UCPR: r.194 granting leave to issue a third party notice out of time

Searle v Solid State Security Pty Ltd and Ors [2016] QDC 193

Smith DCJA

The matter before the court involved an application by the second defendant to issue a third party notice to the first defendant. The second defendant submitted that inter alia no prejudice could be alleged to have been suffered by the first defendant and that the application was not out of time. The first defendant submitted that the application was out of time and that the first defendant was only entitled to indemnity from WorkCover Queensland regarding the plaintiff’s injury to his calf.

Considering the discretion conferred by r.194 of the Uniform Civil Procedure Rules 1999 (Qld), Smith DCJA referred to MGM Containers Pty Ltd v Wockner. Rule 194(1) relevantly provides:

(1) Unless the court gives leave—

(a) a third party notice may not be filed by a defendant until the defendant has filed a defence; and

(b) a third party notice must be filed within 28 days after the end of whichever of the following periods ends last—

(i) the time limited for the filing of the defence of the defendant who makes the third party claim (the prescribed period);

(ii) if the plaintiff agrees to an extension of the prescribed period—the period agreed to.

(2) An application for leave to file a third party notice must be served on the plaintiff.

(3) However, the court may order the application to be served on another party who has filed a notice of intention to defend

(4) If the court gives leave to the defendant to file a third party notice, it may give directions about filing and serving the notice.

As to the discretion conferred by that section, Chesterman J said in Wockner:

[27] … there are good reasons why a third party should be joined in an action where a defendant has an arguable case for contribution or indemnity from the third party against a plaintiff’s claim. Such a joinder ensures finality in litigation, avoids multiple proceedings with associated extra cost, and obviates the possibility that there might be different decisions given on the same issues if tried by different courts

In the present case, granting leave of the Court for the second defendant to issue the third party notice, Smith DCJA made the following comments:

[24] … I am satisfied that there is an explanation for the delay. The fact is that despite the PIPA notice being served by the plaintiff on 14 March 2012, the parties did not participate in a joint compulsory pre-court conference until 20 May 2014. I accept, on the evidence, the delay in convening this conference was caused by disputes between the plaintiff, first defendant and WorkCover (the insurer for the first defendant with respect to workers compensation) on whether the plaintiff’s WorkCover claim should be accepted and whether WorkCover accepted the plaintiff suffered a secondary back injury.

As to any possible prejudice to the first defendant by way of not knowing about the second defendant’s intention to issue the third party notice and the undue complication of the case, his Honour said:

[23] In the absence of material alleging any prejudice (on the part of the first defendant,) a clear inference may be drawn in this case that there is no prejudice. The first defendant was apprised of these issues in 2012 and, thus, was in a position to make enquires with witnesses etc. at that time.

[30] I consider the matters proposed by the third party proceedings will not unduly complicate or prolong the proceedings as they are substantially the same matters which were already in dispute between the parties; in particular the second defendants and the first defendant are partially covered by the existing contribution proceedings. The interpretation of the contract between the first defendant and the second defendants will involve minimal evidence. Additionally, if the second defendants are not permitted to issue these proceedings it may necessitate separate proceedings against the first defendant. If these were heard separately there would be likely to be considerable duplication of evidence, additional costs, and, potentially, the undesirable prospect of conflicting decisions.

The application was allowed and no order was made as to costs.

David Cormack – Brisbane Barrister & Mediator

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