Carrick v The Proprietors 'Cavanagh Court' & Ors [1999] QSC 310

37"C; State Reporting SC99!3/0 fl '\E: Bureau ~\)(0--6 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 Plaint Number 142 of 1996 HENRY ROBERT CARRICK and THE PROPRIETORS IICAVANAGH COURTII BUP 70180 and N Q BODY CORPORATE MANAGEMENT PTY LTD (ACN 010 434 769) and CMC CAIRNS PTY LTD (ACN 010 861 579) CAIRNS .. DATE 24/09/99 JUDGMENT 1 Plaintiff Defendant First Third Party Second Third Party It 1',"",., The I.aw COllrts. (;\·OI'~1.' Stnet, Brish:llll.', Q, .tIlOO TdephoIH': (07) Jl..t7 ·.\J()O Fax: (07) Jl.t7 5.5Jl -- 1 of 5 -- \,-; 240999 T16/LET M/T CNS819/99 (Jones J) HIS HONOUR: In this matter the defendant applies firstly to withdraw an admission which it made in its defence as to the accident occurring on a particular date and then for an order that the plaintiff's action be struck out. The plaintiff issued a writ seeking damages for negligence on 10 2 December 1996. A statement of claim w~s delivered-on 3 March 1998 in which the plaintiff alleged that his injury was sustained on 4 December 1993. The insurer of the defendant, on receipt of the statement of claim, commenced to make inquiries which resulted in it being informed that the plaintiff did indeed sustain injuries in the environment in which he pleaded, but prior to the delivery of the defence, (' ~j the defendant was unable to obtain copies of hospital records or any medical reports. 30 The defendant delivered its defence on 6 August 1998 and made an admission that the incident occurred on 4 December 1993, as it had been pleaded in the statement of claim. Subsequent c= inquiries made by the defendant showed that the incident 40 occurred, in fact, on 4 December 1992. The records relied upon to establish this date include the records of admission to hospital, ambulance reports and a variety of material from a number of sources, which prove convincingly, to my mind, that the incident did in fact occur on 4 December 1992. 50 The circumstances in which the admission was made and the fact that the admission was made in error which, in the main, was brought about by the plaintiff's own action, leads me to the view that the defendant,should have leave to withdraw the 60 2 JUDGMENT -- 2 of 5 -- 240999 T16/LET M/T CNS819/99 (Jones J) admission in the pleading and to amend the defence to allege the correct date. The immediate consequence which follows such an amendment is that the defendant would be entitled to, and has indicated it will, raise a defence under the Limitations Act. It is on this basis that the defendant proceeds tq its second part of the application to have the plaintiff's action struck out. When the matter came before me initially on 9 September 1999, I expressed concern about striking out the plaintiff's action without the plaintiff being notified that such an application was on foot. The plaintiff has not made contact with his solicitors on the record, and I am informed by the solicitors of the record that they have made significant attempts to try to identify his present whereabouts and to notify him of this application. They also made inquiries of his parents. Their inquiries have not been successful. The plaintiff's representatives have indicated, however, that he was aware that the limitations point would be taken and had discussed with counsel his prospects of success in making an application for extension of time under the section 31 of the Limitation Act. application. In the meantime, However he has, to this date, made no such I am informed, that the third parties who have been joined to this action by the plaintiff, are 10 20 30 40 50 considering instituting fourth party proceedings and the time within which they may do so is fast .approaching expiration as 60 3 JUDGMENT -- 3 of 5 -- 240999 T16/LET M/T CNS819/99 (Jones J) well. There is, therefore, a significant concern that resources will be wasted in pursuit o£ an action which may have no pro~pect of success or, indeed, may not even be pursued by the plaintiff. It is, in the light of the public interest in insuring both 10 that claims are pursued diligently or if ,they are not to be pursued, that matters are brought to finality. I propose to make an order that the plaintiff's claim be struck out with some prospective effect. I will couple that order with a requirement that the defendant advertise in a newspaper with distribution in the Cairns district and a newspaper with national distribution, the fact that this order has been made with prospective effect. 30 In summary then, my orders will be that the defendant will have leave to withdraw the admission made in paragraph 2 of its defence delivered on 6 August 1998. I give leave to the (-' defendant to amend its defence to assert that the plaintiff's 40 injury was sustained on 2 December 1992 and to raise a defence based on the expiry of the limitation period under the Limitation Act. I order that unless the plaintiff, by 25 October 1999, makes 50 application to vary the terms of the order I'm about to make, or to make application pursuant to the Limitation Act to extend the limitation applicable to his cause of action, that this action be struck out. 60 4 JUDGMENT -- 4 of 5 -- 240~99 'TI6/LET M/T CNS819/99 (Jones J) I order further that the plaintiff pay the costs of and incidental to this application and in the event the action is struck out, the defendant's and third parties' costs of the action. I direct that the defendant advertise the making of this order in a newspaper with circulation in the C~irns district and in a newspaper with national circulation on or before 11 October 1999. I will amend the order. Advertisement in terms to be settled by the Court. 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 5 --