Jacobson v Martello - [2008] QDC 201

DISTRICT COURT OF QUEENSLAND

CITATION: Jacobson v Martello & Ors [2008] QDC 201

PARTIES:
MARIS JACOBSON
(Plaintiff/Applicant)

v
KATE LORAINE MARTELLO and NILDO PETER MARTELLO

(First Defendant)

PAUL GRIFFIN HOMES PTY LTD

(Second Defendant)

CAPITAL GROWTH PROPERTIES trading as COAST TO COAST ACCOMMODATION EXPERTS
(Third Defendant)

AATLANTIS FENCING CO PTY LTD
(Respondent)

FILE NO: 379 of 2008

PROCEEDING: Application to add Defendant

DELIVERED ON: 21 August 2008

DELIVERED AT: Southport

HEARING DATE: 15 August 2008

JUDGE: C.F. Wall Q.C.

ORDER: Application dismissed with costs

CATCHWORDS:
PRACTICE - APPLICATION BY PLAINTIFF TO ADD DEFENDANT - expiration of the limitation period - Rule 69 UCPR - no new facts - prejudice.

Legislation referred to: Uniform Civil Procedure Rules 1999, Personal Injuries Proceedings Act 2002 (PIPA)

Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184, Montgomery v Pickard [2007] QCA 203, Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541

COUNSEL Plaintiff - Mr H G S Trotter
No appearance for 1^st & 2^nd Defendants
3^rd Defendant - Mr K J Stegeman (solicitor)
Respondent - Ms J O McClymont

SOLICITORS: Plaintiff - Stephens & Tozer
3^rd Defendant - Jensen McConaghy
Respondent - Barry & Nilson Laawyers

HIS HONOUR: This is an application by the plaintiff to join Aatlantis Fencing Company Pty Ltd (Aatlantis) as a defendant. The plaintiff relies on rule 69(2)(a)(iii) and (iv) of the Uniform Civil Procedure Rules.

For the purposes of rule 69(1)(b)(ii) Aatlantis concedes that its presence before the Court would be desirable, just and convenient. Otherwise it opposes the application. The third defendant doesn't oppose it and the first and second defendants did not appear.

The plaintiff alleges she suffered personal injuries on 21 November 2001 when she fell on internal stairs in her rented unit after the hand rail gave way.

On 27 and 28 November 2002 she served notices of claim pursuant to the Personal Injuries Proceedings Act 2002 (PIPA) on the first defendants, the owners of the unit, the second defendant, the body corporate, and the third defendant, a building company which carried out renovations to the unit including the installation of the hand rail. These parties were not, of course, defendants then.

By notice dated 13 September 2004 the third defendant's insurer claimed indemnity or contribution from Aatlantis on the basis that it was responsible for the construction of the stairs.

By letter dated 18 October 2004 the solicitors for Aatlantis advised the solicitors for the plaintiff, then the claimant, that they were acting for Aatlantis, "a contributor to the claim", and requested copies of "any medical information". The plaintiff appears to have done nothing as a result of this letter to explore the circumstances of the claim against Aatlantis.

The extended limitation period expired on 9 January 2005.

The present proceedings were instituted in the Southport Magistrates Court on 5 January 2005 against the three defendants who had been served with PIPA notices. Aatlantis was not a defendant. The proceedings have since been transferred…

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 Jacobson v Martello

Details

AGLC: Jacobson v Martello [2008] QDC 201
Case: [2008] QDC 201
Decision Date: 21 August 2008

CaseChat Overview and Summary

The plaintiff in this case sought to add a defendant after the expiration of the limitation period. The application was dismissed by the court. The defendant, Martello, had been added by the plaintiff after the limitation period had expired. The plaintiff sought to add the defendant on the basis that there were no new facts and that the defendant would not be prejudiced by the addition.

The court considered whether the plaintiff's application to add the defendant should be allowed, despite the expiration of the limitation period. The court noted that the application was made under Rule 69 of the Uniform Civil Procedure Rules 1999 and that the plaintiff had not demonstrated any new facts that would justify the addition of the defendant. The court also considered whether the defendant would be prejudiced by the addition of the defendant and found that the defendant would be prejudiced.

The court found that the plaintiff's application to add the defendant should be dismissed. The court held that the plaintiff had not demonstrated any new facts that would justify the addition of the defendant, and that the defendant would be prejudiced by the addition. The court also noted that the application was made after the expiration of the limitation period, and that the plaintiff had not demonstrated any exceptional circumstances that would justify the late addition of the defendant. The court dismissed the application with costs.

Orders

Orders of the court

Application dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jacobson v Martello & Ors [2008] QDC 201
PARTIES:	MARIS JACOBSON (Plaintiff/Applicant) v KATE LORAINE MARTELLO and NILDO PETER MARTELLO (First Defendant) PAUL GRIFFIN HOMES PTY LTD (Second Defendant) CAPITAL GROWTH PROPERTIES trading as COAST TO COAST ACCOMMODATION EXPERTS (Third Defendant) AATLANTIS FENCING CO PTY LTD (Respondent)
FILE NO:	379 of 2008
PROCEEDING:	Application to add Defendant
DELIVERED ON:	21 August 2008
DELIVERED AT:	Southport
HEARING DATE:	15 August 2008
JUDGE:	C.F. Wall Q.C.
ORDER:	Application dismissed with costs
CATCHWORDS:	PRACTICE - APPLICATION BY PLAINTIFF TO ADD DEFENDANT - expiration of the limitation period - Rule 69 UCPR - no new facts - prejudice. Legislation referred to: Uniform Civil Procedure Rules 1999, Personal Injuries Proceedings Act 2002 (PIPA) Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184, Montgomery v Pickard [2007] QCA 203, Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541
COUNSEL	Plaintiff - Mr H G S Trotter No appearance for 1^st & 2^nd Defendants 3^rd Defendant - Mr K J Stegeman (solicitor) Respondent - Ms J O McClymont
SOLICITORS:	Plaintiff - Stephens & Tozer 3^rd Defendant - Jensen McConaghy Respondent - Barry & Nilson Laawyers