Wallace v State of Queensland

[2003] QDC 425

DISTRICT COURT OF QUEENSLAND

CITATION:

Wallace v State of Queensland [2003] QDC 425

PARTIES:

CAROL MARGARET WALLACE

Plaintiff

and

STATE OF QUEENSLAND

Defendant  

FILE NO:

1194/2001

DIVISION:

Civil

PROCEEDING:

Application without Oral Hearing

ORIGINATING COURT:

Southport

DELIVERED ON:

18 August 2003

DELIVERED AT:

Southport

HEARING DATE:

18 August 2003

JUDGE:

Alan Wilson SC DCJ

ORDER:

1. Pursuant to r 194 of the Uniform Civil Procedure Rules 1999 leave be granted for the defendant to deliver third party notices to Jane-Frances Isabel O’Regan and Kenneth Charles Piaggio.

2.     Costs reserved to the Trial Judge or further order.

COUNSEL:

Without oral hearing

SOLICITORS:

Without oral hearing

1. This is an application under Chapter 13, Part 6 of the Uniform Civil Procedure Rules (decision on papers without oral hearing).  The plaintiff sues the defendant for injuries allegedly suffered in Springbrook National Park on the afternoon of 26 December 1998 when she was struck by a falling tree.

1. The pleadings have gone through a number of amendments, and the defence of the defendant now alleges the plaintiff was injured when she was traversing property adjoining the park which was owned by Jane-Frances Isabel O’Regan and/or Kenneth Charles Piaggio.  The defendant seeks, by this application without oral hearing, to join those parties as third parties to the action.

1. The defendant submits that it had no control over the plaintiff’s actions or any part of the neighbouring property which was under the control of the proposed third parties.  If the plaintiff was owed a duty of care, the defendant says, it was those parties who were responsible to her.

1. UCPR r 194 provides that a Third Party Notice must be filed within 28 days after the time limit for filing a defence or, if an extension is granted for the defence, 28 days from that time. By letter 14 October 2002 the plaintiff’s solicitors granted the defendant an extension of time for delivery of its defence until a date 28 days after either the filing of an Amended Defence, or receipt of the defendant’s advices that it did not intend to amend its pleading.

1. On 14 April 2003 the defendant served a further amended defence on the plaintiff, and a notice requiring further particulars.  In terms of the extension granted, then, the defendant had until 13 May 2003 to file a Third Party Notice without leave of the Court.

1. The delay in bringing the application is explained in the affidavit of Kristina Stock filed 30 July 2003, and shows that it arose from the need to ascertain the identity of the owners of the neighbouring property.  The grant of leave is a matter of discretion.  While it is likely the proposed third party proceedings will delay, and add to the complexity of the action the defendant has not, in my view, been guilty of inordinate delay in investigating the plaintiff’s claim and taking steps to add the owners of the adjoining property to the action, and leave ought be granted.

- - - - -