McDonald v Director of Housing and Ors (Ruling)
[2011] VCC 965
•10 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-08-00885
| FAE ALISON McDONALD | Plaintiff |
| v | |
| DIRECTOR OF HOUSING | First Defendant |
| and | |
| CV BUILDING SERVICES PTY LTD | Second Defendant |
| and | |
| MELCA NOMINEES PTY LTD | Third Defendant |
| (trading as MELBOURNE CARPET SPECIALISTS) | |
| CENTRAL CARPETS CASTLEMAINE PTY LTD | Third Party |
| (ACN 094 107 909) | |
| DANIEL ROSS | Fourth Party |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 March 2011 |
| DATE OF RULING: | 10 May 2011 |
| CASE MAY BE CITED AS: | McDonald v Director of Housing & Ors (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 965 |
RULING
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Catchwords: Limitation of Actions Act 1958, s.27K – application to join existing third party as a defendant – no prejudice – relevant factors.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Loftus of Counsel | Alessi & Kemp Solicitors |
| For the Third Party | Mr A Middleton | Norris Coates |
| For the Fourth Party | Ms E Granger | Hunt & Hunt |
| HER HONOUR: |
1 This is an application by the plaintiff pursuant to s.27K of the Limitation of Actions Act 1958 (“the Act”) to extend time for her to join the existing third party, “Central Carpets” (“the third party”), as a defendant to the proceedings.
2 The onus is on the plaintiff in this application to establish it is just and reasonable to make the orders sought under s.27K of the Act.
3 The plaintiff seeks an extension of time of just over three years, time having run out in March 2008.
4 The plaintiff’s claim relates to personal injuries suffered by her in March 2005 when she fell on carpet at Housing Commission premises in Eaglehawk where she was a tenant.
Timing of the Application
5 A preliminary point made by counsel for the third party was that the plaintiff’s application was premature.
6 It was submitted, in the ordinary course of events, a party should first be joined by the plaintiff; the limitation point would then be raised in the Defence and the application would then be made.
7 However, at the directions hearing on 28 January 2011 (“the earlier directions hearing”) before his Honour Judge Ginnane, the third party’s solicitor objected to this course being taken by the plaintiff.
8 The background to the earlier directions hearing was set out in detailed written submissions provided by the plaintiff’s counsel. The plaintiff’s solicitors initially sought the third party’s solicitor’s consent to an order joining it as a defendant. Consent was refused by letter dated 22 December 2010 and the matter listed for directions on 28 January 2011.
9 On 27 January 2011, the plaintiff’s solicitors wrote to the Court, forwarding the Proposed Minutes of Consent Orders signed by all solicitors, except for the third party’s solicitors, seeking leave to join the third party as a defendant.
10 At the earlier directions hearing, his Honour Judge Ginnane noted in his order that the plaintiff had foreshadowed an application to join the third party as a fourth defendant. Its solicitor had referred to the possibility that such a claim against the third party may be statute barred. It was noted the plaintiff was to consider her position in that regard and any such application was to be returnable on 19 March 2011.
11 I accept counsel for the plaintiff’s submission that for counsel for the third party to now submit the plaintiff’s application is premature and completely ignores what transpired on that date.
12 Further, s.27K of the Act does not require an application to extend time only be made after the applicant has been joined as a party. That section reads:
“A person claiming to have a cause of action to which this part applies
may apply to a court for an extension of time.”
13 The section does not refer to a party and it does not refer to a person who has brought a cause of action. It does not qualify either directly or by implication when the application may be brought.
14 In my view, this application brought by summons has not been brought prematurely.
15 Section 27L(1) of the Act sets out matters to be considered in determining applications for an extension of time.
Section 27L(1)(a) - The Length and Reasons for the Delay on the Part of the
Plaintiff16 The plaintiff did not become aware that the third defendant alleged it retained the third party until 6 October 2009, the limitation period having expired in March 2008. By that time, the plaintiff was already out of time to join the third party as a defendant.
17 Section 24(4A)(a)(ii) of the Wrongs Act 1958 enables a defendant to issue (third party) proceedings against a joint tortfeasor within twelve months of their own joinder as a defendant (in circumstances where a plaintiff may be out of time against that third party joined by the defendant).
18 It was submitted by the plaintiff’s counsel that it was just and reasonable that the plaintiff not be barred from joining a third or subsequent party as a defendant when she had no reasonable way of knowing of that further party’s involvement before the limitation period had expired.
19 I do not accept the submission of the third party’s counsel that the plaintiff’s affidavit did not disclose any attempts to ascertain what parties were involved in the carpeting works as the plaintiff’s solicitor deposed to FOI searches carried out by him prior to issuing the proceedings.
20 Further, the plaintiff has deposed to her belief that the works at her premises were performed by the first defendant.
21 The plaintiff’s solicitor has deposed to the third defendant’s missteps in attempting to join the third party as a party, as a consequence of which the third party was not joined as a third party until the third defendant filed a Third Party Notice on 20 July 2010.
22 On 30 September 2010, the Third Party Notice joining the third party was served on the plaintiff’s solicitors. The misnamed (Defence to Fourth Party Notice) was not served upon the plaintiff’s solicitors until 4 October 2010.
23 The plaintiff elected not to join the third party until it had been joined by the third defendant. On 29 March 2010, the plaintiff’s solicitor put the third party’s solicitors on notice that their client would be joined once the third defendant had joined it as a third party. The plaintiff’s solicitors then took immediate steps to join the third party following the receipt of its Defence, writing to the Court on 8 October 2010, three days thereafter.
Section 27L(1)(b) – The extent to which, having regard to the Delay, there is likely to be Prejudice to the Defendant
24 I accept there is no evidence from the third party of any prejudice. Its solicitor’s affidavit is silent on the question and no submissions were made by its counsel in this regard.
25 Further, Central Carpets is already a third party, having been joined by the third defendant on 20 July 2010. The third party cannot therefore point to any prejudice that exists separately to any prejudice it faces by reason of the time it was joined to the third defendant’s third party proceedings.
26 Further, I accept that there is no evidence of any prejudice that has arisen between 20 July 2010 when the third party was joined as a third party and this application was made available.
Section 27L(1)(c) – The Extent, if any, to which the Defendant had taken steps to make available to the Plaintiff means of ascertaining which were or might be relevant to the Cause of Action of the Plaintiff against the Defendant
27 The second defendant’s discovery did not mention the third party. The third party’s solicitor deposed that the plaintiff was aware of the facts relating to his client’s involvement since the service of the Defence (to the Fourth Party Notice) in late 2009.
28 The Defence to the Fourth Party Notice mentions a further party, Daniel Ross, although he is not alleged to have been retained by the third party in the Defence to the Fourth Party Notice, which merely stated that “the carpeting works at the premises were performed by Daniel Ross”. The third party’s Defence to the Fourth Party Notice does not deny, but rather, does not admit that it was retained by the third defendant to perform the carpeting works.
29 I accept that as a result of the third party’s Defence to the Fourth Party Notice, the plaintiff had no way of knowing what involvement the third party had in performing the work, and she had no knowledge of the relationship between the third and fourth parties, or what the fourth party’s qualifications were.
Section 27L(1)(f)) – The extent to which the Plaintiff acted promptly and reasonably once the Plaintiff knew that the act or omission of the Defendant to which the injury of the Plaintiff was attributable might be capable at that time of giving rise to an action for damages
30 The plaintiff’s action against the first and second defendants was issued within time. As the litigation has progressed, and following the identification and joinder of other parties, the plaintiff has taken steps to join those parties as defendants.
31 The plaintiff’s solicitor has deposed the plaintiff took prompt action following the joinder of the third party to join it as a defendant. He deposed that he was concerned that this proceeding had escalated and he wanted to understand what issues are in dispute between the third party and the third defendant before joining the third party as a defendant.
32 I accept that the third party’s Defence to the Fourth Party Notice, which does not deny that it was engaged to perform the carpeting works or clarify the relationship between it and the third defendant, has left the plaintiff in the position where she must join the third party as a defendant to protect her interests.
33 An affidavit has not been provided from any employee or officer of the third party, nor does its solicitor’s affidavit contain any exhibited documents.
34 Although he has been joined as a party by the third party following the orders made on 28 January 2011, the fourth party has not entered a defence.
35 Accordingly, the plaintiff does not know if the fourth party will deny involvement; or alternatively, may allege his involvement was limited or subject to the third party’s supervision, or for instance, that he was not retained to install the strip but merely the carpet; or alternatively, may not be a competent contractor and the third party should not have retained him.
36 It was submitted by counsel for the plaintiff that his instructor’s concern about escalation would encompass costs protection concerns. With all of the unknowns concerning the second defendant and the third and subsequent parties’ involvement in the carpeting works, his instructor would be entitled to protect his client’s position in the event that submissions regarding Bullock or Sanderson orders were made following the conclusion of the proceedings.
37 Awaiting joinder of the third party and the delivery of that party’s defence before joining the third party as a defendant would be relevant factors to submit to a court in any application for Bullock or Sanderson orders.
The Merits of the Case against the Third Party
38 It was submitted by counsel for the third party that there was no case against it. The third party’s solicitor deposed that his client did not perform the work “the subject of the complaint” and there is no factual or legal basis for a cause of action in negligence against his client by the plaintiff.
39 Reliance was placed on Section 16 of the Civil Procedure Act 2010 that requires there to be a proper basis for the pursuit of any claim
40 In this regard, counsel for the plaintiff submitted that the Court may not grant the extension if no conceivable basis for the claim has been demonstrated: See Taylor v Western General Hospital [1986] VR 250.
41 I accept that until the fourth party has filed a defence, the plaintiff does not know what he will allege.
42 As counsel for the plaintiff submitted, if the fourth party was not a competent contractor to sub-contract to, the plaintiff will have a cause of action in negligence against the third party. Further, it is also not known if the third party should have supervised the fourth party’s work or if they provided him with adequate specifications.
43 I accept that these matters will need to be tested before the plaintiff can determine whether to abandon her claim against the third party and/or to join the fourth party as a defendant.
44 Taking all these matters into account, I am satisfied that it is just and equitable to extend the time for the plaintiff to join the third party as a defendant to these proceedings.
45 Time is extended to the plaintiff to bring her cause of action against the present third party as a defendant until 8 June 2011.
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