McDonald v. Mornington Island Shire Council

[2008] QSC 148

SUPREME COURT OF QUEENSLAND

CITATION:	McDonald v Mornington Island Shire Council [2008] QSC 148
PARTIES:	GREGORY JOHN McDONALD (Plaintiff) v MORNINGTON ISLAND SHIRE COUNCIL (Defendant)
FILE NO/S:	491 of 2007
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	8 May 2008
DELIVERED AT:	Cairns
HEARING DATE:	2 May 2008
JUDGE:	Jones J
ORDER:	1. That the defendant be at liberty to issue third party notices as proposed in the application, such notices to be served within seven days from the date hereof. 2. Direct that the proceeding be placed on the supervised case list. 3. Further direct that the first review of the proceedings will occur on 13 June 2008. 4. That the costs of and incidental to this application be reserved.
CATCHWORDS:	PROCEDURE – PROCEDURE UNDER RULES OF COURT – Third party and similar proceedings – Application opposing the joinder of third parties – whether the joiner of third parties would cause significant delay or prejudice to the plaintiff – where the joinder was irregular –Where no real delay would be caused
COUNSEL:	Mr A Philp SC for the applicant/defendant Mr K Flemming QC for the respondent/plaintiff
SOLICITORS:	Trilby Misso Lawyers for the respondent/plaintiff Gadens Lawyers for the applicant/defendant

1. On 2 May 2008 I made orders granting leave to the defendant to issue third party proceedings against the State of Queensland and against Junkuri Laki Justice Association Inc (“Junkuri”) and at the same time I directed that the proceedings be placed on the supervised case list.  I now set out my reasons for this decision.

1. The defendant sought leave pursuant to rule 194 of the Uniform Civil Procedure Rules (UCPR) to join the two third parties from whom it seeks contribution and/or indemnity for any damages recoverable against it by the plaintiff.  The defendant purported to file third party notices and statements of claim against the third parties on 12 February 2008 but overlooked the need to obtain leave as required by the UCPR.  This application was made to rectify that oversight. 

1. The plaintiff instituted proceedings on 31 October 2007 claiming damages for personal injury sustained during an assault upon him on 29 November 2003.  The assault occurred at the Lelka Murin Hotel (otherwise known as “the tavern”) at Mornington Island.  The plaintiff was employed as the tavern manager by the defendant and was acting in the course of his employment when assaulted by a group (some 18 or 19 persons) of island residents. 

1. The attack was motivated by the residents’ reaction to the implementation of an Alcohol Management Plan introduced at the instigation of the Queensland Government.  The plaintiff contends that insufficient precautions were taken to provide for his safety at the workplace in those circumstances.

1. The defendant is a body corporate pursuant to the provisions of the Local Government Act 1993. It claims to have acted in accordance with the Alcohol Management Plan as devised by the State of Queensland and Junkuri. It contends in the circumstances that each of the proposed third parties owed a duty to the plaintiff in the various ways as set out in the draft third party Statement of Claim. It is not necessary to set out in detail since it is clear that the defendant’s claims against the third parties arise out of the same incident and in ordinary circumstances would be properly dealt with in the same proceedings. If separate proceedings were required for the defendant to raise the claim against the third party the same witnesses would be called to give evidence about the same circumstances.

1. The plaintiff opposed the joinder of the third parties at this stage on the grounds that such a step would cause undue delay in the hearing of the plaintiff’s claim.  The plaintiff suffered an adverse psychological/psychiatric reaction to the incident and there is medical opinion suggesting that he has suicidal tendencies such that a speedy resolution of the case is highly desirable.

1. The discretion to be exercised in determining the application was thus the balancing of the plaintiff’s need to have an early trial against the desirability of having all issues between the relevant parties determined in the one proceeding.

1. The likely progress of the plaintiff’s claim to a hearing in Cairns would, in any event, mean that it would not be heard until November 2008.  The question then was whether the hearing would be delayed by adding the third parties.

1. Although the filing of the third parties’ notices was irregular, the result is that the due institution of third party proceedings can be undertaken forthwith.  Further, the evidence before me shows that the third parties have responded to the notices already, by carrying out investigations and interacting with the defendant’s legal representatives.  This gives confidence that the third party pleadings are likely to be completed expeditiously.  That being the case, if the action is now placed on the supervised case list and given appropriate priority it will be ready for hearing in its enlarged form by the earliest date at which the hearing can be undertaken.  For these reasons I have exercised my discretion to grant the leave as sought by the defendant.

Orders

1. 1.  I order that the defendant be at liberty to issue third party notices as proposed in the application, such notices to be served within seven days from the date hereof.

2.   I direct that the proceeding be placed on the supervised case list.

3.   I further direct that the first review of the proceedings will occur on 13 June 2008.

4.   I order that the costs of and incidental to this application be reserved.