Wale v Workers Compensation Board of Qld

[2000] QCA 381

SUPREME COURT OF QUEENSLAND

CITATION:

Wale v Workers Compensation Board of Qld [2000] QCA 381

PARTIES:

REBECCA JANE WALE
(plaintiff)
v
ARTHUR JOHN WALE AND GRACE MARY WALE
(defendant)
WORKERS COMPENSATION BOARD OF QUEENSLAND
(defendant by election/respondent)
ARTHUR JOHN WALE AND GRACE MARY WALE
(third party/applicant)

FILE NO/S:

CA No 6369 of 2000
DC No 9 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

19 September 2000

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2000

JUDGES:

McPherson JA, Muir J, Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER:

Application for leave to appeal dismissed.

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – third party notice – whether issued pursuant to the Uniform Civil Procedure Rules – notice and order to issue notice both occurred before the UCPR became operational.

Uniform Civil Procedure Rules 1999, r 192, r 206
District Court Rules 1968, r 130, r 133
Supreme Court of Queensland Act 1991, s 118B(2)(b)(v)

COUNSEL:

APJ Collins for the applicant
RAI  Myers for the respondent

SOLICITORS:

Damien Bourke & Associates for the applicant
Thynne & Macartney as town agent for Hede Byrne & Hall (Toowoomba) for the respondent

1. McPHERSON JA:  I agree with the reasons of Atkinson J.  The application for leave to appeal should be dismissed, but without costs.

1. MUIR J:  I agree with the reasons of Atkinson J and with the order proposed by McPherson JA.

1. ATKINSON J:  This was an application for leave to appeal against a decision of a District Court Judge sitting in Chambers on 26 June 2000.  The third parties brought an application before his Honour Judge Pratt QC seeking to strike out the third party notice against them as not disclosing any cause of action or otherwise not being within the confines of the Uniform Civil Procedure Rules or otherwise as not being permitted under the Workers Compensation Act 1990.  

1. As the argument transpired before the learned District Court Judge, it concerned a third party notice which had been issued by the respondent defendant by election on 29 April 1999 pursuant to an order of Judge Samios dated 16 April 1999.  The argument proceeded before the learned District Court Judge on the basis that the Uniform Civil Procedure Rules applied to the determination of it.  Both the applicant and the respondent so argued in their written outline of submissions before this court as did the applicant in his oral submissions. 

1. The order made by Judge Samios was however made on 16 April 1999, prior to the coming into force of the Uniform Civil Procedure Rules and prior to the repeal of the District Court Rules 1968.[1]  The application to set aside such an order should have considered therefore whether or not it was properly ordered under the District Court Rules 1968 and in particular r 133(1). This was not brought to the attention of the learned District Court Judge nor to the attention of the Court of Appeal until it was mentioned by Mr Myers of counsel for the respondent at the commencement of his oral submissions. He told the Court that he had just read the order of Judge Samios and realised that had been made before the Uniform Civil Procedure Rules came into effect. 

   [1]30 June 1999:  see Supreme Court of Queensland Act 1991 s 118B(2)(b)(v).

1. It appears that the notice served by the respondent was served under r 133 of the District Court Rules in that it was a claim by a respondent against any party to the action. It was a claim of a similar type to that made under r 130(1)(a). The respondents were not required to seek leave to issue such a notice of contribution and indemnity. It appears, and it could not be seriously contended otherwise, that the notice was properly issued pursuant to the order made by Judge Samios and that therefore there were no proper grounds to have it set aside. Although the matter proceeded before Judge Pratt QC on the wrong assumption, his Honour was correct in refusing to set aside the notice.

1. The applicants sought leave to appeal pursuant to s 118 of the District Court Act 1967 on an interpretation of the Uniform Civil Procedure Rules and in particular the interplay between r 192 and r 206. However as these matters are not raised by the application there are no issues sufficiently important to warrant a grant of leave. Nor is the decision of Judge Pratt QC sufficiently attended with error as to warrant the grant of leave. Accordingly I would refuse leave. Neither party should have their costs of the appeal.