Harris v Harvey (Ruling No 2)
[2012] VCC 1549
•24 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised Not Restricted Suitable for Publication |
GENERAL DIVISION
Case No. CI-11-00246
CI-11-00248
| CAMERON HARRIS | |
| and | |
| MONICA HARRIS | Plaintiffs |
| v | |
| MARK HARVEY | Defendant |
| and | |
| BRAD TEAL REAL ESTATE PTY LTD (ABN 49 007 018 171) | First Third-Party |
| MAROONDAH CITY COUNCIL | Second Third-Party |
| ARTHUR SMITH | Third Third-Party |
| SNAP CONSTRUCTIONS PTY LTD (ACN 065 811 841 - deregistered) | Fourth Third-Party |
| DENNIS CAMPANO | Fifth Third-Party |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2012 | |
DATE OF RULING: | 24 August 2012 | |
CASE MAY BE CITED AS: | Harris v Harvey & Ors (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1549 | |
RULING
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SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: Application by the plaintiffs to join a second defendant – cause of action against the second defendant statute barred – rule of practice that joinder in those circumstances should be refused – anticipated application by the proposed second defendant to make an application for summary judgement should be successfully joined – necessity for the making of procedural orders to deal with anticipated interlocutory applications, and interlocutory orders as between the parties
LEGISLATION: County Court Civil Procedure Rules 2008, Rule 9.06; Civil Procedure Act 2008, s63(1)
CASES CITED: Wall v Toll Transport Pty Ltd [2010] VSC 522
RULING: application for joinder of a proposed second defendant refused, and other necessary orders set out below
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley | Slater & Gordon Ltd |
| For the Defendant | Mr M Martin (solicitor) | Moray & Agnew |
| For the First Third-Party | Mr C Smith | Lander Rogers |
| For the Second and Third Third-Parties | Ms J Morris (solicitor) | Minter Ellison |
| For the Fourth Third-Party | No appearance | - |
| For the Fifth Third-Party | Davis Zucco (solicitor) | Davis Zucco |
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HIS HONOUR:
Introduction
1 This ruling must be read in the context of the ruling which I delivered on 6 August 2012,[1] and the orders which I made based upon the ruling.
[1][2012] VCC 1048
2 I ordered, among other things, that the defendant’s Third-Party Notice filed 2 March 2012 be struck out against the first third-party, the second third-party, the third third-party and the fourth third-party. I also ordered that there be a further directions hearing on 17 August 2012 which I had to adjourn to 21 August 2012.
The Further Issues
3 Mr Stanley of counsel applied to join Brad Teal Real Estate Pty Ltd (“Brad Teal”) as a second defendant. For that purpose, I was provided with a draft Amended Writ endorsed with an Amended Statement of Claim.
4 The Amended Statement of Claim discloses that the plaintiffs allege that Brad Teal was a real estate agent engaged by the present defendant, Mark Harvey (“Harvey”), to manage the leasing of Harvey's property at 45 Roberts Street, Essendon. The plaintiffs allege that there were terms to be implied into the lease that Brad Teal would advise Harvey of any defects in the property which posed a risk of injury to persons residing on the property. They allege that an employee of Brad Teal inspected the property and prepared a condition report, and that the employee was informed by Monica Harris, the plaintiff in proceeding No. CI-11-00248, that the pool fence did not comply with safety standards. A conclusion was made that the drowning of the plaintiffs’ three-year-old daughter occurred as a result of breaches of a duty of care owed by Brad Teal.
5 Mr Smith, who appeared for the third third-party, opposed the application made by Mr Stanley. After hearing most of the submissions made by Mr Stanley and Mr Smith, Mr Smith informed me that if Brad Teal was joined as a second defendant, that it was the intention of Brad Teal to apply for summary dismissal of the proceeding against it pursuant to s63(1) of the Civil Procedure Act 2010.
The Application for Joinder
6 The application for joinder of Brad Teal is made pursuant to Rule 9.06 of the County Court Civil Procedure Rules 2008.
7 Mr Smith submitted that it is a well-established rule of practice that the Court will not allow a party to be added to existing proceeding if the cause of action against that party is already statute barred. He referred me to Wall v Toll Transport Pty Ltd,[2] in which Dixon J summarised the established rule of practice and cited three authorities which stand for such proposition.[3] He also referred me to the textual notes in Williams Civil Procedure Victoria relevant to Rule 9.06.
[2][2010] VSC 522
[3]at paragraph 12 and footnote 7
8 Upon reading Wall v Toll Transport Pty Ltd, the authorities cited by Dixon J and the textual notes in Williams, I am satisfied that there is a well-established rule of practice which I consider I am obliged to follow.
9 Mr Stanley submitted that I should depart from that well-established rule of practice. I am not persuaded by any of the submissions he made that I can depart from that ruled practice.
10 Mr Smith informed me that Brad Teal would concede the limitation issue in favour of the plaintiffs if the plaintiffs made a representation with evidence that the proposed limitation defence is unmeritorious. However, that rider did not extend to the proposed s63 application.
The Proposed Section 63 Application
11 On the assumption that Brad Teal does not concede that its reliance upon the limitation defence is unmeritorious, then it will mean that the plaintiffs must file and serve a summons seeking an extension of time pursuant to the Limitation of Actions Act 1958 supported by affidavit evidence.
12 On the assumption that the plaintiff's succeed with that application, then it is likely to be followed by a summons filed by Brad Teal seeking summary dismissal.
13 My concern to have this proceeding progress expeditiously has forced me to create some novel orders to permit the parties to hold onto the 20 May 2013 trial date, and to otherwise ensure that this proceeding moves along in a just, efficient, timely and cost-effective manner with the real issues for trial being exposed.
Proposed Orders
14 I propose to firstly set out what orders I intend to make and the reasons for those orders before reciting the actual orders.
15 Firstly, I propose to order that the plaintiffs and Brad Teal attend a round table conference for the purpose of the plaintiffs and Brad Teal debating whether the plaintiffs have a viable basis upon which to obtain an order for an extension of time. That step is consistent with the rider articulated by Mr Smith. The second third-party and the third third-party must also attend the roundtable conference, because I apprehend that they intend to take the same defence as Brad Teal. It would be prudent for the defendant to attend the round table conference, because I also apprehend that Brad Teal and the second third-party and the third third-party may take the same defence to the Third-Party Notice.
16 I expect that the parties just mentioned will communicate with one and another for the purpose of organising the roundtable conference without any further intervention on my part. I propose that the roundtable conference is to take place on or before 28 September 2012.
17 Secondly, if the roundtable conference fails, then the plaintiffs and the defendant, if it is relevant for it to do so, must file and serve a summons seeking an extension of time on or before 26 October 2012. A copy of the summons or summonses must be provided to my associate so that I can fix the application or applications for hearing before myself in November 2012.
18 Thirdly, if a summons or summonses are filed, then I will expect that Brad Teal will be in a position to also make the s63 application at the same time. It seems to me that would be a wasteful exercise for Brad Teal to rely upon the limitation defence, and subsequently, on another occasion make a second attack upon the joinder when both applications can be adequately undertaken at the same time. However, should that be incompatible with the hearing of the summons or summonses, I will reconsider whether I would require Brad Teal to make an application at the same time as it answers the summons or summonses.
19 Fourthly, to the extent that it is necessary for me to grant leave to the defendant to serve the third-party notice, I grant that leave.
20 Fifthly, by reference to the proposed consent orders I will permit a further use of subpoenas pursuant to Rule 42A following the mediation. I will permit an extension of the time permitted by paragraph 11 to the end of February 2013 and paragraph 12 to a date after the mediation.
21 Sixthly, I propose that the parties amend the proposed consent orders to incorporate the interlocutory steps which I have set out above and to otherwise revise the orders so that interlocutory steps can be taken between the plaintiff and the defendant, and the defendant and the third parties. This will ensure that all of the relevant interlocutory steps are taken which are not impinged upon by the plaintiff's application for joinder and any limitation defence taken by Brad Teal and the second third-party in the third third-party.
22 Seventhly, if the parties are unable or unwilling to create relevant and necessary interlocutory orders, then I will list this proceeding for a further directions hearing on the giving of 48 hours’ notice by e-mail by a party or parties seeking the directions hearing on the other parties and on my associate. Such directions hearing will occur at 9:30 am on a morning appointed by my associate.
Costs
23 Mr Smith applied for an order for costs in favour of Brad Teal on the basis that it had been successful in its application to have the Third-Party Notice served upon Brad Teal struck out. Ms Morris made the same application. Mr Martin and Mr Zucco applied to have the costs reserved.
24 I propose that the parties add to the orders that the question of whether Brad Teal, the second third-party and the third third-party obtain an order for costs is reserved for later consideration. I propose to deal with that application at a time following the resolution of the limitation issue. I will also deal with the question of costs of the further directions hearing before me on 21 August 2012 at a later date. It seems to me to be far more convenient to wait until “the dust settles” so that I am able to make a proper assessment of who should bear what costs and at whose expense at a later date.
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