Colless v Raptis Investments Pty Ltd [1994] QSC 164

se tt--Tf' b4" IN THE SUPREME COURT OF QUEENSLAND 'l'OWNSVILLE cairns W. No. 138 of 1991 BETWEEN: WILLIAM COLLESS Plaintiff !!m= RAPTIS INVBS'l'MBN'l'S P'l'Y. LTD. Defendant REASONS FOR JUDGMEN'l' - CULLINANB J. DELIVERED THE THIRTIETH DAY OF JUNE, 1994 The Applicant in this matter seeks an order that the Respondent, Vivian Colless, be joined as a Defendant. 1 j By proceedings instituted on the 13th December, 1991, the Plaintiff sued Raptis Investments Pty. Ltd. for damages for negligence. The accident, out of which the cause of action is said to arise, occurred on the 27th November, 1989, on a vessel and it is apparent from the Statement of Claim which was delivered on the 9th September, 1992, that the Plaintiff sued the Defendant upon the basis that he was an employee of the Defendant and that the Respondent to these proceedings, whose negligence is alleged to have resulted in the Plaintiff's injuries, was also an employee of the Defendant. It appears that the Statement of Claim was served on the day following the issue of the Writ and it preceded the Entry of Appearance which occurred on the 28th October, 1992. For some reason, which does not appear on the material, a Notice Requiring Discovery on oath was given to the -- 1 of 6 -- 2 Plaintiff's solicitors on the 6th November, 1992. Thereafter a Request for Particulars vas delivered on the 12th February, 1993, and Particulars provided on the 7th May, 1993. There was a Notice of Motion for Judgment on the 9th July, 1993, which vas dismissed on the 9th August, 1993. The Defence was delivered on the 28th July, 1993. In it the Defendant denied that the Plaintiff was an employee and also deDiecJ that it vu vicariously liable for the •eta on omiasiona of the Respondent who was, it appears, the Master. The Defence alao alleged ) that there existed at all relevant times a relationship of partnership between the Plaintiff, the other members of the ) crew ancJ what la described as the JUmaging partner, the Respondent. Some particulars of the partnership agreeaent, to which the Plaintiff la not a signatory, were provided and it -=., is a11eged that on a subsequent date the Plaintiff became a partner by executing an agreement in writing. ) According to an Affidavit of the Plaintiff's solicitor filed on the 16th June, 1994, he, in the period prior to the Statement of Claim being delivered, took instructions from the 'j Applicant in relation to "his work situation". The Affidavit goes on. "In the period prior to delivering the Statement of Claia I had taken instructions off my client in relation to his work situation. He informed •e that he had been working -=f. for wages whilst on the •'lrtdent Aurora' • I bad :o;. understood from him that he vas on a percentage of the catch but I had always understood this to mean that his wages were calculated according to his percentage of the catch. I understood this to mean he was paid pursuant to -- 2 of 6 -- ) ) ) ) 3 an incentive based scheme." Subsequently in paragraph 5 of the Affidavit, Mr. Towne says;- "An Affidavit of Documents was sworn and filed on 12th September, 1993. How shown to me and marked with the letter "G" is a true copy of the Affidavit of Documents. It waa just prior to this date that I becaae aware of a Partnership Agreement between the managing partner, the crew aembers and the engineer of the "Trident Aurora". I did have some discussions with my client in relation to ~- this document, however, he reconfirmed that hi waa always of the view that be was working for wages notwithstanding the Partnership Agreeaent. My client stated that he had previously worked in partnerships with owners of other boats. He said his view of a partnership was one where he bad to pay costs towards the maintenance ~ runniDg costs of the boat. He was also obliged to shire any losses incurred in the use of the boat. He informed me this was not the situation on the "Trident Aurora". It was as a result of these matters that this application was, after counsel's advice was taken, made. The Applicant himself in an Affidavit filed on the 16th June, 1994, says in paragraph 9 thereof:- "Prior to these writs being served I did have discussions with llr. Towne with regard -to the terms of ay eaploJ118ftt. As far as I was concerned I was always a worker working for wages .for Raptis Investments Pty. Ltd. I aa informed by Mr. Towne and verily believe that on the 12th -- 3 of 6 -- ) ) September, 1993 an Affidavit of Documents was supplied to the Defendants. Prior to execution of this Affidavit of Documents I had cause to supply a Partnership Agreement to my Solicitor, Mr. Towne. Mr. Vivian Colless was the senior partner of the partnership and the captain of the vessel. I again advised Mr. TOwne that notwithstanding the Partnership Agreement I was always of the view that I was working for wages. I have been involved in partnerships before wherein it was necessary for me to participate in any losses of the business together with the running costa and maintenance of the boat." Be goes on to say that at all relevant times he was under severe pain and suffering from memory lapses and that he was of the view that be was employed by the Defendant as a wage earner as opposed to a person involved in a partnership. ) The Applicant does not depose to having had any difficulty in recal1ing that he bad executed such a document nor is there any medica1 evidence which might support the finding that he ) has an impairment of memory which might produce that result. I think it is correct as counsel for the Respondent said that the inference open is that the Applicant believed that he was an employee and that he did not regard the documentation which he had aigned as affecting that. It is apparent that the Applicant produced the partnership agreement to his solicitor. The only inference to be drawn is that it was in his possession and there is nothing to indicate -- 4 of 6 -- ) ) ) ) ----- --~~-· 5 that it was not in his possession at all relevant tiaes. The partnership agreeaent is before ae but as I have said the Applicant was not a signatory of that. The subsequent document which he executed and by which it is said he beca.e a partner, was not placed before .. but it was coaaon ground between the parties that I should proceed upon the baaia that that is what occurred. An Applicant seeking an order that a Defendant be joinecl under Order 3 Rule 11 of the Rules of the Supreae COUrt when the liaitation period has expired for tbe iDatitution of proceedings against such proposed Defendant, has to demonstrate the existence of special or peculiar circwutances which warrant the aaking of the order. See Lynch -•- ltedclell (No. 2) (1990) 1Qd.R. 10 and Grotherr -v- Maritiae Timbers Pty. Ltd. (1991) 2Qd.R. 128. In the latter case Lee J. suggested a number of aatters which aight constitute peculiar or special circwastancea and a nn•ber of aattera which would not constitute peculiar or special circumstances. The Applicant as I have said produced the partnership agreement to his solicitor and it would appear fro. what is said in both of the Affidavits to which I have referred, it was the Applicant's belief that notwithstanding the partnership agreement, he was at all relevant t:Uaea an employee. At the very best frOIR the Applicant' • point of view there is nothing to indicate that he did not at all aaterial times have possession of the partnership agreeaent or knowledge that he had executed it. In these circumstances -- 5 of 6 -- ) ) ---- --~~--- --- - 6 there is some justification for the submission of counsel for the Respondent that the Court could infer that he made a judgement about his position and did not seek advice as to it in the light of the partnership agreement. There is nothing to suggest that the Defendant or the Respondent were in any way responsible for the Applicant being in the position of having to seek to join the Respondent after the limitation period. The circumstances of this case do not fall within any of the categories which Mr. Justice Lee suggested aight constitute special or peculiar circumstances and there is no basis upon which any such conclusion in my view can be reached which would warrant the deprivation of the statutory immunity which the Respondent currently has. ) The result will be that the application is dismissed with costs. -- 6 of 6 --