Cottee v Cobham Aviation Services Australia Pty Ltd & Others [2022] QDC 251

DISTRICT COURT OF QUEENSLAND CITATION: Cottee v Cobham Aviation Services Australia Pty Ltd & others [2022] QDC 251 PARTIES: JACINDA COTTEE (applicant) v COBHAM AVIATION SERVICES AUSTRALIA PTY LTD ABN 34 003 469 574 (first respondent) COBHAM AVIATION SERVICES ENGINEERING PTY LTD ABN 74 099 287 117 (second respondent) ROLLS-ROYCE DEUTSCHLAND LTD & CO KG ABN 70 098 164 121 (third respondent) NATIONAL JET SYSTEMS PTY LTD ABN 11 008 279 203 (fourth respondent) FILE NO: 2081 of 2022 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court of Queensland DELIVERED ON: 18 November 2022 DELIVERED AT: Brisbane HEARING DATE: 12 September 2022 JUDGE: Rosengren DCJ ORDERS: 1. The second and third respondents be joined in District Court proceedings 553/21. 2. The applicant pay the second and third respondents’ costs of and incidental to the application with the -- 1 of 8 -- 2 execution of the costs order to be delayed until the conclusion of the proceeding. CATCHWORDS: PROCEUDRE – CIVIL PROCEEDINGS IN QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – where applicant seeks to join second and third respondents – where application brought outside limitation period – whether application to join falls within r 69(2) Uniform Civil Procedure Rules 1999 (Qld) PROCEUDRE – CIVIL PROCEEDINGS IN QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PARTIES – OTHER MATTERS – where applicant’s solicitors made a mistake in filing a statement of claim without a claim – whether court had power under r 371 of the Uniform Civil Procedure Rules 1999 (Qld) to make declaration that statement of claim filed in the registry was effective in joining second and third respondents Personal Injuries Proceedings Act 2002 (Qld) ss 18, 43 Uniform Civil Procedure Rules 1999 (Qld) rr 5, 14, 69, 156, 371, 376 Althaus v Australia Meat Holdings Pty Ltd [2007] 1 Qd R 493 Australian Golf Management Corporation Pty Ltd v Logan City Council [2021] QSC 291 Bates v Queensland Newspapers [2001] QSC 83 Cottee v Eastern Australia Airlines Pty Ltd [2022] QDC 112 Crayford Freight Services Ltd v Coral Seatel Navigation (1998) 82 FCR 328 Cropper v Smith (1884) 26 Ch D 700 Emanuele v Australian Securities Commission (1997) 188 CLR 114 Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184 Jess v Scott (1986) 12 FCR 187 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 COUNSEL: C Donnan for the applicant T Crydon (sol) for the first and second respondents S Williams KC and M Eade for the third respondent B Pool (sol) for the second defendant in BD 553/21 SOLICITORS: Slater and Gordon Lawyers for the applicant Sparke Helmore Lawyers for the first and second respondents HFW Australia for the third respondent HWL Ebsworth Lawyers for the second defendant in BD 553/21 -- 2 of 8 -- 3 Introduction [1] The applicant has made a claim for personal injuries in Brisbane District Court claim number 553 of 2021. On 26 August 2022, she filed this application relevantly seeking: (i) Leave pursuant to r 69 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) to join Cobham Aviation Services Australia Pty Ltd (‘Cobham Services’), Cobham Aviation Services Engineering Pty Ltd (‘Cobham Engineering’) and Rolls-Royce Deutschland Ltd & Co KG (‘Rolls Royce’) as parties to the personal injuries proceedings. (ii) Alternatively, a declaration pursuant to r 371 of the UCPR that the Further Amended Statement of Claim filed on 14 April 2022 be effective in joining Cobham Services, Cobham Engineering and Rolls Royce as defendants in the personal injuries proceedings. (iii) Leave pursuant to r 69(1)(b) of the UCPR to join National Jet Systems Pty Ltd (‘National Jet Systems’) as a party to the personal injuries proceedings. Relevant background [2] The applicant was employed by National Jet Systems as an airline pilot. She was the First Officer on QantasLink flight QF1799 from Alice Springs, Northern Territory to Brisbane on 10 March 2018. The operating aircraft was a Boeing 717-200, registered VH-NXQ. There were passengers on board. It is alleged that the aircraft suffered a catastrophic right-hand engine failure in engine ES 13187 (‘the engine’) approximately 50 nautical miles west of Roma, necessitating an emergency landing in Brisbane. It is said that the engine failed due to a below platform failure of a single low pressure turbine blade that resulted in further blade failures on the turbine discs. These failures are said to be the consequence of a fatigue crack. The engine failure allegedly caused the applicant to suffer a psychological injury, including a post-traumatic stress disorder. [3] The applicant engaged her current solicitors in July 2020 to assist her in pursuing a claim for statutory compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld). In early February 2021, she provided her solicitors with a safety investigation report that had been commissioned by Cobham Services. Given the contents of this report, the applicant’s solicitors considered that the applicant might have a right of action against the entities that were responsible for the repair and maintenance of the aircraft, including the engine. It was the applicant’s understanding that QantasLink was responsible for this. [4] On 9 March 2021, the applicant was granted leave to commence proceedings against Airlink Pty Ltd (‘Airlink’), Eastern Australia Airlines Pty Limited (‘Eastern Australia Airlines’) and Sunstate Airlines (Qld) Pty Ltd (‘Sunstate’). Each of these entities traded as QantasLink and were named as the first, second and third defendants respectively. In the Amended Statement of Claim filed on 16 March 2021, it was alleged that one of the defendants, or alternatively each of them, were responsible for the safety and maintenance of the engine and was negligent in those duties, causing the loss and damage suffered by the applicant. In June 2021, the applicant discontinued the proceedings against Airlink and Sunstate, as further investigations had revealed that these entities were not involved in the maintenance of the subject engine. This left Eastern Australia Airlines as the only defendant to the proceedings. [5] By an application filed on 31 March 2022, the applicant relevantly sought orders for the time limit to commence proceedings against Cobham Services be extended to 16 September 2022, and against Cobham Engineering and Rolls-Royce be extended to 19 -- 3 of 8 -- 4 April 2022. They were the second, third and fourth respondents respectively. The first respondent was Eastern Australia Airlines. The applicant also sought an order pursuant to s 18(1)(c)(ii) of the Personal Injuries Proceedings Act 2002 (Qld) (‘PIPA’) that she be authorised to proceed further with her damages claim despite her failure to provide a complying Part 1 Notice of Claim. [6] This application was filed in an amended form at the hearing on 14 April 2022. It sought a further order that the applicant be granted leave to commence proceedings against Cobham Services, Cobham Engineering and Rolls Royce pursuant to s 43 of PIPA. The application had been brought on the last business day before the expiration of any extended limitation period in relation to Rolls Royce. Counsel for the applicant informed the court that a draft pleading had been drawn up late the previous afternoon. She further confirmed that if leave was given, the applicant was in a position to commence proceedings against Cobham Services, Cobham Engineering and Rolls Royce. [7] In circumstances where Judge Barlow KC would be reserving the decision, the following orders were made on 14 April 2022: (i) The applicant was granted leave to amend the application in the terms set out in the amended application. (ii) The applicant was granted leave to commence proceedings against Cobham Services, Cobham Engineering and Rolls Royce pursuant to s 43 of PIPA. (iii) The applicant was authorised to proceed further with her personal injuries claim despite her failure to provide complying Notices of Claim to Cobham Services, Cobham Engineering and Rolls Royce. (iv) The proceedings referred to in subparagraph (ii) were stayed until the court gave judgment with respect to the application to extend the time limit for the commencement of the proceedings against Cobham Services, Cobham Engineering and Rolls Royce to the dates specified in the application. [8] Later that day, a senior legal assistant for the applicant attended the civil registry of the District Court at Brisbane and filed a Further Amended Statement of Claim (‘the FASOC’). The effect of the amendments was to add Rolls Royce, Cobham Services and Cobham Engineering as the first, third and fourth defendants respectively to the pleading. She did not file an amended claim naming the entities as parties to the proceeding. Further, there had been no application for leave to join them as parties to it. The effect of the joinder was to allege that these respondents were responsible for maintaining the subject engine. [9] By a written judgment dated 24 May 2022, the period of limitation for the commencement of the proceedings by the applicant against: (i) Cobham Services was extended to 23 September 2022; and (ii) Cobham Engineering and Rolls Royce was extended to 23 April 2022. [10] After delivering the judgment, his Honour received oral submissions as to the costs of the application. During the oral hearing, it became apparent that the applicant had not complied with the order made on 14 April 2022 granting her leave to commence proceedings against Cobham Services, Cobham Engineering and Rolls Royce. Instead, it seemed that an attempt had been made to join them to the proceedings by the filing of the FASOC, in circumstances where an amended claim had not been filed. Counsel for the applicant made an oral application pursuant to r 156 of the UCPR to amend the claim to include Cobham Services, Cobham Engineering and Rolls Royce as defendants to the proceeding. This application was refused on the basis that these entities ought to have given written notice of such an application, to give them a proper opportunity to consider -- 4 of 8 -- 5 any supporting affidavits explaining why the order made on 14 April 2022 was not complied with. [11] On the following day, the solicitors for the applicant emailed the solicitors for the respondents enclosing the proposed amended claim and explaining that the applicant intended to make an application for leave to join Cobham Services, Cobham Engineering and Rolls Royce pursuant to r 371, or alternatively r 376 of the UCPR. [12] By an email dated 30 May 2022, solicitors for Cobham Services and Cobham Engineering advised the applicant’s solicitors that in order to preserve her rights against Cobham Engineering, the applicant had been required to commence proceedings against it by 4 pm on 14 April 2022. [13] By an email dated 7 June 2022, the solicitors for Rolls Royce indicated that the amended statement of claim did not constitute the commencement of proceedings and that an application was required for leave to amend the claim or to join Rolls Royce as a party to the proceeding. It was further explained that any application to join Rolls Royce pursuant to r 69 of the UCPR would fail as the extended limitation period has expired. This had the consequence that the court has no discretion to join Rolls Royce unless one of the reasons provided for in r 69(2) are met. [14] On 31 August 2022, the solicitors for the respondents were served with the originating application and supporting affidavit material, which had been filed on 26 August 2022. [15] As to Cobham Services, it was conceded that any claim against it was within the limitation period and the applicant could commence a proceeding against this entity. It was further conceded that the outcome of this application did not affect any substantive rights which the applicant may have against Cobham Services. In these circumstances, I will hear further submissions as to the form of any orders and the issue of costs relevant to Cobham Services. National Jet Systems has consented to the orders against it. Eastern Australia Airlines is the second defendant to the personal injuries proceeding and was represented at the hearing but did not participate in it. The solicitor representing this entity initially made an application for costs, but subsequently abandoned it. In my view, this was appropriate. [16] This leaves for determination the question of whether any of the requirements listed in r 69 are met to enable Cobham Engineering and Rolls Royce to be joined as parties to the proceeding. If they are not met, this then leaves the question of whether r 371 enables a declaration to be made to the effect that the FASOC filed on 14 April 2022 was effective in joining Cobham Engineering and Rolls Royce as defendants in the proceedings. Rule 69 [17] The power of the court to add new parties to an existing claim is conferred by r 69. The discretion given by it is broad. It should be exercised in light of the purposes of the UCPR as provided for in r 5. These include facilitating the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense, and avoiding undue delay, expense and technicality. It is remedial in nature and it should be given the widest interpretation permitted by its language.1 1 Interline Hydrocarbon Inc v Brenzil Pty Ltd [2006] QSC 184. -- 5 of 8 -- 6 [18] Pursuant to r 69(1)(b), the court is permitted to join as a party a person “whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding”. Where the determination of a joinder application is after a limitation period has expired (as is here), a person who could have been joined as a party under r 69(1)(b) can only be included if one or more requirements listed in r 69(2)(a)-(f) are met. Each of the requirements are directed at ensuring that a time-barred cause of action to be pursued by the new party should be closely associated with a cause of action already the subject of a claim by an existing party.2 While an explanation for the failure to join the party within time is relevant, it is not a precondition to the exercise of the power under r 69(2).3 [19] In paragraph 1 of the application, r 69(1)(b) of the UCPR is referred to. However, that subrule cannot apply to Cobham Engineering and Rolls Royce, in circumstances where it is not in dispute that the limitation period has expired. Clearly, subrule (2) is relevant. Counsel for the applicant focussed primarily on r 371, rather than r 69 in both written and oral submissions. Both respondents have addressed r 69(2) in their written submissions. Cobham Engineering contended that none of the circumstances in this subrule apply. Rolls Royce pointed out that paragraph 1 in the application referred to subrule (1)(b) and not (2) and went on to say that in any event, the applicant had not led any evidence in support of any of the enumerated exemptions in subrule (2). I am not persuaded that none of the enumerated exemptions apply, and further I am of the view that some of the material before me is relevant to a consideration of this subrule. The reasons for this are set out below. [20] Relevantly, rr 69(2)(a)(iii) and (iv) provide: “(2) However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies – (a) the new party is a necessary party to the proceeding because – … (iii) the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; or (iv) the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order…” [21] For the application of r 69(2)(a)(iv), all that is required is that the court consider it doubtful that the proceeding was started “against the name of the right person as a party”. The further qualification is that if the person is to be included as a defendant, the person is given notice of the court’s intention to make the order. [22] It follows that subrule (iv) may operate in circumstances where Eastern Australian Airlines remains a defendant to the personal injuries proceeding. The further requirement seems to be met here, where both Cobham Engineering and Rolls Royce were given notice of the court’s intention that they become defendants in the personal injuries 2 Althaus v Australia Meat Holdings Pty Ltd [2007] 1 Qd R 493 at [27], per Keane JA; Australian Golf Management Corporation Pty Ltd v Logan City Council [2021] QSC 291. 3 Bates v Queensland Newspapers [2001] QSC 83 at [20], per Chesterman J. -- 6 of 8 -- 7 proceeding. This notice was provided in relation to the application for extension of the limitation period heard before Judge Barlow KC on 14 April 2022. Further notice was given to them in circumstances where the originating application filed on 26 August 2022 and heard before me sought for leave to be granted for Cobham Engineering and Rolls Royce to be joined to the proceeding. [23] The claims in negligence against Cobham Engineering and Rolls Royce are closely associated with the claims in negligence that had previously been pleaded in the Amended Statement of Claim. The applicant’s claim is clearly intended to be against the entities who had responsibilities for maintaining the subject engine. Ongoing investigations have revealed that while Eastern Australia Airlines, as the second defendant, remains a correct entity in this regard, that Cobham Services, Cobham Engineering and Rolls Royce also fit this description. This is in circumstances where Airlink and Sunstate had previously been defendants, as it had been understood that those entities had responsibilities for the maintenance of the engine. [24] The applicant has provided an explanation for failing to join Cobham Engineering and Rolls Royce in time. It was on account of a mistake by her legal advisers after Judge Barlow KC had given leave to commence the proceedings against the respondents. The senior legal assistant employed by the applicant’s solicitors attended the registry on 14 April 2022 and filed the FASOC which was accepted and stamped with the court seal. She did not know that she was also required to file an amended claim.4 [25] To allow the application will deprive Cobham Engineering and Rolls Royce of a complete defence to the applicant’s claims. This is of course the effect of granting leave pursuant to r 69(2). While this is never an insignificant factor, it needs to be considered in the context of other matters. A refusal of the application would close the applicant out of her claim against Cobham Engineering and Rolls Royce. This is in circumstances where it is evident that the applicant always intended to sue the entities responsible for the maintenance of the engine and there has been uncertainty and confusion as to the identities of these entities. Further, had the mistake not been made in relation to the filing of the FASOC on 14 April 2022, Cobham Engineering and Rolls Royce would not have had the benefit of a limitations defence for the reasons detailed by Judge Barlow KC in his judgment delivered on 24 May 2022.5 In addition, there was no evidence before Judge Barlow KC that Cobham Engineering or Rolls Royce would be materially prejudiced by extending the limitation period in each case. Finally, Cobham Engineering and Rolls Royce are already contributors to claims for indemnity and contribution made by Eastern Australia Airlines. Rolls Royce is also a contributor to a claim for indemnity and contribution made by National Jet Systems, who consents to leave being given to join it as a party to the proceeding. Rule 371 [26] Given that I am allowing the application for joinder for the reasons set out above, it is probably unnecessary to consider the alternative application. This is for a declaration pursuant to r 371 of the UCPR, that the FASOC filed on 14 April 2022 was effective in joining Cobham Engineering and Rolls Royce. To the extent considered necessary, for the brief reasons that follow, I am persuaded that it would have been an appropriate exercise of discretion to make the declaration. 4 Affidavit of Alexandra Kennard filed on 26 August 2022. 5 Cottee v Eastern Australia Airlines Pty Ltd [2022] QDC 112. -- 7 of 8 -- 8 [27] Rule 371(1) provides that non-compliance with the UCPR is merely an irregularity. Its purpose is to assist in avoiding undue technicality as provided for in r 5(2). Another rule that promotes the philosophy of the UCPR is r 14. This provides that if a party incorrectly starts a proceeding by an application rather than a claim, the court may order that the proceeding continue as if started by a claim. The court can also order that any affidavits filed in a proceeding be treated as a pleading. [28] The proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice.6 [29] As explained above, the failure to join Cobham Engineering and Rolls Royce in time was because of a misunderstanding of the senior legal assistant. An obvious curable detriment should not be visited upon the applicant, where a defect has been caused by the mistake of her legal advisers.7 [30] As Bowen LJ said in Cropper v Smith8 (cited with approval in Queensland v JL Holdings Pty Limited (1997) 189 CLR 146 at 152-153 per Dawson, Gaudron and McHugh JJ): “… it is a well established principle that the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. … I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party.” [31] The Court has the power to regulate its own procedure. No reason could be advanced on behalf of Cobham Engineering and Rolls Royce at the hearing on 14 April 2022 for opposing leave being given to the applicant to commence the proceedings to preserve her causes of action, in the event that the limitation period was extended (which it was). This means that they can suffer no relevant prejudice by the regularisation of the irregular filing. In my view, the error that occurred here is not fatal to jurisdiction. Rather, it is an irregularity capable of being remedied. The prejudice to the applicant could and should be averted by the declaration sought. Costs [32] Given that the application has been necessitated by the failure on behalf of the applicant to properly comply with the order of Judge Barlow KC on 14 April 2022, I consider it appropriate to make an order that she pay Cobham Engineering’s and Rolls Royce’s costs of and incidental to the application on the standard basis. The applicant does not oppose this order. I propose to order that the costs not be payable until the conclusion of the litigation. 6 Emanuele v Australian Securities Commission (1997) 188 CLR 114 at 147, per Kirby J. 7 Jess v Scott (1986) 12 FCR 187; Crayford Freight Services Ltd v Coral Seatel Navigation (1998) 82 FCR 328 at 335, per Burchett, Ryan and Marshall JJ. 8 (1884) 26 Ch D 700 at 710. -- 8 of 8 --