Bradley James JEROME & Anne-Marie Therese JEROME v Hill & Ors [2000] QSC 91

[2] The statement of claim alleged that the first plaintiff had been engaged by the first defendant but in the defence the first defendant denied that the plaintiff was his employee. It was pleaded in the defence that the first plaintiff and second plaintiff were in partnership with Ladset Pty Ltd ("Ladset") which is trustee for the Hill Family Trust. There is contemporaneous documentation supporting payment of the first plaintiff by Ladset. In the reply, the allegation of partnership is denied. There is a substantial question of fact which will have to be resolved at trial in that regard.

[3] Part of the problem has been caused by the fact that the writ was filed within three weeks of expiry of the limitation period. The defence was filed some months after it had expired. The present application was filed five and a half months later again. It is therefore an application to join a party after the end of the limitation period.

[4] The plaintiffs are concerned that while a partnership is denied the action may fail if Ladset is not a party and it is found that the first plaintiff was engaged by Ladset rather than by the first defendant. Rule 69(1) provides that a court may at any stage of a proceeding order that a person whose presence before the court is necessary, or desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding be included as a party. Rule 69(2) provides relevantly as follows:

"(2) However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies -

(g) for another reason the court considers it just to include or substitute the party after the end of the limitation period."

[5] No specific prejudice has been alleged on the part of the proposed fourth defendant except loss of the benefit of the limitation period. However, the first and second defendants resist the application. The first defendant submits, and the applicants do not suggest otherwise, that the case is one of joinder of a party, not substitution. Counsel for the first defendant submitted that the applicants must satisfy both Rules 69(1) and (2). It was submitted that analogously with applications under the Limitation of Actions Act all relevant circumstances should be considered in deciding whether to exercise the discretion in favour of the applicant.

[6] In summary the case put against that course was that the plaintiffs knew or ought to have known that the proposed fourth defendant was a company which had paid for work done. It was submitted that no explanation was offered why the plaintiffs had not considered taking action against Ladset, nor why steps were not taken to ascertain the correct defendant. Nor was there any explanation of what instructions had been given to the plaintiffs' solicitors concerning the basis of employment.

[7] The solicitor deposed that it was after the first defendants defence had been received that the first plaintiff instructed her that Ladset had paid him although it was maintained that the first plaintiff was engaged by the first defendant to do the work.

[8] The second defendant's submission was that an order should not be made joining Ladset because the plaintiff's case was a denial that there was a partnership with Ladset as alleged.

[9] On the evidence relied on, the first plaintiff has given no explanation why he did not give information to his solicitor concerning the payments by Ladset. Nor has the solicitor given any explanation of investigations made prior to issuing the writ to establish who the employer was. One of the risks in delaying commencing proceedings until the limitation period has almost expired is that this kind of problem will occasionally arise.

[10] The proposed amended statement of claim was not served with the documents supporting the application. It was tendered at the hearing. This resulted in submissions which thereby became superseded being made.

[11] The first defendant alleged that it would be unjust to allow joinder of Ladset for the reasons advanced above. The second defendant's written submissions were to an extent undermined by the belated tendering of the amended statement of claim. They were based on the denial in the original statement of claim that a partnership existed between Ladset and the first and second plaintiffs, and the absence of any allegation that Ladset was in any way relevantly involved. The amended statement of claim now alleges in the alternative that Ladset was an employer, or joint employer with the first defendant. Presumably in due course the reply will also require amendment.

[12] In referring in r69(2)(g) to the concept of the court considering it to be just to include a party after the end of the limitation period, the Uniform Civil Procedure Rules appear to have modified the interpretation of its predecessor, O3 r11, that "peculiar" or "special" circumstances be established as a prerequisite to joinder out of time (Lynch v Kedell (No 2) (1990) 1 QdR 10; Grotherr v Marine Timbers Pty Ltd (1991) 2 QdR 128).

[13] Under the present rule a judgment must still be made as to what is just in the circumstances of the individual case, but the discretion under r69(2)(g) is not as constrained as it formerly was. It, is open to question whether such relaxation is philosophically sound since it increases the tension with the principle that the operation of a statutory limitation period ought not to be lightly dispensed with. But the rule must be applied according to its tenor. This view appears consistent with that of Pincus JA in De Innocentis v BCC (1999) QCA 404.

[14] It is not unlikely that determining what was said by the first plaintiff and the first defendant when the engagement was made for the first plaintiff to do the work on the house from which he fell will be a primary focus at trial. The first defendant is the director of the proposed fourth defendant and on that basis has been well aware of the facts of the incident in which the first plaintiff suffered his injuries. The proposed fourth defendant cannot therefore claim to suffer additional prejudice over and above the loss of the benefit of the limitation provision.

[15] On the other side of the balance, the plaintiffs may fail to recover damages if it is ultimately held that the engagement is not as pleaded by them in the original statement of claim if the fourth defendant is not joined.

[16] There is also the factor that the situation is largely of the plaintiffs' own making in that they delayed commencing proceedings until the limitation period had almost expired. There is also no explanation why information was not given to the solicitor concerning payment by Ladset, nor why the question of the true employer was not properly investigated before the commencement of proceedings. However, those factors ought not to be used punitively.

[17] On balance, weighing up the respective detriments, the proper conclusion is that an order should be made including Ladset as fourth defendant to the plaintiffs' claim, notwithstanding that the limitation period has ended.

[18] As to costs the plaintiffs are seeking an indulgence and there are the factors referred to above which indicate that the problem was contributed to by them. The plaintiffs are ordered to pay the first, second and fourth defendants' costs of and incidental to the application on a standard basis to be assessed.

1. I order that Ladset Pty Ltd be included as fourth defendant to the plaintiffs' claim, notwithstanding that the limitation period has ended.

2. The plaintiffs are ordered to pay the first, second and fourth defendants' costs of and incidental to the application on a standard basis to be assessed.