Therese Ellen Binns v Caltex Australia Petroleum Pty Ltd

[2010] QDC 518

[2010] QDC 518

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 2959 of 2010

THERESE ELLEN BINNS	Applicant
and
CALTEX AUSTRALIA PETROLEUM PTY LTD and OTHERS	Respondents

BRISBANE

..DATE 02/12/2010

ORDER

CATCHWORDS

Personal Injuries Proceeding Act 2002 s 43

Leave to commence a proceeding against an additional respondent not included in an earlier order for leave - applicant in confusion as to which of apparently associated companies was the proper defendant - applicant unsuccessfully sought costs against additional respondent, contending that it ought to have consented to leave when the earlier order was made.

HIS HONOUR:  The Court has made an order in terms of an initialled draft which is a conventional one authorising the applicant to start a proceeding against the fourth respondent, Jones Lang Lasalle Australia Pty Ltd in respect of personal injuries arising out of an incident on the 4th of December 2007.

The order provides, at the applicant's request, a cut-off date for starting the proceeding of the 4th of December 2010 which Mr Favell explains is there to make it clear that the Court is not doing anything by way of extending the limitation period.
The order reserves the costs of today.

The circumstances are a little unusual in that Judge Jones on the 24th of November this year made an order that the application be amended to include as fifth respondent Jones Lang Lasalle (Qld) Pty Limited and that leave be given under section 43 of the Personal Injuries Proceedings Act 2002 for commencement of proceedings against the first, second, third and fifth respondents.

Mr Favell, who represents the applicant today, was not before his Honour.  It seems that the matter on that day was stood down while attempts were made by the solicitors to obtain the consent of the fourth respondent to the order.  That was not forthcoming.  The in-house lawyer, who may or may not have some connection with the fifth respondent, apparently is objecting to having been given only an half or so to consider the matter and also advancing the view that there was no basis for a claim being brought against the fourth respondent in any event.

From the Court's perspective today considerations of that kind may carry little weight and Mr Favell has made reference to Davison -v- Queensland [2006] 226 CLR 234 at 241 to make the point that in applications of the present kind the crux is to deal with an urgency situation which has arisen under the statute of limitations. In Davison, in the Court of Appeal, the President referred to section 43 as "No more than a procedural facility that may be granted on terms to preserve the status quo".

The applicant has shown enough, whatever may have been the difficulties on 24 November, to justify the making of the order sought.  The Court's not prepared to order that the fourth respondent pay costs, although understandably the applicant's taken the line that she's been forced to Court on a second day and to engage counsel and submits that she has a case for costs.

Nothing Mr Favell has set before the Court, in my view, justifies a proposition that an entity, even in the situation of the fourth respondent, ought to go out of its way to cooperate with a would be plaintiff who, from its point of view, has left things pretty much to the last minute.

The future will reveal whether the fourth and fifth respondents, assuming them to be associated, or either of them has any proper place in the proceeding.  They are brought in as managing agent for a site in Stanthorpe where it seems that a Caltex Service Station and a MacDonald's Restaurant were trading.  The third respondent was the owner of the relevant site.

The plaintiff's advisors have been uncertain which Jones Lang Lasalle entity ought to be joined. They have thus far focussed on the fourth respondent on the basis of a property management agreement, a copy of which is exhibited to Ms Mulhall's latest affidavit, between the fourth respondent and the predecessor in title of the third respondent.

The other consideration in respect of costs is that, as Mr Favell confirms, the fourth respondent has been given no notice of the applicant's intention to seek a costs order against it.  The in-house lawyer has helpfully provided an email intimating that the fourth respondent, in the interests of avoiding what was suggested to be disproportionate legal costs, did not propose the Court today.

So, order as per initialled draft.

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