Palmer v Finnigan - [2009] QSC 42

SUPREME COURT OF QUEENSLAND

CITATION:

Palmer & Anor v Finnigan & Ors [2009] QSC 42

PARTIES:

BRIAN GRAHAM PALMER
(First Plaintiff)
AND
GAYE LESLEY PALMER
(Second Plaintiff)

v

RUSSELL JAMES FINNIGAN
(First Defendant)
AND
JESSICA FINNIGAN
(Second Defendant)
AND
JOHN GORDON HEMPSTALK
(First Third Party)
AND
CHRISTOPHER DAVID ENGLISH
(Second Third Party)
AND
GOLD COAST CITY COUNCIL
(Third Third Party)

FILE NO/S:

BS 6033/04

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19 December 2008

JUDGE:

Dutney J

ORDER:

The application will be dismissed. 1.

The applicant plaintiffs are to pay the respondents’ costs of and incidental to the application to be assessed on the standard basis.2.

CATCHWORDS:

PROCEDURE-SUPREME COURT PROCEDURE-PROCEDURE UNDER RULES OF COURT-PARTIES
-where limitations of actions- where personal injury -where application by first and third plaintiff to join as defendants- where building installation occurred 20 years prior - where plaintiff did not act promptly in bringing application for extension of limitation period

Personal Injuries Proceedings Act 2002 (QLD), ss43, 59.
Uniform Civil Procedure Rules 1999 (QLD), s69.
Limitation of Actions Act 1974 (QLD), s31.

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited.

COUNSEL:

Mr J Webb for the plaintiffs
Mr G Irving (solicitor) for the defendants
Mr T Palmer for the first third party
Mr P Woods (Counsel) for the second third party
Mr K Howe for the third third party

SOLICITORS:

Robbins Watson Solicitors for the plaintiffs
Deacons for the defendants
McCowans Solicitors for the first third party
Stacks//The Law Firm Solicitors for the second third party
Michael Sing Lawyer for the third third party

This is an application by the first and second plaintiffs to join the present first, second and third third parties as defendants to the action.

The first plaintiff was injured on the 10^th of July 2001.

The first plaintiff was employed by the first and second defendants to perform carpet dyeing at their premises at 18 Gibralter Drive, Isle of Capri Queensland.

During the course of performing the work for which he was engaged the first plaintiff fell from the first floor balcony when the railing gave way.

The first and second defendants are sued as the registered proprietors of the dwelling. It is alleged that they failed to properly maintain or inspect the railing to ensure that it was safe.

The third parties which the plaintiffs now seek to be join as defendants are respectively the owner of the property at the time the railing was installed, the builder who installed the railing and the local authority which inspected the railing.

The railing was installed in 1987. It was installed as part of a renovation of the house for the purpose of which the first third party acted as owner/builder. The first third party engaged the second third party to carry out the work. The second third party is (or was) a builder. Upon completion, the work was inspected by the Gold Coast…

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.

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Details

Case: [2009] QSC 42
Decision Date: 6 March 2009

CaseChat Overview and Summary

The case of Palmer v Finnigan involved a dispute regarding personal injury claims against defendants who were not initially named in the original proceedings. The plaintiffs sought to join the additional defendants, who were not included in the original suit due to the limitation period imposed by the Limitation of Actions Act 1974 (QLD). The legal issue before the court was whether the plaintiffs' application for an extension of the limitation period under the Personal Injuries Proceedings Act 2002 (QLD) could be granted, despite the delay in bringing the application. The court also had to consider the relevance of the defendants' involvement in the installation of the building that caused the injury to the plaintiffs.

The court examined the statutory provisions and case law to determine if the plaintiffs' application could be granted. The court found that the plaintiffs had not acted promptly in bringing their application, which was a crucial factor under the Personal Injuries Proceedings Act 2002 (QLD). The court also considered the decision in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, which emphasised the importance of the timeliness of such applications. The court concluded that the plaintiffs had not satisfied the criteria for an extension of the limitation period, and therefore dismissed the application. The court further held that the plaintiffs should pay the respondents' costs of and incidental to the application.

The court's reasoning was based on the statutory provisions and the principles of timeliness in bringing such applications. The court found that the plaintiffs had not acted promptly and that the delay in bringing the application was a significant factor. The court also considered the relevance of the defendants' involvement in the building installation and concluded that it was not sufficient to grant the application. The court dismissed the application and ordered the plaintiffs to pay the respondents' costs.

Orders

Orders of the court

The application will be dismissed. 1.

The applicant plaintiffs are to pay the respondents’ costs of and incidental to the application to be assessed on the standard basis.2.

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:	Palmer & Anor v Finnigan & Ors [2009] QSC 42
PARTIES:	BRIAN GRAHAM PALMER (First Plaintiff) AND GAYE LESLEY PALMER (Second Plaintiff) v RUSSELL JAMES FINNIGAN (First Defendant) AND JESSICA FINNIGAN (Second Defendant) AND JOHN GORDON HEMPSTALK (First Third Party) AND CHRISTOPHER DAVID ENGLISH (Second Third Party) AND GOLD COAST CITY COUNCIL (Third Third Party)
FILE NO/S:	BS 6033/04
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	6 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	19 December 2008
JUDGE:	Dutney J
ORDER:	The application will be dismissed. 1. The applicant plaintiffs are to pay the respondents’ costs of and incidental to the application to be assessed on the standard basis.2.
CATCHWORDS:	PROCEDURE-SUPREME COURT PROCEDURE-PROCEDURE UNDER RULES OF COURT-PARTIES -where limitations of actions- where personal injury -where application by first and third plaintiff to join as defendants- where building installation occurred 20 years prior - where plaintiff did not act promptly in bringing application for extension of limitation period Personal Injuries Proceedings Act 2002 (QLD), ss43, 59. Uniform Civil Procedure Rules 1999 (QLD), s69. Limitation of Actions Act 1974 (QLD), s31. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited.
COUNSEL:	Mr J Webb for the plaintiffs Mr G Irving (solicitor) for the defendants Mr T Palmer for the first third party Mr P Woods (Counsel) for the second third party Mr K Howe for the third third party
SOLICITORS:	Robbins Watson Solicitors for the plaintiffs Deacons for the defendants McCowans Solicitors for the first third party Stacks//The Law Firm Solicitors for the second third party Michael Sing Lawyer for the third third party