Inglis v Connell and Suncorp Metway Insurance Ltd

[2003] QDC 29

Transcript of Proceedings

Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.

REVISED COPIES ISSUED

State Reporting Bureau

[2003] QDC 029	Date: 8 April, 2003
DISTRICT COURT CIVIL JURISDICTION JUDGE MCGILL SC
INGLIS	Plaintiff
and
CONNELL	First Defendant
and
SUNCORP METWAY INSURANCE LIMITED	Second Defendant
BRISBANE ..DATE 04/04/2003
ORDER

1

04042003 T18/VC40 M/T 2/2003 (McGill DCJ)

HIS HONOUR: This is an application to join additional	1
defendants to a proceeding which commenced in the District claim on 11 October 2001. At that stage the plaintiff alleged that she had suffered personal injury as a result of negligent

10

of the first defendant for which the second defendant is
liable as insurer.

The plaintiff now wishes to allege, in the alternative, that the injury that she suffered was caused or contributed to by

20

the negligence of one or more of three additional proposed
parties and seeks to have those parties joined as defendants
in the present action. The plaintiff's claim against the
existing defendants was subject to the restrictions imposed by

the Motor Accident Insurance Act 1994, and presumably those

30

requirements were complied with by the plaintiff prior to

commencing the proceeding.

The plaintiff's injuries are alleged to have occurred on 7

April 2000, and accordingly the limitation period is due to

40

expire very shortly. However, it has not at the moment plaintiff to file a separate claim and statement of claim against the proposed additional defendants. It would
expired and, subject to considerations arising under the

50

obviously be desirable for all claims to be dealt with in one
proceeding and, subject to an issue arising under that new Act
to which I have referred, the first respondent at least does

not object to a joinder in the existing proceeding. If that

ORDER

2  60

04042003 T18/VC40 M/T 2/2003 (McGill DCJ)

can not be effected prior to the expiration of the limitation	1
period there will certainly be substantial difficulties in the way of the plaintiff pursuing the claim.
I should say that the other two proposed additional defendants

10

have been served but have not really had an opportunity to
formulate a response. However, it may be that there was no
need to serve them anyway. And if there is some particularly
compelling reason why it was inappropriate for them to be

joined then that is a matter they can deal with later. One of

20

them has not appeared in relation to the application and one
has appeared and has sought an adjournment on the ground that
there is not sufficient time to respond. But, in relation to
that, the position seems to me to be clear enough. The

argument against joinder has been advanced on behalf of the

30

other proposed additional defendant and I doubt whether
anything more could have been said by the other parties.

The argument on behalf of one of the proposed additional defendants, the State of Queensland, is that these parties

40

cannot be joined to the existing proceeding because the requirements to be complied with prior to commencing proceedings under that Act have not been complied with. That in turn depends on the correct interpretation of section

50

6(3)(a) of that Act. That provides -

"This Act, other than section 58, does not apply to
personal injury in relation to which a proceeding was
started in a Court including in a Court outside

Queensland or Australia before 18 June 2002."

ORDER

3  60

04042003 T18-19/VC40 M/T 2/2003 (McGill DCJ)

I interpret that section as saying that the Act does not apply	1
in relation to the personal injury suffered by the plaintiff which is the subject of the existing proceeding, and therefore there is no impediment to joining additional defendants in the existing proceeding.

10

It was submitted on behalf of the State of Queensland however that the Act on its true construction applies in the case of any proposed defendant who is not the subject of an existing proceeding, and that subsection 3(a) really only excludes the

20

application of the Act in relation to a proceeding against an

existing defendant in respect of the personal injury.

This is derived, not so much for the terminology of subsection

3(a), but from the purpose of the Act which was to impose

30

various requirements for procedural steps prior to commencing
proceedings, steps which were designed to increase the
prospect of claims being settled without their having to

proceed to litigation.

40

It was submitted that it would be contrary to the basic purpose of the legislation, which is set out in a little more detail in section 4 of the Act, to interpret section 3(a) other than as excluding from the operation of the Act existing proceedings against existing defendants.

50

It seems to me, however, that when the legislature was deliberately providing that this Act had a retrospective operation some provision had to be made to accommodate the

ORDER

4  60

04042003 T20/VC2 M/T 3/2003 (McGill DCJ)

fact that that was inconsistent with the position of existing	1
proceedings, because existing proceedings almost certainly would not have complied with the requirements of the Act. The legislature has chosen to do that in relation to existing proceedings in section 3(a), but not by reference to the

10

existing proceedings as they were at the time of the
commencement of the Act - or indeed as they were as at the

18th of June 2002 - but by reference to a particular injury.

The Act is not made inapplicable to the proceeding but made

20

inapplicable to the injury, provided there is an injury in
relation to which a proceeding was started in a Court before
18 June 2002. There is no doubt that there was a proceeding
started in a Court before that date in relation to the

particular injury, the subject of the existing proceeding, and

30

it seems to me therefore that it necessarily follows, from
subsection 3(a) on a literal interpretation, that the Act does
not apply to that injury. If the Act does not apply to that
injury then it follows that it does not apply to any claim

based on that injury, including claims against persons other

40

than the persons who are defendants to the existing
proceeding.

The possibility of a proceeding being amended to include additional defendants is one that the legislature ought to

50

have been alive to but no specific provision has been made to

deal with that. In addition, creating a situation where the

Act applied to some defendants but not others in existing

proceedings would produce a variety of complications because

5 ORDER 60

04042003 T20/VC2 M/T 3/2003 (McGill DCJ)

the Act is not concerned only with matters arising prior to	1
litigation. It would also produce difficulties if the Act applied and the plaintiff sought to proceed against additional defendants. If the plaintiff had to comply with the pre- litigation proceedings in relation to those additional

10

defendants that would inevitably produce some delay in being
able to join those defendants in the action, which would be
inconsistent with the obligation, imposed for example by Rule
5 of the Uniform Civil Procedure Rules, to carry on the

existing proceeding expeditiously and without delay.

20

There would be inevitably some conflict between that requirement and the requirement to complete pre-litigation proceedings against the proposed additional defendants before they could be joined. Indeed, the whole concept of completing

30

the pre-litigation proceedings against additional defendants seems to me to be somewhat impracticable, in so far as those procedures are intended to produce a settlement of the claims

if that can be achieved without litigation. There would be no

point, in my view, in requiring a plaintiff to go through

40

those procedures in relation to proposed additional defendants
if the existing defendants were not going to be involved as
well, and there is no mechanism in the Act to get them

involved.

50

It is not to the point that the pre-litigation proceedings

would have been dealt with concerning the existing defendants before the existing proceeding was commenced. It may be that those procedures did not produce a settlement because the

6 ORDER 60

04042003 T20/VC2 M/T 3/2003 (McGill DCJ)

existing defendants were unhappy about their involvement, or	1
sought to reject their liability, on the ground that the persons who were really liable were the people who are now sought to be joined as defendants.

10

It would seem to me, frankly, to be likely to be no more than a waste of time to engage in a pre-litigation proceeding involving proposed additional defendants if the present defendants were not also involved, and there is certainly no mechanism in the Act for that to occur. It seems to me

20

therefore that there is nothing in the purpose of the Act, the object of the Act or the way in which the Act would work which would make it unreasonable or impracticable for section 3(a)

to receive its literal interpretation. On the contrary, that seems to me to be a reasonable and appropriate interpretation

30

for that subsection to receive, and what I regard as the
obvious interpretation that was intended by the legislature.

In my view the subsection operates by reference to the personal injury rather than by reference to a particular cause

40

of action or a particular defendant or a particular recipient
of a claim, and so long as there is a proceeding on foot prior
to the cut off date in relation to that particular personal
injury then one forgets about the Act. If one does that there

is no reason not to join these proposed additional defendants.

50

...

7 ORDER 60

04042003 T20/VC2 M/T 3/2003 (McGill DCJ)

HIS HONOUR: There are two defendants already - Connell is the	1
first defendant, Suncorp Metway Insurance Limited is the second defendant - so State of Queensland is joined as third defendant in the proceeding, Parsons Brinker Hoff Australia Proprietary Limited is joined as fourth defendant and Happy

10

Group Contractors is joined as fifth defendant.

...

Strictly speaking, the plaintiff should pay the costs of the

20

application but not including the costs of resisting the
application, and the costs of resisting the application should
follow the event, but in circumstances where almost all the
costs which would have been incurred in relation to the

application would be costs of resisting the application,

30

bearing in mind the matter had to be brought on in hurry, I think in all the circumstances it is appropriate to make no order as to costs.

In so far as the application was resisted the resistance was

40

unsuccessful and I think that, although it might have been
reasonable to advance that particular construction advanced by
the State of Queensland, I don't think that that's an argument
which should particularly assist that party in relation to

costs.

50

So, I make no order as to costs. Order in terms of the draft.

-----

8 ORDER 60