Condren v Piper & Ors [1992] QSC 103

,, ./ TRANSCRIPT ·i ( OF PROCEEDINGS ::·;;::;::. ;::;:::~Ui::~ - · State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE. 0. 4000 Tel. (07) 227.4360 t03 (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 KNEIPP J No 198 of 1990 DEBRA PHYLLIS CONDREN and MICHAEL GEORGE PIPER and GARY NORMAN COLLEGE and THE COUNCIL OF THE CITY OF TOWNSVILLE TOWNSVILLE , , DATE 6/3/92 · ORDER - .,_ -- ...... ____ _ Plaintiff First Defendant Second Defendant Third Defendant 1 -- 1 of 5 -- J 10 No. 450 of 1988 ARNOLD ROY CONDREN Plaintiff 20 and MICHAEL GEORGE PIPER First Defendant and GARY NORMAN COLLEGE Second Defendant and 30 THE COUNCIL OF THE CITY OF Third Defendant TOWNSVILLE TOWNSVILLE .. DATE 6/3/92 40 ORDER 50 60 2 -- 2 of 5 -- jI HIS HONOUR: These are summonses seeking orders that the third party notice in each action be struck out, I presume pursuant to Order 17 Rule 7, which provides that proceedings on a third party notice may at any stage of proceedings be set aside by the court or a judge. The plaintiff in the 10 first action sues for damages for personal injury, and the plaintiff in the second action, who is his wife, sues for damages for loss of consortium alleged to have been a consequence of injuries suffered by the plaintiff in the first action. The plaintiff in the first action at the time 20 of his accident was working on a garbage truck owned by the third defendant and driven by the first defendant. He stepped off the garbage truck onto a roadway and was struck by a vehicle owned and driven by the second defendant. A familiar question arises as to whether Suncorp (the insurer 30 under a third party policy) or the Workers' Compensation Board (the insurer under a workers' compensation policy) is liable to indemnify the third defendant in relation to any damages recovered by the plaintiffs. 40 After commencement of the action Suncorp advised the Board that it would accept responsibility and in each action it elected to defend and entered an appearance as a defendant by election. some considerable time later, no doubt because of developments in the case law in this area, Suncorp 50 advised the Board that, as a result of advice received, it had changed its view on the matter and no longer accepted responsibility. It issued a third party notice asserting in substance that the Workers' Compensation Board is liable to 60 3 -- 3 of 5 -- /· I indemnify the third defendant. Hence, the issue of these summonses. Two grounds are taken. The first is that, having elected to defend, Suncorp is now precluded from "" ~ denying its liability to indemnify the third defendant. I was ta,ken through the authoriti~s, or some of them, beginning with Richards and Ha,rrison (1948) State Reports Queensland 172 and ending with Boath NCQME (1986) 1 QdR 139. Whatever may be the ultimate effect of those decisions, in my view they do not assi.st the Board here. The election to defend.was in proceedings in which it was not and is still not a party, the third party proceedings being as separate from the main proceedings as if they had been a separate action. Any consequences of the election to defend can be of benefit only to the third defendant, and perhaps to the plaintiff. In my view, this ground fails. The other ground taken is that the Board is entitled to set up as against Suncorp one or more of the forms of common law estoppel. Now, it seems me what I am being asked to do here is to determine, on affidavit evidence and speculative inference which it is said can be drawn from the material in those affidavits, an issue which should, in the normal course, be the subject of a trial either in the main proceedings or in separate proceedings. I do not think that Order 17 Rule 7 was designed to accommodate this type of exercise. I think that Order 17 Rule 7 was designed to enable a Court to make procedural orders where appropriate, for instance, if the situation is such that it would not be appropriate that the third party proceedings be tried together with the principal proceedings. That is not the 4 10 20 30 40 50 60 -- 4 of 5 -- ! situation here. It seems to me to be e~inently sensible that the third party issues, which, as I have said, should be the subject of a trial, should be tried with the main proceedings io that all of the issues can be determined at the same time by the same judge. I decline to enter, on an interlocutory application, on to any determination of issues which should be the subject of a trial. For these reasons, I think that the application fails. In the result, the summons is dismissed with costs to be taxed. 5 10 20 30 40 50 60 -- 5 of 5 --