Barsley v Mika Engineering Holdings P/L [2000] QSC 121

385?,t, scao/,tX./ SUPREME COURT OF QUEENSLAND REGISTRY: Rockhampton NUMBER: S69 OF 1999 Plaintiff: Defendant: TREVOR EDWARD BARSLEY AND MIKA ENGINEERING HOLDINGS PTY LTD JUDGMENT - DEMACK J. DELIVERED the 30th day of March, 2000 CATCHWORDS: Procedure - Adding defendant after expiration of period of limitation - Whether it is "just" UCPR 69 Lynch v. Kedde/1 [1985] 2 Qd. R. 103 no longer applies Counsel: G Crow 8 Hoare Solicitors: McKenzie Forbes & Partners Swanwick Murray Roche Hearing Dates: 1ih March 2000 Plaintiff Defendant Plaintiff Defendant -- 1 of 7 -- Plaintiff: Defendant: SUPREME COURT OF QUEENSLAND TREVOR EDWARD BARSLEY AND REGISTRY: Rockhampton NUMBER: 569 OF 1999 MIKA ENGINEERING HOLDINGS PTY LTD JUDGMENT - DEMACK J. DELIVERED the 30 th day of March, 2000 1. This is an application by the plaintiff for an order joining Queensland Alumina Limited to the proceedings as second defendant. The affidavit supporting the application states that Mr Barsley injured his knees on 16 December 1996 whilst employed by the defendant at the premises of Queensland Alumina Limited. He slipped on a fixed stairway. The application was filed on 16 December 1999, and made returnable on 31 January 2000. It was adjourned on that day to 17 March 2000. 2. The Writ issued against the defendant was filed on 11 June 1999 and, after service, an entry of appearance was filed on 23 June 1999. No statement of claim has been delivered. A proposed statement of claim, if the application is successful, makes allegations of negligence and/or breach of statutory duty against both the defendant and Queensland -- 2 of 7 -- Alumina Limited. There is also an allegation of breach of contract against the defendant. No explanation is offered concerning the failure to make Queensland Alumina Limited a party to the action when the Writ was issued. Prior to the issue of the Writ, Mr Barsley had told his solicitor that one step on the stairway had no non-slip edging and that his foot slipped on that step. He also said the stairs, particularly after a weekend, were often coated with caustic or some other substance. 16 December 1996 was a Monday. 3. Mr Hoare, who appeared for the respondent, submitted that UCPR 69 does not permit such a joinder in the circumstances which have been disclosed. That rule reads:- Including, substituting or removing party "[r 69] 69 (1) The court may at any stage of a proceeding order that- (a) (b) a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or any of the following persons be included as a party - (i) a person who presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding; (ii) 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. (2) However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies - 2 -- 3 of 7 -- (a) the new party is a necessary party to the proceeding because - (i) property is vested in the party at law or in equity and the plaintiff's or applicant's claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or (ii) the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or (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; (a) the relevant cause of action is vested in the new party and the plaintiff or applicant jointly but not severally; (b) the new party is the Attorney-General and the proceeding should have been brought ·as a relator proceeding in the Attorney-General's name; (c) the new party is a company in which the plaintiff or applicant is a shareholder and on whose behalf the plaintiff or applicant is suing to enforce a right vested in the company; (d) the new party is sued jointly with the defendant or respondent and is not also liable severally with the defendant or respondent and failure to include the new party may make the claim unenforceable; (e) there has been a change in law or practice that requires, in the interests of justice, the inclusion or substitution of a party; (f) for another reason the court considers it just to include or substitute the party after the end of the limitation period. (3) If the court makes an order including or substituting a party, the court may give directions about the future conduct of the proceeding." 3 -- 4 of 7 -- 4. This rule is obviously much more explicit that 0.3, r.11, and the provisions of sub-rule 2 are specific, except for (g). That latter sub-rule introduces the word "just" which had not been present in 0.3, r11. It was established in Lynch v Kedde/1 No. 2 [1990] 1 Qd. R. 10 that peculiar or special circumstances were required to enliven the discretion given by 0.3, r.11 to add a party after the expiration of the period of limitation. There was no general unfettered discretion to be exercised "whenever justice so requires": Lynch v Kedde/1 [1985] 2 Qd. R. 103. 5. When the limitation period has expired prospective parties should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them: Brisbane South Regional Health Authority v Taylor (1996) 139 A.L.R. 1, per McHugh J. at 9. If such a person has misled the plaintiff, it would be just to join the person as a party in the action: Archie v Archie: Smythe, third party [1980] Qd. R. 546, per Hoare J. at 561. That is but one possible example, although an obvious one. In my opinion, the discretion given in UCPR 69(2)(g) should not be exercised in any broad general way which defeats rights acquired by a prospective party by virtue of the Limitation of Actions Act. The emphasis now is upon the word "just" which must take into account both the rights of the prospective defendant and the situation facing the plaintiff. These must be balanced to achieve a just outcome. The test now is close to that rejected in Lynch v Kedde/1 [1985] 2 Qd. R.103. 4 -- 5 of 7 -- 6. Here Mr Barsley knew that he had injured himself on the respondent's premises because of a defect in the premises. He told his solicitor that, but the Writ was issued only against the employer. No explanation is offered for this. The WorkCover file includes Mr Barsley's application for Workers' compensation. He described how he sustained his injury in these words:- "Ascending stairs to Unit 1 heater deck when slipped/tripped and fell onto corner of stairs." The form says that this injury occurred on Queensland Alumina Limited's premises. However, the description of the incident is equivocal and does not clearly raise the possibility of some negligence on the part of Queensland Alumina Limited. The report by the employer says only that Mr Barsley "tripped up stairs and fell." The form 7 required by the Workplace Health and Safety Regulations 1989 uses "tripped or slipped." This form was signed by Mr Barsley. 7. This means that, although any judgment will be met by WorkCover, whether it arises from the negligence of the defendant or Queensland Alumina Limited, there is, until now, no clear indication that an allegation of negligence will be made against Queensland Alumina Limited. In those circumstances, significant weight must be given to the protection Queensland Alumina Limited, enjoys under the Limitation of Actions Act. On the other hand Mr Barsley knew within the limitation period the facts which would found a case in negligence against Queensland Alumina 5 -- 6 of 7 -- Limited, and, for unexplained reasons, he did not join the company in the Writ. It would not now be just to allow him to do so. 8. The application is dismissed with costs. 6 -- 7 of 7 --