Webber v Koala Corp Australia Ltd
[2004] QDC 569
•29/09/2004
[2004] QDC 569
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 5380 of 2001
| VICKI WEBBER AS LITIGATION GUARDIAN OF JAMIE MICHAEL WEBBER | Plaintiff |
| and | |
| KOALA CORP AUSTRALIA LIMITED and DANIAL KERRIGAN | First Defendant Second Defendant |
BRISBANE
..DATE 29/09/2004
ORDER
CATCHWORDS: Removal of existing defendants erroneously thought to have been involved in activities at a resort in which plaintiff was injured and correct defendant added under r 69 - further service of proposed new defendant dispensed with under r 70(2) - litigation guardian removed under r 95(2) and/or r 367 in circumstances where plaintiff attained full age before claim was filed.
HIS HONOUR: The Court has made an order in terms of the initialled draft. It may be useful to set out and briefly comment on the matters that have caused concern.
The plaintiff was a 12-year-old boy when he suffered personal injuries in a holiday accident which occurred when he was vacationing at Cherribah Homestead Resort and, in particular, while being conveyed in a vehicle which was taken to be part of the facilities and equipment used in operations of the resort.
At the time when the claim was filed on the 8th of November 2001, it was believed that the operator of the resort was the first defendant, Koala Corp Australia Limited, and that the second defendant, Danial Kerrigan, was the driver of the vehicle. Information subsequently to hand suggests that the driver was another person and that the operator of the resort was not the first defendant but an associated company Plaza Hotels Australia Proprietary Limited. That assertion is made in an amended defence of the first defendant filed by Hemming and Hart Lawyers on the 14th of March 2003.
Contacts have occurred between the plaintiff's solicitors and that firm which gave rise to an understandable belief in the plaintiff's solicitors that Hemming and Hart were acting for Plaza Hotels Australia Proprietary Limited. Mr Foley, representing the plaintiff today, draws the Court's attention to a recent telephone contact with Hemming and Hart in which the surprising information was communicated that a letter from them indicating their consent to the orders being sought today was given in their capacity as solicitors for the first defendant and not as solicitors for Plaza Hotels Australia Proprietary Limited.
For what it is worth, Mr Olsen's affidavit shows that when he attended at Hemming and Hart's office to effect service on Plaza Hotels Australia Proprietary Limited (identified as the person to be served in a written document headed Request for Filing and Serving), an endorsement confirming that service on the receptionist at Hemming and Harts, Kylie Anne Hacker, was endorsed.
There has been no service on Danial Kerrigan. Mr Foley is unable to inform the Court whether he was served with the claim. If he was, he has certainly taken no step to protect his interests in the Court.
All of this interest in service arises because of the requirement of rule 70 subrule (2) that all existing parties must be served with an application of the present kind which is to bring in Plaza Hotels Australia Proprietary Limited as a defendant as well as the proposed added defendant. The Court is entitled to order otherwise under that subrule and I have no difficulty in determining to do that.
The limitation period, so far as commencement of proceedings by the plaintiff is concerned, will expire tomorrow when he turns 21. It would be open to him to commence a fresh claim today against Plaza Hotels Australia Proprietary Limited. There's no justification for requiring that course to be taken.
What I have said about dates indicates that the proposition that a litigation guardian needed to be involved when the claim was commenced was erroneous. The plaintiff had turned 18, it seems, on the 30th of September 2001. The explanation for the inclusion of a litigation guardian may well be that, at the time when the claim was being worked up, the plaintiff was yet to attain his majority and his doing so failed to be properly noticed. The statement of claim does not show his birth date. Further, the solicitors are acting for a firm in another State.
I think it is embarrassing to have a litigation guardian involved in the proceedings. The litigation guardian of course is not a party. She is understood to be the plaintiff's mother. Her involvement exposes her to adverse costs orders potentially but, given that the plaintiff has always been of full age, it would seem that anyone entitled to costs could claim them against him.
Rule 95 subrule (2) permits the Court to remove a litigation guardian if the interests of a party, who is a person under a legal incapacity, require it. At no relevant time has the plaintiff been under a legal incapacity as things seem. The Court, in my opinion, ought to regularise matters by making an order for removal of Mrs Webber. If rule 95(2) does not authorise that, I am confident that rule 367 would.
Mr Foley or those who prepared the application conceived it as made under rule 377. Of course, rule 377 makes it clear that since the claim is being amended, the Court has to be resorted to. There has always been a kind of tension in the rules as they are structured between amendment provisions, which are now found in rule 375 and following, and provisions to do with adding or removing parties, which commence at rule 68.
Rule 376(2) accepts that amendments may involve the addition of parties, a topic also dealt with in the earlier rules. Whichever way one approaches the matter, I think the way in which it ought to be resolved in the same.
Orders will be made exempting the applicant from having to effect any further service on the proposed new defendant under rule 70 subrule (2) and removing the litigation guardian under rule 95(2).
The more significant parts of the order remove the present first defendant and the present second defendant and add Plaza Hotels Australia Proprietary Limited as the new defendant.
HIS HONOUR: Do you mind if I make the first order pursuant to rule 69?
MR FOLEY: Not at all, your Honour.
HIS HONOUR: I prefer that. Thanks for your help, Mr Foley.
MR FOLEY: I take it that costs are reserved, your Honour?
HIS HONOUR: Yes, that is now in paragraph 4 though.
MR FOLEY: Yes, thank you.
HIS HONOUR: I'll ask my Associate to make you a copy of that.
MR FOLEY: Thank you, your Honour.
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