Brockhurst v Edsoncombe Pty Ltd & Anor [2000] QDC 313

DISTRICT COURT OF QUEENSLAND CITATION: Brockhurst v Edsoncombe Pty Ltd and Anor [2000] QDC 313 PARTIES ROBERTSON JOHN BROCKHURST (plaintiff) v EDSONCOMBE PTY LTD (defendant/respondent) v GREGORY MACHINERY PTY LTD (third party/applicant) FILE NO.: Maroochydore 256/98 DIVISION: Chambers PROCEEDING: ORIGINATING COURT: DELIVERED ON: 27 October 2000 DELIVERED AT: Maroochydore HEARING DATE: 16 October 2000 JUDGE: J.M. Robertson DCJ ORDER: (a) Leave is granted to the Third Party to amend its Defence to the Defendants amended Statement of Claim in terms of the pleading exhibited to the Affidavit of Daniel Best, filed in this Court on 4 October 2000 and marked Exhibit C, omitting Paragraph 2B of the pleading. (b) The Third Party shall pay the Defendant’s costs of and incidental to the application filed on 4 October 2000, to be assessed or agreed, on the standard basis. CATCHWORDS: PRACTICE; THIRD PARTY; AMENDMENT OF PLEADINGS; application by Third Party to amend pleading after Request for Trial Date; Plaintiff’s action against Defendant settled at mediation conference; effect of mediation agreement; philosophy of UCPR; Rules 380, 327.6(1) and (2) Uniform Civil Procedure Rules CASES CITED IN JUDGMENT: Chamberlain v Deputy Commissioner of Taxation (1998) 163 CLR 502 COUNSEL: Mr Robert Myers for the Third Party/Applicant Mr Kevin Holyoak for the Defendant/Respondent SOLICITORS: Carter Newell Lawyers for the Third Party/Applicant -- 1 of 4 -- 2 Tutt and Quinlan Solicitors for the Defendant/Respondent [1] The Third Party applies for leave to amend its Defence, pursuant to Rule 380 of the Uniform Civil Procedure Rules (UCPR). The Respondent Defendant does not oppose the amendment, save for the amendment to paragraph 2B. Paragraph 2B in the draft Amended Defence, annexed to the affidavit of the Third Party’s solicitor, is in the following terms” “2B. The third party says that the defendant having compromised the plaintiff’s claim is estopped and precluded from maintaining the within action against the third party based on facts not alleged by the plaintiff in the principal action which facts, if established, would have resulted in both the plaintiff’s claim against the defendant and the defendant’s claim against the third party being dismissed.” [2] The Respondent opposes leave being granted to amend on the grounds of futility. [3] To properly appreciate the basis for the application, it is necessary to recite a brief history of the litigation. The Plaintiff’s claim was for damages for personal injuries from his employer, the Defendant, resulting from an injury sustained at his place of work on 24 July 1995. The Plaintiff alleged that he was using a drop saw to cut part of an aluminium footplate when a piece of that footplate, measuring approximately 35mm long, 15mm across and 10mm in depth, dropped into a gap of approximately 18mm, between the saw blade and the saw stand. The Plaintiff’s case is that the piece of aluminium was then thrown into the saw blade, and then into the guard, causing it to shatter and resulting in an injury to his right index finger. The Third Party Notice, filed on 31 May 1999, seeks indemnity or contribution from the Third Party, arising from the sale by it to the Defendant of a defective saw. On 17 December 1999, the Defendant amended its defence to further allege that the incident on 24 July 1995 occurred in circumstances different from those alleged in the Plaint. On the same day, the Defendant amended its Third Party Notice and filed a statement of claim pleading as an alternative that the accident occurred in the circumstances particularised in the amended Defence filed that day. [4] The Plaintiff’s claim was then mediated and the Third Party participated in that mediation. The Plaintiff’s action against the Defendant was resolved on the basis of a payment to the Plaintiff by the Defendant of $73,093 inclusive of WorkCover’s refund and agreed costs. The Plaintiff’s action was discontinued by Notice filed on 20 April 2000. A Request for Trial Date was executed by the Defendant and Third Party and filed on 25 May 2000. A trial date was assigned, but the matter was not reached. [5] This application was filed on 4 October 2000. In Paragraph 2(c) of the proposed amended defence of the Third Party, it is alleged that the shattering of the guard was more probably the result of an upward motion of the post attached to the aluminium footing, which grabbed the blade due to some sideways motion by the operator as he made the cut, whereby the post and footplate were driven upwards, -- 2 of 4 -- 3 impacting the moveable guard. Paragraph 12 alleges that the Defendant has breached its contract of employment with the Plaintiff and/or otherwise failed to ensure the Plaintiff’s health and safety at work. The Defendant does not oppose these amendments. As a consequence, absent paragraph 2B, the factual and legal issues at trial between the Defendant and Third Party are clearly defined. The expert evidence of both the Defendant and Third Party disputes the factual allegations made by the Plaintiff in his claim. [6] On 1 September 2000, by open letter to the solicitors for the Defendant, the solicitors for the Third Party advised: “We confirm that – (a) The Plaintiff’s action against the Defendant was resolved on the basis of a payment to the Plaintiff by the Defendant of $73,093.00, inclusive of WorkCover’s refund plus party/party costs in the sum of $9,669.70. (b) The above settlement of the plaintiff’s claim was reasonable and will not be contested by our client in the proceedings.” (My emphasis added) The Third Party now says that, in the light of the Defendant’s alternative plea as to the circumstances in which the accident occurred, it is irretrievably prejudiced by the resolution of the dispute between the Plaintiff and the Defendant. If I permit the amendment, evidence will probably have to be lead as to the conduct of the mediation proceedings. This is due to the fact that Mr Myers submits that, as the pleadings stood prior to 17 December 1999, it was most likely that the Plaintiff’s claim against the defendant would fail at trial, because the Court would not accept the circumstances of the accident alleged by the Plaintiff. [7] In my view there are a number of fatal flows in this argument. Firstly, the Third Party was aware of the alternative pleading prior to the mediation conference on 28 January 2000. The Third Party took part in those proceedings and does not contest the reasonableness of the settlement. In my opinion, it should only be in exceptional circumstances that a Court makes an order which effectively seeks to go behind a mediated agreement in which the parties to a dispute have willingly participated. The UCPR do provide a mechanism whereby parties can apply to the Court, at any time, for directions on any issue about the mediation: r. 327. The overriding philosophy of the Rules is to “facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum expense” (r.6.1), and the Court is to apply the rules “with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules.” [8] In the absence of agreement between the Plaintiff and the Defendant, the Third arty is ordinarily entitled to defend the Third Party proceedings on the basis of any defence, factual or legal, which exonerated the Defendant from liability to the Plaintiff or established that it was likely that the Plaintiff’s case against the Defendant would fail. In my opinion, the proposed Amended Defence, without Paragraph 2B, will enable the real issues of fact and law between the Defendant and Third Party to be determined. Whether or not the Defendant could have defeated the Plaintiff outright is not an issue in the present proceedings. Although Mr Myers argued faintly to the contrary, there can be no argument that the statement in the letter, dated 1 September 2000, from the Third Party’s solicitors, -- 3 of 4 -- 4 to the effect “the above settlement of the Plaintiff’s claim”, must necessarily relate to the whole of the claim, including both liability and quantum. If the Third Party wished to preserve its right to contest the basis for liability between the Defendant and the Plaintiff, whatever the factual basis, it should have made its position clear at the mediation conference. [9] Finally, it is unclear to me as to what form of estoppel is being pleaded in Paragraph 2B. It cannot be estoppel by representation as none is alleged and, in any event, the Third Party was well aware of the alternative factual version at the time it agreed to the settlement of the action between the Plaintiff and the Defendant. There can be no estoppel by record or issue estoppel because there has been no adjudication. A compromise, by itself, would not be sufficient: Chamberlain v Deputy Commissioner of Taxation for the Commonwealth (1998) 163 CLR 502, where a consent judgment was held to be sufficient to create an estoppel but the compromise, of itself, was not [10] It would be futile to allow the amendment sought in Paragraph 2B. It will unnecessarily take up time at the trial, will add to costs and will divert the Court from the real issues to be determined. [11] The Defendant does not oppose the other amendments and these amendments could have been formally granted by leave, at the commencement of the trial. [12] The orders of the Court will be as follows: (a) Leave is granted to the Third Party to amend its Defence to the Defendants amended Statement of Claim in terms of the pleading exhibited to the Affidavit of Daniel Best, filed in this Court on 4 October 2000 and marked Exhibit C, omitting Paragraph 2B of the pleading. (b) The Third Party shall pay the Defendant’s costs of and incidental to the application filed on 4 October 2000, to be assessed or agreed, on the standard basis. -- 4 of 4 --