Wilkinson v Rockdrill Contractors

[1995] QSC 89

IN THE SUPREME COURT
OF QUEENSLAND
  No. 1768  of 1989
Brisbane

[Wilkinson v. Rockdrill Contractors & Anor]

BETWEEN

ROBIN DAVID WILKINSON
  Plaintiff
AND

ROCKDRILL CONTRACTORS PTY LTD
  Defendant

AND

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Defendant by Election/
  Third Party

JUDGMENT  -  DERRINGTON J.

Delivered:19 May 1995

CATCHWORDS:           Practice - Pleading in Statement of Claim separate additional causes of action to that endorsed on writ - No amendment to writ - Whether additional claims irregularity or nullity - No action by defendant to strike out additional claims - Effect of these failures - Additional claims outside statutory limitation - effect - When action commenced in respect of them - Whether it relates back to issue of writ.

Counsel:C.G.S.L. Jensen for the plaintiff

R.R. Douglas QC for the defendant

J.A. Griffin with him G.M. Egan for the defendant by election

Solicitors:Rogers Matheson Clark for the plaintiff

Morris Fletcher & Cross for the defendant

Hunt & Hunt for the defendant by election

Hearing date :  17 May 1995

IN THE SUPREME COURT
OF QUEENSLAND
  No. 1768  of 1989
Brisbane

[R.D. Wilkinson v. Rockdrill & Anor]

BETWEEN

ROBIN DAVID WILKINSON
  Plaintiff
AND

ROCKDRILL CONTRACTORS PTY LTD
  Defendant

AND

WORKERS' COMPENSATION BOARD OF QUEENSLAND

Defendant by Election/
  Third Party

JUDGMENT - DERRINGTON J

Delivered the 19th day of May 1995

The trial of this matter is set down for 7 proximo and therefore this application has a degree of urgency.  The defendant by election appeared in opposition to it, but its participation in the action is irrelevant to the following considerations, so for convenience it will be ignored and reference to that side of the record will be confined to the defendant.
          The plaintiff was an employee of the defendant and claims to have been injured on three separate occasions as the result of the defendant's negligence and/or breach of contractual duty to take care for his safety as an employee.  The first of such occasions is alleged to have taken place in Queensland and the later two in the Northern Territory. 
          The writ was issued in Queensland and its endorsement was clearly limited to the Queensland incident.  It was not served on the Workers' Compensation Board until much later, by which time a Statement of Claim relating to the Queensland incident and an "amended Statement of Claim" referring to all three incidents had been served, and the period of limitation of actions for the last two of the three incidents had expired.
          The defendants then made an application for disallowance of the proposed amendments, but it was dismissed on the ground that there had been no amendment because the service of the original Statement of Claim was a nullity caused by the plaintiff's failure to have served a copy of the writ on the Board.  It follows of course that the amended Statement of Claim must also have been a nullity, as learned counsel for the plaintiff concedes.  At first he had mounted some argument that it was not a nullity in respect of its claim concerning the two later incidents because, he argued they were not caught up in the requirement to serve the Board with the writ.  However having decided that the plaintiff's claims in respect of those incidents did come within those covered by the Workers' Compensation Acts, he acknowledged that the effect of the failure to serve a copy of the writ on the Board extended to those claims also, and he abandoned the first argument.
          The plaintiff then re-served the defendant with the writ, served the Board with a copy, and filed the required affidavit.  He then delivered a new Statement of Claim, the first after the defect had been corrected.  It made claims in respect of all three incidents.
          Soon after, the defendant filed a summons for an order to strike out the additional claims included in the new Statement of Claim, but it did not proceed and he paid the plaintiff's costs of that application.
          He then delivered a defence, pleading relevantly the statute of limitations in respect of the two later incidents.  The action has now proceeded to the point of trial, the defendant participating in the intervening steps without further complaint.

A brief chronology of these events is as follows:-

DateEvent

June 1986 Queensland incident;

13 September 1986          First Northern Territory incident;

9 January 1987                 Second Northern Territory incident;

26 May 1989 Writ issued in respect of Queensland incident only;

20 June 1989                   Entry of Appearance;

August 1989           Delivery of Statement of Claim relating to Queensland incident only;

12 September 1989          "Amended Statement of Claim" delivered in respect of all three incidents;

13 September 1989          Effluxion of time in respect of first Northern Territory incident;

13 October 1989              "Further amended Statement of Claim" delivered relating to all three incidents;

10 January 1990               Effluxion of limitation period for second Northern Territory incident;

19 April 1990                   Defendant's application for disallowance of "proposed amendments" to Statement of Claim dismissed;

30 April 1990                   Writ re-served on defendant, and served on Workers' Compensation Board, Affidavit of Service filed an new Statement of Claim delivered;

15 May 1990  Defendant's summons to strike out pleading relating to Northern Territory incidents struck out abandoned by defendant;

May 1990 to present         Conduct of the action proceeded with participation of both sides.

The plaintiff now seeks orders that would have the effect of excluding the defendant's reliance upon the statute of limitations, at least to the extent that he might seek to rely upon any assertion that the action in respect of the two latest incidents was commenced later than the date of the issue of the writ, which of course was issued within the statutory period.  It is desirable, prefatory to their examination in detail to outline the thrust of the respective arguments.
The plaintiff concedes that O.24 R.1, which allows an extension by the Statement of Claim of the claim endorsed on the writ permits only of an extension of that claim within a limited degree; but he argues that the extension in this case does not go beyond that permitted. He tried to argue that because the actions related to the same broad type of claim (although for tactical reasons one of them is couched in terms of breach of contract), and because the defendant was common to all three, the causes of action should be regarded as related. This just not so; Pianta v. BHP Australia Coal Ltd (unreported) at pl.230/1994 C.A. (Q) 83 1995.  That being so, the joinder is clearly beyond that permitted by the rule:  Moore v. Alwill (1881) 8 Q.B.D. 245; United Telephone Co Ltd v. Tasker, Sons & Co (1888) 58 L.T. 852; Cowe v. Crew (1893) 62 L.J. Ch. 530; Watson's Specialised Tooling Pty Ltd v. Richards (1963) V.R. 179, 185-186.
          He claims in the alternative that the joinder of the second and third causes of action was a mere irregularity and not a nullity; that as the defendant did not pursue his claim to strike out the offending part it remained good - alternatively as he participated in the further conduct of the action, he waived the irregularity; and that because those claims remained in the Statement of Claim, the date of the commencement of the action relating to them relates back to the date of the issue of the writ.
          He concedes that if the addition of the later causes of action is a nullity, his argument is lost because the conduct of the defendant in continuing to defend without seeking relief could not cure it.  With respect, he is correct in this: Smurthwaite v. Hannay (1984) A.C. 494 (H.L.). However, there has been no pleading of a nullity, and no application in that respect, so as matters stand there is no reason why the court should consider that point at the trial.
          The defendant argues that the Statement of Claim is a nullity, but he also argues against any declaration defeating the limitations plea because he wishes to support it at the trial on the ground that the inclusion of the additional claims in the Statement of Claim does not relate the commencement of the action in respect of them back to the date of the issue of the writ.  Unfortunately he did not advance any argument in that respect in this hearing, although it was clearly raised on the issues and argued by the plaintiff.
          The defendant opposed to the application further on the basis that the issues raised could only be determined by the trial judge.  This is not so.  None of the relevant features depends in any way upon the conduct of the trial.  The arguments all relate to matters of pleading which can as well be determined now as then.  As a decision may now well avoid a waste of costs and save the trial judge from the need to determine preliminary issues, it is more convenient to determine them now.
          They can now be conveniently summarised.  The first is whether the inclusion of the additional claims in the Statement of Claim was an irregularity or a nullity.  The next is the effect of the defendant's failure to plead to the point and his confinement of his defence to the statutory bar.  The third is whether, if the joinder is still effective, the commencement of the action in respect of the two latest causes of action relates back to the issue of the writ.

The First Point
          The question whether the defect is a nullity as distinct from an irregularity is significant because if it be the latter, then it is cured by the defendant's failure to apply within a reasonable time under O.93 r.18 in default of which he will lose his rights; O.93 r.17(2): Perez v. Transfield (Qld) Pty Ltd (1979) Qd.R. 444. The defendant's participation in the further conduct of the action would also constitute a waiver of his right to apply to have such an irregularity struck out. In the case of a nullity, none of this applies, as it has been noted.
          The most serious difficulty lies in identifying the status of the effect of the defect as between irregularity and nullity.  In Lloyd v. Great Western Dairies Co (1907) 2KB 727, the plaintiff wrongly joined two causes of action in the writ without leave, which was forbidden by the rules. This was held by the Court of Appeal to be an irregularity which could be waived, rather than a nullity. The position there was distinguished from that in Smurthwaite v. Hannay (supra) where the joinder in the writ of several parties each with a distinct cause of action was found to be a nullity.  The point of distinction was that in the latter case, there was no provision or any law under the rules allowing such a procedure whereas the rules anticipated that the two causes of action of the same plaintiff, as in Lloyd's case, was possible in certain circumstances, in that case by the leave of the court.
          In the present case, it is certainly possible for a plaintiff to join three causes of action such as this in the same action by joining them in the writ:  United Telephone Co. (supra);  Patterson v. Richards (supra).  In that event, the three causes of action could have been included in the Statement of Claim.  It is irrelevant to the principle whether because of particular circumstances relating to the case, it might later turn out that the claims could be ordered to be tried separately.
          It is also irrelevant that in a particular case some of the claims are outside the limitation period, for a claim may be joined in a writ in those circumstances.  More doubtful is the position, such as here, where there was a need to seek leave to amend the writ, which may not have been granted because the additional claims were outside the limitations period.  Because of the terms of the discussion in Lloyd's case, it is unlikely that such particular circumstances are relevant to the principle, rather than the general theoretical availability of the procedure.  In view of the result reached on the final point to be discussed, it is not necessary to resolve this, and the urgency of the occasion precludes that pleasure.  The proposition that in general it is possible for the plaintiff to conduct such an action is probably sufficient to bring the matter within the principles stated in Lloyd's case rather than that in Smurthwaite.  The result is that the defect is probably an irregularity only.
          It might be noted that in United Telephone Co (supra) the wrongful joinder of a new and separate cause of action in the Statement of Claim when it had not been endorsed on the writ was described by Kay J as "entirely irregular", but his attention was not directed to the issue here.

The Second Point
          This finding eliminates the need for discussion of the substance of the second point.  The effect of Perez (supra) is clearly to cure the defect.  The position would have been more interesting had it resulted in a nullity so far as the addition of the further causes of action went beyond what was permitted by the rules.  The defendant's failure to apply to strike out the nullity or to plead it by way of defence may have meant that it was not an issue for the trial;  but while leave to amend the defence might have been refused at this late stage, it may have been more difficult to refuse an application to strike out a nullity, if one were brought.  However this is of academic interest only.

The Third Point
          The plaintiff relies on Adam v. Shiavon (1985) 1 Qd.R. 1, 10 for the proposition that the commencement of the action relates back to the issue of the writ. This would be a surprising result, for the claims were made for the first time in the Statement of Claim and do not appear in the writ, even by amendment.
          Although Adam v. Shiavon has been doubted, it cannot be used by the plaintiff in the present case as support for his argument because the relation back found to exist in that case related to an amendment to the writ itself.  From the authorities relied on in that judgment, Baldry v. Jackson (1976) 2 NSWLR 415, 419, Snead v. Wotherton Barytes & Lead Mining Co (1904) 1 KB 295 and Warner v. Sampson (1959) 1 QB 297, it is clear that the doctrine of relation back depends upon the amendment to the particular process, in which case the amendment relates back to its original date, but, that is, the date of that particular process. This means that when a writ is amended, it is then read as though the amendment had always existed from the commencement from the writ itself. As other authorities show, the same applies to an amendment of a Statement of Claim, so that the amendment is read from the time of its delivery.
          This is a far cry from the proposition that the introduction of a fresh cause of action in the Statement of Claim should become the equivalent of an amendment to the writ, and no authority justifying any such proposition has been advanced.  Nor has any other basis for suggesting that such a mere inclusion of the fresh cause of action in the Statement of Claim should relate back been argued.  It may be different if they were permitted by the rules to be pleaded as an extension of the claim endorsed on the writ, but that is not the case here and there is no reason to examine it.
          If the plaintiff had followed the correct procedure of seeking to amend the writ to include the further causes of action and had been successful, then of course the commencement of the action on these claims would have related back to the issue of the writ, and the inclusion of the claims in the Statement of Claim would have been protected from the statute.  This, of course would have permitted the defendant to contest that application.  This accords with what is logical, reasonable and just in such circumstances.
          For these reasons, there is no basis for finding that the action in respect of the two later incidents was commenced at any time earlier than their inclusion in this action through the Statement of Claim.  In that case, they were out of time and the defendant's plea that they are statute-barred is good.
          The application is therefore dismissed with costs.