Walsh v Pilbara Bus Services Pty Ltd

[2001] WADC 188

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   WALSH -v- PILBARA BUS SERVICES PTY LTD [2001] WADC 188

CORAM:   COMMISSIONER GREAVES

HEARD:   22 JUNE 2001

DELIVERED          :   10 AUGUST 2001

FILE NO/S:   CIV 2531 of 1999

BETWEEN:   MARK EDWARD WALSH

Plaintiff

AND

PILBARA BUS SERVICES PTY LTD
Defendant

PORT LINCOLN SHIP CONSTRUCTION PTY LTD
First Third Party

COMMERCIAL MARINE DESIGN PTY LTD
Second Third Party

Catchwords:

Practice and procedure - Third party directions - Whether third party proceedings should be adjourned to prevent delay in trial of action - Appeal from Deputy Registrar allowed in past

Legislation:

Rules of the Supreme Court, O 14 r 4(2)(b)

Result:

Appeal second third party dismissed
Appeal of defendant allowed

Representation:

Counsel:

Plaintiff:     Ms S T Burke

Defendant:     Mr A J Adams

First Third Party           :     No Appearance

Second Third Party       :     Mr G J Bostock

Solicitors:

Plaintiff:     Hammond Worthington

Defendant:     Jackson McDonald

First Third Party           :     No Appearance

Second Third Party       :     Bostock & Ryan

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. COMMISSIONER GREAVES:  These are two appeals by the second third party and the defendant against the decision of the learned Deputy Registrar on 17 April 2001 upon the defendant's application for third party directions.

2. For reasons to which I shall refer, the learned Deputy Registrar ordered:

   "(i)Within 10 days from the date of that order, the Defendant do file and serve a statement of claim in the Second Third Party proceedings; and the Second Third Party within 14 days of service thereof do file and serve a defence thereto.

   (ii)Within 14 days from the filing and service of the defence in the third party proceedings, the Defendant and the Second Third Party do each make and serve a list of the documents which are or have been in their respective possession, custody or power relating to any matter in question in the third party proceedings; and that they do within the same period each make and file an affidavit verifying that list and serve a copy of the affidavit and list on all parties.

   (iii)The costs of the application be costs in the cause and in the third party proceedings as between the Defendant and the Second Third Party.

   (iv)The parties have liberty to apply."

3. The learned Deputy Registrar adjourned the application for orders that the second third party be at liberty to appear at the trial of the action and take such part as the Judge shall direct and be bound by the result of the trial, and that the question of the liability of the second third party to indemnify and/or make contribution to the defendant be tried at or immediately after the trial of the action as the Judge shall direct.

4. The learned Deputy Registrar gave the following reasons for his decision:

   "In this matter the TP argues that it was not appropriate to give directions unless the Ps entry for trial was countermanded.

   I do not accept that submission because any problems on the TP proceedings are not of the Ps making and the P entered this action in June 2000.

   I expect the case will not be tried until later this year and have therefore made the orders sought save for those allowing for the issues between D & TP to be heard at trial.

   If the TP proceedings can be moved along quickly those orders can be made later.  If not the TP proceedings will require separate trial.

   In any event I consider it unfair to inflict any further delay on the P."

5. The second third party appeals against the orders of the learned Deputy Registrar and seeks to have the orders made against it dismissed while the defendant appeals against the decision of the learned Deputy Registrar and seeks the orders which the learned Deputy Registrar adjourned.

6. The writ in the action was issued on 1 July 1999.  The action was entered for trial on 20 June 2000.  On 7 December 2000, the defendant obtained leave to issue the third party notice against the second third party.

7. It is plain the learned Deputy Registrar was influenced in his decision by the possibility that to make an order pursuant to O 19 r 4(3)(b) might delay the listing of the action for trial and that is why he adjourned consideration of such an order.

8. The Court is required to determine these appeals de novo in which the Court is not fettered by the decision of the learned Deputy Registrar, although it is due considerable weight.  While I understand the weight which the learned Deputy Registrar gave to the question of delay, I am of the opinion that the issues in the action and third party proceedings are such that it is most desirable that they be heard together for obvious reasons.

9. I conclude, therefore, that the appeal of the second third party should be dismissed and the appeal of the defendant allowed so that directions pursuant to O 19 r 4(2)(b) may be made in addition to the orders of the learned Deputy Registrar.

10. I will hear counsel on the orders to be made.