Grant v Matthew Love Solicitors Pty Ltd
[2014] QDC 209
•11 September 2014 Ex tempore
DISTRICT COURT OF QUEENSLAND
CITATION: | Grant v Matthew Love Solicitors Pty Ltd & Ors [2014] QDC 209 |
PARTIES: | ELISABETH ANNE GRANT (plaintiff) v MATTHEW LOVE SOLICITORS PTY LTD (ABN 83 133 528 622) (first defendant) AND BODY CORPORATE FOR MACRO COMMUNITY TITLES SCHEME 4287 (second defendant) AND R & K EDWARDS PTY LIMITED TRADING AS MINC SERVICES (BRISBANE SOUTH EAST) (ABN 20 025 963 363) (first third party) AND ANTI-SLIP FLOOR SAFETY PTY LIMITED (ABN 99 118 481 324) (second third party) |
FILE NO/S: | 2083/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Queensland |
DELIVERED ON: | 11 September 2014 Ex tempore |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11 September 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. The second defendant file and serve its reply to the second third party’s defence by 18 September 2014. 2. The second defendant file and serve by 18 September 2014 any application for the substitution of the named first third party by TRE Holdings Pty Limited (ABN 49 088 373 880) to be returnable to the Court no later than 25 September 2014. 3. Subject to 2, if TRE Holdings Pty Limited is substituted for the present first third party the substituted first third party (hereafter the first third party) file and serve its defence within 7 days of being joined. (b) Second defendant file and serve its reply to the first third party’s defence within 7 days of being joined. (c) The first third party complete any disclosure and inspection of documents no later than 7 days after filing and serving its reply. 4. The first and second defendant and first and/or second third party attend to service of any expert liability evidence by 16 October 2014. 5. The request for trial date is dispensed with with the intention that the proceedings be placed on the callover for civil matters forthwith. 6. The costs of today be each parties’ costs in the cause. 7. Liberty to apply. |
CATCHWORDS: | PRACTICE - JOINDER OF PARTIES - where the second defendant seeks to substitute the first third party - whether the substitution of the current first third party with a new first third party should be allowed |
COUNSEL: | Mr M Grant-Taylor QC for the plaintiff The first defendant was not represented by Counsel Mr M O’Sullivan for the second defendant The first third party was not represented by Counsel The second third party was not represented by Counsel |
SOLICITORS: | Turner Freeman for the plaintiff Mullins Lawyers for the first defendant Gadens Lawyers for the second defendant The first third party was not represented by Solicitors HBM Lawyers for the second third party |
HIS HONOUR: This is a review of proceedings commenced by the plaintiff for damages for personal injuries she suffered on the 10th of January 2011. There have been pre-litigation procedures engaged in by the parties. I accept that, what I will call the dilemma for the plaintiff, has been caused by the insurer for the second defendant. That dilemma is, having gone through all the pre-litigation procedures, that it is reasonable to expect her to undergo, she now finds the submission made on behalf of the second defendant, that the second defendant, having joined R.K. Edwards Proprietary Limited, as a first third party, would now seek to substitute that first third party with another third party, T.R.E Holdings Proprietary Limited, who has no participation in the proceedings to date.
The consequence is, in my opinion, that the plaintiff will be delayed in the prosecution of her action if the steps proposed by the second defendant in a draft that has been handed up to me, followed. I do not accept that this review should be delayed to allow the second defendant to file more material about the issues.
I’m satisfied there could be very little argument about what has happened to date. In my opinion, all the second defendant could say is it now wants to join this further third – this other third party, in substitution for the first third party. I am satisfied that Mr Grant-Taylor’s submissions are correct, to allow the procedures proposed by the second defendant to be adopted would be to reward tardiness and inactivity. And I would include the invitation to the insurer of the second defendant to have the plaintiff medically examined. That request was refused for their own forensic reasons.
I do not accept they were correct in adopting that stance. Therefore, I think, on the evidence before me, the parties other than the plaintiff have disqualified themselves from any further medico-legal examinations of the plaintiff. However, I am prepared to accept that the correct third party should be in the proceedings.
I do not accept the submission made by Mr Grant-Taylor that those proceedings be separated so that the plaintiff can get on with her proceedings and then leave the second defendant to pursue the proposed substituted third party at a later date.
I’ll hear submissions about whether I should expressly order that any mediation in this matter be dispensed with. There have been all the pre-litigation procedures engaged in and available to the parties to be engaged in. I don’t think now, from what I read, the plaintiff should be put in the position of being forced to a mediation. It was suggested, in submissions made to me on this review, that there would be a desirable effect in having mediation. I doubt that. In fact, I don’t doubt it, I am 100 per cent sure that it would not help.
Therefore, I will not order as per Mr Grant-Taylor’s draft, but these are the orders I’m prepared to make. And I consider they are applicant in the circumstances. I am refusing to make any order that would compel the plaintiff to undergo any further medical examinations. I will, however, make an order that the second defendant file an application to substitute the present first third party with the proposed third party – first third party.
Anyway, these are the orders. I end with the express intention and order that the request for trial date be dispensed with, with the intention that the proceedings be placed on the callover for civil matters forthwith. Number 1 order will be the second defendant file and serve its reply to the second third party’s defence by 18 September 2014; (2) the second defendant file and serve, by 18 September 2014, any application for the substitution of the named first third party by T.R.E. Holdings Proprietary Limited ABN 4908837880, to be returnable to the court no later than 25 September 2014; (3) subject to (2), if T.R.E. Holdings Proprietary Limited is substituted for the present first third party, the substituted first third party, hereafter the first third party, file and serve its defence within seven days of being joined; (b) the second defendant file and serve its reply to the first third party’s defence within seven days of being joined; (c) the first third party complete any disclosure and inspection of documents no later than seven days after being filed – after filing and serving its reply. Paragraph (4), the first and second defendant and first and/or second third party attend to service of any expert liability evidence by 16 October 2014; (5) the request for trial date is dispensed with with the intention the proceedings be placed on the callover for civil matters forthwith; (6) the costs of today be each parties’ costs in the cause. And subject to any further submissions - and I don’t want to prolong the review today, however, there will an order as per the draft then, initialled by me and left with the papers. But I will hear any submissions about refining what it is my intention to do. Mr Grant-Taylor.
MR GRANT-TAYLOR: I have nothing to say, your Honour.
HIS HONOUR: Yes. Thank you. Mr O’Sullivan?
MR O’SULLIVAN: Your Honour, could you add to the list, the parties be at liberty to apply on seven days notice.
HIS HONOUR: Yes.
MR O’SULLIVAN: I put that to your Honour, because it will involve the new first third party that might have some issues about some of the orders made in its absence, that’s all.
HIS HONOUR: Yes. Well, then he can meet whoever they come up against and ask for any variations. But it just seems to me, if one reads the evidence in this case, this matter has an entitlement to move expeditiously. I’ll add liberty to apply. Anything further, Mr McIntyre, is it, or Mr Lewis, sorry?
MR LEWIS: No, your Honour. Thank you.
HIS HONOUR: Yes. Mr McIntyre?
MR McINTYRE: No, your Honour.
HIS HONOUR: Yes. All right. As I said, there will be an order as per the draft, initialled by me and left with the papers.
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