Bradfield v Moreton Bay Regional Council [2016] QDC 67

DISTRICT COURT OF QUEENSLAND CITATION: Bradfield v Moreton Bay Regional Council [2016] QDC 67 PARTIES: GEOFFREY RAYMOND BRADFIELD (plaintiff) v MORETON BAY REGIONAL COUNCIL (first defendant) and STOCKLAND CORPORATION LTD (second defendant) and RICHARDS PROJECTS PTY LTD (third defendant) and UNITYWATER (fourth defendant) and BRADFORD LEES PTY LTD (fifth defendant) FILE NO/S: D 1890/2014 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 31 March 2016 DELIVERED AT: Townsville HEARING DATE: 3 September 2015, 4 February 2016. JUDGE: McGill SC DCJ ORDER: Applications dismissed with costs. CATCHWORDS: PRACTICE – Summary judgment – claim against multiple defendants – whether claim against two defendants to be -- 1 of 11 -- 2 dismissed prior to trial – significance of evidence which may be led by other defendants – applications dismissed. UCPR r 293. Advanced Life Products Pty Ltd v Advanced Health Products [2011] QDC 159 – applied. Agar v Hyde (2000) 201 CLR 552 – cited. Alstrom Australia Ltd v Nap Acoustics Pty Ltd [2004] NSWSC 217 – considered. Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 – cited. Breheny v Cairncross [2002] NSWCA 69 – considered. Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 – considered. Coldham-Fussell & Ors v Commissioner of Taxation [2011] QCA 45 – cited. Commonwealth Bank of Australia v ZYX learning Centres Ltd [2014] NSWSC 1676 – cited. Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 – applied. Edwards v Santos Ltd (2011) 242 CLR 421 – cited. General Steel Industry Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 – cited. Hummerstone v Leary [1921] 2 KB 664 – considered. Johnson & Anor v Hancock [2014] QCA 130 – cited. Menzies v Australian Iron and Steel Ltd (1952) 69 WN (NSW) 68 – cited. PAO v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 1216 – considered. RB Lease Pty Ltd v Heron [2013] QCA 181 – cited. Raschke v Suncorp Metway Insurance Ltd [2005] 2 Qd R 549 – applied. Spencer v Commonwealth (2010) 241 CLR 118 – cited. Strong v Woolworths Ltd (2012) 246 CLR 182 – cited. Wickstead v Browne (1992) 30 NSWLR 1 – applied. COUNSEL: J Wiltshire for the plaintiff. D Schneidewin for the first defendant. B Heath (solicitor) for the third defendant. SOLICITORS: Shine Lawyers for the plaintiff. Barry.Nilsson Lawyers for the first defendant. Carter Newell Lawyers for the third defendant. [1] On 27 May 2011 the plaintiff went to a building site in the Freshwater Estate, which had recently been developed, early in the morning. He was a concreter, had been working on the site the previous day, and had left his trowel there. He collected it, and was walking across a vacant block, which was partly unfenced, to return to his -- 2 of 11 -- 3 vehicle when he fell into a manhole and suffered injury. The manhole was an inspection pit for a sewage line constructed under the block in the course of the development, and consisted of a vertical concrete pipe about 660 millimetres in diameter to the surface of the land. It was supposed to be fitted with a concrete collar to house a steel lid. After the plaintiff fell, the concrete collar, with the lid in place, was found near the manhole. [2] The plaintiff complied with the relevant statute, and on 22 May 2014 filed a claim in this court seeking damages for his injuries against five defendants: first, the Moreton Bay Regional Council, the local authority for the estate;1 second, Stockland Corporation Limited, sued as the developer of the estate;2 third, Richards Projects Pty Ltd, the owner of the land on which the manhole was located;3 fourth, Unitywater, which provides water and sewage services in the area;4 fifth, Bradford Lees Pty Ltd, a company involved in the design and construction of the sewage works.5 [3] The defendants filed notices of intention to defend and defences during March 2015. On 11 August 2015, the third defendant applied to have the claim against it “struck out” under r 293, or under r 171. On 17 August 2015, the first defendant similarly applied, for summary judgment or to have the claim against it struck out. Those applications came before me on 3 September 2015, and after hearing argument I referred to some cases, and adjourned the matter for further argument. It came back on before me on 4 February 2016, I heard further argument and reserved my decision. Investigations [4] The difficulty confronting the plaintiff in this case is that he really has no evidence about when the collar and lid were removed from the manhole, or by whom they were removed. He has sought to have the matter investigated, but an inquiry agent retained through his solicitors reported that the only person spoken to was a builder who was working next to the site at the time, though apparently not there when the accident happened; he did not know how the collar came to be removed, though he speculated that it might have occurred in the course of some maintenance work on the block.6 Attempts by the plaintiff’s solicitors to obtain any useful information by means of notices of non-party disclosure have been unsuccessful.7 Evidently there was a Workplace Health and Safety Report following an inquiry into the plaintiff’s injury; I have not seen a copy of that report, but assume that it did not clarify the situation. The plaintiff made a statement in connection with this inquiry on 30 May 2011.8 [5] A loss adjuster investigated the matter for the solicitors for the first defendant, apparently in response to a notice of claim served on the first defendant, and on 14 July 2011 provided them with a report.9 They inspected the site on 12 July 2011, and took photographs of the manhole cover and collar which by then were where they 1 Amended statement of claim para 2; defence of first defendant para 1. 2 Amended statement of claim para 3; defence of second defendant para 3. The second defendant did not admit to involvement in the development, and it may be that the actual developer was a subsidiary company. 3 Amended statement of claim para 4; defence of third defendant para 3. 4 Amended statement of claim para 5; defence of fourth defendant para 5. 5 Amended statement of claim para 6; defence of fifth defendant para 1. 6 Affidavit of Johnson filed 3 September 2015 Exhibit RMJ9. 7 Affidavit of Johnson para 25, 26, 27, 39, 45. 8 Affidavit of Johnson Exhibit ARMJ 32. 9 Affidavit of Wegner filed 17 August 2015 Exhibit NEW3. -- 3 of 11 -- 4 belonged; at that stage the block was still vacate, though there were houses around it. Significantly, the report exhibited aerial photographs taken of the site on 26 May 2011, the day before the plaintiff’s injury, which show the manhole, apparently without the collar which appears to be resting on the ground near it, and the plaintiff’s vehicle parked nearby beside Elderflower Circuit, the street nearest the hole. Those adjusters were unable to ascertain any information as to how the incident occurred. [6] A director of the third defendant provided a statement to assessors appointed by its public liability insurer on 3 August 2011.10 That company purchased the land on which the manhole was constructed on 15 November 2010, and also owned another site nearby on which a home was being constructed. The director used to visit the building site once a week, and he said in his statement that when he did so he would drive past this block, but had never seen the manhole cover missing. He had not arranged for any work to be undertaken on this block after the company bought it, since as far as he was concerned there was no need for any work to be done; there was not even grass growing on the site to be mowed. He said that he had never been aware of an incident where a manhole cover had been stolen after it had been installed. [7] An affidavit by a development engineer employed by the first defendant deposed to the first defendant not having built anything in the development, although the engineer had inspected the site on 3 December 2010, for the purpose of checking the roads and associated drainage were in order, these being matters of concern to the first defendant.11 He understood that the fourth defendant had inspected the sewage works that day. That was confirmed by a statement of a development services inspector with the fourth defendant, who said that he inspected the sewage works on 3 December 2011, including the inspection pits to ensure that the top level of the cover and frame were 75 millimetres above the surrounding ground, to prevent storm water from entering, and that there were no signs of infiltration inside the pits and chambers, so is to show that the joints had been properly sealed.12 This development had 34 individual sewer pits, each had to be inspected, and the process took some hours to complete. He added that he was familiar with the work of the contractors that constructed this sewage system, that they were a respected operator and that he was not aware of any issues involving their work on this development. [8] After the inspection, he did not go back to the site until after he had been advised of the plaintiff’s incident by a manager of the developer, as a result of which he attended the site on a date he does not recall, and found the collar and lid back in their correct position. He understood that that was arranged by the developer. He was not able to ascertain any information about how they may have been dislodged, but it may have been caused by a heavy vehicle or machinery such as a concrete truck or bobcat. Very significant force would have been required since the cover and frame together weigh approximately 200 kilograms. He said that during the defect liability period the developer is responsible for any defects associated with the workmanship, and was responsible for arranging routine inspections. This was arranged by the first defendant, rather than the fourth defendant, but he was aware that an employee of the fifth defendant had undertaken routine inspections during this period. 10 Affidavit of Ventura filed 24 August 2015 Exhibit BV3. 11 Affidavit of Ventura para 8, 9. 12 Affidavit of Ventura Exhibit BV6. -- 4 of 11 -- 5 [9] On 7 June 2011 the first defendant advised Stockland Development Pty Ltd and a related company of its requirements for the “on maintenance” period.13 These included that the sewer manholes be checked for infiltration and damage during the maintenance period, and if they had been covered or damaged by others, that the council be notified. Any settlement of trenches was to be back filled and compacted immediately. According to the first defendant’s evidence, the sewage assets were transferred directly from the developer to the fourth defendant, and were never owned by the first defendant.14 [10] On 28 August 2014 a project director made a statutory declaration on behalf of the fifth defendant pursuant to the Personal Injuries Proceedings Act 2002 advising that inspections of the sewage assets were carried out by a particular individual on behalf of the fifth defendant on 12 January 2011, 3 February 2011, 5 April 2011, 19 April 2011, 30 June 2011, 29 July 2011, 19 and 31 August 2011.15 The inspections were to comply with the first defendant’s requirements. After the incident of 27 May 2011 the fifth defendant provided monthly subdivision maintenance reports to the developer, but it had not done that prior to the incident. The fifth defendant had never received any complaints about the state of the manhole in question. [11] The matter was investigated by legal liability consultants retained by the insurer of the third defendant who reported to the solicitors for the third defendant on 11 August 2011.16 The report however added nothing to the information provided in the statement of the third defendant’s director. It confirmed that the director stated that early on 27 May he was told by phone of the incident by another concreter working nearby, and that he asked that the plaintiff contact him, but he never did. Later that morning however he was contacted by a representative of the developer, who advised that a barrier had been erected around the manhole. He had not been involved in the reinstatement of the manhole cover. [12] Other loss adjusters investigated the matter on behalf of the fourth defendant and provided a report dated 7 August 2013.17 New information was that on 29 March 2011 a crew was sent by the fourth defendant to the estate, but not to this particular part of it, in order to connect this sewage system. After the development services inspector was informed of the accident, a workplace health and safety team officer attended the site and spoke to several people including concreting staff working on the driveway opposite, but was not able to ascertain any information about how the lid and collar were dislodged. By the time he arrived the area had been barricaded. There were tyre marks on the site and on the lid and surround, suggesting that they had been dislodged by a machine or heavy vehicle of some description. [13] It would not have been possible to dislodge the surround on manpower alone. The metal lid alone weighs in the order of 32 kilograms. The manager for the developer arranged to have the collar and lid replaced. The workplace health and safety officer said that, if the fourth defendant had been notified of the dislodged lid and surround prior to the incident, steps would have been taken to address the situation by reinstating them; presumably no such notice was received. The photographs taken 13 Affidavit of Ventura Exhibit BV7. 14 Affidavit of Ventura para 14. 15 Affidavit of Ventura Exhibit BV9. 16 Affidavit of Ventura Exhibit BV11. 17 Affidavit of Ventura Exhibit BV12. -- 5 of 11 -- 6 on the site before the collar and lid were restored were not attached to that report, or exhibited to the affidavit. Analysis [14] There has been a good deal of correspondence between the parties in relation to disclosure, but nothing very helpful has emerged from this.18 One hypothesis which was raised by the solicitors for the fifth defendant was that builders working on the adjoining lot used the lot in question for access for removal of rubbish, and in that process the manhole cover was dislodged.19 Those solicitors sought from the first defendant the identity of the builder who constructed the house on that block,20 but the first defendant refused to provide that information because of privacy constraints.21 Looking at aerial photograph four, which is part of the loss adjuster’s report obtained by the first defendant,22 there appear to have been some other things on the vacant block, possibly associated with the construction work on one or other of the adjoining lots. For instance, there appears to be a truck load of spoil dumped on the block about half way back, and, closer to the front, a truck load of a white substance, possibly sand. I suppose this sort of thing is inevitable, given that the blocks appear to be tiny and houses are constructed right up to the building alignment on either side. It occurs to me that, if the third defendant was inspecting, or at least driving past and looking at, this property once a week, it ought to have been obvious that others were using the property in this way. [15] On the material currently available the prospect of the plaintiff succeeding at a trial against either the first defendant or the third defendant seems decidedly bleak. There is simply no evidence that either had anything to do with the displacement of the manhole cover and collar, or was aware of its displacement in sufficient time to do anything about it prior to the plaintiff’s fall. On the evidence revealed or foreshadowed by the material before me, if the matter goes to trial the plaintiff will fail, at least against those two defendants. The position is complicated however by the fact that the plaintiff’s action has been brought not only against those two defendants, but against five defendants overall. This is authorised by UCPR r 65(2)(a)(i). This rule accommodates a situation where the plaintiff can say that there is a good cause of action against someone, but he is uncertain who the correct defendant is. There is a line of authority that in such a situation one defendant should not be allowed out of the proceeding prior to the trial. [16] The cases go back to Hummerstone v Leary [1921] 2 KB 664, a motor vehicle accident case where the plaintiffs were passengers in one of two vehicles which collided, and sued both drivers. At the end of the plaintiffs’ case it was held that there was no evidence against the driver of the vehicle in which they were riding, and judgment was entered for that driver. The other defendant then led convincing evidence that the accident had been caused solely by the negligence of the driver who had been let out, so the plaintiffs’ claim failed. The Divisional Court held that this approach was incorrect, and amounted to treating the claim as being separate claims against each defendant alone “overlooking the fact that the plaintiffs as they were 18 Second affidavit of Wegner filed by leave 4 February 2016. 19 An alternative but similar explanation which occurs to me is that a truck delivering concrete to the building site might have driven onto the vacant block, passing over the manhole cover. 20 Second affidavit of Wegner, Exhibit NEW 47. 21 Second affidavit of Wegner Exhibit NEW 49. 22 Affidavit of Wegner filed 17 August 2015, Exhibit NEW3. -- 6 of 11 -- 7 entitled to do under the rules were alleging that either” one or the other defendant or both were responsible for the accident. The court went on at 667: “When once a state of facts was proved, as it was, from which the reasonable inference to be drawn was that prima facie one if not both drivers had been negligent, the plaintiffs were entitled to call on the defendants for an answer, and the proper time at which to decide whether on the evidence one defendant or the other defendant or both the defendants were liable was at the close of the whole case.” [17] That decision was followed by the Full Court of New South Wales in Menzies v Australian Iron and Steel Ltd (1952) 69 WN (NSW) 68, another case about an application for non-suit at the end of the plaintiff’s case.23 Both decisions were referred to by the New South Wales Court of Appeal in Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360. Clarke JA, with whom the other members of the Court agreed, said at 372: “According to well recognised principles where a plaintiff, who has sued multiple defendants one or more of whom may be liable, shows prima facie that at least one defendant may be responsible, the Court is bound to hear the whole of the evidence before entertaining submissions by any other defendant that no case has been established against him. This is so even if the plaintiff has not called any evidence demonstrating the fault of the particular defendant. The rationale of the rule…is that if the rule were otherwise the defendant against whom a prima facie case was shown might escape liability by addressing evidence to the effect that the defendant against whom the case had been dismissed was the party who was actually at fault. … Obviously that result would be inimical to the interests of justice.” [18] What was significant about that case was that the principle was applied, not in the context of an application for judgment at the close of the plaintiff’s case, but in the context of an application for an extension of time under the Limitation Act 1969. The Court held that in that context the requirement that there be evidence to establish a prima facie case otherwise could be satisfied without the necessity to show a prima facie case against each respondent. That case was in turn cited with approval by the Court of Appeal in Raschke v Suncorp Metway Insurance Ltd [2005] 2 Qd R 549, by Keane JA, with whom the other members of the Court agreed, at [28], again in the context of an application for an extension of the limitation period. [19] That decision was in turn applied by Robin DCJ in Advanced Life Products Pty Ltd v Advanced Health Products [2011] QDC 159, where his Honour cited the passage from the judgment of Clarke JA, cited earlier, and added that the principle was neatly expressed in the Laws of Australia, Civil Procedure at 5.4.250, as a principle “that innocent defendants should not be dismissed from the action until the end of the case.” That was an application to join a new defendant, which was resisted essentially on the ground that the joinder should only occur on condition that the existing defendants be let out of the action, because there was no cause of action available against them. Ultimately his Honour was not persuaded that it was sufficiently clear that the existing defendants were not properly the subject of proceedings, to justify letting them out 23 It is an interesting discussion of the sort of tactical procedural manoeuvrings which could be engaged in in a civil trial in those days, when the action was tried with the jury. Happily this sort of thing is now obsolete in Queensland. -- 7 of 11 -- 8 on a summary basis. The evidence such as it was “produces a picture of confusion and possible obfuscation” so that there was genuine uncertainty about which party was liable, with the result that it was appropriate that “innocent defendants” may have to stay in until the end: p 8. [20] None of these cases involved an application for summary judgment, although the last came close. However, the Court of Appeal in NSW applied this approach in an application for summary dismissal under the equivalent of r 171 in Wickstead v Browne (1992) 30 NSWLR 1. In that case the majority judges said at p 11-12: “The respondent as one of a number of defendants cannot be entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff’s case. If at the close of the plaintiff’s case at the trial there was no evidence against this respondent he would not be entitled at that stage to judgment if any of the other defendants intended to go into evidence: [authority cited]… If the respondent would not be entitled to succeed on a no evidence point at the trial until all the evidence has been called, including that from other defendants, it is clear that there can be no such entitlement on an application by one of several defendants for summary dismissal.” [21] The same approach was followed by the New South Wales Court of Appeal in Breheny v Cairncross [2002] NSWCA 69. In that case an order at first instance was set aside because it was apparently made in ignorance of the decision in Wickstead (supra). One member of the Court, Hodgson JA, commented at [7] that “there may be cases where, following compliance with directions for particulars and service of evidence, it may be possible to say, before a hearing, that the case of one defendant will certainly not implicate another defendant; and thus there may be circumstances in which one defendant may be dismissed from a case before the actual hearing.” [emphasis added] [22] That passage was relied on in Alstrom Australia Ltd v Nap Acoustics Pty Ltd [2004] NSWSC 217, a case where apparently there had been directions for the filing of evidence, but the Wickstead principle was still upheld, since the fact that the time for filing further evidence had passed could not be taken as an absolute assurance that no such evidence would be forthcoming. In those circumstances the application was refused, though applying the General Steel test.24 The approach in Wickstead (supra) was also applied more recently in Commonwealth Bank of Australia v ZYX learning Centres Ltd [2014] NSWSC 1676. [23] On the other hand, in PAO v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 1216, an application for summary judgment for one defendant was upheld, on the basis that, not only was there no evidence which linked that defendant to the conduct of a particular school at a particular date, but the evidence already before the Court established to its satisfaction, to the relevant standard, that there was no possibility of evidence tending to implicate that defendant emerging if the matter went to trial. [24] The position needs to be assessed by reference to the particular provisions of the rules, though if a defendant cannot succeed under r 293 the defendant will not be able to 24 General Steel Industry Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, the test appropriate for an application under r 171. -- 8 of 11 -- 9 meet the more demanding test under r 171. The principle discussed in the earlier cases, and the Queensland decisions, depended on the proposition that the plaintiff’s evidence was able to show that some defendant was liable, even though there was no evidence specifically that the applicable defendant was liable, and that is not the situation at present in this matter. The plaintiff, at least on the material before me, does not have any evidence presently available as to how and when the manhole came to be uncovered, and cannot show a prima facie case of negligence against any defendant. This is not a situation where it can be said that one of the defendants must have been responsible, but the plaintiff cannot tell which; if the manhole cover was displaced by the actions of a causal trespasser in a heavy vehicle, who drove off without doing anything about it and without reporting it to anybody, there is no particular reason to think that any of the defendants would be liable in negligence. [25] I accept that there may well have been an obligation on the third defendant to take reasonable care to protect persons whose presence on the land was reasonably foreseeable from hazards of which it was aware or ought to have been aware,25 but in circumstances where the block of land was vacant so that the third defendant was not in ordinary occupation of it, through some human agent, at best this would only require inspection at some reasonable interval. The difficulty for the plaintiff is that, apart from the photographic evidence that at some time on the day before he fell the collar and lid had been displaced, there is no evidence of how long that situation had been in existence prior to that time, and therefore no evidence that it is more probably than not that, if there had been a reasonable inspection regime in place, it would probably have detected the displaced collar prior to the plaintiff’s fall.26 [26] The difficulty however is that r 293 looks forward to a future trial and to the outcome of that trial.27 It is not a question of whether, at the moment, the plaintiff has particular evidence, but whether, if the matter goes to trial, there is no real possibility that evidence will emerge which will reveal that circumstances were such that the relevant defendant ought to have been aware of the situation. That depends on whether I can say that the chance that one of the other defendants will at the trial lead evidence tending to implicate either the first or the third defendant is sufficiently remote that I could achieve the degree of satisfaction required by the rules, notwithstanding that I do not have evidence from any of those defendants as to just what they do, or do not, know. [27] There is at the moment no authority of which I am aware that the Wickstead approach has been adopted in applications for summary judgment in Queensland, but in view of what was said in Raschke and Advanced Life Products, in my opinion the principle is applicable in Queensland, subject to the consideration that the test under r 293 is different from the test apparently being applied in New South Wales under the relevant rules there. In Queensland the test is that expressed in r 293, where the court must be satisfied the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim against the relevant defendant, and there is no need for a trial of the claim or the part of the claim. 28 The real point of these decisions is that they draw attention to the fact that that must be assessed by reference to all of the evidence which may be led at a trial of the claim, including by other defendants not parties to 25 Johnson & Anor v Hancock [2014] QCA 130. 26 Compare Strong v Woolworths Ltd (2012) 246 CLR 182. 27 Edwards v Santos Ltd (2011) 242 CLR 421 at [52]. 28 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232. -- 9 of 11 -- 10 the present application. I am also conscious of the fact that the High Court has said,29 in passages cited with approval by the Court of Appeal,30 that a high degree of satisfaction is required before it is appropriate to give summary judgment. [28] It is of some importance that this is not a case where it can be said with reasonable confidence that the plaintiff will succeed against one defendant, and the real question is which. The evidence presently available suggests convincingly that neither the first nor the third defendant had anything to do with the removal of the collar and lid from the manhole, and suggests that none of the other defendants did either. A more plausible scenario is that this occurred as a result of the action of some unidentified, and probably now unidentifiable, third party. A more difficult question however is whether the fact that the manhole was in this state had been reported to either the first or the third defendant a sufficient time before the plaintiff fell for there to have been time to do something about it. In that situation there may well be liability on the part of the relevant defendant. [29] It is apparent from the statement of the director of the third defendant that there was some telephone number for him available on the site, so that he could be easily telephoned once the plaintiff’s accident had happened. That indicates that it would also have been easy for him to be telephoned earlier by someone who had noticed the manhole cover had been displaced. The same applies to the first defendant. The first defendant’s requirements when the sewage system was placed on maintenance included that any damage of the manhole covers be reported to it.31 This was advised after the plaintiff’s accident, but no doubt reflected the first defendant’s usual policy in these matters. It is not difficult to assume that if the displacement of the collar and lid had been reported to the first defendant prior to the plaintiff’s accident something would have been done about it, either by the first defendant itself, or, more probably, by the first defendant requiring the developer to attend to it, or reporting the matter to the fourth defendant. In the latter case there is evidence that if the fourth defendant had been advised it would have attended to repairs.32 [30] There is some information in the form of the disclosed loss adjusters’ reports from each of the defendants apart from the second defendant, and in most cases there is evidence that the relevant person was not aware of any problem with the manhole prior to the plaintiff’s accident. No doubt the first defendant is a large organisation, however, and it is possible that someone on behalf of the first defendant was told but that person did not pass the information on to the relevant person within the first defendant’s organisation. Unless that information came to the relevant person it is unlikely that anyone investigating this matter would pick it up. [31] Attempts to investigate the matter on the part of four of the five defendants failed to reveal any evidence which might suggest negligence on the part of either the first or the third defendant, at least so far as the documents disclosed reveal. There is however no evidence of any such investigation in relation to the second defendant, or by the actual developer. The developer’s pleaded case was that it did not remove the 29 Agar v Hyde (2000) 201 CLR 552 at [57]; Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [46]; Spencer v Commonwealth (2010) 241 CLR 118 at [24]. The last case concerned a Federal Court rule which was worded differently from our rules. 30 Coldham-Fussell & Ors v Commissioner of Taxation [2011] QCA 45 at [102]; RB Lease Pty Ltd v Heron [2013] QCA 181 at [22]. 31 Affidavit of Ventura exhibit BV7. 32 Affidavit of Ventura exhibit BV12. -- 10 of 11 -- 11 collar and the lid (paragraph 8), that the development was complete, that the water and sewage assets had been transferred to the fourth defendant, and that the fifth defendant had been retained to inspect the sewage assets from time to time and had done so. It does occur to me however that the various other reports suggest that the manager of the developer was made aware of the plaintiff’s accident, fairly promptly after that accident. That suggests that it was easy enough for the manager of the development to be advised that there was something wrong in relation to the development. When so advised, he promptly advised other relevant parties, and promptly organised for the collar and cover to be reinstated. The fact that he acted promptly at that point may suggest that he had not previously been advised of this problem, otherwise he would have acted earlier, but the real difficulty here is that I do not know, and do not have any clear indication, about what evidence the second defendant is in a position to lead in relation to the matter, and in particular whether that evidence might include that there was a report of the state of the manhole to the first or third defendants prior to the time when the plaintiff fell. [32] That is what ultimately concerns me about these applications: I do not know, nor do I have any indication of, what the second defendant33 knows about the matter, and may say if the matter goes to trial. In these circumstances, I am not persuaded that I can achieve the required degree of satisfaction that, if the matter does go to trial, there is no real possibility that another defendant, specifically the second defendant, will lead evidence of negligence on the part of the first or the third defendants, or even both. I have thought long and hard about this matter, because I strongly suspect that a trial will not produce any such evidence, or otherwise reveal just who was responsible for dislodging the collar. But I have ultimately come to the conclusion that, when all the material presently available is analysed carefully, there is a gap in the evidentiary basis necessary for me to be satisfied to the requisite standard that there is no real possibility that if there is a trial it will not be shown that the state of this manhole collar was drawn to the attention of the first or third defendants at a relevant time, so that there was negligence on that basis, and accordingly I cannot be sufficiently confident that there is no real possibility that the plaintiff will succeed against the first defendant or against the third defendant. [33] I accept that it may be possible in a case like this to meet that test, but I am not persuaded that the evidence currently available in this case goes far enough to overcome the degree of caution which is required for an application under this rule. I am being asked in effect to assume that the second defendant has nothing useful to say on the point, without any evidentiary basis for such an assumption. Ultimately I am not persuaded that such an assumption should be made. It follows that both applications are dismissed. There is no reason to depart from the ordinary rule that costs follow the event; this is not a situation where the application failed because of something only disclosed after it was made, or because of some affidavit filed on behalf of the plaintiff which may prove at the trial to have been false. Accordingly, each applicant defendant is ordered to pay the plaintiff’s costs of that defendant’s application. 33 Or if it matters the actual company that was the developer of this estate. -- 11 of 11 --