James v Hill - [2010] QSC 70

SUPREME COURT OF QUEENSLAND

CITATION:

James v Hill & Anor [2010] QSC 70

PARTIES:

DAVID JOHN JAMES
(Plaintiff)
v
JOHN RICHARD HILL
(First defendant)
IAN GILBERT DEMPSTER
(Second defendant)

FILE NO/S:

155 of 2006

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

16 March 2010

DELIVERED AT:

Cairns

HEARING DATE:

30 November 2009

JUDGE:

Jones J

ORDER:

1. That leave be granted to the plaintiff to proceed in the current proceedings in respect of the plaintiff’s claim against the first defendant John Richard Hill (deceased).
2. That John William Stewart be substituted as first defendant as Executor of the Estate of the first defendant.
3. That Lexon Insurance Pty Ltd be added as third defendant to the proceeding.
4. That costs of and incidental to the application be costs in the cause.
5. The court directs that:
(a) the plaintiff deliver an Amended Statement of Claim within seven (7) days of the date hereof:
(b) Lexon Insurance Pty ltd provides its Defence within twenty eight (28) days;
(c) the second defendant provide any Amended Defence within twenty one (21) days;
(d) the plaintiff replies to the Defences within fourteen (14) days; and
(e) any disclosure required by the parties take place within twenty one (21) days of the delivery of the reply.

CATCHWORDS:

PRACTICE AND PROCEDURE – application for leave to proceed where a party has died pursuant to r 72 of the Uniform Civil Procedure Rules 1999 – substitution of a party – application to add a defendant pursuant to s 51 of the Insurance Contracts Act 1984 – adding of a party pursuant to r 69 of UCPR – opposition to joinder where the issue cannot be determined summarily – where there is an arguable case against the defendant to be joined

COUNSEL:

D B Fraser QC for the plaintiff/applicant
D Morzone for the Lexon Pty Ltd/respondent

SOLICITORS:

Williams Graham Carman Solicitors for the plaintiff
Brian Bartley and Associates for Lexon Pty Ltd

By this application the plaintiff seeks orders which will address the procedural consequences following the death of the first defendant, John Richard Hill, on 17 July 2009. By reason of Rule 72 of the Uniform Civil Procedures Rules (UCPR) the plaintiff requires leave to proceed. It relevantly provides:-

“72. Party becomes bankrupt, person with impaired capacity or dies during a proceeding
(1) If a party to a proceeding becomes bankrupt, becomes a person with impaired capacity or dies during the proceeding, a person may take any further step in the proceeding for or against the party only if –

(a) the court gives the person leave to proceed; and

(b) the person follows the courts directions on how to proceed.

(2) If a party to a proceeding becomes bankrupt or dies, the court may, at any stage of the proceeding, or to the trustee of personal representative of the party or if a deceased party does not have a personal representative, someone else, to be included or substituted as a party…

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.

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Details

Case: [2010] QSC 70
Decision Date: 16 March 2010

CaseChat Overview and Summary

The case of James v Hill involved an application for leave to proceed with a claim against a deceased party, John Richard Hill, and the addition of a new defendant, Lexon Insurance Pty Ltd. The plaintiff sought to substitute John William Stewart as the Executor of Hill’s estate as the first defendant, and to add Lexon Insurance Pty Ltd as the third defendant. The application was heard by the court under the relevant provisions of the Uniform Civil Procedure Rules 1999 and the Insurance Contracts Act 1984. The second defendant opposed the application, arguing that the court should not allow the joinder of the new defendant.

The court needed to decide whether to grant the plaintiff leave to proceed with the claim against the deceased first defendant, to substitute the executor as the new defendant, and to allow the addition of a third defendant. The court also needed to consider whether the second defendant's opposition to the joinder was valid, given that the issue could not be determined summarily and there was an arguable case against the proposed third defendant. The court had to balance the need for procedural fairness and the rights of all parties involved.

The court found that there was a valid application for leave to proceed against the deceased defendant, and that the executor was appropriately substituted as the first defendant. The court also found that there was an arguable case against the proposed third defendant, Lexon Insurance Pty Ltd, and that the joinder of this party was appropriate. The court noted that the second defendant's opposition to the joinder was not sufficient to prevent the addition of the third defendant, given the arguable case against them. The court granted the application for leave to proceed, substituted the executor as the first defendant, and added Lexon Insurance Pty Ltd as the third defendant. The court also made several procedural orders, including directions for the delivery of statements of claim and defences, and for the completion of disclosure.

The court directed the plaintiff to deliver an Amended Statement of Claim within seven days of the date of the decision. Lexon Insurance Pty Ltd was directed to provide its Defence within twenty-eight days, and the second defendant was directed to provide any Amended Defence within twenty-one days. The plaintiff was directed to reply to the Defences within fourteen days, and any required disclosure by the parties was to take place within twenty-one days of the delivery of the reply. The costs of and incidental to the application were directed to be costs in the cause.

Orders

Orders of the court

1. That leave be granted to the plaintiff to proceed in the current proceedings in respect of the plaintiff’s claim against the first defendant John Richard Hill (deceased).

2. That John William Stewart be substituted as first defendant as Executor of the Estate of the first defendant.

3. That Lexon Insurance Pty Ltd be added as third defendant to the proceeding.

4. That costs of and incidental to the application be costs in the cause.

5. The court directs that:

(a) the plaintiff deliver an Amended Statement of Claim within seven (7) days of the date hereof:

(b) Lexon Insurance Pty ltd provides its Defence within twenty eight (28) days;

(d) the plaintiff replies to the Defences within fourteen (14) days; and

(e) any disclosure required by the parties take place within twenty one (21) days of the delivery of the reply.

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:	James v Hill & Anor [2010] QSC 70
PARTIES:	DAVID JOHN JAMES (Plaintiff) v JOHN RICHARD HILL (First defendant) IAN GILBERT DEMPSTER (Second defendant)
FILE NO/S:	155 of 2006
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	16 March 2010
DELIVERED AT:	Cairns
HEARING DATE:	30 November 2009
JUDGE:	Jones J
ORDER:	1. That leave be granted to the plaintiff to proceed in the current proceedings in respect of the plaintiff’s claim against the first defendant John Richard Hill (deceased). 2. That John William Stewart be substituted as first defendant as Executor of the Estate of the first defendant. 3. That Lexon Insurance Pty Ltd be added as third defendant to the proceeding. 4. That costs of and incidental to the application be costs in the cause. 5. The court directs that: (a) the plaintiff deliver an Amended Statement of Claim within seven (7) days of the date hereof: (b) Lexon Insurance Pty ltd provides its Defence within twenty eight (28) days; (c) the second defendant provide any Amended Defence within twenty one (21) days; (d) the plaintiff replies to the Defences within fourteen (14) days; and (e) any disclosure required by the parties take place within twenty one (21) days of the delivery of the reply.
CATCHWORDS:	PRACTICE AND PROCEDURE – application for leave to proceed where a party has died pursuant to r 72 of the Uniform Civil Procedure Rules 1999 – substitution of a party – application to add a defendant pursuant to s 51 of the Insurance Contracts Act 1984 – adding of a party pursuant to r 69 of UCPR – opposition to joinder where the issue cannot be determined summarily – where there is an arguable case against the defendant to be joined
COUNSEL:	D B Fraser QC for the plaintiff/applicant D Morzone for the Lexon Pty Ltd/respondent
SOLICITORS:	Williams Graham Carman Solicitors for the plaintiff Brian Bartley and Associates for Lexon Pty Ltd