Biffin v G W Chaplin (Mine Services) Pty Ltd [1991] QSC 325

..::><... 7( 6 ~ :::s- 1 REVISED COPi.ES .ISSUE 10 IN THE SUPREME COURT OF QUEENSLAND CHAMBERS BEFORE MASTER WHITE BRISBANE, 8 AUGUST 1991 Court Reporting Bureau Date: 3o; '°. I~ No. 1777 of 1986 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of theChief Court Reporter,Court Reporting Bureau.) BETWEEN: KEVIN RICHARD BIFFIN -and- Plaintiff G.W. CHAPLIN (MINE SERVICES) PTY. LTD. Defendant JUDGMENT MASTER: In this application the defendant seeks 3c leave to amend its defence and to deliver a counterclaim against the plaintiff in accordance with Exhibit "G" to the affidavit of Stephen Geoffrey Quinlan. 40 60 The action is one for damages for personal injury alleged to have been caused in the course of the plaintiff's employment as a project manager with the defendant. The plaintiff sustained a blow to his back from a light pole which struck _him when. he was in a collapsing trench. This occurred on about 27 June 1973. The plaintiff had sought an extension of time pursuant to s.31(2) of the Limitation of Actions Act 1974 within which to bring an action for damages for negligence against his former employer. The plaintiff alleged, and His Honour Macrossan J., before whom the application was heard, accepted that the plaintiff was t0ld and therefore knew that 1 ! 1 \I i t 10 20 30 40 50 60 -- 1 of 4 -- 10 20 30 50 60 he had a serious depressive illness arising out of his w6rk- related injury at the earliest on 29 April 1985. The application was brought by originating summons dated 21 April 1986 and heard on 12 May 1986. His Honour extended time to 29 April 1986 for bringing the action which caught up all the other physical injuries said to have been caused by the blow on 27 June 1975. The writ issued on 29 June 1986. The statement of claim was delivered on 17 March 1987. The defence was delivered on 9 April L987. That defence merely denied negligence making no a.llegation of contributory negligence which is surprising in view of the fact that the plaintiff had pleaded that he was the project manager in his statement of claim. The action has been set down for trial for three days from 19 August next. The defendant by its counterclaim seeks to set aside the order of Macrossan J. extending time on the ground that it was obtained by fraud or, at the very least, that essential evidence was negligently suppressed from the court. The allegation advanced by the defendant is that the plaintiff knew prior to 29 April 1985 that he had a depressive illness and had not disclosed this to the Court. The defendant who is,.in reality, the Workers' Compensation Board obtained an adjournment of the extension of time application to investigate the plaintiff's allegations, but although it opposed the application it was apparently unable to put before the Court material which it now says demonstrates that the plaintiff knew of his psychiatric condition at least several months earlier than he indicated to the Court. 2 I,' 10 20 30 40 so 60 -- 2 of 4 -- 10 30 60 A report of Dr. Cantwell dated 16 October 1986 and received by the defendant's solicitors on 12 October 1988 refers to Dr. Cantwell having ~reated;the claintif~~or .. . • r • depressive illness as early as 1975. In his answers to interrogatory no.22(b). the plaintiff sw6re that he ·first experienced depressive illness in 1974. The plaintiff now deposes that this was a typographical error. I have been -referred to some of the authorities on setting aside judgments said to have been obtained by fraud. This action has a different aspect to most of those authorities in so far as the substantive action has not yet been heard. The judgment sought to be set aside was an enabling decision of this court. I cannot say, on the material before me, that the defendant will fail on the question as to whether the facts alleged can be characterised as "fresh". See Wentworth v. Rogers (No.5) (1986) 6 N.S.W.L.R. 534. Neither can I say that the defendant will be unsuccessful in such an application. The question of delay looms very large. However, I accept the explanation .set out in the affidavit of Mr. Quinlan. It is with some hesitation that I have concluded that, in the circumstances, this is a matter which ought to be ventilated and, accordingly, I propose to give leave to the defendant to deliver a counterclaim in this matter. The other amendment. alleging contributory negligence and giving particulars thereof is however a different matter. Nothing is suggested why this could not have been raised in the original pleading. The prejudice by mere passage of time is apparent. Accordingly, I do not allow 3 10 20 30 40 50 60 -- 3 of 4 -- 10 20 30 40 50 60 that amendment. In the result, the trial cannot go ahead. This was i agreed by both counsel. There was ample time to have brought the --_[=;.plication for amendments and to have saved the trial dates. The defendant must therefore bear the burden of wasted costs. The formal orders are as follows: (1) The defendant have leave to deliver an amended defence and counterclaim in the form of Exhibit "G" to the affidavit of Stephen Geoffrey Quinlan, but excluding para.4A thereof. (2) The trial dates of 19, 20 and 21 August 1991 be vacated. (3) That the defendant pay the plaintiff's taxed costs thrown away as a result of the amendments and the vacating of the trial dates, including the costs of and incidental to the application .. It is further ordered by way of direction that the plaintiff del~ver its reply and answer within 14 days of the delivery of the amended defence and counterclaim. Further ordered that the mutual further discovery be made within 14 days of the close of pleadings. Further ordered "that mutual further inspection take place within seven days of discovery. Further ordered that the defendant have leave to deliver a further set of interrogatories going to the issues raised in the amended defence and counterclaim within 14 days of the conclusion of inspection and answers thereto within 14 days of their delivery. Further ordered that there be liberty to apply. 4 10 20 30 40 60 -- 4 of 4 --