Weismann & Anor v Weismann - [2009] QDC 190

[2009] QDC 190

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 498 of 2008

DESLEY WEISMANN and
DARREN ARCH

Plaintiffs

and

NOEL VICTOR WEISMANN

and

PAUL SIMPSON and WENDY SIMPSON
TRADING AS WELD CRAFT

First Defendant

Second Defendants

BRISBANE

..DATE 23/06/2009

ORDER

CATCHWORDS: District Court of Queensland Act s 68, s 85 - Uniform Civil Procedure Rules r 668 order substituting second defendants for original party set aside as made without jurisdiction - no need for an appeal - the claim and statement of claim did not demonstrate that the claim fell within the court's monetary jurisdiction - court declined to consider issues of striking out claim or transferring it to the Supreme Court in the absence of the first defendant.

HIS HONOUR: The Court is asked by the second defendants, who were substituted in the proceeding for the original second defendant, to set aside its order of the 30th January 2009 by which that substitution was made. The reasons are recorded at [2009] QDC 153.

The basis of the current application was rule 668 and the passing away of the male second defendant, Mr Simpson. He had been diagnosed with cancer, which unfortunately after January this year became more aggressive and spread to other parts of his body. He is plainly the crucial witness so far as the second defendants' presentation of their best case is concerned.

I accept that Mrs Simpson couldn't contribute anything useful. Their involvement goes back to the early 1990s when it seems that they, rather than the original second defendant company, were running the business which supplied a gate which many years later failed with disastrous consequences for the plaintiffs' young son.

The authorities on rule 668 and it predecessors are difficult to understand. I would have some problems about setting aside the former order on the basis that the changed circumstances brought about by the death had substantially increased the difficulties of the second defendants' participation in the litigation. Those difficulties undoubtedly would be increased. It's very much part of our system that causes of action survive death of plaintiffs or defendants in many cases.

Rockett v. The Proprietors "The Sands" Building Units Plan number 82 [2002] 1 QdR 307 indicates some of the limitations on rule 668. It's not necessary and, indeed, it may be inappropriate for the Court to embark on a rule 668 application because another basis appears for the setting aside of the order.

The claim was commenced pursuant to leave granted by Judge Brabazon under section 43 of the Personal Injuries Proceedings Act 2002. His Honour would not have expected that the proceeding instituted pursuant to that leave was defective for failing to be demonstrably with the District Court's jurisdiction. That's a requirement long established by appellate decisions, in particular Startune Pty Ltd v. Ultra Tune Systems (Aust) Pty Ltd [1991] 1 QdR 192.

The claim and statement of claim filed in the Court in the early part of 2008 make no mention of any amount being…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QDC 190
Decision Date: 23 June 2009

CaseChat Overview and Summary

In the case of Weismann & Anor v Weismann, the plaintiffs Desley Weismann and Darren Arch sought damages from the defendants, Noel Victor Weismann and Paul Simpson and Wendy Simpson, trading as Weld Craft. The plaintiffs' son had suffered injuries as a result of a defective gate supplied by the defendants, and they sought compensation for the damages incurred. The defendants sought to have an earlier order substituting them for the original second defendant set aside on the basis that the deceased second defendant was a crucial witness in the case, and his death had substantially increased the difficulties of their participation in the litigation. The court considered the legal issues and found that the order of substitution should be set aside, not because of the difficulties of the defendants' participation, but rather because the claim did not demonstrate that the claim fell within the court's monetary jurisdiction. The court declined to consider issues of striking out the claim or transferring it to the Supreme Court in the absence of the first defendant.

The court held that the claim and statement of claim filed in the Court in the early part of 2008 made no mention of any amount being claimed, which constituted the deficiency that precluded the court's making any order within the proceeding. The court held that it had jurisdiction to set aside an order which it had earlier made, and followed a previous decision in Australia Meat Holdings Pty Ltd v. Higgs, which appeared to cover this case. The court set aside the order of the 30th January 2009 by which the second defendants were brought into this proceeding. The court found it difficult to hold that there was an obligation on the plaintiffs on the 30th January last to inform the Court that the claim, or the claims combined, might exceed the District Court's jurisdiction. The court held that the plaintiffs were free to make a renewed application of the kind determined last January, which would be decided by the Court on the basis of the changed circumstances since Mr Simpson's death.

The court declined to strike out the proceeding on the basis of section 85 of the District Court of Queensland Act as it now stands. The court had a discretion, in the event that it was not persuaded that the plaintiffs in a blameworthy way commenced in the District Court, to send the matter to the Supreme Court. The court held that nothing ought to be done about the proceeding generally in the absence of the first defendant. The court reserved costs, as it did not know whether there was any power to make them.

Orders