Pukeroa v Berkeley Challenge Pty Ltd - [2005] QCA 49

SUPREME COURT OF QUEENSLAND

CITATION:

Pukeroa v Berkeley Challenge Pty Ltd & Ors [2005] QCA 49

PARTIES:

SHIREEN IRIS MARY PUKEROA
(plaintiff/respondent)
v
BERKELEY CHALLENGE PTY LTD ACN 000 464 755
(first defendant)
LEND LEASE PROPERTY MANAGEMENT (AUSTRALIA) PTY LTD ACN 002 894 153
(second defendant/second applicant)

BRAMBLES AUSTRALIA LIMITED ACN 000 164 938
(third defendant/first applicant)

FILE NO/S:

Appeal No 8643 of 2004

Appeal No 9129 of 2004
DC No 148 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

4 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2005

JUDGES:

Williams JA, White and Douglas JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Grant leave to appeal pursuant to s 118 of the District Court of Queensland Act 19671.

Allow the appeal2.

Set aside the orders made below and in lieu dismiss the application for leave to join the first and second third parties as defendants to the claim3.

The respondent to the application and appeal to pay the applicant/appellant’s costs of and incidental to the application and the appeal4.

Grant the respondent an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 19735.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS—CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – OTHER MATTERS – joinder of defendants – where proceedings commenced against first defendant – where first defendant joins third parties – whether joinder of third parties as second and third defendants without compliance with pre-court procedures – meaning of ‘proceeding’ – Personal Injuries Proceedings Act 2002 (Qld)

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS—CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – OTHER MATTERS – joinder of defendants – where proceedings commenced against first defendant – where first defendant joins third parties – whether joinder of third parties as second and third defendants without compliance with pre-court procedures – whether no obligation to comply where potential practical difficulties associated with expeditious compliance – Personal Injuries Proceedings Act 2002 (Qld)

PROCEDURE – COSTS – GENERAL RULE—COSTS FOLLOW THE EVENT – COSTS OUT OF A FUND – WHEN COSTS ALLOWED OUT OF A FUND – where no basis upon which order under appeal could properly have been made – part played by unsuccessful respondent – whether respondent’s contentions fairly arguable – Appeals Costs Funds Act 1973 (Qld)

Acts Interpretation Act 1954 (Qld), s 36

Appeals Costs Funds Act 1973 (Qld), s 15(1)
District Court of Queensland Act 1967 (Qld), s 118
Judicature Act 1876 (Qld)
Law Reform Act 1995 (Qld), s 6(c)
Motor Accident Insurance Act 1994 (Qld)
Personal Injuries Proceeding Act 2002 (Qld), s 4, s 6(2), s 9, s 10, s 16, s 17, s 29, s 35, s 36, s 38(6), s 41
Supreme Court of Queensland Act 1991 (Qld), Schedule 2
Uniform Civil Procedure…

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 Pukeroa v Berkeley Challenge Pty Ltd

Details

AGLC: Pukeroa v Berkeley Challenge Pty Ltd [2005] QCA 49
Case: [2005] QCA 49
Decision Date: 4 March 2005

CaseChat Overview and Summary

Pukeroa commenced proceedings against Berkeley Challenge Pty Ltd in the District Court of Queensland, seeking damages for personal injuries. Berkeley Challenge then sought to join two other parties as defendants in the proceedings, without complying with certain procedural requirements under the Personal Injuries Proceedings Act 2002 (Qld). The primary issue before the court was whether the joinder of the third parties could be allowed despite the non-compliance with the pre-court procedures. A further issue was whether there was any justification for not complying with those procedures due to potential practical difficulties in doing so promptly.

The court held that the joinder of the third parties was not permissible without compliance with the statutory pre-court procedures, as the term "proceeding" in the Act encompasses all steps taken from the commencement of the action. The court rejected the argument that there were exceptional circumstances justifying non-compliance, finding that the potential difficulties did not override the statutory requirements. Regarding costs, the court determined that the appeal was not well-founded, but the respondent's contentions were fairly arguable. Consequently, the respondent was granted an indemnity certificate in respect of the appeal under the Appeals Costs Funds Act 1973 (Qld).

The court granted leave to appeal, allowed the appeal, and set aside the orders that permitted the joinder of the third parties. The respondent was ordered to pay the costs of the application and appeal. Additionally, the respondent was granted an indemnity certificate in respect of the appeal.

Orders

Orders of the court

Grant leave to appeal pursuant to s 118 of the District Court of Queensland Act 19671.

Allow the appeal2.

Set aside the orders made below and in lieu dismiss the application for leave to join the first and second third parties as defendants to the claim3.

The respondent to the application and appeal to pay the applicant/appellant’s costs of and incidental to the application and the appeal4.

Grant the respondent an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 19735.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Pukeroa v Berkeley Challenge Pty Ltd & Ors [2005] QCA 49
PARTIES:	SHIREEN IRIS MARY PUKEROA (plaintiff/respondent) v BERKELEY CHALLENGE PTY LTD ACN 000 464 755 (first defendant) LEND LEASE PROPERTY MANAGEMENT (AUSTRALIA) PTY LTD ACN 002 894 153 (second defendant/second applicant) BRAMBLES AUSTRALIA LIMITED ACN 000 164 938 (third defendant/first applicant)
FILE NO/S:	Appeal No 8643 of 2004 Appeal No 9129 of 2004 DC No 148 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	4 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2005
JUDGES:	Williams JA, White and Douglas JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	*Grant leave to appeal pursuant to s 118 of the District Court of Queensland Act* 19671. Allow the appeal2. Set aside the orders made below and in lieu dismiss the application for leave to join the first and second third parties as defendants to the claim3. The respondent to the application and appeal to pay the applicant/appellant’s costs of and incidental to the application and the appeal4. Grant the respondent an indemnity certificate in respect of the appeal pursuant to s 15(1) of the Appeal Costs Fund Act 1973**5.
CATCHWORDS:	PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS—CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – OTHER MATTERS – joinder of defendants – where proceedings commenced against first defendant – where first defendant joins third parties – whether joinder of third parties as second and third defendants without compliance with pre-court procedures – meaning of ‘proceeding’ – Personal Injuries Proceedings Act 2002 (Qld) PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS—CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – OTHER MATTERS – joinder of defendants – where proceedings commenced against first defendant – where first defendant joins third parties – whether joinder of third parties as second and third defendants without compliance with pre-court procedures – whether no obligation to comply where potential practical difficulties associated with expeditious compliance – Personal Injuries Proceedings Act 2002 (Qld) PROCEDURE – COSTS – GENERAL RULE—COSTS FOLLOW THE EVENT – COSTS OUT OF A FUND – WHEN COSTS ALLOWED OUT OF A FUND – where no basis upon which order under appeal could properly have been made – part played by unsuccessful respondent – whether respondent’s contentions fairly arguable – Appeals Costs Funds Act 1973 (Qld) Acts Interpretation Act 1954 (Qld), s 36 Appeals Costs Funds Act 1973 (Qld), s 15(1) District Court of Queensland Act 1967 (Qld), s 118 Judicature Act 1876 (Qld) Law Reform Act 1995 (Qld), s 6(c) Motor Accident Insurance Act 1994 (Qld) Personal Injuries Proceeding Act 2002 (Qld), s 4, s 6(2), s 9, s 10, s 16, s 17, s 29, s 35, s 36, s 38(6), s 41 Supreme Court of Queensland Act 1991 (Qld), Schedule 2 Uniform Civil Procedure…