McLAREN v HUNGRY JACK'S PTY LTD

[2004] WADC 116

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   McLAREN -v- HUNGRY JACK'S PTY LTD [2004] WADC 116

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   26 MAY 2004

DELIVERED          :   11 JUNE 2004

FILE NO/S:   CIV 2308 of 2003

BETWEEN:   SUSAN THERESE McLAREN

Plaintiff

AND

HUNGRY JACK'S PTY LTD
Defendant

MICHAEL CROSTHWAITE
First named First Third Party

MARILYN CROSTHWAITE
Second named First Third Party

VICKI MICHELLE GENDALL
Second Third Party

PAMELA FRANCES HURT
Third Third Party

Catchwords:

Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Application for directions in third party proceedings - Application to dismiss third party proceedings - Sufficiency of third party notice

Legislation:

Nil

Result:

Proceedings on third party notice terminated

Representation:

Counsel:

Plaintiff:    Ms C Sluiter

Defendant:    Ms A J Bishop

First named First Third Party     :    No appearance

Second named First Third Party :    No appearance

Second Third Party                   :    No appearance

Third Third Party  :    Ms A G Rawson

Solicitors:

Plaintiff:    Bradford & Co

Defendant:    Downings Legal

First named First Third Party     :    J R Criddle

Second named First Third Party :    J R Criddle

Second Third Party                   :    Chris Baker & Associates

Third Third Party  :    Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HARMAN:  The defendant issued third party proceedings against the third third party and subsequently made application for directions in the third party proceedings. 

2. Order 19, r 4(3)(c) provides that upon the hearing of the application for directions the Court may dismiss the application and terminate the proceedings on the third party notice.  On the return date of the application the third party sought to have the third party notice struck out and the third party proceedings dismissed. 

3. The objection raised is as to the sufficiency of the notice as measured the impact of O 19, r 1.  It is as follows: 

   "(1)Where in any action a defendant who has entered an appearance claims against any person not already a party to the action (in this order called third party) … then … the defendant may issue a notice in Form No 11 or 12, whichever is appropriate (in this order referred to as a third party notice), containing a statement of the nature of the claim made against him and … the nature and grounds of the claim made by him … ."  

4. The terms of the third party notice are as follows: 

   "TAKE NOTICE that this action has been brought by the Plaintiff against the Defendant.  In it the Plaintiff claims against the Defendant for breach of duty of care and/or breach of contract and/or breach of statutory duty for personal injuries suffered by the Plaintiff on 9 April 2001 at the Defendant's premises, and claims damages, interest and costs as appears from the Writ of Summons and Statement of Claim, copies whereof are served herewith. 

   The Defendant defends the action on the grounds stated in its Defence, a copy of which is also served with this Notice, but in the event that the Defendant is adjudged liable to the Plaintiff the Defendant claims against you to be indemnified against the Plaintiff's claim and the costs of the action, and/or contribution from you as joint tortfeasor pursuant to Section 7(1)(c) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) and the costs of the third party proceedings, on the grounds that any injury and loss sustained by the Plaintiff occurred as a result of your negligence and/or breach of contract." 

5. According to the indorsement of claim on the writ: 

   "The Plaintiff sues by her next friend in this matter in respect of injuries sustained in an accident at the premises of the defendant located at 420 Joondalup Drive, Joondalup on 9 April 2001, such accident and injuries having been caused by the negligence and/or breach of contract and/or breach of Occupiers' Liability Act (WA), by the Defendant, its servants or agents." 

6. According to the terms of the plaintiff's statement of claim the defendant operated the business of a restaurant at the premises, the plaintiff attended at those premises for birthday celebrations and whilst engaged in play at a playground was injured.   

7. The third party notice fails to constitute the third party in any relationship either vis a vis the defendant or vis a vis the plaintiff.  The prospect of there being a sufficient relationship is no clearer for a claim in tort than it is for breach of contract. 

8. As I see it, by the notice the third party is not informed of the nature and grounds of the claim made by the defendant.  In the absence of the prospect that the third party was in attendance at the premises on the relevant date it is difficult to comprehend why it would be that the defendant would consider it appropriate to join the third party to the proceedings at all.  To the extent that the defendant may draw on the plaintiff's documents it is not assisted.  Neither the indorsement or the pleading identify the third party either specifically or in any manner by any form of reference.  Conceivably she was simply present at the premises at the relevant time.

9. If that is the best that the reader can discern it seems to me that the third party has made out her case.  It follows that it is appropriate to do as the rules provide; to dismiss the application and terminate the proceedings on the third party notice.