Revill v John Holland Group Pty Ltd

Link copied
Case Copied 35 min read

FEDERAL COURT OF AUSTRALIA

Revill v John Holland Group Pty Ltd [2020] FCA 1633

File number: WAD 403 of 2019
Judgment of: JACKSON J
Date of judgment: 6 November 2020
Date of publication of reasons: 10 November 2020
Catchwords:

PRACTICE AND PROCEDURE - interlocutory application to join parties - proposed claims time barred - no reasonable prospects of success - interlocutory application dismissed

PRACTICE AND PROCEDURE - interlocutory application for dismissal - discretion to dismiss for default - applicant potentially in default of court order - failure to file further amended statement of claim - unwillingness or inability to cooperate with the court - applicant seeking to join other parties - joinder issue outstanding - recent attempts by applicant to prosecute action - application for dismissal of proceedings dismissed
Legislation:

Constitution s 109

Fair Work Act 2009 (Cth) ss 50, 544, 545, 570

Insurance Contracts Act 1984 (Cth) ss 11, 48

Federal Court Rules 2011 (Cth) rr 5.23, 5.22, 9.05

Limitation Act 2005 (WA) ss 13, 79, Part 3
Cases cited:

ACOHS Pty Ltd v Ucorp Pty Ltd [2009] FCA 577

Almario v Allianz Australia Workers Compensation (NSW) Insurance Ltd [2005] NSWCA 19; (2005) 62 NSWLR 148

Bupa Australia Pty Ltd v iSelect (No 2) [2012] FCA 1277

CE Heath Casualty & General Insurance Ltd v Grey (1993) 32 NSWLR 25

Commonwealth Bank of Australia v Baltica General Insurance Co Ltd (1992) 28 NSWLR 579

Coombe v Bonney [2015] FCCA 916; (2015) 295 FLR 239

Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27; (2019) 99 NSWLR 470

Hazeldell Ltd v Commonwealth (1924) 34 CLR 442

Kujundzic v MAS International [2013] FMCA 8; (2013) 274 FLR 125

Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388

Ridley v Whipp (1916) 22 CLR 381

Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514

Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd [2009] HCA 50; (2009) 240 CLR 391
Division: General Division
Registry: Western Australia
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 68
Date of hearing: 14 September 2020 & 6 November 2020
Counsel for the Applicant: Mr MJ Lourey
Solicitor for the Applicant: Chapmans Barristers & Solicitors
Counsel for the Respondent: Mr M Follett
Solicitor for the Respondent: KHQ Lawyers

ORDERS

WAD 403 of 2019
BETWEEN:

RAYMOND ANDREW REVILL

Applicant
AND:

JOHN HOLLAND GROUP PTY LTD

Respondent

ORDER MADE BY:

JACKSON J

DATE OF ORDER:

6 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The respondent's interlocutory application dated 3 July 2020 is dismissed.

2.There is no order as to costs in respect of the respondent's interlocutory application.

3.The applicant's interlocutory application dated 17 July 2020 is dismissed.

4.The costs of and incidental to the applicant's interlocutory application are the respondent's in any event.

5.On or before 20 November 2020, the applicant must file and serve a substituted statement…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Revill v John Holland Group Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2020] FCA 1633
Decision Date

CaseChat Overview and Summary

The case of Revill v John Holland Group Pty Ltd involved an application by Mr Revill to join additional parties, John Holland Projects Limited (JHPL) and John Holland Group Mutual (JHG Mutual), to his existing claim against John Holland Group (JH Group). The Federal Circuit and Family Court of Australia was tasked with deciding whether the additional parties could be joined as respondents and whether the existing claim should be dismissed due to default. The primary legal issue was whether Mr Revill's proposed claims against JHPL and JHG Mutual were time-barred and if there were reasonable prospects of success for these claims. Additionally, the court had to consider whether Mr Revill's failure to file a further amended statement of claim after the initial one was struck out constituted a default warranting dismissal of the proceedings against JH Group.

The court found that there were significant issues regarding the time-barred nature of the proposed claims against JHPL and JHG Mutual. It was determined that Mr Revill had not articulated a coherent claim against JHPL, and even if the claims were not time-barred, they lacked reasonable prospects of success. The court also noted that the application for joinder was dismissed as Mr Revill could not describe how JHPL's liability would arise. Furthermore, the court held that JH Group was entitled to its costs of and incidental to the joinder application. In relation to the dismissal for default, the court found that Mr Revill had not demonstrated a willingness or ability to cooperate with the court's processes, which warranted dismissal. However, the application for dismissal was ultimately dismissed as the court decided to proceed with a substituted statement of claim and defence, with a case management hearing scheduled for further progress.

In summary, the court dismissed both the application to join additional parties and the application for dismissal for default. The court ordered that Mr Revill must file and serve a substituted statement of claim by a specified date and that JH Group must file and serve a substituted defence thereafter. The matter was set for a case management hearing to ensure further progress. The court also awarded costs of and incidental to the joinder application to JH Group.

Orders

Orders of the court

1. The respondent's interlocutory application dated 3 July 2020 is dismissed.

2. There is no order as to costs in respect of the respondent's interlocutory application.

3. The applicant's interlocutory application dated 17 July 2020 is dismissed.

4. The costs of and incidental to the applicant's interlocutory application are the respondent's in any event.

5. On or before 20 November 2020, the applicant must file and serve a substituted statement of claim.

6. On or before 4 December 2020, the respondent must file and serve a substituted defence.

7. The matter is listed for a case management hearing on 11 December 2020 at 9.30 am AWST.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

There is another significant reason why JHPL will not be joined. It is that Mr Revill has failed to even to articulate a coherent claim against that company. It would be extraordinary for the court to join a prospective respondent where an applicant cannot even describe how its liability is said to arise. It may be that the difficulty arises out of Mr Revill's current lack of information about the internal arrangements between members of the John Holland group. But problems of that kind are one of the reasons why the preliminary discovery procedures in Division 7.3 of the Federal Court Rules exist. A person cannot be made a respondent to a proceeding on the basis of nothing more than speculation.Conclusion on joinder Mr Revill's application for the joinder of JHPL and JHG Mutual must be dismissed. JH Group is entitled to its costs of and incidental to the application in any event. Mr Revill submitted that the order should be costs in the cause. His counsel said that the application sought to do no more than join as respondents entities that are related to the present respondent, JH Group. But be that as it may, JH Group was entitled to oppose the application to join other entities, whether related to it or not, and it has been successful. There is no reason to depart from the ordinary rule that costs should follow the event. There may have been a question about costs if the joinder had been pursued on the basis of a cause of action arising out of the FWA: see FWA s 570. But since Mr Revill is not basing the claim on that Act (whether or not he reserves the right to do so later) the issue does not arise.Application for dismissal for default - procedural history I now turn to JH Group's application for Mr Revill's claim against it to be dismissed for default. It is necessary to describe the aspects of the procedural history of the matter that are directly relevant to the alleged default, namely failing to file a further amended statement of claim after the amended statement of claim was struck out. The account below largely omits many other aspects of the procedural history which are collateral to that key issue, although it will be necessary to touch on those other aspects from time to time. As I have said, Mr Revill commenced the proceeding against JH Group by originating application filed on 15 August 2019. JH Group filed its defence on 16 October 2019 and there was no reply. On 29 October 2019, by consent of both parties, the proceeding was referred to mediation by a registrar of the court. However on 26 February 2020 the registrar to whom the mediation was referred determined that it should not proceed. The proceeding was listed for a case management hearing on 19 March 2020. My Chambers emailed the parties shortly before the hearing saying, among other things, that the statement of claim and defence did not clearly indicate the basis on which the court had jurisdiction in the matter. That was because, as I have mentioned, the amended statement of claim did not allege a breach of any Commonwealth statute, nor did it indicate any other apparent basis on which the court's jurisdiction might be attracted. On 18 March 2020 directions were made for the parties to file written submissions on that subject. At the same time, the court ordered the legal practitioner representing Mr Revill to file and serve a Form 5 Notice of Acting - change of lawyer by 25 March 2020, as it appeared to the court that the legal practitioner who was named on the originating process no longer worked at Chapmans, the law firm which continued to represent Mr Revill.

Ratio Decidendi

Legal Principle Established

JH Group submitted in response to the joinder application that any cause of action under a contract of insurance has a limitation period of six years by reason of s 13 of the Limitation Act 2005 (WA). I note for completeness that if the claim is under s 50 (and s 545(2)) of the FWA, the limitation period there is also six years: FWA s 544. If JHPL or JHG Mutual are joined as respondents, the start date of the proceeding for them will be the date on which the order for joinder is made: Federal Court Rules 2011 (Cth) r 9.05(3). So if the action Mr Revill wishes to pursue against them is time barred as at the date of any joinder orders, that will give them a complete defence to his claim.Consideration of Mr Revill's joinder application Mr Revill's application for joinder of JHPL and JHG Mutual was brought under r 9.05(1) of the Federal Court Rules. That rule provides:Joinder of parties by Court order(1)A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:(a) ought to have been joined as a party to the proceeding; or(b) is a person:(i)whose cooperation might be required to enforce a judgment; or(ii)whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or(iii)who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.Mr Revill relied on r 9.05(1)(a) and r 9.05(1)(b)(ii). I proceed on the basis that if Mr Revill has an arguable cause of action against either of JHPL or JHG Mutual, one or both of those sub-rules authorise their joinder. The problem is that for both companies, there is doubt about whether he does have an arguable cause of action with reasonable prospects of success, because he may be time barred. In relation to JHPL, there is the additional problem that Mr Revill has not even articulated a cause of action against it. As to the standard to be applied in determining whether a proposed claim is sufficiently arguable for the purposes of joinder, both parties relied on Bupa Australia Pty Ltd v iSelect (No 2) [2012] FCA 1277 where, at [23], Dodds‑Streeton J held that an applicant for joinder 'must show an arguable case against the parties proposed for joinder, at least to the standard of being able to resist an application for summary judgment if the relevant persons had been sued in separate proceedings'. That standard in turn requires an inquiry into whether the prosecution of the proceeding has no reasonable prospect of success, not whether it is hopeless or bound to fail: Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [52]. That is the standard I will apply here. So the application for joinder turns on the question of whether the argument that Mr Revill's proposed claims are time barred is so strong that he has no reasonable prospect of success. That requires, first, identification of when the causes of action arose. Counsel for Mr Revill submitted that they arose when his client received notification of the rejection of his claim in the letter from Regis of 21 August 2013. JH Group disputed that, saying that the cause of action for a claim under an insurance policy arises at the time of the injury entitling the insured (or third party beneficiary) to claim (here, according to JH Group, 19 June 2013): Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27; (2019) 99 NSWLR 470 at [210]. But nothing turns on that difference because, if there is a limitation period of six years as JH Group submitted, on either view Mr Revill would now be out of time.