Beecroft v Proprietors Top of the Mark Bldg Units Plan No 3410 & Ors [1992] QSC 228

TRANSCRIPT OF PROCEEDINGS State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 (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 JURISDICT~ON () WILLIAMS J No 3500 of 1986 ANTHONY WILLIAM BEECROFT and THE PROPRIETORS, "TOP OF THE MARK" BUILDING UNITS PLAN NO. 3410 and THE DAVIS HEATHER GROUP PTY LTD and COUNCIL FOR THE CITY OF GOLD COAST and SUNCORP INSURANCE AND FINANCE BRISBANE .. DATE 27 / 6 /92 .. JUDGMENT 1 P~te 31 Plaintiff First Defendant Second Defendant Third Party Fourth Party -- 1 of 13 -- 270692 JUDGMENT HIS HONOUR: In this matter I have prepared reasons for judgment, which I publish. I will be refusing to make an order joining the third party as 10 a defendant. The orders I make are: I order that the relief sought in paras 1, 2 and 3 of the summons be dismissed with costs, including reserved costs. I adjourn the relief sought in para 4 of the summons to a date to be fixed. 2 20 30 50 60 CJ -- 2 of 13 -- c, " c c IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice G.N. Williams No. 3500 of 1986 BETWEEN: ANTHONY WILLIAM BEECROFT AND: AND: AND: AND: THE PROPRIETORS, "TOP OF THE MARK" BUILDING UNITS PLAN NO. 3410 Plaintiff First Defendant THE DAVIS HEATHER GROUP PTY. LTD. Second Defendant COUNCIL FOR THE CITY OF GOLD COAST Third Party SUNCORP INSURANCE AND FINANCE Fourth Party JUDGMENT - G.N. WILLIAMS J. Delivered the 26th day of June 1992 CATCHWORDS: Practice - application to add third party as defendant after expiration of limitation period - allegation Third Party local authority negligent in issuing certificate thatstructure complied with Building Act 1975 - all information in possession of plaintiff years ago - held no special orpeculiar circumstances - Lynch v. Keddell (No. 2) (1990) 1 Qd. R. 10 and Grotherr v. Maritime Timbers Pty. Ltd. (1991) 2 Qd. R. 128 applied - held plaintiff had no real prospect of success against Council - Sutherland ShireCouncil v. Heyman (1985) 157 C.L.R. 424 considered. Counsel: S. Couper for Applicant-Plaintiff. Hack for Respondent-Third Party. Solicitors: Primrose Couper Cronin Rudkin for Applicant.Michael Sing and Associates for Respondent. Hearing date: 23rd June 1992 -- 3 of 13 -- c c c c, IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: No. 3500 of 1986 ANTHONY WILLIAM BEECROFT THE PROPRIETORS, "TOP OF THE MARK" BUILDING UNITS PLAN NO. 3410 Plaintiff First Defendant THE DAVIS HEATHER GROUP PTY. LTD. Second Defendant COUNCIL FOR THE CITY OF GOLD COAST Third Party SUNCORP INSURANCE AND FINANCE Fourth Party JUDGMENT - G.N. WILLIAMS J. Delivered the 26th day of June 1992 The plaintiff applies for an order that the Third Party, Council for the City of Gold Coast, be added as a defendant in the action, notwithstanding that the relevant limitation period for commencing an action against the Third Party has expired. The summons referred to s. 31 of the Limitation of Actions Act 1974, but counsel for the applicant conceded that the material relied on did not afford a basis for seeking the order pursuant to that section. Reliance was placed on 0. 3 rr. 11 and 13 of the Rules of the Supreme Court and reference was made to cases such as Lynch v. Keddell (No. 2) (1990) 1 Qd. R. 10 and Grotherr v. Maritime Timbers Pty. Ltd. (1991) 2 Qd. R. 128 where such orders were made notwithstanding the expiration of the -- 4 of 13 -- c 2 limitation period. The judgments in those cases make it clear that such an order can only be made where it would defeat a limitation defence if the circumstances are "special" or "peculiar". So much was accepted by counsel for each of the parties here; counsel for the applicant conceded that he had to establish special or peculiar circumstances in order to succeed. In order to evaluate the submissions it is necessary to set out the relevant facts. In 1979 a high-rise building commonly known as "Top of the Mark" was constructed on the Gold Coast within the local authority area administered by the Third Party. The lower levels of the structure contained what was described as a shopping podium and in that general location there was a night club. The perimeter of walkways and balconies were marked by balustrading. As correspondence dated 30th May 1979 and 8th June 1979 (Exhibits I and J to the affidavit of J.S. Smith filed 9th December 1991) establish, the Third Party gave consideration to whether the height of that balustrading, namely an average of 850 millimetres, complied with the requirements of the Building Act 1975 and relevant by-laws. Ultimately it came to the conclusion that the height of the balustrading was "satisfactory" and then on 3rd August 1989 issued its certificate of classification under the Building Act 1975 which approved the use of the building for the purposes specified therein. In the early hours of the morning of 23rd December 1983 the applicant left a night club on the level of the building in question and (so it is alleged) bumped against or slid into the balustrading causing him to fall over it and down several levels. -- 5 of 13 -- 3 It is sufficient to say that he sustained serious injuries rendering him permanently paraplegic. By writ issued 18th August 1986 he commenced an action against the First Defendant as the owner of the building at the material time, and the Second Defendant as the architect responsible for its design. His statement of claim was delivered on 13th May 1987. Essentially it was alleged that the balustrading did not satisfy the minimum height requirements specified in the Building Act, and some measurements were particularised. Defences were delivered by the First Defendant on 23rd June 1987 and the Second Defendant on 6th March 1991. On 22nd May 1990 the First Defendant caused a Third Party Notice to issue against the Third Party, and pursuant thereto a statement of claim and a defence have been delivered; the latter document was delivered on 19th June 1990. Senior Master Horton Q.C. made a series of orders on 26th July 1990 on the application of the Third Party. He gave the Third Party leave to defend the applicant's action and to that end specifically ordered that the applicant serve a copy of his affidavit of documents on the Third Party. He also gave the 0 0 Third Party limited leave to deliver interrogatories for the () examination of the applicant. It would appear arguable that the minimum height for balustrading in accordance with the Building Act (By-law 54.2 (1)(a)) is governed by the level above ground of the balcony to which it is affixed. In broad terms if the level is more-than three storeys the minimum height is 1050 millimetres, whereas if it is three storeys or less the minimum requirement is 865 millimetres. That is a matter readily ascertainable by -- 6 of 13 -- 4 reading the statute and it appears clear that at the time the statement of claim was delivered the applicant (or at least his legal advisors) were aware of the minimum height requirements, and were also aware of the actual height of the balustrading in question. As the Act requires a classification certificate to be issued before such a building may be used the applicant and his legal advisors must be taken to have known in 1987 when the statement of claim was delivered that the Third Party had issued C: such a certificate. So far as is revealed by the material and the argument addressed to the court, the only factual matter of which the applicant is now aware but which was not known to him in May 1987 is that the Third Party in the letter of 20th May 1979 specifically adverted to the height of the balustrading in question and after giving the matter some consideration concluded that it was "satisfactory" (letter 8th June 1979), that is, that c it satisfied the minimum requirements of the Act. One may perhaps infer that such conclusion was reached because the Third Party decided (rightly or wrongly) that the balustrading in c=\ question was not more than three storeys above ground level. If it be relevant the material establishes that the affidavit of documents delivered by the First Defendant on 16th May 1988 disclosed nothing of relevance to the matters now in issue. Correspondence with the Second Defendant in 1986 elicited replies to the effect that the relevant plans and drawings could not be located . The first indication of the existence of the letters of 30th May 1979 and 8th June 1979 came -- 7 of 13 -- 5 when the affidavit of documents of the Second Defendant was delivered on 8th July 1991. In the meantime the applicant had sought an order for inspection of documents against the Third Party. Such an order was made on .9th August 1989, but in response to it the Third Party was unable to locate plans or drawings relevant to the subject building. The applicant's case is that he first became aware of the critical correspondence of 30th May and 8th June 1979 in Jply () 1991, and in consequence it was not reasonable to take steps to join the Third Party as a defendant prior to that date. The summons in question was filed on 9th December 1991 . · That summons came before the court on 12th December 1991 and it was adjourned at the applicant's request. It appears that the applicant took time to consider his position in the light of the unreported decision of Master White (as she then was) in The Registered Proprietors of "Garrick Lodge" Building Units Plan No. 3560 v. Council of the City of Gold Coast and Others (1893 of 1990, judgment 26th November 1991). Because of the applicant's delay () () in restoring that summons to the list the Third Party took out () a summons on 30th April 1992 seeking to have it dismissed for want of prosecution. The only other matter of fact I need record is that in his most recent affidavit the applicant says that in December 1983 he was "working in real estate" and because of his "knowledge in this field" he was "aware that all new buildings are required to be approved by the local authority before they are constructed." He went on to swear that he "would not have expected the Local -- 8 of 13 -- 6 Authority to approve construction of a building which was unsafe or which did not comply with the relevant by-laws." In the light of all that I ·cannot see that there is substance in the contention of counsel for the applicant that special or peculiar circumstances are established by the facts that the applicant could not obtain a copy of the Council approved drawing of the balustrade or the correspondence showing the specific attention of the Council to the balustrade, nor C evidence establishing the specific knowledge of the Council about the balustrade until after the expiration of the limitation period. In my view those matters would have made it easier for C. the applicant to prove a case against the Council, but they were not essential prerequisites to bringing an action against the Council. All relevant facts were known to the applicant by about 1987 at the latest. The strongest argument in support of the existence of c special or exceptional circumstances is based on the fact that the Council is already a third party and has sought and obtained leave to defend the applicant's claim. It has been in the C position of actively defending the applicant's claim for nearly two years. The fact that the proposed new defendant is already a third party may, in all the prevailing circumstances, constitute special or peculiar circumstances justifying making an order of the type in question (cf. Archie v. Archie and Smythe [1980] Qd. R. 546 and Grotherr at 152.) Any doubts that the applicant may have had as to the wisdom of suing the Council must have been removed in May 1990 when the First Defendant joined the Council as a third party. If the application had been made then, -- 9 of 13 -- 7 the applicant may well have been on stronger ground. But he has delayed for two y·ears before pressing the application. As I have already said, he cannot rely on the discovery of documents in July 1991 as materially altering his position. Further, though it is not conclusive, the delay between December 1991 and now in prosecuting this summons is not adequately explained. It is not sufficient to say that there has been a change of solicitors during that period. Against that background I am of the view that the applicant has failed to establish special or peculiar circumstances. The application must therefore fail. However it is also necessary that I deal with another aspect of the submissions made to the court. Counsel for the Third Party correctly stated that the applicant's prospects of success in the proposed action against the additional defendant was a material consideration in determining whether or not an order adding that defendant should be made. . This involved a consideration as to whether or not the Council, when exercising its powers and functions under the Building Act with respect to this structure, owed a duty of care to the applicant. That calls for an examination of the judgments in the Council of the Shire of Sutherland v Heyman (1985) 157 C.L.R. 424. As Mason J. observed therein at 463 a "public authority is liable for negligent failure to perform a function when it foresees or ought to foresee that: (a) the plaintiff reasonably relies on the defendant performing the function and taking care in doing so, and (b) the plaintiff will suffer damage if the defendant does not take care. 11 As he went on to say, it is "positive conduct on the part of the defendant or the plaintiff's acting to his ... 0 0 0 -- 10 of 13 -- c c 8 detriment which gives rise to specific, as distinct from general, reliance or dependence." His judgment emphasises that there must be "positive conduct on the part of an authority which attracts a duty of care calling for exercise of a statutory power." Brennan J. also recognised that distinction. At 479 he observed that there is a "distinction between a case where the repository of a statutory power does something which creates or increases the risk of foreseeable damage and that damage occurs and a case where a person is able to foresee that damage might occur but does nothing to cause it." Mr. Couper for the applicant faced up to those propositions and submitted that the "positive act" of the Council here was the signing of the certificate of 3rd August 1979. That, so he argued, was a positive step without which neither the building owner nor members of the public would have been able to make lawful use of the building. Further, he sought comfort in the applicant's avowed awareness of Council's certification as to compliance with the by-laws. In all of the circumstances I do not accept the submission. A similar argument was rejected by Master White in the Garrick Lodge matter and generally .I find myself in agreement with all that was said therein. The true complaint against the Council there, as here, was that it failed to check adequately the work to ascertain that the minimum standards had been complied with. The gravamen of the Council's conduct is a failure to act rather than acting positively but negligently. Bearing in mind what was said in Heyman's case I am not persuaded that the Building Act confers generally a private right of action for breach of statutory duty. -- 11 of 13 -- ------ -· --~-~-- 9 I am not satisfied that the applicant can distinguish the Garrick Lodge decision merely by pointing to the fact that he was generally aware of Council's obligations under the Act. That is not sufficient to establish reasonable reliance on an authority's performance of its function with due care, such as was considered by Mason J. in Heyman at 464. It is not as if the applicant had consciously appr?ached the balustrade and considered whether or not it would be safe for him to lean on it. If that was the position, and if he was aware of the minimum requirements and took that into account in deciding whether or not to lean on the balustrade, there may well be something in the argument. In all the circumstances I have come to the conclusion that the applicant has no real prospects of success in the proposed action against the Council, and that is a matter to which I may have regard in exercising my discretion as to whether or not the order sought should be made. 0 0 CJFinally I would record that the Third Party has proved some slight prejudice. It appears that the offic~r responsible for inspecting the balustrading back in 1979 has retired and it would 0 appear that detailed records of the inspection are not available. Whilst that matter alone may not be sufficient to justify exercising discretion against adding the Council as a defendant, it is a matter which cannot be ignored when looking at the position overall. In the circumstances I would refuse to make an order joining the Third Party, Council for the City of Gold Coast, as a -- 12 of 13 -- c c c c 10 defendant in the action. I will hear further argument as to any consequential orders. -- 13 of 13 --