Harries v Perpetual Nominees Limited and Ors
[2014] QDC 53
•Ex tempore 18 March 2014
DISTRICT COURT OF QUEENSLAND
CITATION: | Harries v Perpetual Nominees Limited & Ors [2014] QDC 53 |
PARTIES: | TROY HARRIES (Applicant/Plaintiff) v PERPETUAL NOMINEES LIMITED ACN 000 733 700 (First Respondent/Defendant) AND CLEAN DOMAIN PROPRIETARY LIMITED ACN 112 283 977 (Second Respondent/Defendant) AND SPOTLESS GROUP LIMITED ACN 004 376 514 (Third Respondent/Defendant) AND RAY YI PTY LTD (trading as Jox & Sox) ACN 116 498 107 (Fourth Respondent/Defendant) |
FILE NO/S: | 2045/2013 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court in Brisbane |
DELIVERED ON: | Ex tempore 18 March 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 March 2014 |
JUDGE: | Samios DCJ |
ORDER: | 1. The Applicant’s period of limitation to commence proceedings against the Fourth Respondent be extended so that it expires on 10 December 2014 2. The Fourth Respondent be included as a party to the proceeding 3. The First Respondent pay the Applicant’s costs of the Applications to be agreed or assessed on the indemnity basis |
CATCHWORDS: | PRACTICE - JOINDER OF PARTIES - where the Fourth Respondent/Defendant traded as a shop in a shopping centre - where the Applicant/Plaintiff slipped on spilt milk outside the shop of the Fourth Respondent/Defendant and allegedly injured himself - whether the Fourth Respondent/Defendant should be joined to the proceedings for exposing the Applicant/Plaintiff to a foreseeable risk LIMITATION OF ACTIONS - PERSONAL INJURIES - EXTENSION OF TIME - MATERIAL FACTS OF A DECISIVE CHARACTER - where the Applicant/Plaintiff did not serve a notice of claim under part 1 of the Personal Injuries Proceedings Act 2002 (Qld) on the Fourth Respondent/Defendant within the limitation period - whether the material facts of a decisive character were within the means of knowledge of the Applicant/Plaintiff before or after the expiration of the limitation period Legislation Limitation of Actions Act 1974 (Qld) Personal Injuries Proceedings Act 2002 (Qld) section 44, section 59 Uniform Civil Procedure Rules 1999 (Qld) rule 69(2)(f)(i) |
COUNSEL: | Mr K Roche for the Applicant/Plaintiff No appearances on behalf of the Respondents/Defendants |
SOLICITORS: | Nathan Lawyers for the Applicant/Plaintiff No appearance on behalf of the Respondents/Defendants |
HIS HONOUR: There are two applications before me today. One seeks to join the Fourth Respondent, Ray Yi Pty Ltd, trading as Jocks and Socks, as a Defendant to proceedings that have already been commenced against three other parties. The other application seeks an order that the limitation period to commence proceedings against Ray Yi Pty Ltd trading as Jocks and Socks be extended, so that the Applicant can bring proceedings against Ray Yi Pty Ltd trading as Jocks and Socks, notwithstanding the three-year time limitation period has expired. The background to these applications is that on the 9th of June 2010 the Applicant was injured when he slipped on some spilt milk while walking past the Jocks and Socks store at Grand Plaza Shopping Centre at Browns Plains in the state of Queensland. He alleges he suffered a lower back injury.
In due course, pre-court proceedings were commenced against the First, Second and Third Respondents, pursuant to the Personal Injuries Proceedings Act 2002 (the Act).[1] The First Respondent is the owner of the shopping centre, and, by inference, the Second Respondent and the Third Respondent were cleaners of the premises. Due to the impending expiration of the three-year limitation period, the parties agreed to commence urgent proceedings, pursuant to section 44 of the Act.[2] On 7 June 2013, proceedings were commenced, such proceedings being stayed until pre-court proceedings were completed.
[1] Personal Injuries Proceedings Act 2002 (Qld).
[2] Ibid.
On 10 December 2013, after the expiration of the three-year time limitation and after a specific disclosure request to the First Respondent from the Applicant’s solicitors, Nathan Lawyers, CCTV footage of the incident and a copy of a lease between the First Respondent and the Fourth Respondent were made available. Perusal of the CCTV footage released revealed that Jocks and Socks, the Fourth Respondent, may well have breached its duty of care to the Applicant by exposing him to a foreseeable risk of injury, and in breach of its contractual obligations under the lease. That is the contention of the Applicant, I should say. What the Applicant contends is that ongoing investigations eventually led him to become aware, by way of disclosed CCTV footage after the time limitation had expired, that a worker of the Fourth Respondent attended to the spill, walking away, leaving the shop and the spill unattended, with no warning to customers of the centre, such as the Applicant, of the presence of milk on the floor.
I am satisfied on the material in support of the application for the extension of the limitation period that a material fact of a decisive character was not within the means of knowledge of the Applicant until or after 10 June 2013. Further, that Jocks and Socks may well have breached its duty of care to him by exposing him to a foreseeable risk of injury and, in breach of its contractual obligations under the lease, was not known to the Applicant until the relevant documentation was disclosed on 10 December 2013, after expiration of the three-year time limitation. Clearly, the Applicant was not aware of these material facts of a decisive character when he commenced the proceedings. The consequence was that at the time the limitation period had expired, he had not served a part 1 notice of claim on the Fourth Respondent. Therefore, section 59 of the Act[3] was not available to him as an avenue of extending the time limitation.
[3] Ibid.
I’m satisfied that all requirements that rest upon the Applicant for an extension of time under the Limitation of Actions Act[4] have been satisfied in this case. That is, material facts of a decisive character relating to his right of action was not within his means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. Also, there is evidence to establish the right of action apart from a defence founded on the expiration of the period of limitation. Therefore, I consider I can extend the limitation period.
[4] Limitation of Actions Act 1974 (Qld).
In addition, a rule 69 is relied upon – that is, rule 69 of the Uniform Civil Procedure Rules.[5] In particular, subrule (2) subparagraph (f) roman numerals (i). That is, a party can be joined for any reason where a claim made or ground of defence raised in the proceedings before the end of the limitation period cannot be maintained. I should say, in addition, the Applicant was not aware of the possible contractual and indemnity issues between the First Respondent and the Fourth Respondent until the lease was disclosed, which, again, was not until the 10th of December 2013. For that reason, as well, I am satisfied the Applicant can extend – that there should be an extension of the limitation period for the Applicant and that the Fourth Respondent should be joined as a party to the proceedings.
[5] Uniform Civil Procedure Rules 1999 (Qld).
In the exercise of my discretion, I extend the limitation period and I also order that the Fourth Respondent be joined as a party to the proceedings. In particular, I do so because if the orders are not made, the Applicant may be unable to successfully maintain a negligence claim against the First Defendant, who may claim indemnity from the Fourth Defendant, pursuant to the lease. Therefore, there will be orders extending the limitation period and for the joinder of the Fourth Respondent as a party to the proceedings.
The issue of costs arises. As I understand this issue, costs are sought against the First Respondent of the applications, to be agreed or assessed on the indemnity basis. There is a general discretion with respect to costs. However, in addition here, it is apparent the First Defendant failed to disclose the relevant information enabling the Applicant to become aware of the involvement of the Fourth Respondent in the incident. In addition, in response to the notice of claim part 1, on 6 February 2013, the First Respondent did not advise that the Fourth Respondent should be joined as a Respondent. In addition, the First Respondent was, at all times since the incident occurred on 10 June 2010, in possession and control of the CCTV footage and the lease agreement.
At no time until after the expiration of the limitation period did the First Respondent disclose the footage or the lease. I am satisfied if the CCTV footage and the lease had been disclosed after 6 September 2012, when the First Respondent received the Applicant’s notice of claim part 1, but before the 10th of June 2014, the Applicant could have proceeded against the Fourth Respondent in the same manner as against the other Respondents, with no need for an application to extend the time limitation. Therefore, I do order that the First Respondent pay the Applicant’s costs of the applications, to be agreed or assessed on the indemnity basis.
HIS HONOUR: There will be an order, then, as per the draft, initialled by me and left with the papers.
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