Orellana v. Gate Courmet Australia Pty Ltd (in Liq)

[2005] QDC 208

[2005] QDC 208

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3635 of 2004

RUTH CHRISTINE ORELLANA	Plaintiff
and
GATE COURMET AUSTRALIA PTY LTD  ACN 089 347 562 (IN LIQUIDATION)	First Defendant

and

READY WORKFORCE PTY LTD               Second Defendant
ACN 088 288 037

BRISBANE

..DATE 16/06/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 194, r 489 - application for leave to file third party notice requested to be determined "without an oral hearing" - inquiries directed by court as to awareness of party entitled and (according to the application) intended to be served.

HIS HONOUR: This is an application on the papers which the applicant in reliance on r 489 seeks to have dealt with without an oral hearing. The relief sought is the leave which is necessary in the circumstances under Rule 194 to commence third party proceedings against a company called Chandler McLeod Group Pty Ltd.

Although the application purports to be made on behalf of the first defendant and the second defendant, it is tolerably clear that that is an error and that the former is the true applicant.  The application filed the 31st of May this year states that it is to be served on the plaintiff and on the second defendant.

The terms of Rule 194 require that the plaintiff be served but leave it to the Court to determine whether any other party should be served.  There is no good reason why the second defendant ought to be served, although it may be that the proposed third party, Chandler McLeod Group Pty Ltd, is or has been related to it in some way.

Immediately prior to embarking on deciding the application, I asked my Associate to confirm that the plaintiff's solicitors were aware of the application so that the Court could be assured that if they had any interest in it they would be able to pursue that interest.  The advice forthcoming was that they were aware of the application.

In these applications determined without oral hearing, it is important, indeed as important as in the case of a hearing in Court, to ensure that those who ought to have notice of application have it.  There is no material on the Court file to show that the intention to serve the plaintiff had been fulfilled.

As for the merits of the application, the first defendant has, however at a late stage, come by information in litigation in which it is involved in New South Wales involving some or all of the same participants, the plaintiff excepted, that the proposed third party and/or the defendant may have played a role in events leading up to the accident in respect of which the plaintiff sues, such that contribution or indemnity may be available against the proposed third party. 

The circumstances are of a relatively common kind in which the plaintiff, who was directly employed by the second defendant, found herself providing services for the first defendant at its premises. 

The relief sought ought to be granted.  An order will be made in terms of the initialled draft which I have signed.  It corresponds with that submitted in support of the application subject to the completion of various particulars of myself as the Judge and dates.  It has also been amended by adding after "sworn" the words "and filed" where there is a reference to the affidavit of Nicholas John Burkett sworn on 31 May 2005.  I order as per initialled draft.