Bloom v Young & Nominal Defendant [2005] QSC 297

State Reporting Bureau &$c Queensland Government Department of justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J REVISED COPIES ISSUED State Reporting Bureau Date: 6 October, 2005 Application No 256 of 2005 SARAH ANNE BLOOM Plaintiff and MALCOLM JOHN YOUNG Defendant/Third Party and NOMINAL DEFENDANT Defendant and P & O AUSTRALIAN RESORTS PTY LTD Defendant/Third Party CAIRNS ..DATE 03/10/2005 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 4 -- 03102005 D.l T13/KLW M/T CNS2/2005 (Jones J) HIS HONOUR: This is an application on the part of the plaintiff to join a third defendant, namely Dunk Island Pty Ltd, which is the registered owner and occupier of the lands upon which the cause of action arose. That cause of action arose on the 16th of June 2002 when the plaintiff sustained an injury resulting in complete tetraplegia below level of C6. In paragraph 4 of the statement of claim the third defendant, P & 0 Australian Resorts Pty Ltd, was alleged to be the occupier or the entity in control of the land on which the incident occurred. It was also said to be the employer of the plaintiff. Further inquiries show that Dunk Island Pty Ltd is a wholly owned subsidiary of the third defendant which, as I have mentioned, is the occupier of Dunk Island and, also the employer of the plaintiff. The third defendant is also a wholly owned subsidiary of P & 0 Australia Pty Ltd. Whatever the distinction is between the operational activities of the two subsidiaries is not critical to this application. For this reason it is seen as being necessary to join the corporate entity of Dunk Island Pty Ltd as the fourth defendant in the action. The application to do so was made after the expiration of the limitation period and after the statutory steps pursuant to the various statutory regimes have been undertaken. The other defendants do not oppose this course, and subject to my being satisfied that the joinder is appropriate, have agreed to the terms of the proposed order, which includes relief from further compliance with the statutory provisions referred to above. 1 10 20 30 40 50 2 JUDGMENT 60 -- 2 of 4 -- 03102005 D .1 T13/KLW M/T CNS2/2005 (Jones J) 1 The history by which the joinder of Dunk Island Pty Ltd was overlooked at the time of the institution of the action, has been canvassed in the several affidavits of Rosemary Swan and Paul Cantwell. Each alleges some shortcoming on the part of 10 the other, giving rise to a misunderstanding as to the true identity of the occupier. It is not necessary for me to resolve this charge and countercharge, given that each of the parties are content to allow the costs of the application to be costs in the cause. 20 I am satisfied that whatever the reason for confusion being engendered in the minds of the plaintiff's representatives which has now been corrected, the order for joinder should be made. In the circumstances no disadvantage ought to be visited 30 upon the plaintiff. I am satisfied that Dunk Island Pty Ltd is a necessary party to the action and its unopposed joinder should therefore be granted. Mr Glen of counsel, appearing for the Nominal Defendant, has 40 sought that the second defendant's costs of and incidental to the application be paid by either the plaintiff or the third defendant. The second defendant has paid no significant part in the hearing of the application. It was at all times prepared to consent to the joinder once it was satisfied that 50 Dunk Island Pty Ltd was indeed a necessary party. That stage of satisfaction ought to have been reached by the second defendant without the necessity of having to appear before the Court. It is, however, entitled to costs which ought to be 3 JUDGMENT 60 -- 3 of 4 -- 1 03102005 D.l T13/KLW M/T CNS2/2005 (Jones J) limited to the receipt of the application and the supporting material, its consideration of that material and the notification of its consent to the order being made. I will order that as between the plaintiff and the third defendant the costs of and incidental to this application be costs in the cause. As for the Nominal Defendant, I order that its costs be paid, limited in the manner described above by whomever bears the costs of the action. 10 20 30 40 50 4 JUDGMENT 60 -- 4 of 4 --