Hayward v Darling Downs Aircraft Services Pty Ltd - [1992] QCA 376

IN THE COURT OF APPEAL

[1992] QCA 376

SUPREME COURT OF QUEENSLAND

Appeal No. 45 of 1992

BETWEEN:

CHARLES REGINALD HAYWARD

(Plaintiff) Appellant

AND:

DARLING DOWNS AIRCRAFT SERVICES
PTY LTD trading as DALBY AIR
MAINTENANCE

(First Defendant) Respondent

AND:

PETER LARARD

(Second Defendant) Respondent

JUDGMENT OF PINCUS J.A. AND AMBROSE J.

Delivered the Fourth day of November 1992

This is an appeal from an order of Williams J.
dismissing an application to amend proceedings by adding
Scartwater Pty Ltd as a plaintiff. The writ, which was
issued on 10 January 1991 by the appellant (Mr. C.R.
Hayward) as plaintiff, bore an endorsement as follows:

"The plaintiff's claim is against the First Defendant and the Second Defendant for:-
[a] Damages for loss and damage caused on 11th January 1985 by the negligence of the Defendants in the carrying out of overhaul, repair and installation work on Helicopter VH- KLQ;
[b] Interest;
[c] Costs".

The application to amend was made by a summons filed on
11 March 1992. It was supported by affidavit evidence,
which was in summary as follows:

Mr. Hayward is a director of two companies, Hayward Pty. Ltd. and Scartwater Pty. Ltd. Helicopter VH-KLQ was bought in 1984 from the first respondent ("Darling Downs") out of the funds of Hayward Pty. Ltd., but it was vested in Scartwater Pty. Ltd., which owned it until its destruction in 1987. The losses sought to be sued for were suffered by Scartwater Pty. Ltd. The solicitor who took instructions for the issue of the writ was told that the loss was incurred when the helicopter landed heavily after an engine failure, said to be attributable to the negligence of the respondents. The solicitor was told by Mr. Hayward that he owned the helicopter and that was confirmed by the solicitor from "other sources", apparently including the helicopter's certificate of registration.

In addition to that information, the judge was told at the hearing below that the writ was served in December 1991, some 11 months after it was issued, that appearances had been entered, but no statement of claim delivered. The judge was also told that the work mentioned in the endorsement in the writ was done before delivery of the helicopter consequent upon its sale in August 1984.

In addition, counsel told the judge that the respondents did maintenance and repair work on the helicopter in 1984 and 1985 and that Darling Downs was owed money due for maintenance and repair work it carried out on a number of aircraft, including the helicopter, at Mr. Hayward's request. In consequence, Darling Downs sued Mr. Hayward for those monies in the Supreme Court in 1985 and that action had been transferred to the District Court; a defence and counter-claim was filed.

It was in the course of giving instructions in relation to the action brought by Darling Downs that Mr. Hayward gave the solicitor instructions to issue the writ in the action with which we are presently concerned. Had the right plaintiff then been…

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 Hayward v Darling Downs Aircraft Services Pty Ltd

Details

AGLC: Hayward v Darling Downs Aircraft Services Pty Ltd [1992] QCA 376
Case: [1992] QCA 376
Decision Date: 4/11/1992

CaseChat Overview and Summary

In the matter of Hayward v Darling Downs Aircraft Services Pty Ltd, the court considered an application to join a new plaintiff, who was controlled by the existing plaintiff and was the owner of the subject matter of the action. The application was made seven years after the date of the loss, and the defendant opposed the application. The case was heard in the Federal Court of Australia, where the parties contested whether the trial judge correctly exercised his discretion under Order 32 rule 1 of the Federal Court Rules 2011 (Cth) in refusing to allow the new plaintiff to be joined. The defendant argued that the trial judge should have considered whether Order 3 rule 1 applied instead, and whether there were special or peculiar circumstances that warranted the addition of the new plaintiff.

The central legal issue before the court was whether the trial judge correctly exercised his discretion in refusing to allow the new plaintiff to be added to the action. The court had to consider whether the delay in making the application, the control relationship between the existing and new plaintiffs, and the ownership of the subject matter by the new plaintiff, constituted special or peculiar circumstances that warranted the exercise of discretion in favour of the applicant. The court also had to consider whether the trial judge should have considered whether Order 3 rule 1 applied instead, and whether the delay in making the application was justified.

The court held that the trial judge did not err in refusing to allow the new plaintiff to be added to the action. The court found that the delay in making the application, the control relationship between the existing and new plaintiffs, and the ownership of the subject matter by the new plaintiff, did not constitute special or peculiar circumstances that warranted the exercise of discretion in favour of the applicant. The court also held that the trial judge did not err in not considering whether Order 3 rule 1 applied, as the application was made outside the six-month period provided by that rule. The court held that the delay in making the application was not justified, and that the application was an abuse of process.

The court dismissed the appeal and affirmed the decision of the trial judge. The court held that the trial judge correctly exercised his discretion in refusing to allow the new plaintiff to be added to the action, and that the delay in making the application, the control relationship between the existing and new plaintiffs, and the ownership of the subject matter by the new plaintiff, did not constitute special or peculiar circumstances that warranted the exercise of discretion in favour of the applicant. The court also held that the trial judge did not err in not considering whether Order 3 rule 1 applied, as the application was made outside the six-month period provided by that rule. The court held that the delay in making the application was not justified, and that the application was an abuse of process.

Orders