Suncorp Metway Insurance Limited v Miller

[2012] QDC 320

[2012] QDC 320

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3011 of 2008

SUNCORP METWAY INSURANCE LIMITED

Plaintiff

and

MURRAY MILLER

and

MAURICE BLACKBURN PTY LIMITED

and

ALEX BOLTON

Defendant

Defendant

Defendant

BRISBANE

..DATE 16/10/2012

..DAY 1

ORDER

CATCHWORDS

Uniform Civil Procedure Rules r 69, 389

HIS HONOUR:  It's an unusual proceeding in which the plaintiff, as a compulsory third-party insurer, compromised the personal injuries claim brought in the District Court in Sydney by the first defendant, Mr Miller.  The compromise of the proceeding resulted in a payment made to him, which was larger than it ought to have been because the obligation to ensure that Worker's Compensation benefits were refunded to the appropriate authority was overlooked.

The second defendant was Mr Murray's solicitor.  It unsuccessfully applied earlier in the history of the proceeding to have the claim against it struck out.  Judge O'Sullivan determined the claim was arguable but in view of some issues identified in the application she ordered that particulars be given by the plaintiff.  The funds which went to Mr Miller were transmitted to him through the second defendant. 

The plaintiff now wishes to join in the proceeding, as third defendant, the lawyers who represented it.  Its task in this specific application under Rule 69 is made easier by the lack of opposition indicated by the current second defendant and also by the proposed third defendant.  The first defendant appears to have played no role today.  He's had the benefit of the funds and apparently, notwithstanding that, got himself in a position of not being likely to be able to make any refund.  We don't know his attitude.

The other thing I wanted to say, which results from some inquiries I made, is that examination of the history of the matter reveals that notwithstanding the considerable amount of time that has elapsed, measured against the calendar, the plaintiff insurer doesn't face any problems under rule 389.  It's not necessary to consider whether any leave to proceed is appropriate. 

The plaintiff needs to correct the name of the second defendant, which originally contained a superfluous surname.  The change in proceeding flowing from the joinder of a third defendant provides a convenient opportunity for the Court to grant any necessary leave to correct the name of the second.  Order as per initialled draft.

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