ONGOM v AM Coil (Aust) Pty Ltd

[2013] QDC 49

[2013] QDC 49

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3895 of 2011

JOE JAMES ONGOM	Plaintiff
and
AM COIL (AUST) PTY LTD	Defendant

BRISBANE

..DATE 26/02/2013

..DAY 1

ORDER

Uniform Civil Procedure Rules  - r 304(2) r 469, leave to defendant to discontinue third party proceedings where plaintiff has not consented.

HIS HONOUR:  The court makes an order in terms of the initialled draft.  It provides as sought in the application made by the defendant that the plaintiff's signature on the request for trial date be dispensed with, and provides the plaintiff to pay the defendant's costs of and incidental to the application, to be assessed on the standard basis.

Mr Morton, appearing for the defendant/applicant has added this morning an additional paragraph to the order, that the defendant have leave to discontinue its third party proceedings.  That’s required under rule 304 (2), given that the defendant has not obtained the consent of the plaintiff to withdraw of the third party proceedings.  In those circumstances, the court may grant the leave which is required for the “discontinuance”.  In Schedule 4 of the UCPR. “plaintiff” is defined to include a party filing a third party notice

The situation of the plaintiff is obscure.  He is represented by Mr Lewis from the firm which appears on the record.  Mr Lewis is entirely without instructions, so that he takes no attitude in respect of the application, either as originally made or expanded orally in court today.

He is aware of the possibility that the plaintiff may be engaging new solicitors, the identity of whom is known and was made known to the court.

The court accepts from Mr Lewis that he or others in his firm have been in communication with the putative new solicitors and with the plaintiff not only by written communications that attracted no useful response, but also in direct contact by telephone.

Mr Lewis offers the court assurance that both the plaintiff and the other firm are well apprised of what might happen today.  No step has been taken.

...

Neither of the coy potential participants this morning has appeared when the matter was called outside court by the bailiff.

So far as the signature of the request for trial date is concerned, the plaintiff has had the usual two months to sign the document tendered.  Some three requests were made by Mr Lewis’ firm for indulgences of nominated periods of extra time to respond days which the defendant granted.  Nothing has transpired.  And the defendant understandably has lost patience.

As for the leave to withdraw the third party proceedings, the plaintiff may well have an interest in opposing their discontinuance from the point of view of the third party being a prospective additional defendant in the proceeding, or

perhaps the point of view of steps such as disclosure being rendered simpler.

The statement of claim sets out that the plaintiff hurt his hand while working for the defendant on a fan belt.  Unexpectedly the machinery began to operate at a fast enough rate when he placed his hand in it to cause him injury.  Third party proceedings contended that the third party which was the occupier of the premises, a hotel, bears responsibility, given the arrangements established on its premises, and also for not fencing the machinery.

The fact is that the plaintiff has had since November 2011 to take up the clear hints in the third party documents that the third party might be liable at the suit of the plaintiff.  Nothing has happened.  Mr Lewis is again keeping mum in respect of this aspect of the application.

In my view, there's no reason why the Court ought not accede to it.  So, orders as per initial draft.

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