Jessup v King's Transport

[2006] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

Jessup v King's Transport & Ors [2006] QCA 289

PARTIES:

IAN DAVID JESSUP
(plaintiff/first respondent)
v
KING'S TRANSPORT
(first defendant/second respondent)
AUSTRALIAN INTERNATIONAL INSURANCE LIMITED ACN 006 544 690
(second defendant/third respondent)
LORELEI MAY KING
(third defendant/fourth respondent)
MARION JANET KING
(fourth defendant/fifth respondent)
NORMAN MAXWELL KING
(fifth defendant/sixth respondent)
OFFICIAL TRUSTEE IN BANKRUPTCY
(sixth defendant/seventh respondent)
BRUCE KAY GILLAN
(seventh defendant/applicant)

FILE NO/S:

Appeal No 4984 of 2006
DC No 253 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Cairns

DELIVERED EX TEMPORE ON:

8 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2006

JUDGES:

McMurdo P, Keane JA and Dutney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.   Application for leave to appeal refused

2.   Mr Gillan to pay the plaintiff's costs of the application to be assessed on the standard basis  

CATCHWORDS:

PROCEDURE - QUEENSLAND - PARTIES - plaintiff commenced proceedings against a number of defendants and subsequently successfully sought to have seventh defendant joined - question over whether claim against seventh defendant fell outside limitation period - seventh defendant joined to enable court to determine limitation issue at trial - seventh defendant seeks leave to appeal - whether the order of learned primary judge caused substantial injustice to applicant and whether there are reasonable prospects of correcting that injustice on appeal

District Court of Queensland Act 1967, s 118
Uniform Civil Procedure Rules 1999, r 69, r 74

Adam P Brown Males Fashions v Philip Morris Inc (1981) 148 CLR 179, applied
Bonnici v Taylor [2001] QCA 502; Appeal No 4758 of 2001, 12 November 2001, cited
Pickering v McArthur [2005] QCA 249; Appeal No 4013 of 2005, 16 August 2005, cited

COUNSEL:

M A Jonsson for the applicant
R J Clark for the plaintiff/respondent

SOLICITORS:

Miller Bou-Samra Lawyers for the applicant
Gadens Lawyers - Cairns for the plaintiff/respondent

THE PRESIDENT:  Justice Keane will deliver his reasons first.

KEANE JA:  On 30 July 2003 the plaintiff commenced proceedings against a number of defendants for the recovery of moneys alleged to be owing to the plaintiff, as assignee of the sixth defendant, pursuant to indemnities given by some of those defendants to the sixth defendant relating to the cost of proceedings arising out of the bankruptcy of Kevin George Wilson. 

In April 2006, the plaintiff filed an application to join the seventh defendant, Mr Gillan, as a defendant in the proceedings pursuant to r 69 of the Uniform Civil Proceedings Rules 1999 (Qld).  On 22 May 2006 the learned primary judge ordered that Mr Gillan be joined in the proceedings and gave the plaintiff leave to make the necessary amendments to the statement of claim to plead the plaintiff's cause of action against Mr Gillan. 

As a result, Mr Gillan is sued by the plaintiff for the recovery of loss suffered as a…