Searle v Solid State Security Pty Ltd - [2016] QDC 193

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…

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 Searle v Solid State Security Pty Ltd

Details

AGLC: Searle v Solid State Security Pty Ltd [2016] QDC 193
Case: [2016] QDC 193
Decision Date: 3 August 2016

CaseChat Overview and Summary

Searle v Solid State Security Pty Ltd involved a dispute between the plaintiff and the two defendants, with a request to add a third party to the proceedings. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The second defendants sought permission to serve a third party notice outside the usual time limits but within the limitation period, as allowed by rule 194(1) of the Uniform Civil Procedure Rules 1999 (Q).

The primary legal issue before the tribunal was whether it should exercise its discretion to permit the second defendants to issue a third party notice out of time, as they were within the statutory limitation period. This required an assessment of the relevant procedural rules, the principles governing discretion in such matters, and the potential impact on the fairness and efficiency of the proceedings.

The tribunal considered the circumstances leading to the delay, the likelihood of prejudice to the plaintiff if the third party notice was allowed, and the public interest in resolving disputes justly and efficiently. After weighing these factors, the tribunal determined that the second defendants should be granted leave to file the proposed third party notice and statement of claim against the first defendant, as they were within the limitation period. The tribunal also noted that there would be no order regarding costs and that an agreed consent order would be signed for the remaining matters.

In summary, the tribunal allowed the second defendants to proceed with the third party notice within the limitation period, balancing procedural fairness with the overarching goal of resolving the dispute in an expeditious and just manner. The tribunal did not order costs and agreed to sign a consent order for other matters.

Orders

Orders of the court

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.

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:	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