Get the parties right at the start

23 March 2009 Topics: Insurance

Dutney J of the Queensland Supreme Court recently refused to grant plaintiffs the right to join third parties as defendants to their action in the case of Palmer v Finnigan & Ors [2009] QSC 42.

Facts of the case

The first plaintiff was injured at the premises of the first and second defendants in 2001.  He fell from the first floor balcony when the railing gave way.  The defendants were alleged to have known that the railings were unstable, yet did nothing.

The proposed claim against the third parties related to the original installation of the railings over 20 years prior.

In 2004, the plaintiffs’ solicitors were provided with an expert report which revealed a potential cause of action against the original builder or architect as “the railing does not appear to be affixed to any vertical supports”.

The third parties were joined as contributors but no steps were taken by the plaintiffs to commence proceedings against those parties through the PIPA regime.

The Law

UCPR 69 did not operate to permit a plaintiff to add a new claim against a new and unrelated party after the limitation period has expired.  Prejudice to the parties would be sufficient for the Court to not exercise its discretion.

Comments

His Honour commented at [30], “Where the plaintiffs are not able to extend the limitation period legitimately pursuant to section 31 of the Limitation of Actions Act, it seems to me that they ought not to be entitled to achieve that result by reliance on Rule 69 where the need to employ that method arises from a four year delay in seeking to join the new parties.”

In any event, his Honour expressed concern about the “significant real prejudice” to the third parties due to the passage of time and for that reason he would not have exercised the discretion.

His Honour was quite scathing regarding the apparent motive behind seeking to join new defendants to the action.

Print

 

Contact Us

This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.