Geary v REJV Services P/L - [2009] QSC 289

SUPREME COURT OF QUEENSLAND

CITATION:

Geary v REJV Services P/L & Ors [2009] QSC 289

PARTIES:

JAMES LEONARD GEARY
(plaintiff)
v
REJV SERVICES P/L
ACN 081 482 457
(first defendant/respondent)
ZINIFEX CENTURY LIMITED
ACN 006 670 300
(second defendant/not a party to the application)
BRADKEN RESOURCES P/L
ACN 098 300 988
(third defendant/respondent)
UNITED GROUP LIMITED
ACN 009 180 287
(fourth defendant/respondent)
DOWNER EDI MINING P/L
ACN 004 142 223
(first third party/applicant)
CAPENA SURFACE MING P/L
ACN 062 450 113
(second third party/not a party to this application)

FILE NO/S:

SC No 212 of 2008

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Townsville

DELIVERED ON:

11 September 2009

DELIVERED AT:

Townsville

HEARING DATE:

7 September 2009

JUDGE:

Cullinane J

ORDER:

1. Judgment for the third party Downer EDI Mining P/L against the respondents REJV Services P/L, Bradken Resources P/Land United Group Limited in the third party proceedings instituted by them against the third party with costs to be assessed.

2. Actions SC No 212 of 2008 and SC No 550 of 2008 are to be heard together.

3. Otherwise the application is adjourned to a date to be fixed.

CATCHWORDS:

CIVIL LAW – APPLICATION – Where first defendant seeks judgement against the first, third and fourth defendants pursuant to r 293 of the Uniform Civil Procedure Rules 1999 – whether statement of claim of defendants discloses cause of action – where plaintiff seeks an order that the trials of action 550/08 and 212/08 be heard together – whether third parties owed a duty to the plaintiff

Uniform Civil Procedure Rules 1999 (Qld), r 293

Leighton Contractors Pty Ltd v Fox & Ors [2009] HCA 35 relied upon
Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161, considered
Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 317 CLR 424, relied upon
Hoad v Peel Valley Exports Pty Ltd [2008] NSW SC 981, considered
Hazeldeane’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [2005] VSCA 185, considered
Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] QCA 135, applied

COUNSEL:

A Moon for the plaintiff
R Morton for the first third party/applicant
R Ashton for the first, third and fourth defendants

SOLICITORS:

Connolly Suthers Lawyers for the plaintiff
Corrs Chambers Westgarth Lawyers for the first third party/applicant
MacDonnells Law acting as Town Agent for Dibbsbarker for the first, third and fourth defendants

CULLINANE J: The third party applicant (Downer EDI Mining Pty Ltd) has applied for judgment pursuant to rule 293 of the Uniform Civil Procedure Rules against the first, third and fourth defendants who have joined it as a third party. Alternatively an order is sought that the third party statement of claim be struck out as not disclosing any reasonable cause of action or as being frivolous and vexatious.

The plaintiff seeks certain directions in the proceedings but it is common ground that these should be adjourned apart from an application for an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Geary v REJV Services P/L

Details

AGLC: Geary v REJV Services P/L [2009] QSC 289
Case: [2009] QSC 289
Decision Date: 11 September 2009

CaseChat Overview and Summary

The case of Geary v REJV Services P/L involved a dispute where the first defendant sought judgement against the first, third, and fourth defendants under rule 293 of the Uniform Civil Procedure Rules 1999. The plaintiff sought an order that two actions, SC No 212 of 2008 and SC No 550 of 2008, be heard together. Additionally, the plaintiff argued that certain third parties owed a duty to him.

The court was tasked with determining whether the statement of claim of the defendants disclosed a cause of action. It also had to decide whether the trials of the two actions should be heard together and whether the third parties in question owed a duty to the plaintiff. The third party, Downer EDI Mining P/L, also sought judgement against the respondents REJV Services P/L, Bradken Resources P/L, and United Group Limited, with an application for costs.

The court found that the statement of claim did not disclose a cause of action, and thus, judgement was given in favour of Downer EDI Mining P/L against the respondents. It was also decided that the trials of actions SC No 212 of 2008 and SC No 550 of 2008 should indeed be heard together. However, the court did not find that the third parties owed a duty to the plaintiff. The application was adjourned to a later date to be determined.

Orders

Orders of the court

1. Judgment for the third party Downer EDI Mining P/L against the respondents REJV Services P/L, Bradken Resources P/Land United Group Limited in the third party proceedings instituted by them against the third party with costs to be assessed.

2. Actions SC No 212 of 2008 and SC No 550 of 2008 are to be heard together.

3. Otherwise the application is adjourned to a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Geary v REJV Services P/L & Ors [2009] QSC 289
PARTIES:	JAMES LEONARD GEARY (plaintiff) v REJV SERVICES P/L ACN 081 482 457 (first defendant/respondent) ZINIFEX CENTURY LIMITED ACN 006 670 300 (second defendant/not a party to the application) BRADKEN RESOURCES P/L ACN 098 300 988 (third defendant/respondent) UNITED GROUP LIMITED ACN 009 180 287 (fourth defendant/respondent) DOWNER EDI MINING P/L ACN 004 142 223 (first third party/applicant) CAPENA SURFACE MING P/L ACN 062 450 113 (second third party/not a party to this application)
FILE NO/S:	SC No 212 of 2008
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Townsville
DELIVERED ON:	11 September 2009
DELIVERED AT:	Townsville
HEARING DATE:	7 September 2009
JUDGE:	Cullinane J
ORDER:	1. Judgment for the third party Downer EDI Mining P/L against the respondents REJV Services P/L, Bradken Resources P/Land United Group Limited in the third party proceedings instituted by them against the third party with costs to be assessed. 2. Actions SC No 212 of 2008 and SC No 550 of 2008 are to be heard together. 3. Otherwise the application is adjourned to a date to be fixed.
CATCHWORDS:	CIVIL LAW – APPLICATION – Where first defendant seeks judgement against the first, third and fourth defendants pursuant to r 293 of the Uniform Civil Procedure Rules 1999 – whether statement of claim of defendants discloses cause of action – where plaintiff seeks an order that the trials of action 550/08 and 212/08 be heard together – whether third parties owed a duty to the plaintiff Uniform Civil Procedure Rules 1999 (Qld), r 293 Leighton Contractors Pty Ltd v Fox & Ors [2009] HCA 35 relied upon Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19; 226 CLR 161, considered Andar Transport Pty Ltd v Brambles Ltd [2004] HCA 28; 317 CLR 424, relied upon Hoad v Peel Valley Exports Pty Ltd [2008] NSW SC 981, considered Hazeldeane’s Chicken Farm Pty Ltd v Victorian WorkCover Authority [2005] VSCA 185, considered Bolton Properties Pty Ltd v J K Investments (Australia) Pty Ltd [2009] QCA 135, applied
COUNSEL:	A Moon for the plaintiff R Morton for the first third party/applicant R Ashton for the first, third and fourth defendants
SOLICITORS:	Connolly Suthers Lawyers for the plaintiff Corrs Chambers Westgarth Lawyers for the first third party/applicant MacDonnells Law acting as Town Agent for Dibbsbarker for the first, third and fourth defendants