Searle v Solid State Security Pty Ltd
[2016] QDC 193
•3 August 2016
DISTRICT COURT OF QUEENSLAND
CITATION:
Searle v Solid State Security Pty Ltd and Ors [2016] QDC 193
PARTIES:
IVAN MICHAEL SEARLE
(plaintiff)
v
SOLID STATE SECURITY PTY LTD trading as FRANKLYN BLINDS AWNING SECURITY (ACN 002431530)
(first defendant)
and
LUMA AMEN and ANWAR DAWOOD
(second defendant)
And
THE TRUSTEE FOR THE ODORICO BRICKLAYERS TRUST trading as ODORICO BRICKLAYING (ABN 71 432 129 204)
(third defendant)
FILE NO/S:
2713/14
DIVISION:
Civil
PROCEEDING:
Application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
3 August 2016
DELIVERED AT:
Beenleigh
HEARING DATE:
27 July 2016
JUDGE:
Smith DCJA
ORDER:
The second defendants are given leave pursuant to r 194 (1) of the Uniform Civil Procedure Rules 1999 (Q) to file the proposed third party notice and statement of claim against the first defendant.1.
There is no order as to costs.2.
I will otherwise sign an agreed consent order as to the remaining matters. 3.
CATCHWORDS:
PRACTICE AND PROCEDURE – should the court exercise its discretion to permit the issue of a third party notice out of time, but within limitation period
Australian Consumer Law s 60
Uniform Civil Procedure Rules 1999 (Q) r 194
MGM Containers Pty Ltd v Wockner [2006] QCA 502
Suncorp Metway Insurance Ltd v Clonmel Pty Ltd & Ors [2000] QSC 135
COUNSEL:
Mr M Eliadis for the plaintiff
Mr M O’Sullivan for the first defendant
Ms R Treston QC for the second defendants
Mr R Morton for the third defendant
SOLICITORS:
Shine Lawyers for the plaintiff
Jensen McConaghy for the first defendant
Carter Newell Lawyers for the second defendant
DLA Piper Australia for the third defendant
Introduction
This is an application by the second defendants for the court to grant leave for them to issue a third party notice to the first defendant.
Background
The plaintiff on 17 July 2014 issued proceedings for damages for personal injuries and other loss as a result of the negligence of the defendants. The total sum of $746,748.50 together with interest and costs is claimed.
The plaintiff, who alleges that he was employed by the first defendant as a security blind and door installer, says in the statement of claim that on 30 December 2011 at 10.00am he attended 46 Aspen Street, Carindale where a residential dwelling was being constructed. That property was owned by the second defendants.
He crossed trenches which had been constructed by the third defendant for a front fence and as a result of stepping over one of the trenches suffered a tear to the right calf muscle. He alleges as a result of the incident he has sustained a torn right calf muscle with superficial peroneal nerve palsy, peripheral nerve neuropathy, L5/S1 disc protrusion with nerve root compression, and an adjustment disorder with depressed mood.
He alleges in the statement of claim that his employer, the first defendant, was negligent and/or in breach of contract in failing to provide inter alia a safe place of work and to take reasonable precautions for his safety whilst he was carrying out his work.
He alleges that the second defendants were negligent in failing to ensure the site was safe and, further, the third defendant was negligent by inter alia in failing to ensure the site was safe.
The second defendants propose to issue a third party notice against the first defendant.
The proposed third party notice is Exhibit TL 31 to the affidavit of Tina Lung filed 8 June 2016.[1] In the third party notice it is alleged:
[1]Document 23.
(a) That the second defendants were “consumers” under the Australian Consumer Law and the contract between them and the first defendant was for the supply and insulation of six Crimsafe hinged doors and adaptors;
(b) There were implied terms under s 60 of the Australian Consumer Law concerning this contract;
(c) The second defendants say that the plaintiff’s injury was caused or contributed to by the negligence, breach of contract or breach of guarantee of the first defendant;[2] and
(d) In the circumstances, relief is sought pursuant to s 6 of the Law Reform Act, damages for breach of contract or breach of guarantee, interest and costs.
[2]Paragraph 12 of the proposed third party notice.
Submissions of the parties
Second defendant’s submissions
The second defendants submit:
(a) That at all material times the first defendant was aware that contribution were to be sought against the first defendant;
(b) There is explanation for the delay, namely that the parties did not participate in a joint compulsory pre-court conference until 20 May 2014; there was delay because there were issues as to whether WorkCover was going to accept other injuries alleged to be sustained by the plaintiff; a notice of claim for damages on WorkCover was not served until 8 November 2013; there were medical investigations concerning the plaintiff’s injuries and new counsel was retained;
(c) The allegations are not new;
(d) The claim is not out of time;
(h) Delay has been explained;
(i) No prejudice can be alleged to been suffered by the first defendant; and
(j) If third party proceedings were not issued then there is a possibility of multiple actions.
First defendant’s submissions
The first defendant submits:
(a) The application is well and truly out of time;
(b) The first defendant is only entitled to seek indemnity from WorkCover Australia concerning the calf muscle injury;
(c) Allegations in the proposed third party notice include allegations of breaches of the Australian Consumer Law which have never previously been raised;
(d) The late application to serve the third party notice will require the first defendant to seek independent legal advice and he may require further legal representation in respect of matters not indemnified by WorkCover Australia.
(e) In the circumstances the order should not be made.
Principles
Rule 194 of the Uniform Civil Procedure Rules 1999 (Q) provides that a third party notice must be filed within 28 days of the time limited for the filing of the defence or, if the plaintiff agrees, during the agreed extended period.
However, in Suncorp Metway Insurance Ltd v Clonmel Pty Ltd & Ors[3] Muir J accepted that the extension to which the plaintiff might agree only related to the filing of the defence and did not extend to the filing of the third party notice.
[3][2000] QSC 135 at [7].
The discretion conferred by r 194(1) of the UCPR was considered by the Court of Appeal in MGM Containers Pty Ltd v Wockner.[4]
[4][2006] QCA 502 at [27].
[5]
[5][2001] QCA 48 at [17].
[6][7]
[6]Filed 8 June 2016, Document 23.
[8][9]
[8]Exhibit TL1 to affidavit of Tina Lung filed 8 June 2016, Document 23.
[10]
[10]Exhibit TL3 to affidavit of Tina Lung filed 8 June 2016, Document 23.
[11]
[11]See paragraph 6 of the affidavit of Tina Lung filed 8 June 2016, Document 23.
[12][13][14]
[12]Paragraph 8 of affidavit of Tina Lung dated 8 June 2016, Document 23.
[15][16]
[15]Paragraphs 19-29 of affidavit of Tina Lung filed 8 June 2016, Document 23.
[17][18]
[17]Affidavit of Tina Lung filed 8 June 2016, paragraph 37, Document 23.
[19][20]
[19]Ex TL1 to affidavit of Tina Lung filed 8 June 2016, document 23.
[21]
[21]See matters raised in the affidavit of Anthony Forester sworn 26 July 2016, filed by leave.
The second defendants are given leave pursuant to r 194 (1) of the Uniform Civil Procedure Rules 1999 (Q) to file the proposed third party notice and statement of claim against the first defendant.1.
There is no order as to costs.2.
I will otherwise sign an agreed consent order as to the remaining matters. 3.
[7]Paragraph 2.
[9]Exhibit TL2 to affidavit of Tina Lung filed 8 June 2016, Document 23.
[13]First defendant’s defence, paragraph 17, Document 7.
[14]Affidavit of Tina Lung filed 8 June 2016, paragraph 15, Document 23.
[16]Paragraphs 30 and 33 of affidavit of Tina Lung filed 8 June 2016, Document 23.
[18]Affidavit of Allison Bailey sworn 26 July 2016, filed by leave - Exhibit AB1.
[20]Ex TL3 to affidavit of Tina Lung filed 8 June 2016, document 23.
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