McEwan v Adpiosus Pty Ltd and Skerman

[2006] QDC 267

DISTRICT COURT OF QUEENSLAND

CITATION:

McEwan v Adpiosus Pty Ltd & Skerman [2006] QDC 267

PARTIES:

JOSHUA GARY McEWAN Suing by his Litigation Guardian AMANDA LOUISE McEWAN
Plaintiff

v

ADPIOSUS PTY LTD
ACN 010 507 605
First Defendant

and

RUSSELL DOUGLAS SKERMAN and
MARGARET ANN SKERMAN
Second Defendants

FILE NO/S:

BD1338 of 2005

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

4 August, 2006

DELIVERED AT:

Brisbane

HEARING DATE:

12 May, 2006

JUDGE:

McLauchlan QC, DCJ

ORDER:

Application to set aside judgment refused

CATCHWORDS:

COUNSEL:

Mr Geraghty for the Plaintiff

Mr Kimmins for Second Defendants

SOLICITORS:

Hunter Solicitors for the Plaintiff

McCullough Robertson for the Second Defendants

1. Reasons for Judgment were delivered in this matter on 28 April 2006.  There was judgment for the plaintiff but I gave leave to the parties to apply to set the judgment aside for the purpose of making submissions on the question whether or not there had been a breach of a condition in the permit issued pursuant to the Fire and Rescue Authority Act 1990 to light the fire as a result of which the plaintiff subsequently suffered injury. I took the view that the second defendants were in breach of the condition and were therefore not entitled to the protection of s 74 of the Act. An application was duly made by the second defendants, on 12 May, 2006.

1. Section 74 of the Act provides as follows:-

“(1)       A person who lights a fire –

(a)authorised to be lit by notification given under s 63 or by a permit granted under s 65; or

(b)in order to comply with the notification or notice given under s 69;

and who, in lighting the fire, complies with any condition or direction contained in the notification, notice or permit and does not contravene any provision of this Act does not incur any liability at common law for any loss, injury or damage caused by the fire unless it is shown that the person acted recklessly or maliciously caused the loss, injury or damage.

(2)Sub-section (1) applies only in respect of a fire lit for the purpose of or likely to have the effect of burning off vegetation.”

1. Although it was common ground that the relevant fire had been lit by the second defendants pursuant to a permit under s 65 of the Act, the defence afforded by s 74 was not pleaded, and in fact was only referred to by the second defendants in their submissions after both cases had been closed.  In my reasons I remarked that no objection had been taken by the plaintiff on the basis that reliance on that section had not been pleaded, contrary to Rule 149 UCPR.  In fact, it appears that an objection was taken by the plaintiff during the submissions, but precisely what was said cannot be discovered since the submissions were not recorded.

1. Nevertheless it is common ground that an objection was taken and it is now renewed by the plaintiff.  Rule 149(1) (c) states that each pleading must state specifically any matter that if not stated specifically may take another party by surprise.  In my opinion it was the duty of the second defendants to plead specifically a defence under s 74, and that was not done.  It is necessary then to consider Rule 371 which deals with the effect of failure to comply with the rules.  The rule provides that a failure to comply with the rules is an irregularity, and that if there has been such a failure the Court may make such order dealing with the proceeding generally as the Court considers appropriate.  This will thus allow the Court to allow the second defendants to rely upon the defence although not pleaded, or alternatively to refuse to allow the second defendant to rely upon that defence because it has not been pleaded.

1. Section 74 is curiously worded in that it refers to compliance “with any condition or direction contained in the notification, notice or permit” but I think it should be read as if the word “any” were “every”, and I so construe the provision. 

1. It must be said that it was very late in the day for the second defendants to raise a defence based upon s 74.  The case had been pleaded, prepared and fought on the basis that no such defence was relied upon.  The fact that the existence of the permit was common ground in the trial does not justify any inference that a defence based on s 74 might be relied upon, although not pleaded.  The cases which go to the question whether amendments should be allowed with consequent adjournment of the proceedings if the other party can be compensated in costs are not directly in point, because the second defendants’ case had closed.  It would have been necessary for the second defendants to seek leave to re-open their case, and if leave had been given then the question of an adjournment and appropriate directions for the further hearing of the matter could have been made. 

1. Submissions have been made on both sides as to what is meant by the expression “fire” in Condition 4 of the Permit and attention has been drawn by the second defendants to condition number 10 which refers to requirements which apply “after burning”.  However it may be remarked that Condition 10 seems to contemplate the existence of a fire after the burning has finished, and that “burning” presumably refers to the period during the fire when there are active flames. 

1. However that may be, it is clear that not only Condition 4 must be complied with, but all other conditions of the Permit.  The plaintiff points to Condition 1 of the Permit which provides that “neighbours must have been notified of intention to apply for a permit to light fire”.

1. The application for a permit to burn off, which is exhibit 15 in the proceedings, states that the second defendant has sought the consent of each and every neighbour to the lighting of a fire on the land, being lot 1 on registered plan 207468 and lot 2 on registered plan 840773.  In fact two neighbours have given a consent to the fire and have signed the form accordingly.  These are the Beaudesert Golf Club and one L. Murphey.

1. Section 65 deals with the granting of permits and provides as follows:-

“(1)A person may apply to the Commissioner (orally or in writing) for a permit to light a fire on any land.

(2)The Commissioner may grant or refuse to grant an application.

(3)Subject to sub-section (4) the Commissioner must refuse to grant a permit to light a fire on any land unless satisfied –

(a)That reasonable steps have been taken to notify every occupier of adjoining land (within the meaning of s 64) of the making of the application; and

(b)that a reasonable opportunity has been given to every occupier so notified to object (orally or in writing) to the granting of the permit.

(4)The Commissioner may grant a permit without complying with subsection (3) if satisfied that extraordinary circumstances exist for so doing.”

1. The researches of the plaintiff indicate that Leonard Edward Murphey and Karen Alys Murphey, The Beaudesert Shire Council, Beaudesert Developments Pty Ltd and John Wesley Reid and Deborah Maree Reid were adjoining occupiers of the relevant land.  This material has not been disputed by the second defendants.  I agree with the submission of the respondents, that if the defence now sought to be relied upon had been pleaded, the plaintiff would have been in a position to check compliance with the conditions of the permit generally, and in particular, compliance with Condition 1 of the permit, and that the result of that appears to be that the second defendants would have been deprived of a defence under s 74.

1. I do not think it is appropriate or just that the plaintiff should now be put in the position of having to continue with this litigation to establish these facts, which have been clearly stated in the plaintiff’s submissions and have not been countered in any way by the second defendants.  The application to set aside the judgment is accordingly refused.