Thomas v State of Queensland

SUPREME COURT OF QUEENSLAND

CITATION:

Thomas v State of Queensland [2000] QSC 479

PARTIES:

RICHARD CRAIG THOMAS
(applicant/plaintiff)

v

STATE OF QUEENSLAND
(respondent/first defendant)
QH & M BIRT PTY LTD ACN 009 963 222
(respondent/second defendant)
TELSTRA CORPORATION LIMITED ACN 051 775 556
(third defendant)

FILE NO/S:

SC No 556 of 1995

DIVISION:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

11 December 2000

JUDGE:

Williams J

ORDER:

Grant the plaintiff leave to deliver the further amended statement of claim which is exhibit TPG 21 to the affidavit of T P Galligan filed 31 October 2000;1.   

Order that the plaintiff pay the first defendant’s costs of and incidental to the third party proceedings to be assessed;2.   

Order that the plaintiff pay the third party’s costs (including costs of appearing on this application) recoverable against the first defendant to be assessed;3.   

No order as to costs of the application heard today as between the plaintiff and first defendant.4.   

Direct that the amended defence of the first defendant be filed and served by 29 January 2001.5.   

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – plaintiff sustained personal injuries as a result of a motor vehicle collision – where final version of pleading contained allegations different to those made in the initial statement of claim – whether plaintiff should be given leave to deliver further amended statement of claim – whether new pleading sought to be relied upon alleged a new cause of action – claim made by new pleading arose out of “same facts of substantially the same facts” as that pleaded in the initial version – whether there was prejudice to the defendant such that the court ought not in the exercise of its discretion grant leave.

Uniform Civil Procedure Rules 1999 (Qld), r 376, r 389(2)

Cooke v Gill (1873) LR 8 CP 107, applied

Allonor Pty Ltd v Doran [1998] QCA 372 (17 November 1998), applied
Pianta v BHP Australia Coal Limited [1996] 1 Qd R 65, distinguished

COUNSEL:

R J Lynch for the applicant/plaintiff
T W Quinn for the respondent/first defendant
J McIntyre (sol.) for the respondent/second defendant

SOLICITORS:

Richardson & Lyons for the applicant/plaintiff
Crown Solicitor for the respondent/first defendant
Phillips Fox for the respondent/second defendant

1. WILLIAMS J:  The plaintiff, Richard Craig Thomas, sustained personal injuries when the motor cycle he was riding on 12 June 1993 skidded out of control and then collided with an oncoming vehicle.  At the time he was travelling in an easterly direction along the Kennedy Highway, between Mareeba and Kuranda.  He blamed his loss of control of the motor cycle on an accumulation of red soil on the bitumen surface of the roadway.

1. On the Mareeba side of where the incident happened some road works were in progress.  Apparently because of that the plaintiff attributed the red soil on the bitumen to…