Labruyere v Parsons Brinckerhoff Australia Pty Limited
[2011] NSWSC 770
•22 July 2011
Supreme Court
New South Wales
Medium Neutral Citation: Labruyere v Parsons Brinckerhoff Australia Pty Limited [2011] NSWSC 770 Hearing dates: 18 July 2011 Decision date: 22 July 2011 Jurisdiction: Common Law Before: Schmidt J Decision: Stay of these proceedings ordered pending determination of the Equity proceedings.
Catchwords: PROCEDURE - stay of proceedings sought - reasons for decision - Rule 28.5 of the Uniform Civil Procedure Rules 2005 - costs Legislation Cited: Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1946
Occupational Health and Safety Act 2000
Uniform Civil Procedure Rules 2005
Workers Compensation Act 1987Category: Procedural and other rulings Parties: John Labruyere (Plaintiff)
Parsons Brinckerhoff Australia Pty Limited (First Defendant)
Pell Sullivan Meynink Pty Limited (Second Defendant)
Coffey Geosciences Pty Limited (Third Defendant)
URS Australia Pty Limited (Fourth Defendant)Representation: Counsel:
Mr HJ Halligan (Plaintiff)
Mr R Cheney (First Defendant)
Ms L Chan (Second Defendant)
Mr Kettle (Third Defendant)
Mr TW Marshall (Plaintiff in proceedings matter number 355406/2010)
Solicitors:
Beilby Poulden Costello (Plaintiff)
Middletons (First Defendant)
Kennedys (Second Defendant)
DLA Piper Australia Fox (Third Defendant)
Lee & Lyons (Fourth Defendant)
File Number(s): 2008/289569
Judgment
The proceedings were commenced by statement of claim filed in October 2008. Damages for personal injury are sought by the plaintiff, Mr Labruyere, as the result of physical and psychological injuries which he suffered while working as a labourer in the Lane Cove Tunnel, at the time of its collapse in 2005.
The proceedings are not brought against his employer, Thiess Pty limited and John Holland Pty Limited, the joint venturers who constructed the tunnel, but against various of its subcontractors, pursuant to s 2(1)(c) of their Law Reform (Miscellaneous Provisions) Act 1946. Proceedings against Mr Labruyere's employer are apparently precluded by the Workers Compensation Act 1987. He is in doubt as to which of the defendants he is entitled to pursue for redress. The section provides:
"2 Special provisions in relation to certain actions of tort
(1) In an action of tort in any court to which this Part applies the following provisions shall notwithstanding anything contained in any Act which regulates the procedure and practice of the court, have effect:
(a) All persons may be joined as defendants against whom the right to any relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly or severally or in the alternative where if separate actions were brought against such persons any common question of law or fact would arise, and judgment or verdict and judgment may be given against such one or more of the defendants as may be found to be liable, according to their respective liabilities, without any amendment.
(b) It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against the defendant; but the court may make such order as may appear just to prevent any defendant from being embarrassed or put to expense by being required to attend any proceedings in which the defendant may have no interest.
(c) Where the plaintiff is in doubt as to the person from whom the plaintiff is entitled to redress, the plaintiff may join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined as between all parties.
(d) No action shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
(e) The plaintiff may unite in the same action several causes of action, but if it appear to the court that any such causes of action cannot be conveniently tried or disposed of together, the court may order separate trials of any such causes of action to be had, or may make such other order as may be necessary or expedient for the separate disposal thereof.
(2) The jurisdiction conferred on a court by paragraph (b) or paragraph (e) of subsection (1) may be exercised by a judge of the court sitting either in court or in chambers, or in the case of the Local Court exercising jurisdiction under the Civil Procedure Act 2005, by a Magistrate."
By notice of motion filed in May 2011, Mr Labruyere sought orders that these proceedings be heard together with other proceedings listed in the Technology and Construction List of the Equity Division (matter number 2010/355406). Mr Labruyere is not a party to those proceedings. They are proceedings brought by his employer against the defendants to these proceedings, other than the third defendant, Coffey Geosciences Pty Limited ('Coffey').
The first defendant, Parsons Brinckerhoff Australia Pty Ltd ('Parsons Brinckerhoff') filed written submissions criticising Mr Labruyere's motion as not making apparent the orders sought, or that they were pressed pursuant to Rule 28.5 of the Uniform Civil Procedure Rules 2005. It indicated that while opposed to joinder, it would consent to an order that the Common Law proceedings be heard immediately after the Equity proceedings.
When the hearing of the motion commenced, it was confirmed that the orders were sought under Rule 28.5. The orders which Mr Labruyere then pressed were either an order that the Common Law and Equity proceedings be heard at the same time, or in the alternative, that the Common Law proceedings be stayed until after determination of the Equity proceedings.
I adjourned shortly, in order that those appearing could obtain instructions on that development. When the hearing resumed after discussions between the parties, Mr Labruyere pressed only an order for stay. Two of the defendants to these proceedings opposed that order and the other two consented. The plaintiff in the Equity proceedings, Mr Labruyere's employer, accepted that they strictly no longer had standing to be heard on that question; and thus neither consented to nor opposed the order, but sought costs.
Having heard the parties, I indicated that I proposed to grant the stay sought. These are the reasons for that conclusion.
The preparation of this matter for hearing has been affected by the course of a prosecution of some of the defendants to these proceedings, as well as Mr Labruyere's employer, by the WorkCover Authority of New South Wales, under the Occupational Health and Safety Act 2000, before the Industrial Court of New South Wales. A challenge to the Industrial Court's jurisdiction in the proceedings was pursued to the High Court. The prosecution is now due to commence in the Industrial Court in September next. One of the issues which will arise for determination in the prosecution is the cause of the collapse of the tunnel.
Rule 28.5 of the Rules provides:
" 28.5 Consolidation etc of proceedings
(cf SCR Part 31, rule 7; DCR Part 12, rule 7)
If several proceedings are pending in the court and it appears to the court:
(a) that they involve a common question, or
(b) that the rights to relief claimed in them are in respect of, or arise out of, the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make an order under this rule,
the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them.
Note. See also Division 5 of Part 6 with respect to joinder of causes of action and joinder of parties."
The principal purpose of the Rule is to minimise costs and delay in proceedings before the Court. Potential prejudice flowing from any order made under the Rule, must also be considered.
It is apparent that in issue in both the prosecution, in these proceedings and those before the Equity Division, is the cause of the collapse of the tunnel. Determination of that issue will assist Mr Labruyere in determining, which of the defendants he has named in these proceedings, he should proceed against. It is only Mr Labruyere and Coffey, who are not parties to the Equity proceedings. Nor are Coffey or Mr Labruyere being prosecuted in respect of the collapse of the tunnel. It is anticipated however, that Mr Labruyere will be called to give evidence in the Equity proceedings.
Coffey opposed the stay of these proceedings, complaining that it still did not understand the case being pressed against it; it had unsuccessfully sought to have the proceedings dismissed; and it was opposed to any further delay of the hearing. It argued that none of the experts reports in the prosecution proceedings laid responsibility for the collapse at its feet. It was not a party to the Equity proceedings, which would not resolve the question of the cause of the collapse, so far as it was concerned. It followed, it was argued, that these proceedings ought not to be stayed pending determination of the Equity proceedings, where those proceedings would not shed any light on its role in the cause of the collapse.
That was not accepted by Mr Labruyere, or Parsons Brinckerhoff. Against Coffey it was argued that while it was not yet a party to the Equity proceedings, the pleadings in those proceedings were not closed; that it was likely, given that it was a geotechnical engineer, who had provided Parsons Brinckerhoff with geotechnical advice, in relation to the quality of the soil which was being tunnelled, that its contribution to the matters the subject of the Equity proceedings was likely to arise for determination in those proceedings. Those proceedings raise both contractual and tortious claims against those who advised the joint venturers.
Pell Sullivan Meynink Pty Limited ('Pell Sullivan'), the second defendant, also opposed the stay. While it was a party to both the Equity and Common Law proceedings and accepted that the cause of the collapse was an issue in both proceedings, it argued that the other issues raised were different and that accordingly, these proceedings ought not to be stayed.
In all of these circumstances, it seemed to me that to order a stay of these proceedings, pending determination of the Equity proceedings, was consistent with the requirements of the Civil Procedure Act 2005, which in s 56 provides that the overriding purpose of the Act and Rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings and in s 57 that:
"57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1)."
While s 59 emphasises the elimination of delay, in the circumstances here arising, I was satisfied that justice could not permit elimination of delay to be achieved at the expense of having the cause of the collapse of the tunnel litigated twice in separate proceedings before this Court, particularly given that that the issue also has to be determined in the prosecution before the Industrial Court. In this Court the Equity proceedings involve a contest between the parties who were involved in and advised about the tunnelling work, apart, at present, from Coffey. The resolution of those proceedings will assist Mr Labruyere in determining who he should pursue in these proceedings.
It seems to me that Mr Labruyere properly accepted that joinder of the two proceedings could not sensibly be ordered, given the very disparate issues which arise to be determined in the two cases, other than the question of the cause of the collapse of the tunnel. Given the circumstances in which Mr Labruyere has brought the proceedings against the various defendants he has identified, ordering the stay is likely to be an efficient means of permitting identification of which of the defendants he should pursue, without he having to relitigate the question of the case of the tunnel collapse.
So far as Coffey is concerned, that the result of the order made will be further delay, must be accepted. Nevertheless, if the position remains as it is at the present time, namely no suggestion that it contributed to the cause of the tunnel collapse, the outcome of the stay is likely to be that it will be removed as a defendant to these proceedings. If it is perceived by the other parties to the Equity proceedings that it did contribute to the cause of the collapse, it is likely that steps will be taken to join it as a party to those proceedings. In that event, a stay of these proceedings is unlikely to work any hardship upon it. If its position is vindicated in the Equity proceedings, it is also unlikely to remain a defendant in these proceedings.
As to Pell Sullivan, the second defendant, it is already a party to the Equity proceedings. Its role in the cause of the collapse and consequently, whether it ought to remain a defendant to these proceedings, is also likely to be resolved by the findings in the Equity proceedings.
In all of these circumstances, it seemed to me that the position of the other three parties to these proceedings had to be accepted as according with the sensible dictates of justice. Accordingly, I ordered the stay of these proceedings pending determination of the Equity proceedings.
Costs
Costs usually follow the event. In the circumstances, given the altered approach taken for the plaintiff, as it emerged, there will have to be an order for costs in due course in favour of the plaintiff in the Equity proceedings, who appeared to resist the joinder application, but finally did not have an application to meet. The plaintiff should bear the costs of the defendants who consented to the orders pressed, but not those who opposed those orders. Such orders can be dealt with when the matter goes to hearing.
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Decision last updated: 22 July 2011
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