K-Mart Australia Ltd v Jones

[1998] QCA 319

COURT OF APPEAL

[1998] QCA 319

THOMAS JA

BYRNE J

No 6850 of 1998

K-MART AUSTRALIA LIMITED	Applicant (Second Defendant)
and
ERIKA ELVIRA JONES	Respondent (Plaintiff)
BRISBANE
..DATE 24/08/98 240898 T8-9/SB21 M/T COA204/98

THOMAS J: This is an application for leave to appeal under section 118(3) of the District Courts Act against an order permitting the plaintiff to join a defendant, K-Mart Australia Limited, after the limitation period, together with an order deeming the proceedings against K-Mart to have been commenced within the limitation period.

It is common ground that K-Mart is a fully-owned subsidiary of Coles Myer and indeed both defendants were represented by the same solicitor and counsel on the application to join.

There is in the present proceedings no suggestion that Lynch v. Keddell (No 2) (1990) 1 Qd R 10 needs to be revisited. The primary submission by Mr Dickson on behalf of the applicant is that there is sufficient reason to think that the decision was wrong. In order to succeed in the appeal the applicant would need to show that it was not open to the learned Chamber Judge to hold that the circumstances were special or peculiar.

In this case it seems plain that representations were made by the first defendant, Coles Myer, in response to the initial letter of demand sent by the plaintiff's solicitor, and that this led the plaintiff's advisers to sue the first defendant only. Negotiations and preparation for trial continued in the usual way after a defence was filed which contained blanket denials.

The case gives the appearance of a plaintiff's adviser content that the action was proceeding in the
usual way with the solicitor for the first defendant lying by until the three year limitation period had
expired. Within days after the expiry of the limitation period, by which time a trial date had been
obtained, the true point was exposed, namely that the plaintiff had sued the wrong defendant. The
legal person that was said to be responsible for the running of the service station premises in
question was not Coles Myer, it was
K-Mart.

We were referred to a decision of this Court in Binns v. Farnham Pty Ltd 11 August 1995. That, as I read it, is a decision based upon particular facts. It is an instance where the actions of the plaintiff or the plaintiff's solicitors were regarded as primarily responsible for the difficulty that arose through suing the wrong defendant. For reasons which will be apparent when I have briefly stated the sequence of events, I consider that that case ought to be distinguished.

The action arises out of an event when the plaintiff visited the premises known as K-Mart Auto in the course of which she was injured when an employee at that place allegedly suddenly released an hydraulic hoist which caused the plaintiff's car to drop onto her foot crushing it.

The plaintiff's solicitor addressed a letter to K-Mart Automotive Services on 9 August 1995. A reply dated 15 August 1995 under the letterhead Coles Myer Ltd was received. It is said to be without prejudice but contains no protected type of allegation. It acknowledged the solicitors' and

plaintiff's interest in the matter and indicated that it was carrying out further inquiries. It also asked

for details of out of pocket expenses and medical reports.

A further letter from Coles Myer Ltd dated 23 August 1995 indicated that:

"We have carried out further inquiries into the circumstances surrounding your client's injury. At no

time was your client directed by our employee to remove her handbag from her motor
vehicle. The employee was lowering the vehicle on the hoist when your client approached it
and endeavoured to remove her handbag. After the event your client admitted to our
employee that the accident was her own fault as she should not have been standing where
she was."

240898 T8-9/SB21 M/T COA204/98

That was followed by a denial of responsibility. The plaintiff's solicitors then issued a District Court plaint directed against Coles Myer Limited. A defence was filed which corrected the "true name" of the defendant from Coles Myers Limited to Coles Myer Ltd. Apart from that technical correction

and the pleading of contributory negligence against the plaintiff there was simply a denial of all other
facts alleged in the plaint. Thereafter, the matter continued in the usual fashion and the defence was
conducted in the usual way. Interrogatories were delivered to the examination of the plaintiff. The
plaintiff was required to be medically examined on behalf of the defendant and there was even an
application to remit the action to the Magistrates Court. The matter was placed on the list and as I

have indicated a trial date was obtained.

Shortly after the expiry of three years after the occurrence of the accident the circumstance that the
owner of the relevant business was K-Mart Australia rather than Coles Myer was disclosed. That
led to the present application.
In the circumstances that have been recounted, it seems to me to be a clear case of representations
having been made which were relied on. Quite apart from that characterisation of the situation, it
seems to me that the circumstances certainly could rightly be held to be special or peculiar. In short,
I do not think there is any sufficient reason to think that the learned trial Judge's decision in this

instance was wrong or attended by sufficient doubt to justify the grant of leave.

I would accordingly refuse the application.

BYRNE J: I agree.

THOMAS J: The order is application refused with costs.

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