Buchmueller v Brisbane Formwork Company Pty Ltd & Anor [2001] QSC 207

'f 11 q 0 0 I (1 D1 '-I b St R . B (~ Queensland Government ate e po rt Ing ure au ~ Department of justice and Attomey~eneral 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 WHITE J No 2425 of 1998 GARY FRIEDRICH BUCHMUELLER and BRISBANE FORMWORK COMPANY PTY LTD (ACN 065 830 006) and G & J BOX PROPERTIES PTY LTD BRISBANE .. DATE 22/05/2001 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date '?rol S---1 o ( Plaintiff First Defendant Second Defendant Floor, The Law Courts, George Street, Brisbane, a. 4000 1 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 12 -- 22052001 kas (White J) HER HONOUR: There are two applications by the plaintiff before the court. In the first he seeks leave to proceed pursuant to r.389 of the UCPR as no step has been taken in the proceeding for more than two years since the last 1 step. In the second application the plaintiff seeks to 10 substitute the name of one company for another as second defendant. They are associated companies and provided the plaintiff obtains an order for leave to proceed, there is no opposition to the substitution. The plaintiff issued a writ dated 16 March 1998 against Brisbane Formwork Company Pty Ltd as first defendant and G & J Box Properties Pty Ltd as second defendant claiming qamages for personal injury sustained by the plaintiff due to the negligence and breach of statutory duty of the defendant. No date when the alleged wrongful acts occurred were stated in the writ. The writ was served on the defendants in August 1998. The second defendant filed and served an entry of appearance on 3 September 1998. The first defendant filed a notice of intention to defend on 24 August 1999. The plaintiff was a self-employed formwork carpenter in partnership with his wife. G & J Box Pty Ltd was a building contractor engaged to construct home units at Herston. It is this company which it is proposed to substitute for the existing second defendant, G & J Box Properties Pty Ltd. G & J Box Pty Ltd sub-contracted the formwork for the JUDGMENT 2 20 30 5 6 -- 2 of 12 -- 22052001 kas (White J) construction work to the first defendant which traded as Rametta Formwork. According to the statement of claim, Rametta sub-contracted 1 certain parts of the formwork to the plaintiff. The 10 statement of claim which was sent to the second defendant care of its solicitors is neither dated nor signed, although it was included in correspondence to O'Brien & Brown, the second defendant's solicitors, under cover of a letter dated 22 August 2000. There had been no move to strike out the 20 writ for failure to deliver a statement of claim. There are no allegations made against the first defendant in the statement of claim. Indeed, it is only from other material filed by the respondent on these applications that 30 I have learnt that the first defendant traded as Rametta Formwork. On 31 August 2000 the plaintiff filed a Notice of Discontinuance in respect of the first defendant for reasons 40 which are not explained. In the document headed "Statement of Claim" the plaintiff alleges that on 24 April 1995 he sustained injury whilst carrying out formwork at the construction site. This occurred when he stood on a recently laid brick wall which fell away so that he fell some 3.3 metres and sustained injury to his spine. JUDGMENT 3 50 60 -- 3 of 12 -- 22052001 kas (White J) The plaintiff alleges that the second defendant, as building contractor, was negligent and/or breached its statutory duty to him by failing to warn him about the instability of the wall and/or failing to provide him with adequate scaffolding or other assistance so that he could carry out his work safely. 1 10 When the second defendant's solicitors served the Entry of Appearance on 3 September 1998, they advised the plaintiff's solicitors that they believed that the second defendant was 20 the wrong entity. Shortly afterwards, the plaintiff's solicitors wrote that they were investigating this matter. On 31 March 1999 the second defendant's solicitors again mentioned the issue of the proper defendant. By a letter 30 dated 7 April 1999 the plaintiff's solicitors wrote to both G & J Box Pty Ltd at its registered address, which was care of its accountants, and G & J Box Properties Pty Ltd at its solicitors, to say that they would seek to substitute G & J Box Pty Ltd as second defendant. It was not until just before executing the Notice of Discontinuance against the first defendant that the plaintiff's solicitors wrote to the second defendant's solicitors on 22 August 2000 enclosing an application to substitute G & J Box Pty Ltd for G & J Box Properties Pty Ltd, the affidavit of Mr Cameron Hall, a solicitor in the firm, and the Statement of Claim. In a covering letter the solicitors wrote: JUDGMENT 4 6( -- 4 of 12 -- 22052001 kas (White J) "The Statement of Claim is of course provided with the view to expediting the progress of this action following resolution of the matter of substitution." The solicitors had asked if the application to substitute l could be made on the first day of the hearing to save costs. 10 The second defendant's solicitors responded, on 22 August 2000, that the application should be made before the second defendant pleaded to the Statement of Claim and noted that that document still described the second defendant erroneously. By a letter dated 29 August 2000 Carter Newell wrote to the plaintiff's solicitors stating that they acted for G & J Box Pty Ltd's insurers and asked that their interest be noted and that the plaintiff's solicitors notify the first defendant of this. The Notice of Discontinuance against the first defendant was executed by then, but not filed till 31 August. Carter Newell indicated that they were investigating the circumstances of the claim. By a letter dated 3 September 2000 Carter Newell were notified that the plaintiff had discontinued against the first defendant and were given a Statement of Loss and Damage of the plaintiff. By a letter dated 26 March 2001 Carter Newell raised a number of concerns with the plaintiff's solicitors, particularly the continued failure to sue the correct second defendant and querying the circumstances of the discontinuance against the first defendant. JUDGMENT 5 20 30 40 50 60 -- 5 of 12 -- 22052001 kas (White J) l Carter Newell sought further disclosure of the plaintiff's partnership returns, et cetera, and submitted a panel of three orthopaedic specialists for the plaintiff to select one for examination for medico-legal purposes. Carter Newell noted that they had reviewed the plaintiff's expert 10 report (about the incident, it might be inferred) and indicated that it was proposed to commission an independent report on behalf of the second defendant in due course. Carter Newell further noted that because the plaintiff had not proceeded with his application for substitution, that 20 firm was not the solicitor on the record. There was reference to a conference proposed by the plaintiff's solicitor pursuant to section 553 of the WorkCover Act. It was not until Carter Newell received the plaintiff's application and material to substitute G & J Box Pty Ltd as defendant, it may confidently be inferred, that it was realised that the Statement of Claim was not signed as required by r.146 of the UCPR. By a letter dated 1 May 2001, the plaintiff's solicitors were alerted to this problem and they then filed the application for leave to proceed. Mr Goodwin, who appears for the plaintiff, did not submit 30 that the delivery of the unsigned Statement of Claim on SOJ 22 August 2000 constituted a step in the proceedings within the meaning of the rules. He contended, in his written outline, that no prejudice had been suffered by the proposed second defendant because of this nonconformity with the JUDGMENT 6 60 -- 6 of 12 -- 22052001 kas (White J) rules. There was nothing in the correspondence to alert the plaintiff that there was any issue of prejudice to be addressed. Mr Brearley, an articled clerk with the plaintiff's solicitors, deposed that the Statement of Claim was not signed due to inadvertence and pressure of work. Mr C Hall, who appears to have been the solicitor in charge of the file and who has sworn an affidavit in the application to 1 10 substitute, might have been expected to swear to this rather 20 than leaving it to an articled clerk, who may not even have been at the firm at that time and whose responsibility it was not. On the hearing, Mr Myers, who appears for the second defendant (in whatever name) produced three affidavits, two of which deposed to prejudice which would be experienced by the second defendant if leave to proceed were given. 30 Mr G Box, a principal of G & J Box Pty Ltd, has deposed that 40 the company ceased trading in June 2000. He attended occasional site meetings to monitor progress of the works the subject of the claim, but did not have any day-to-day responsibility. 50 G & J Box Pty Ltd engaged the first defendant to construct the formwork for the job and G W Kelly as a bricklaying contractor. Mr Box names the construction supervisor for the job and the project foreman. He deposes that he has JUDGMENT 7 60 -- 7 of 12 -- 22052001 kas (White J) been unable to trace the project foreman from his 1996 address. He is unable to say "with any certainty" what other personnel attended the site. He deposes that G & J Box Pty Ltd no longer has its job files for the site. He 1 does not say that they have been destroyed. These files 10 would assist in identifying contracts and drawings and contain correspondence about the job. Mr Box deposes that some labour information may be available in the archives of the company, but that its production 20 would be difficult. He also deposes to no other documents relevant to these proceedings being available. Mr Clayton Stabe, an investigator, deposes that, hardly surprisingly, the developer of the project has no relevant 30 documentation. Michael Rametta, a director of the first defendant, has no staff presently who were employed on the project and cannot recall the names of staff who were so employed. He refused to check any employment records or archives, as deposed to by Mr Stabe. The bricklayer, G W Kelly, Mr Stabe has been informed, although he does not say by whom, died "some time after completion of the project". A Graham Cowan was the bricklaying supervisor employed by 5 G W Kelly. He told Mr Stabe that he has some recollection of the incidents giving rise to the plaintiff's claim, but did not witness it. Mr Cowan identified one Mike Pascoe as the site foreman. When located, Mr Pascoe said that he was JUDGMENT 8 6( -- 8 of 12 -- 22052001 kas (White J) a subcontractor to G W Kelly and had his own crew on site. He said he could not recall any incident of the kind described by the plaintiff and does not recall rebuilding a collapsed wall. Mr Stabe deposes that Pascoe's recollection 1 was vague and he could not remember the names of any staff 10 on the project. One of G W Kelly's employees, a Michael Griely, told Mr Stabe that he was on site every day and did not recall any incident identified by the plaintiff and knew of only a 20 falling gable which involved brick work and which injured a G & J Box Pty Ltd employee. Mr Glindemann, the construction supervisor for G & J Box Pty Ltd, did not recall the incident. He collected the carbon copies of all accident forms from the site and took them to head office. He told Mr Stabe that he could not recall an accident form for the plaintiff. Workplace Health & Safety have no report of the plaintiff's alleged accident and no records of it. The approach to r.389 is as was expressed in Dempsey v. Dorber [1990] 1 Qd R 418, by Connolly J, at 420, in respect of order 90, rule 9 RSC, that is: "In my judgment, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order." JUDGMENT 9 30 40 50 60 -- 9 of 12 -- 22052001 kas (White J) See also Chesterman Jin Lilyvale Pty Ltd v. Colonial Mutual Life Society Ltd [1999] QSC 372, where his Honour refers to the need for explanation of a satisfactory kind for delay and whether the defendant will suffer prejudice. Atkinson J, in the Court of Appeal, in Tyler v. Custom Credit Corporation Ltd [2000] QCA 178, identified various factors, which were nonexhaustive, which might be taken into account in deciding whether to exercise the discretion 1 10 favourably to an applicant. They included a satisfactory 20 explanation for the delay and whether or not the delay has resulted in prejudice to the defendant and whether the delay is due to the plaintiff or the plaintiff's lawyers. There is nothing to sheet home the muddle and apparent incompetence demonstrated by the material on this application to anyone other than the plaintiff's solicitors. Although there have been delays in moving the proceedings along, particularly between the issue of the writ in 1998 and the delivery of the document purporting to be the Statement of Claim in August 2000, since then there has been momentum. The proceeding has progressed to the stage where the plaintiff has given discovery, a Statement of Loss and Damage and an expert's report about the incident. It can readily be concluded that the proper second defendant was in no doubt about the proceeding from the service of the writ in 1998, although, of course since no dates were contained in it, it would have been impossible to understand JUDGMENT 1 0 30 50 60 -- 10 of 12 -- 22052001 kas (White J) to what it referred. From August 2000 the nature of the allegation was made clear and was being investigated. The plaintiff was encouraged to 1 progress the proceeding by the solicitors for either Box 10 company, not taking any point until after the application for substitution was filed and served. Mr Stabe's affidavit demonstrates that quite a lot is known or knowable about the plaintiff's alleged accident. It may 20 be that there is no record of it for good reason. A difficulty is that the potentially responsible party has been let out of the action, but that is not a matter for this application. 30 Although the lapse of time from April 1995 until August 2000 is considerable, and the conduct of the litigation after the service of the writ in 1998 deplorable, and keeping in mind the observations of McHugh Jin Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541, at 551, I am 40 satisfied that the plaintiff should be allowed to proceed and has discharged the onus which he bears. As was conceded by Mr Goodwin, whatever the outcome, the respondent to the application should not have to bear the costs. No doubt the plaintiff's solicitors will reflect on their responsibility 50 for this state of affairs. The orders which I would make are: JUDGMENT 1 1 60 -- 11 of 12 -- 22052001 kas (White J) 1. The applicant plaintiff have leave to proceed pursuant to r.389(2) of the UCPR. 2. "G & J Box Pty Ltd" be substituted for "G & J Box Properties Pty Ltd" as the defendant in the proceedings. 3. The applicant plaintiff pay the costs of and incidental to both applications to be assessed. JUDGMENT 12 1 10 20 30 50 -- 12 of 12 --