Mills v Moraschi Roofing Pty Ltd

[2022] ACTSC 154

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Mills v Moraschi Roofing Pty Ltd

Citation:

[2022] ACTSC 154

Hearing Dates:

24 June 2022

DecisionDate:

24 June 2022

Before:

McCallum CJ

Decision:

See [4]

Catchwords:

CIVIL PROCEDURE — STATEMENT OF CLAIM — Application for leave to file and serve amended statement of claim — Initial proceedings commenced against deregistered company — Whether appropriate for insurer to be joined

Legislation Cited:

Limitation Act 1985 (ACT), s 36(2)

Parties:

Craig Robert Mills ( Plaintiff)

Moraschi Roofing Pty Ltd ( First Defendant)

JPC Roofing Pty Ltd (Second Defendant)

Representation:

Counsel

W Sharwood ( Plaintiff)

Page ( First Defendant)

D Crowe (AAI Limited t/as GIO Workers Compensation)

Solicitors

Toby Tancred Solicitor ( Plaintiff)

Moray & Agnew ( First Defendant)

King & Wood Mallesons (AAI Limited t/as GIO Workers Compensation)

File Number(s):

SC 492 of 2021

McCALLUM CJ:

1. This is an application in personal injury proceedings for leave to file and serve an amended statement of claim.  The reason the amendment is required is that the proceedings were initially commenced against JPC Roofing Pty Ltd as second defendant at a time when that company had already been deregistered.  There is no dispute as to the amenability in that circumstance of the insurer to take the place of the deregistered company.  A question arose, however, as to the form of the relief sought in circumstances where the plaintiff framed his prayer for relief in the language of substitution rather than joinder. 

1. Leaving that aside, and dealing with the application as a matter of substance rather than form, it is clear enough that it is appropriate for the insurer to be joined. 

1. There will be a dispute at the hearing as to the limitation period, which has already expired as against AAI, or at least that is the contention. The pleading includes, at paragraph 9, what purports to be a pleading of fact that the plaintiff seeks an extension of time under s 36(2) of the Limitation Act 1985 (ACT). More properly, that ought to have been included in the prayers for relief (or left to be raised as a defence). While I note Mr Crowe's objection to that paragraph, it does no harm sitting on the pleading where it does. In the circumstances, I am satisfied that it is appropriate to grant leave to the plaintiff to file an amended statement of claim in the form annexed to the affidavit of Tobias Julian Tancred sworn 11 May 2022.

1. I make the following orders:

(1)     Grant leave to the plaintiff to file an amended statement of claim in the form annexed to the affidavit of Tobias Julian Tancred sworn 11 May 2022.

(2)     Amended statement of claim to be filed within 7 days.

(3)     Defences to be filed within 21 days thereafter.

(4)     Parties to exchange discovery 14 days thereafter, being 29 July 2022.

(5)     Plaintiff to serve expert evidence by 12 August 2022.

(6)     Defendants to serve expert evidence by 9 September 2022.

(7)     Parties to attend a private mediation no later than 30 September 2022.

(8)     The matter be listed for a listing hearing in the week commencing 11 October 2022.

(9)     Liberty to apply on 3 days’ notice.

(10)    Plaintiff to pay costs of both parties thrown away by reason of the amendment allowed today.

I certify that the preceding four [4] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: