Holmes v Civil & Civic Pty Ltd

[1992] QCA 300

IN THE COURT OF APPEAL

[1992] QCA 300

QUEENSLAND

Appeal No. 15 of 1992

BETWEEN:

CHARLES HOLMES
  (Plaintiff)         Respondent

- and -

CIVIL & CIVIC PTY. LTD.
  (First Defendant)     Appellant

- and -

C.W. NORRIS & CO. PTY. LTD.
  (Second Defendant)

JUDGMENT - FITZGERALD P.

Delivered the fourteenth day of September, 1992

The circumstances giving rise to this appeal are outlined in the judgment of Demack J., and I need not repeat them.
     I agree with His Honour that the appellant's loss of its right to proceed against Edwards Moir and Co. for indemnity, contribution or damages raises the only substantial issue for consideration on this appeal.
     The appellant's right to sue Edwards Moir and Co. for damages or to join Edwards Moir & Co. in the present action as a joint tortfeasor became statute barred before the appellant received a Statement of Claim from the respondent.
     On the other hand, the broad nature of the circumstances giving rise to the injury had been known since shortly after the accident, and the limitation period did not expire for a considerable time after the appellant had been served with the writ.  During that period, it took no action to proceed against C.W. Norris & Co., the other defendant named in the writ.  Further, C.W. Norris & Co. delivered a Contribution Notice to the appellant on 13 May 1988 and served a Statement of Claim in the contribution proceedings upon the appellant on 11 October 1988, following which the appellant delivered a Defence in the contribution proceedings on 13 December 1988, and C.W. Norris & Co. served a notice requiring discovery on the appellant in the contribution proceedings on 2 February 1990 and the appellant provided C.W. Norris & Co. with an affidavit of documents in those proceeding on 13 June 1990.  However, the appellant still made no attempt to take action against C.W. Norris & Co.  There is no reason to suppose that the appellant would have acted differently if Edwards Moir & Co., not C.W. Norris & Co., had been joined as a defendant by the respondent.
     Finally, the appellant did not issue a summons seeking to have this action dismissed for want of prosecution until 8th January 1992, a substantial period after the respondent's Statement of Claim was served on the appellant.
     In these circumstances, including the absence of any adequate explanation of the appellant's failure to investigate the accident further or to seek to enforce a claim against C.W. Norris & Co., I would not be prepared to conclude that any prejudice to the appellant resulted from the respondent's omission to prosecute the action diligently.
     I agree with Demack J. that the appeal should be dismissed, with costs.

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 15 of 1992

Before the Court of Appeal

The President

Mr. Justice McPherson

Mr. Justice Demack

BETWEEN:

CHARLES HOLMES
  (Plaintiff)         Respondent

- and -

CIVIL & CIVIC PTY. LTD.
  (First Defendant)     Appellant

- and -

C.W. NORRIS & CO. PTY. LTD.
  (Second Defendant)

JUDGMENT - FITZGERALD P.

Delivered the fourteenth day of September, 1992

MINUTE OF ORDER:   Appeal dismissed with costs

CATCHWORDS:

Counsel:P. Keane Q.C. with him D. North

S. Williams Q.C. with him T. Matthews

Solicitors:Morris Fletcher & Cross for the appellant

Quinlan Miller & Treston for the respondent

Hearing Date: 24 June 1992

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 15 of 1992

Before the Court of Appeal

The President

Mr. Justice McPherson

Mr. Justice Demack

BETWEEN:

CHARLES HOLMES
  (Plaintiff)         Respondent

AND:

CIVIL & CIVIC PTY. LTD.
  (First Defendant)     Appellant

AND:

C.W. NORRIS & CO. PTY. LTD.
  (Second Defendant)

JUDGMENT - DEMACK J.

Delivered the fourteenth day of September, 1992

MINUTE OF ORDER:   Appeal dismissed with costs

CATCHWORDS:       Practice. Dismissing action - Want of prosecution. Appeal from order dismissing application that action be struck out for want of prosecution - whether applicant prejudiced in that claim against sub-contractor statute barred - whether any prejudice it might suffer solely and directly attributable to respondent's conduct

Counsel:     P. Keane Q.C. with him D. North

S. Williams Q.C. with him T. Matthews

Solicitors:   Morris Fletcher & Cross for the appellant

Quinlan Miller & Treston for the respondent

Hearing date: 24 June 1992

IN THE COURT OF APPEAL

QUEENSLAND

Appeal No. 15 of 1992

CHARLES HOLMES
  (Plaintiff)         Respondent

AND:

CIVIL & CIVIC PTY. LTD.
  (First Defendant)     Appellant

AND:

C.W. NORRIS & CO. PTY. LTD.
  (Second Defendant)

The President
             Mr Justice McPherson
             Mr Justice Demack

Judgment delivered on the 14th day of September 1992.  Fitzgerald P. and Demack J. delivering separate reasons.  McPherson J.A. agreeing with Demack J.  All agreeing as to the proposed order.

APPEAL DISMISSED WITH COSTS