Cacchia & Suncorp General Insurance Ltd v Johnstone Shire Council [2001] QSC 277

\ 'I SCOl. ;;t77 /4 State Reporting Bureau ( "Queensland Governmer ·• Department of Justice and Attorney-Gener; 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 Application No 17 of 2001 STEVEN SEAN CACCHIA and SUNCORP GENERAL INSURANCE LIMITED AND JOHNSTONE SHIRE COUNCIL CAIRNS .. DATE 09/07/2001 JUDGMENT 1 Date l7 (, / 206 \ Applicants Respondent 4Th floor The Law Courts Complex. George Street. Brisbane q, 4000 Telephone: {07) 3247 4360 Facsimile· (07) 3247 5532 -- 1 of 4 -- 09072001 T5/KSJ M/T CNSl/2001 (Jones J) HIS HONOUR: On 11 November 1995, the plaintiff was driving a motor vehicle along the Japoonvale Road from Mena Creek, in the direction of Japoonvale. The defendant, Rungert, was driving in the opposite direction. The plaintiff alleges that the road had been repaired recently and was covered with loose gravel. There were no warning signs to this effect. The plaintiff's vehicle went out of control in that gravel, hit the embankment and overturned. It was then struck by the first defendant's vehicle. The plaintiff asserts that the repairs of the road were undertaken by the Johnstone Shire Council. The Council has denied that that was so and recently, has suggested that this work was undertaken by the Main Roads Department. It seems to me a critical matter for the success of the plaintiff's action to be able to establish who in fact carried out the road works. This does not appear to have been established conclusively as it should have been by reference 20 to official documents held either by the Shire Council or the Main Roads Department. The assertion by the Shire Council, arose after the pleadings, in Answers to Interrogatories which were filed on 4 November 1998. In such answers, the officer of the Shire Council denied that the Council did any work in that particular accident scene and asserted that the Main Roads Authority did. In August 1999 the Shire Council made a freedom of information 30 2 JUDGMENT -- 2 of 4 -- 09072001 T5/KSJ M/T CNSl/2001 (Jones J) application of the Main Roads Department. That application was responded to some time later, and it produced documents which suggested that the Main Roads Authority only took over responsibility for that section of the road on 4 December 1995. The Main Roads Department asserted that it did no work in the relevant area, in the months of October and November 1995. Counsel for the second defendant now asserts that that information was both inaccurate and misleading. That assertion is based on the fact that the Council has since discovered additional files which contained references to the Main Roads Department, having done work in this particular section of the roadway contrary to its stated position. The Shire Council has now sought, through both non party discovery and freedom of information applications, access to the Main Roads Department's files, including documents held in the newly discovered Council files. Once information is obtained, which settles affirmatively which of these two authorities did work, if any, on that day then there may well be a need for expert evidence to look at the scope of those works, and particularly, the consequence for road users in the absence of any warning signs. These seem to me to be matters which are particularly pertinent from the plaintiff's point of view in determining 10 20 its likely success at trial. That being so, it seems to me 30 3 JUDGMENT -- 3 of 4 -- 09072001 T5/KSJ M/T CNSl/2001 (Jones J) that no party can really say that they are ready to proceed with the action on its set date for hearing on the 18th and 19th of this month. In all those circumstances it is, in my view, appropriate to give leave to the second defendant to join, as a third party, the Main Roads Department in its appropriate corporate entity. This would necessitate the adjournment of the trial. Such an adjournment will give an opportunity to all parties to obtain expert evidence on facts that can be proven by reference to documents, and have the allegations properly formulated in the pleadings. HIS HONOUR: Yes, I will make orders in terms of the draft initialled by me and placed with the papers. HIS HONOUR: So the trial of the action on the 18th and 19th will be adjourned as part of that order. 4 JUDGMENT 20 -- 4 of 4 --