McLaughlin v Electrolux Home Products Pty Ltd - [2009] QDC 120

DISTRICT COURT OF QUEENSLAND

CITATION:

McLaughlin v Electrolux Home Products Pty Ltd [2009] QDC 120

PARTIES:

Daniel McLaughlin
(plaintiff)

v

Electrolux Home Products Pty Ltd
(ACN 004 762 341)
(defendant)

FILE NO/S:

2594 of 2005

DIVISION:

Applications

PROCEEDING:

Applications to include a party and add a new cause of action after the limitation period has expired; to transfer proceedings to the Supreme Court; and for experts to meet.

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

15 May 2009

DELIVERED AT:

Warwick

HEARING DATE:

29 April 2009

JUDGE:

Kingham DCJ

ORDER:

1. Mrs McLaughlin is joined as a plaintiff to these proceedings.
2. Leave is granted to amend the claim to add a cause of action by Mrs McLaughlin relating to property owned by her alone.
3. Upon amendment of the claim to seek damages beyond this court’s jurisdiction, these proceedings are transferred to the Supreme Court for determination.
4. The experts are directed to meet and confer with a view to resolving any areas of disagreement and to produce a joint report. The terms of the meeting and the requirements of the report are those specified in these reasons.
5. Electrolux is to pay the plaintiff's costs of and incidental to this application assessed on the standard basis.

CATCHWORDS:

APPLICATION – TO JOIN PLAINTIFF – where limitation period has expired – whether r 69(2) applies to a limitation period imposed by the Trade Practices Act 1974 (Cth) – whether r 69 otherwise allows joinder – whether party necessary to enable court to adjudicate – where amendment would add a new cause of action – where arises from same facts or substantially the same facts

JURISDICTION – TRANSFER TO SUPREME COURT- where claim is amended exceeds this court’s monetary jurisdiction

APPLICATION – meeting of experts – whether premature – whether likely to be productive

District Court of Queensland Act 1967 (Qld), s 68, s 72.
Judiciary Act 1903 (Cth), s 79
Trade Practices Act 1974 (Cth), s 75AO, s 82
Uniform Civil Procedure Rules 1999 (Qld), r 63, r 69, r 376, r 429B, schedule 4

Borsato v Campbell & Ors [2006] QSC 191, cited
Draney v Barry [2002] 1 Qd R 145, cited
Greig & Anor v Australian Building Industries Pty Ltd (in liq) [2002] QSC 298, considered

Greig (as liquidator of Australian Building Industries Pty Ltd

(in liq)) v Australian Building Industries Pty Ltd (in liq);

Greig (as liquidators of Australian Building Industries Pty

Ltd (in liq) v Stramit Corp Pty Ltd (Unreported, Supreme

Court of Queensland Court of Appeal, Williams,

Jerrard JJA and Fryberg J, 18 July 2003), followed

Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184, considered
Montgomery v Pickard [2007] QCA 203, cited
Ramsay v McElroy, [2003] QCA 208, applied

COUNSEL:

D Kelly for the plaintiff

J Chapple for the defendant

SOLICITORS:

RBJ Lawyers for the plaintiff

McCullough Robertson for the defendant

In the early hours of the morning of 1st of December 2003 Mr McLaughlin’s house caught…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read McLaughlin v Electrolux Home Products Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] QDC 120
Decision Date: 15 May 2009

CaseChat Overview and Summary

In the matter of McLaughlin v Electrolux Home Products Pty Ltd, the plaintiff sought to join a new party, Mrs McLaughlin, to the proceedings after the limitation period had expired. The Federal Circuit Court was required to determine whether rule 69(2) applied to a limitation period imposed by the Trade Practices Act 1974 (Cth), and whether rule 69 otherwise allowed joinder. The court also needed to decide if Mrs McLaughlin was a necessary party to enable the court to adjudicate on the claims, and whether the amendment would add a new cause of action that arose from the same facts or substantially the same facts as the existing claim.

The court found that rule 69(2) did not apply to a limitation period imposed by statute, and that rule 69 did not provide a basis for joining Mrs McLaughlin as a plaintiff. However, the court held that Mrs McLaughlin was necessary to enable the court to adjudicate on the claims, and that the amendment would not add a new cause of action but rather relate to property owned by her alone. The court also noted that the amendment would result in a claim that exceeded the court’s monetary jurisdiction, and therefore ordered that the proceedings be transferred to the Supreme Court for determination. Finally, the court directed the experts to meet and confer with a view to resolving any areas of disagreement and to produce a joint report.

The court ordered that Mrs McLaughlin be joined as a plaintiff to these proceedings, and that leave be granted to amend the claim to add a cause of action by Mrs McLaughlin relating to property owned by her alone. The court also ordered that upon amendment of the claim to seek damages beyond the court’s jurisdiction, these proceedings be transferred to the Supreme Court for determination. The court further directed the experts to meet and confer with a view to resolving any areas of disagreement and to produce a joint report. Lastly, the court ordered that Electrolux pay the plaintiff's costs of and incidental to this application assessed on the standard basis.

In light of the above, the court made the necessary orders to facilitate the joinder of Mrs McLaughlin as a plaintiff, the amendment of the claim, the transfer of the proceedings to the Supreme Court, the meeting of experts, and the payment of costs. These orders ensured that the parties could proceed with the litigation in an efficient and effective manner, while also ensuring that the court’s jurisdiction was not exceeded.

Orders

Orders of the court

1. Mrs McLaughlin is joined as a plaintiff to these proceedings.

2. Leave is granted to amend the claim to add a cause of action by Mrs McLaughlin relating to property owned by her alone.

3. Upon amendment of the claim to seek damages beyond this court’s jurisdiction, these proceedings are transferred to the Supreme Court for determination.

4. The experts are directed to meet and confer with a view to resolving any areas of disagreement and to produce a joint report. The terms of the meeting and the requirements of the report are those specified in these reasons.

5. Electrolux is to pay the plaintiff's costs of and incidental to this application assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	McLaughlin v Electrolux Home Products Pty Ltd [2009] QDC 120
PARTIES:	Daniel McLaughlin (plaintiff) v Electrolux Home Products Pty Ltd (ACN 004 762 341) (defendant)
FILE NO/S:	2594 of 2005
DIVISION:	Applications
PROCEEDING:	Applications to include a party and add a new cause of action after the limitation period has expired; to transfer proceedings to the Supreme Court; and for experts to meet.
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	15 May 2009
DELIVERED AT:	Warwick
HEARING DATE:	29 April 2009
JUDGE:	Kingham DCJ
ORDER:	1. Mrs McLaughlin is joined as a plaintiff to these proceedings. 2. Leave is granted to amend the claim to add a cause of action by Mrs McLaughlin relating to property owned by her alone. 3. Upon amendment of the claim to seek damages beyond this court’s jurisdiction, these proceedings are transferred to the Supreme Court for determination. 4. The experts are directed to meet and confer with a view to resolving any areas of disagreement and to produce a joint report. The terms of the meeting and the requirements of the report are those specified in these reasons. 5. Electrolux is to pay the plaintiff's costs of and incidental to this application assessed on the standard basis.
CATCHWORDS:	APPLICATION – TO JOIN PLAINTIFF – where limitation period has expired – whether r 69(2) applies to a limitation period imposed by the Trade Practices Act 1974 (Cth) – whether r 69 otherwise allows joinder – whether party necessary to enable court to adjudicate – where amendment would add a new cause of action – where arises from same facts or substantially the same facts JURISDICTION – TRANSFER TO SUPREME COURT- where claim is amended exceeds this court’s monetary jurisdiction APPLICATION – meeting of experts – whether premature – whether likely to be productive District Court of Queensland Act 1967 (Qld), s 68, s 72. Judiciary Act 1903 (Cth), s 79 Trade Practices Act 1974 (Cth), s 75AO, s 82 Uniform Civil Procedure Rules 1999 (Qld), r 63, r 69, r 376, r 429B, schedule 4 Borsato v Campbell & Ors [2006] QSC 191, cited Draney v Barry [2002] 1 Qd R 145, cited Greig & Anor v Australian Building Industries Pty Ltd (in liq) [2002] QSC 298, considered Greig (as liquidator of Australian Building Industries Pty Ltd (in liq)) v Australian Building Industries Pty Ltd (in liq); Greig (as liquidators of Australian Building Industries Pty Ltd (in liq) v Stramit Corp Pty Ltd (Unreported, Supreme Court of Queensland Court of Appeal, Williams, Jerrard JJA and Fryberg J, 18 July 2003), followed Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184, considered Montgomery v Pickard [2007] QCA 203, cited Ramsay v McElroy, [2003] QCA 208, applied
COUNSEL:	D Kelly for the plaintiff J Chapple for the defendant
SOLICITORS:	RBJ Lawyers for the plaintiff McCullough Robertson for the defendant