Threlfall v TBS Building Services Pty Ltd, Kane Constructions Pty Ltd, Port Phillip City Council and 350Q BBS Pty Ltd
[2010] VCC 1317
•27 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES – COMPENSATION
GENERAL DIVISION
Case No. CI-09-05565
| PETER ANTHONY THRELFALL | Plaintiff |
| v | |
| TBS BUILDING SERVICES PTY LTD | First Defendant |
| and | |
| KANE CONSTRUCTIONS PTY LTD | Second Defendant |
| and | |
| PORT PHILLIP CITY COUNCIL | Third Defendant |
| and | |
| 350Q BBS PTY LTD | Fourth Defendant |
| (formerly BURNS BRIDGE SERVICES PTY LTD) |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 23, 24, 25, 26 and 27 August 2010 |
| DATE OF RULING: | 27 August 2010 |
CASE MAY BE CITED AS: | Threlfall v TBS Building Services Pty Ltd, Kane Constructions Pty Ltd, Port Phillip City Council and 350Q BBS Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1317 |
RULING
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Catchwords: Application for Leave to join a third party in the course of common law jury trial.
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| APPEARANCES: | Counsel | Solicitors |
| For the Third Defendant | Mr A J Fraatz | DLA Phillips Fox |
| For the Proposed Third-Party | Mr D McWilliams | Wotton & Kearney |
| HIS HONOUR: |
1 This Ruling concerns an application for leave pursuant to Order 11.01 of the County Court Civil Procedure Rules 2008, to join Lumley General Insurance Limited (“Lumley”) as a third party to the proceeding.
2 The application by summons was made on 26 August 2010, the fourth day of a common law jury trial. The application is by the third defendant (“the Council”) to join Lumley as a third party to the proceeding. I was informed that notice of the summons was provided to Lumley on the first day of the trial, 23 August 2010. The summons is supported by an affidavit of David Joseph Randazzo, sworn 25 August 2010.
3 The proceeding itself concerns a claim for damages by the plaintiff against four defendants arising out of an incident which occurred on 21 November 2007 at the St Kilda Town Hall (“the premises”) which was, at the time, undergoing a substantial renovation. The plaintiff was employed as a plumber by the first defendant to install an irrigation system to the outside of the premises. He tripped as he entered an internal part of the premises, suffering injury to his spine. The second defendant, Kane Constructions Pty Ltd (“Kane”), was the principal building contractor at the premises. The Council was the owner and occupier of the premises. The fourth defendant provided project management services.
4 According to the affidavit of Mr Randazzo, in December 2005 the Council and Kane entered an agreement to perform building works at the premises. It was a term of the agreement that Kane take out public liability insurance in the joint names of itself and the Council to cover those parties and their employees in respect of any liability which may be incurred “in relation to work under the contract”. In substance, the Council alleges Lumley has failed or refused to provide indemnity to it under the relevant policy.
5 The sequence of events leading to leave being sought to join a third party may be stated briefly as follows:
•
The plaintiff’s Writ joining Kane and the Council was issued on the 23 November 2009
•
The Council served upon Kane a Notice for Discovery on 3 February 2010;
•
On 18 February 2010, the Council served a Notice claiming Contribution against Kane;
• Kane filed an Affidavit of Documents on 8 April 2010; •
On 14 April 2010, the Council sought further discovery as to any liability insurance policies taken out by Kane;
•
Initially, Kane’s solicitors refused to provide any policy of insurance on the grounds that any such insurance policy was not relevant to an issue in the proceeding;
•
On 18 May 2010, Kane made application to the Court for further discovery. Before the return date, Kane’s solicitors agreed to make discovery of the insurance policy which was sent on 2 July 2010;
•
Thereafter, correspondence went back and forth between the solicitors, wherein the Council sought confirmation that Lumley would indemnify it under the policy;
• There was a delay in Kane responding; •
It was not until a letter of 18 August 2010 in which Lumley’s solicitors (also acting on behalf of Kane) confirmed that indemnity under the Lumley policy would not be provided, essentially on the grounds that at the time of injury, Kane was not engaged in work “in relation to work under the contract”.
6 In a responding affidavit of Ms Lisa Silvan sworn 26 August 2010, it appears that the Council held its own policy of public liability insurance with another insurer, QBE Insurance (Australia) Limited. A copy of this policy (“the QBE policy”) has been provided to the solicitors for Kane.
7 Pursuant to Order 11.01, a third party notice may be filed and served where a defendant claims:
“…
(c) that any question relating to or connected with the original subject matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party— ... .”
8 Pursuant to Order 11.05, a third party notice may be filed within thirty days of the service of the defence or –
“… at any time with the leave of the Court … .”
9 The grant of leave for the filing of a third party notice out of time is a matter in the discretion of the Court.[1]
[1] Williams’ Civil Procedure Victoria’ – [11.05.15]
10 Mr McWilliams, on behalf of Lumley, submits that there are four matters which ought to mitigate against leave being granted. They are:
•
The application is made at a very late time, in fact several days into the common law jury trial. He says that the Council could have issued such an application as early as July and had “sat on its hands” over a considerable period.
•
The granting of leave to file the third party notice will inevitably lead to delays in the hearing of the proceeding or in the contribution proceeding or recovery proceeding which are to follow.[2] Pursuant to the principles expressed in Aon Risk Services Australia Ltd v Australian National University[3] the courts must have regard to the wider public interest when considering any application to amend a proceeding. The administrative management of the Court and the timely and efficient disposal of trials in its lists are factors to be considered in any such delay. The principals of State of Queensland & Anor v JL Holdings Pty Ltd[4] that an amendment to a proceeding may be allowed providing any delay can be cured by a costs order, has limited application.
•
Further, it is unnecessary for the Council to obtain leave to file the third party notice as it already has on foot in its contribution proceeding with Kane including a claim for indemnity in respect of any liability which the Council may incur as a result of the plaintiff’s claim. It is said that such indemnity arises out of the contractual arrangements between the Council and Kane.[5]
•
Finally, the Council’s application is incomplete as it ought also join any other insurers which, pursuant to any agreement, were said to provide indemnity insurance to the Council through one of the other parties to the proceeding.
[2] There are various Notices of Contribution issued as between the various defendants, and in particular between the second and third defendants. I granted leave for the hearing of those contribution proceedings after the principal proceeding. Further, the Victorian WorkCover Authority has issued a proceeding pursuant to s.138 of the Accident Compensation Act 1985. I have granted leave for that proceeding to be heard at the conclusion of the principal proceeding.
[3] (2009) 239 CLR 175
[4] (1997) 189 CLR 146
[5] See Amended Notice of Contribution – second defendant to third defendant – dated 11 February 2010
11 In relation to Mr McWilliams’ first point, while undoubtedly the application for leave is made at a very late stage of the proceeding, from time to time parties are joined at late stages, even in the course of a trial.[6] The joinder of a party to a trial requires consideration of the following principles:
[6] See Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liq) [2001] VSC 96 (4 April 2001)
•
Whether the principal proceeding would be disrupted as a result of such joinder.
•
Whether, in this case, Lumley would suffer significant prejudice by being joined as a third party at a late time of the proceeding.
•
Whether there would be any unreasonable delay in the principal proceeding, the contribution proceedings or the recovery proceeding as a result of the late joinder.
•
Whether the late joinder was as a result of the neglect or default of Lumley, Kane or their solicitors.
•
A consideration of the interests of justice which dictate that, so far as is possible, all of the relevant issues be heard and determined at the one time.
12 An examination of the chronology of events, in my view, indicates there was no unreasonable delay on the part of the Council or its solicitors in seeking to effect the joinder. Rather, there was significant delay on the part of Kane, Lumley and/or their solicitors in making prompt provision of the policy of insurance (which was clearly discoverable), and in then providing a response to the Council’s solicitors as to whether indemnity would be granted.
13 I am not satisfied that the Council’s application is incomplete as it does not refer to or join other potential insurers. Pursuant to s.76 of the Insurance Contracts Act 1984 (Cth), Lumley would be entitled to recover from any other co-insurers any amounts which it is entitled to by way of contribution.
14 Further, I am not satisfied that the Council’s claim for insurance indemnity is a matter already the subject of the contribution pleading. That pleading seeks an indemnity by the Council from Kane for any liability. The joinder of the third party is a different proceeding and seeks indemnity cover from Lumley. The two causes of action are distinct.
15 Finally, Mr McWilliams submits there will be delay and prejudice to Lumley were leave to be granted. I am not satisfied that any significant delay or prejudice exists. Whether the third party notice was filed within time as provided by the Rules, or even in July of this year, the third party would be able to take no role in the jury trial. The third party proceeding would be determined at some point after the conclusion of the jury trial, presumably relying, at least in part, upon the evidence given in the principal proceeding, with the right of the parties to lead any further evidence or make additional submissions. Nor can I see any significant delay in the hearing and conclusion of the contribution proceedings, or the recovery proceedings. There may be some brief delay but I am not satisfied it is of any significance. In so far as Lumley has not been involved in the trial thus far, I note that counsel for Lumley in this application is junior counsel for Kane in the trial. I further note the same firm of solicitors act, at least at this stage, for both Kane and Lumley. The trial is being transcribed, and a copy of the transcript can be made available to Lumley.
16 I am not satisfied the decision of Forrest J in Tinworth v W V Management Pty Ltd & Anor.[7] has application. That case concerned an application for leave to make significant amendments to a defence, including to plead new issues, at the start of a trial. I am of the view this application is different.
[7] [2009] VSC 552
17 No other matters of significant prejudice were identified by Lumley as mitigating against the grant of leave.
18 I am of the view that it is in the interests of justice that all of the matters in and relating to the principal proceeding, and including any claim for insurance indemnity, be determined together. I will view with sympathy any reasonable request by Lumley for time to prepare for the third-party proceeding.
19 In those circumstances, I propose to grant leave to the Council to issue the third party notice, and make consequent orders.
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