS BEHAN AVIATION PTY LTD

(A.C.N. 010 681 366)

Second Defendant

AND

AUSTFLIGHT AVIATION PTY LTD

(A.C.N. 002 701 519)

Third Defendant

AND

PACIFIC AVIATION PTY LTD

(A.C.N. 002 407 963)

Fourth Defendant

AND

CIVIL AVIATION AUTHORITY

Fifth Defendant

AND

COMMONWEALTH OF AUSTRALIA

First Third Party

AND

AMERICAN CHAMPION AIRCRAFT CORP

Second Third Party

AND

BELLANCA INC

Third Third Party

JUDGMENT - SHEPHERDSON J.

Judgment delivered  8/5/1995

CATCHWORDS:           PRACTICE - Order 9 Rule 1 Supreme Court Practice - leave to renew writ of Summons - "for other good reason".

Counsel:R. Whiteford for the Appellant

D. Bates for the Respondent

Solicitors:Carter Capner for Applicant (Plaintiff)

McCullough Robertson for Respondent (4th Defendant)

Hearing date           21 April 1995

IN THE SUPREME COURT
OF QUEENSLAND

No. 2039 of 1994
Brisbane

[ R.L. Fitzgerald v. The Boonah Gliding Club & Ors]

BETWEEN

ROBYN LORRAINE FITZGERALD

Plaintiff
AND

THE BOONAH GLIDING CLUB

(A.C.N. 009 796 543)

First Defendant
AND

DENIS BEHAN AVIATION PTY LTD

(A.C.N. 010 681 366)

Second Defendant
AND

AUSTFLIGHT AVIATION PTY LTD

(A.C.N. 002 701 519)

Third Defendant
AND

PACIFIC AVIATION PTY LTD

(A.C.N. 002 407 963)

Fourth Defendant
AND

CIVIL AVIATION AUTHORITY

Fifth Defendant
AND

COMMONWEALTH OF AUSTRALIA

First Third Party
AND

AMERICAN CHAMPION AIRCRAFT CORP

Second Third Party
AND

BELLANCA INC

Third Third Party

JUDGMENT - SHEPHERDSON J.

Judgment Delivered   8 May 1995

The plaintiff has applied for leave to renew the writ of summons in this action to enable it to serve the abovenamed fourth defendant. This application which is brought under Order 9 Rule 1, is opposed.  The applicant does not attempt to satisfy me that reasonable efforts had been made to serve the fourth defendant but their Counsel argues that "for other good reason" (see Order 9 Rule 1) the leave should be granted.
          The writ claims damages against each defendant for negligence, breach of contract and breach of duty occasioning the death of the plaintiff's husband, Peter Clarence Fitzgerald.
          The writ was issued on 24 December 1993.  The plaintiff's husband was killed in a plane crash near Boonah on 29 December 1990.  The claim is brought under provisions of The Common Law Practice Act 1867 by the plaintiff for herself and her two children - Kathryn Lorelle born on 18 February 1981, and James Peter born on 16 April 1984.
          The material read before me shows that a "stale" writ was served on the fourth defendant on 25 December 1994.  On 26 May 1994 the fourth defendant had changed its name to Thorvan Pty Ltd.
          On 22 December 1994, the applicant's solicitors had caused to be sent by pre-paid express post to the fourth defendant (under its present name) to its Bankstown Office the writ and a statement of claim, together with a document in Form 1 prescribed by  The Service and Execution of Process Act 1992.
          The applicant's material shows the following:-

(a)A coronial  inquest into the death of the plaintiff's husband was held and among exhibits tendered at that inquest was the aircraft log book in respect of the aircraft which crashed - a Bellanca Scout;

(b)One of the exhibits before me consists of two photocopied pages from that log showing that on 29 January 1988, the fourth defendant did certain work to the Bellanca Scout.  This exhibit shows that J.E. Vine signed the maintenance log on behalf of the fourth defendant.  Work done by the fourth defendant included work to the port and starboard wings of the plane.  The fourth defendant's work was apparently required following a turnover accident on or about 27 August 1987. One of the allegations in the statement of claim is that the right wing of the plane collapsed resulting in the plane crashing.  The statement of claim further alleges that the collapse of the right wing resulted from a compression failure of the rear spar inboard of the lift strut attachment point.  The plaintiffs claim against the fourth defendant is for alleged negligence and breach of s.52 of The Trade Practices Act;

(c)The writ in this action was not served until the plaintiff's solicitors had investigated the "viability" of proceedings against either of the abovenamed second and third third parties said to be manufacturers of the aircraft which crashed.  The fifth defendant had issued the above third party notices, alleging each third party was manufacturer of the Bellanca Scout;

(d)Proceedings against those manufacturers were to be commenced in the United States of America and the plaintiff's legal advisers considered it more efficient to pursue such proceedings to a successful conclusion rather than to conduct litigation in this court at the same time;

(e)United States litigation had the attraction of legal representation on a contingent fee basis;

(f)Plaintiff's solicitors sought advice from certain United States lawyers and the plaintiff began proceedings in the United States of America against the alleged manufacturers;

(g)The plaintiff received certain advices from United States lawyers and by 30 September 1994 both actions were dismissed or discontinued;

(h)Plaintiff attempted to obtain further advice from a person said to be an eminent U.S. aviation lawyer of Colorado.  These attempts proved unsuccessful;

(i)On 5 December 1994, plaintiff's solicitor conferred with Brisbane counsel and sought certain advices;

(j)On 20 December 1994, plaintiff's solicitor, after apparently receiving advice from Brisbane counsel, received instructions from the plaintiff to proceed with this action No. 2039 of 1994 and to serve the defendants.

So far as concerns the plaintiff's claim against the fourth defendant, the plaintiff applicant relies in part on an affidavit of Ronald Leslie Rappensberg an aircraft engineer of Daisy Hill.  In his affidavit he deposes to his having been engaged by the fourth defendant as an aircraft maintenance engineer at it hangar at Archerfield Airport - this was in early 1988.  He recalls repairs being carried out by the fourth defendant to the particular Bellanca Scout following an accident.  He has sworn that the repairs were major and involved repairs to the wings.  He has further sworn that the repairs were carried out by a Joe Vine, "a licensed aircraft maintenance engineer, licensed for wood and fabric aircraft such as the Bellanca Scout".  This was the aircraft which, according to the plaintiff's statement of claim, subsequently crashed killing the plaintiff's husband.
          Mr Rappensberg has sworn that to his knowledge Mr Vine is retired and currently resides at Coopers Plains, Brisbane.  He has sworn to a recent conversation with an aviation loss adjuster named Doherty who informed him he was conducting  investigations relating to the repairs of the particular aircraft carried out by Pacific Aviation.  In the course of this conversation, Rappensberg referred Doherty to Vine.
          The applicant has no affidavit from Vine and Mr Bates, who appeared for the respondent fourth defendant, has submitted that absence of this evidence indicates failure by the applicant plaintiff to discharge the burden of proof lying on her of showing good reason for leave being granted.
          As already stated, the plaintiff has provided photocopies of two pages from the maintenance log for the aircraft showing details of work performed by Vine for and on behalf of the fourth defendant.  According to Vine's apparent endorsement on the entries into the log, he appears to have borne some qualifications for engine and air frame and electrics.  The photocopy of one of the maintenance log sheets contains a handwritten note "job No. CU600207 refers".
          Mr Bates relies on an affidavit of Geoffrey Leonard Hopkins of Mascot in New South Wales the National Engineering Manager of the fourth defendant.  He swears that until he received a copy of the writ of summons and statement of claim in January 1995, he was not aware of the claim being made by the plaintiff in relation to the repair in January 1988. He has further sworn that the fourth defendant was unaware of the plaintiff's claim against it until it received the statement of claim on 28 December 1994.  Mr Hopkins has also deposed to the fourth defendant's then practice of creating a work packet of all documents relevant to particular repair work which the fourth defendant carried out.  He has sworn that in January 1995 he requested an employee named John Munson to retrieve from storage the documents for the repair work on the particular aircraft.  Based on information from Munson, he has sworn that these documents were not found in storage and as at 18 April 1995 had not been found.  He swears the fourth defendant ceased carrying on the business of repairing and maintaining aircraft at Archerfield in June 1992, and that in the ordinary course of business and with the effluxion of time records of the fourth defendant's previous business carried on at Archerfield may have been destroyed or lost.
          The affidavit by Hopkins as to possible destruction of the records is not in my view sufficient to show prejudice for the fourth defendant.  The maintenance log book for the aircraft was tendered at the coronial inquest and certain extracts from it bearing the signatures of a former employee named Joe Vine have been relied on before me.  I invited Mr Bates to seek an adjournment in order to place before me evidence from Vine concerning his recollection of relevant matters - however, he declined that invitation.  As matters presently stand, there is the above evidence from Vine contained in the notes on the maintenance log coupled with evidence that Vine is still alive and resides at Coopers Plaints and that the fourth defendant's loss adjuster was referred to Vine.  I infer that Vine is available as a witness.  I do not believe that in discharging the burden of proof, the plaintiff, by her solicitors, is obliged to interview and obtain affidavits from every relevant witness who is or was an employee of the fourth defendant.  In saying that I recognise that Rappensberg is a former employee of the fourth defendant. The fourth defendant has not produced any evidence from Vine and I am not prepared to infer from the material before me that Vine has no recollection of the repair work and that the fourth defendant is thereby prejudiced.  Of course, there is no evidence before me that he has no recollection; conversely there is no evidence before me that he does have a recollection.  Mr Bates placed considerable reliance upon a passage in the judgment of Connolly J. in Dempsey v. Dorber (1990) 1 Qd.R 418 at p. 420 in which his Honour said:-

"... it is commonly recognised that a witness action, which depends upon the recollection of those who must swear to events and conversations, presents a situation in which the trial of the issues becomes increasingly difficult and unsatisfactory with the passing of time.  This will be so, even if it is not possible to point to the unavailability, for what ever reason, of a particular witness or the loss of relevant records."

In the case now before me, while I accept the force of what has been said in the above quoted extract, what I am concerned with are the facts in the present case as they appear from the material before me.
          It is true that in the present case it seems that liability will be in issue.  Furthermore, on the evidence before me, I am not prepared to find that the relevant records of the fourth defendant have been lost.  No affidavit from Munson has been forthcoming.  I have no evidence of the extent of his search nor of what Archerfield records the fourth defendant still retains.  Mr Bates submitted that the plaintiff has disclosed no evidence as to whether or not the condition of the spar caused the crash and as to whether or not the spar is still in existence.  As to the first matter I do not see this as relevant to the present application - it goes to proof of the plaintiff's claim.  As to the second, I see this as marginally relevant and I say that bearing in mind that there has been a coronial inquiry in the crash.
          Mr Bates, in the course of his submission argued that the fourth defendant had been prejudiced as a result of what he called a deliberate act by the plaintiff to keep the fourth defendant "in the dark".  I understood him to mean by this that because the fourth defendant first became aware of the action in late December 1994, its opportunities of investigating the plaintiff's claim were hampered and the fourth defendant was thereby prejudiced.  Of course, the fourth defendant really could not investigate any such claim until it knew of the claim and the nature of the case being made against it.  The claim and its nature were not known until the statement of claim was served, along with the stale writ. I view this complaint as going to the aspect of delay by the plaintiff and her solicitor and also to the question of inferring prejudice by reason of delay.
          That there has been delay by the plaintiff in having the writ served is beyond dispute.  Mr Whiteford for the plaintiff applicant does not suggest to the contrary.  The reasons for the delay appear in the material relied on including the above extracted material and basically have been due to the commencement in the United States of America of other proceedings and their subsequent discontinuance or dismissal.  The delay has been satisfactorily explained, but the principal question is whether the plaintiff applicant has shown other good reason for my giving leave to renew the writ of summons. As to the satisfactory explanation for delay, this is not a condition precedent to granting the leave now sought although it is a relevant consideration. (Traj v. The Cannery Board (1990) 1 Qd.R 494 at 496).
          The attempt at service on the fourth defendant was made before the writ became stale but, in the particular circumstances of this case, by the operation of s.11(11) of The Service and Execution of Process Act 1992 service is deemed to have been effected on 25 December 1994, by which time the writ was stale.
          It is true that a limitation period against the plaintiff has expired and although that is a relevant factor it is not in itself grounds to deprive the court of its discretion to renew (see Jones v. Jebras & Hill (1968) Qd.R. 13 and Adams v. Shiavon (1985) 1 Qd.R 1).
          The limitation period has not expired so far as concerns the claims of the two infant children.  The writ served on the fourth defendant was stale for 1 or 2 days.  The plaintiff will suffer considerable hardship if unable to pursue her claim. Her children can pursue theirs.
          I have mentioned the matters of prejudice relied upon by Mr Bates. He has not pointed to any specific prejudice - only a possibility.  I am not prepared to infer prejudice to the fourth defendant by reason of its first learning of the claim and the nature of it on 28 December 1994.  I have considered the delay and other relevant factors.  I have considered all the circumstances of the case as they appear from the material before me.  I have concluded that in the present case I should exercise my discretion by giving leave to renew the writ of summons for service on the fourth defendant.  I order that the writ of Summons be renewed for 12 months from today.  I would add, although the matter was not seriously debated, that in my view, because the fourth defendant has its registered office outside Queensland, then if actual service on the company is required, a concurrent writ to which should be attached the notices required by The Services and Execution of Process Act 1992 should be served on the fourth defendant.
          I shall hear from the parties on the question of costs.
          For the record I should add that an application to set aside a conditional appearance by the fourth defendant was not pursued by Mr Whiteford.