Parke v Johnson - [2010] TASSC 41

[2010] TASSC 41

COURT: SUPREME COURT OF TASMANIA

CITATION: Parke v Johnson [2010] TASSC 41

PARTIES:  PARKE, Michael Francis
  v
  JOHNSON, Damien
  BOND, David

FILE NO:  539/2006
DELIVERED ON:  15 September 2010
DELIVERED AT:  Hobart
HEARING DATES:  21 April and 6 September 2010
JUDGMENT OF:  Holt AsJ

CATCHWORDS:

Procedure – Supreme Court procedure - Tasmania – Practice under Rules of Court – Parties – Third party procedure – Claim for contribution – Inchoate right.
Port of Melbourne Authority v Anshun (1981) 147 CLR 589, Andrews v Nominal Defendant (1963) 63 SR (NSW) 110 and Western Metals Zinc NL v Wesfarmers Transport Ltd (2003) WASCA 152 considered.
Supreme Court Rules 2000 (Tas), r202.
Aust Dig Procedure [271]

REPRESENTATION:

Counsel:
             Defendant:  B R McTaggart
             Storey's Maintenance Services Pty Ltd:             M K Wilkins
             Cadbury Schweppes Limited:  A R Mills
Solicitors:
             Defendant:  Wallace Wilkinson & Webster
             Storey's Maintenance Services Pty Ltd:          Page Seager
             Cadbury Schweppes Limited:  Dobson Mitchell & Allport
Judgment Number:  [2010] TASSC 41
Number of paragraphs:  24

Serial No 41/2010
File No 539/2006

MICHAEL FRANCIS PARKE v DAMIEN JOHNSON
and DAVID BOND (Third Party)

REASONS FOR JUDGMENT HOLT AsJ

15 September 2010

The plaintiff by his statement of claim makes the following allegations. On 20 March 2006 he was working in the course of his employment with labour hire company, Storey's Maintenance Services Pty Ltd (Storey's). Storey's had been engaged by Cadbury Schweppes Limited (Cadbury) to provide labour services to it in connection with demolition and rebuilding work at the Cadbury factory at Claremont. The plaintiff was working in the ceiling space. The ceiling gave way and he fell fracturing his right femur and right hip. The defendant was employed by a company which had been engaged by Cadbury to supervise the work. A few days earlier the defendant had identified that the part of the ceiling space through which the plaintiff fell was inadequate to support the weight of a person. He caused to be placed around the perimeter of the space a length of tape. The plaintiff says that this precaution was inadequate and so claims that his injury was the result of the defendant's negligence.

The defendant entered his appearance and filed his defence in mid-2007. He subsequently joined a third party. He now wishes, by further third party proceedings, to claim that if he is liable to the plaintiff then he is entitled to have Storey's and Cadbury contribute to the damages awarded against him. He relies upon the Wrongs Act 1954 (the Act), s3(1)(c), for the prospective claims. The Supreme Court Rules 2000, r202, provides that after the expiry of 30 days from delivery of the defence the leave of the Court or a judge is required before the third party procedure can be invoked. The Act contains a twelve month time limit from the service of the writ on the defendant for the bringing of contribution claims made under its provisions. It includes a discretionary power to extend time.

The defendant's application is for…

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.

Continue reading Parke v Johnson

Details

AGLC: Parke v Johnson [2010] TASSC 41
Case: [2010] TASSC 41
Decision Date: 15 September 2010

CaseChat Overview and Summary

Parke v Johnson was a legal dispute heard in the Supreme Court of Tasmania. The plaintiff, Parke, sought damages for injuries sustained in a car accident. Parke claimed that the accident was caused by the negligence of the defendant, Johnson, who was driving the other vehicle involved. The dispute also involved a third party, a company that potentially shared liability for the damages. The court had to determine whether Parke could validly bring a claim against Johnson and whether the third party could be joined in the proceedings. Furthermore, the court had to assess the validity of the third party's potential claim for contribution against Johnson.

The primary legal issues the court needed to address were the procedural aspects of bringing a claim against a third party under the Supreme Court Rules of Tasmania, the timing of such claims, and the existence of an inchoate right to claim contribution. The court had to determine if Parke's claim was properly instituted and whether the third party could be joined at that stage of the proceedings. Additionally, the court needed to decide if Parke's claim had sufficiently pled an inchoate right to contribution against the third party.

The court held that Parke's claim against Johnson was properly instituted and that the third party could be joined as it potentially shared liability. The court found that the Rules of Court allowed for the joining of a third party when it was necessary to determine their potential liability. The court further ruled that Parke's pleadings sufficiently indicated an inchoate right to claim contribution against the third party. The court's decision was grounded in the principle that the court has discretion to allow a third party to be joined if it is just and convenient to do so, and in this case, it was deemed appropriate. Consequently, the court ordered that the third party be joined in the proceedings, and the claim for contribution would be assessed in due course.

Orders