this is our laws 13017 civil procedure we're looking at week fours tutorial problems nine and ten okay so um we might get into problem nine i'll just put up my um little picture here it took me forever to find a picture with a gold-plated harley-davidson that i'd managed to find one um so here we are so davey damien was riding his rare gold plated harley davis motorbike along dodds street we have no idea where dodd street is so that will be one thing you'll need to work out which jurisdiction that's in now you can't answer that for the facts you've got so we've basically assumed it's queensland um when he was involved in an accident with a train at a level crossing right the train destroyed the harley and then derailed causing loss of thousands of liters of motor fuel and pesticide damien sued the train driver for property damage of 810 000 all right so which court would that put that in in terms of queensland on the jurisdiction issue which quarter we're looking at that'll be the supreme court okay so it's the supreme court then we have a situation where the train driver issues third-party notices to various um [Music] entities all right so i suppose we should ask what's what's a third-party notice what's the aim of the third-party notice the ideas to join that third party to the proposed action um in what way it's partially right with a common cause of action between whom well the defender the defendant becomes the plaintiff and the third party hang on the defendant to the original to the original course of action now becomes the uh plinth um in the third party and the third party becomes the defendant in that part of the claim yes good very good okay so let's keep going the train drivers issued third party notice to the state of queensland seeking damages for his personal injuries all right so the original claim was in relation to property damage there was nothing mentioned about personal injuries and then this other third party notice relates to personal injuries so that's something to think about when we get further into this what about the state of queensland is is that the proper entity for this train driver to be issuing third party notices too well it depends um if if he's an employee of a an incorporated body um i i don't know i i think probably queensland really is yeah then the action would be in the name of the incorporated body but um if not um if it's a state if he's an employee of the state the state of queensland i think would be appropriate yeah so basically what you've got to do where in this sort of situation is you have to look for the governing act of the employer and see if there is one and in this case there is an act and we'll look at that a little bit later so it's actually not the state of queensland all right next bit ace propriety limited the manufacturer of level crossing warning bells and say the light the manufacturer and which the company as well manufacturer of the level crossing warning lights and points system so there's third-party notices issued in relation to them as well the train driver feels that they were the ones responsible for the accident both warning systems failed to activate at the time of the accident it's also suspected this is due to a lack of maintenance all right so we'll keep going ace propriety limit seeks to counter claim well what's a counter claim so this is ace proprietary limited seeking to counter claim against damien remember damien's the original plaintiff ace proprietary limited has only been given a third party notice by the original defendant so is is that a problem do you think it is a problem so we'll look at that a bit later because that's that's a problem in itself um sorry stephen can i mention something there yeah sure sure absolutely um would it be a um counter claim or a cross claim because um isn't damian suing um the train driver whereas cyber proprietary is um like it's not it's not dangerous not actually connected are they yeah that's the problem yeah that's what i was trying to get to that's right we'll have a look at that now you're absolutely right there's a real problem with how that's structured um all right we'll keep going and the claims for defamation as well so that's a completely different sort of situation to the property damage claim and the the other claim um which is a personal injuries associated with the third party notice so there's real problems with that anyway that that um defamation said to arise out of an interview damien gave with the news channel as he's been cut out of the wreckage of the harley-davidson but anyway so you then got to advise various people and i always could suggest you do a diagram of these sorts of things so just i don't know if i get it all on one page i'll make a little bit smaller so what you're asked to do is advise damien whether he can and should join or serve any further parties and causes of action referring to the rules and the legislation advice of trade driving advice ace provide limited any difficulties so i think where you start is to actually have a diagram that's what i've tried to produce here so basically you can see there you've got damien the original claim is against the train driver for personal injuries i'm not sorry for property damage then you've got the train driver issuing third party notices against the state of queensland saber light and ace okay you've then got saber light and ace that they want to have a representative proceeding now that's not a class action so don't fall into that error class actions are a bit different they involve at least usually at least seven parties so we've only got two so we're looking at a representative proceeding a possibility there and then there's this notion of a counter claim going back from ace to damien okay so that's your your scenario okay so we got that clear in our minds what this thing looks like stephen so just ask a question here um i'm trying to get clear on my head um parties and causes of action so in this diagram here where demian issues uh third party notice to no no it wasn't damien the train driver oh that's sorry the trend no i'm jump okay i'm jumping ahead yeah it's only the defendant yeah you're the third sorry i'll ask the question later yeah yeah we'll get to that but it's only the defendant who can do that thank you sorry yeah it says that okay so that's our picture i'll just get rid of that for the minute now um a few things um about this so um damian's claim is for personal injury so it's it's negligence a tour of negligence um so we're lacking information about causation uh all of that has to be specifically pleaded um uh in the actions the civil proceedings act tells you all that you know you're requiring complete all those sorts of things um so the counter claim by the by the um [Music] um well well the the actual train drivers trying to say that all of this is due to save a light and ace and you know not actually manufacturing the points and the light systems properly so there's a real question as to who's responsible for this i suppose what i'm getting at um so uh damien's only sued the train driver for property damage the train drivers claiming against his employer which we've got a doubt about um it being the state of queensland so what should damien do confronted with this mess basically damian has the plaintiff if there's a a hint or or more than a hint here that there's potentially other entities responsible for what's happened what should damien do when looking at that yep then you can see there in the chat there get all of the parties to the table that's right so he should be considering joining all of those parties as defendants and ultimately let the court work out who's responsible for what in in the event that you join someone who you might have a a valid cause of action but it turns out they're the wrong party what's the worst that can happen they they well the worst that can happen is it costs against them no well if you're discussing it when we when you look at discontinuance if you discontinue against them then they're entitled to their costs so you know there is a downside to this [Music] that's right the worst lawyer is the one who sees every possible party sues the whole lot and that costs an absolute fortune the better ones are actually you pick your parties you're looking for a party who is responsible who who um who who can actually pay the damages there's no point in seeing somebody who can't although some of these um defendants that they're all george will probably say that they're not wholly responsible for it but it really is the party who doesn't have any money that's responsible for um the the way in which the court looks at it it wants all of the parties there so that it can make a decision which then brings me down to what's the whole purpose of jointer so what is it intended to do why do we have all these jointer rules it helps to minimize the cost of litigation and the time in court when you can join two or three potential cases into one yeah so it's avoiding the multiple what they call the multiplicity of proceedings because they're they're putting you don't want a situation where you have one proceeding another proceeding happening before another judge on the same issues and then another one later on because what can happen apart from all the costs and the court time and everything involved with that is you can actually get it you can actually get inconsistent decisions and the courts don't want that because that then generates appeals which even costs more money and time and if it costs the state more you know provide all the judges it costs the parties more so what they do is they avoid that by requiring all of the parties to be in the one case okay and then there is another principle known as res judacata does anybody know what that means you know well you can't really let it get an issue or a to get a judgment that's already been handed down right now we're going to be very clear here it's not an issue because that's something different it's a judgment um or judgment or or a um yeah judgment on a particular claim so if that's going to be relitigated then you have a defense basically raised due to courage should not be re-litigated because what you're doing then is having multiplicity of suits again so they don't let that happen and that also extends not only to the um the parties but what they call their privys or persons closely connected to the parties and the claims so or you know people who should have been in the original proceedings if they weren't and it's that's also known as cause of action estoppel same thing so it's all designed to prevent multiplicity of suits now we'll go back to the other issue you mentioned which was issuer stoppel what's the point of that that's something different what's it looking at it's an issue that's the key to it it's looking at an issue so where there's a judgment on one element or or an element or an issue that's common to two or more sets of proceedings involving similar parties then that shouldn't be re-litigated because the judgment has made a determination as to what the result is or what the answer is to that particular issue so again it's designed to shrink the size of litigations why because it's all about costs delay and access to justice those three basic principles it's avoiding costs because you don't have to argue that particular issue because it's already been resolved in relation to issue with stoppable if you're talking about residue residue to carter it's preventing costs of having multiple proceedings then you've got delay the more court cases you have the greater the delay so it's avoiding delay and by virtue of those two things it's creating access better access to justice uh in the sense that there's more judges to resolve the dispute and it's reducing the cost so it makes it more economic to the extent that any of this is economic but it makes it more economic um to um have these principles and not re-litigate issues so i'm going to put my chat on okay so rachel how does the apportionment provisions within the civil liability act which allow a decision to be made against a party who was not present interact with this so the civil liability act does apply to all litigations so it works together with the civil procedure rule so where you have provisions in that act they will apply so if they do make a decision against a party who's not present well they're going to be bounded they're going to be bound by that um but ideally you should have a situation where all of the parties have been brought into the litigation and that's how it should be resolved so stephen if i can just ask the question that's itching me now like i would have to have a reason to include all these parties um in a claim so um with respect to the train driver that's straightforward then with the state of queensland or whatever it is it's vicarious liability and then with is and cyber is it um like negligence assuming they were responsible for the maintenance of these warning systems yes that gets that gets them all in does it yes okay that's right but if you were dying you would be suing them for property damage because at the moment he doesn't he hasn't brought any claim for personal injuries that's right yeah damage so that his claim would be in relation to property damage yeah but you get them all in because all of those people and entities are potentially responsible for what has happened right you know to varying degrees and there is the economic aspect that uh both those companies may have deeper pockets than the train driver well probably that's the case who knows you'd have to look at what the companies were worth but um and the train driver you've got to be careful with the train driver when you think about there's not much a train driver can actually do is there they're sitting in the train it's on a track it's got nowhere else it can go all he can do is put his horn on and step on the brake and that's about it what else what else can he do um so you know you have to bear that in mind you might look at it well what actually caused this problem now if he didn't break or he didn't put his horn on then you might say well um potentially that those actions indicated that he wasn't watching what he was doing and he took no evasive actions and therefore you know he's responsible for this or and he's like you know his employers vicariously liable so anyway um so we're clear on what uh residue to carter is uh and what jointer is and what issue and stoppal is so now we come down to damien so um if you look at the who are the necessary parties there is a a rule in the ucpl rule 62 which talks about necessary parties and there's also rule 65 which he talks about including multiple parties in the proceeding okay so if we're looking at this from the perspective of damien looking to join ace and sabre as defendants then um when you look at 62 necessary parties it says each person whose presence is necessary to enable the court to adjudicate effectively and completely on all the matters in disputing the proceedings must be included as a party to the proceeding so there's your primary rule about avoiding multiplicity of suits get all of the parties in front of the judge in front of the court okay and then 65 inclusion of multiple parties in a proceeding 65 sub rule 2 is the one to look at and it says in a proceeding two or more two more persons maybe defendants or respondents if okay so at the moment we've only got the train driver but if there is a doubt as to the person from whom the plaintiff or applicant is entitled to relief so if there's a doubt as to who's responsible this is a sort of situation where you'd have more than um one party or the respective amounts for which each may be liable so again that comes down to the question who's responsible for what what's the you know the percentage responsibility if you want to put it that way uh so that's to 65 to a and then or this is 2b damage or loss has been caused to the plaintiff or applicant by more than one person whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or the applicant now there is a factual connection here all of these events are all tied up together the the lights the points the train on the track the train driver driving the train um and the player's motorcycle and the player presumably being on the track at that point when there's a collision so it's clearly all connected now where that would break down is in relation to the defamation claim because you see that's not connected that's an after the event that's a completely separate type of claim um but in terms of the actual accident itself all of those events are sufficient to enable multiple parties to be joined okay so um just looking at the the state of queensland issue the the act you need to look at as the queensland rail transit authority act 2013 section six and seven which tells you that that's the body um who sues and can sue or be sued in relation to rail incidents okay queensland rail transit authority act 2013. all right so if damian has to join all these other people how does he do that he's got to amend his claim and statement of claims where does he how does he do that he's got to rely on another provision of the ucpr 69 or 375 might be better have a look um 375 is the provision that enables you to amend your claims and statement of claims what is 69 saying 69 in front of me you got it in front of you i can look it up as well i think that was um including substituting or removing a party oh okay yeah let me find that um i could look that up while we're speaking you see how big queensland um yeah that live well that's loading so um yi's raised a question there we're not told in the question that the state of queensland is the employer are they uh sue because they own or operate the railway no well we've answered that it's the actual operator is that transit authority uh and they're sued because that transit authority employs the railway driver and they are vicariously liable for the driver's actions okay uh now hang on we gotta do what was it 69 okay let's just have a little look at that one and just bring that up choose green oh yeah okay let's try and make that a bit bigger um including substituting or removing a party okay person has been properly a person who has been properly or necessarily included used to be can be removed or it's not that and then yeah 1b any of the following persons may be included as a party a person whose presence before the court is necessary to enable court to adjudicate effectively completing well that's definitely the case um those other parties are necessary but even under that second hit and b two would be desirable just convenient effectively julia would fall within that as well but i think they're actually necessary to resolve this but you notice there it says the court may at any stage of a proceeding so that's actually a discretion so you actually have you you're effectively asking the court to exercise that discretion to enable that to happen the only thing that's really critical here actually arises in that second part of that provision about the limitation periods so that's one thing where courts are um very sensitive if you've got a defense based on the limitation period uh if you're trying to add somebody uh who's got a defense or the limitation period has ended they've got a defense then there's all sorts of specific rules about that which you can start to see occurring at 69 some rule two i see that also applies to 375. yes it does 63.76 yep it does amendments after the limitation period yeah yeah so either of those well they're not inconsistent those provisions really i suppose it's um a bit of duplication in some ways but anyway the main point is that um damian will be allowed to amend his claim and statement of claim we've got no problem about limitation periods expiring because you've got three years in relation to the personal injuries part of it but for the property damage it's longer um so there's no issue about that on our our problem the other aspect of this is that um what what do you usually have if you've got a motor vehicle or a motorbike you'll usually have some form of insurance so there might be um you know options under the motor accident insurance act so we won't go into that just raise that as another possibility here in this sort of scenario um normally you'd be sort of thinking about accidents between cars and motorbikes and not with a train but um that might be a possibility to look at as well is the motor accident insurance act purely for personal injury that would be for personal injury that's right so it's it's not property damage so if he did wanted to if he didn't want to um pursue a personal injuries claim if he had a personal injury and we're not told that because he's only ever gone for um property damage but certainly personal injury that's what you'd be looking at yeah well saying as he was cut from the wreckage it would seem a little bit um you think he would have i mean that's the sort of the implication but at the moment he's not suing for for personal injuries um [Music] yeah that's right put that in okay all right so um now the other aspect to think about as well um is that the civil liability act itself um in section 52 actually limits the types of damages awards you can get so um that would be something else just to keep in the background i mean our problem today is more about joining but i'll just sort of throw these extra issues in there because you can't get exemplary or punitive or aggravated damages so it does cut down the amount of um potential damages you can get um so that's something just to keep in the background but in terms of jointer are you are you happy or clear in relation to what um damien should be doing okay find a new lawyer yeah right there's a lot of these problems when you actually start to delve into them isn't there anyway the next thing is you've got to advise the train driver whether the third party notices are valid okay so i might share this screen with you so we actually have a look at the provisions okay so um looking at these third-party notices remember they are against the state of queensland saber light uh and the other one i've completely forgotten the name off at but anyway so if you have a look at the provisions um all right so if we look at 191 part provides for third-party procedures in a proceeding startup started by a claim now we have a proceeding started by a claim and damien started it okay third party proceedings starts with the third party notice is issued okay so that's reliant on the train driver who's issuing that notice then you can see then all these provisions in various um part of this part and these rules apply in relation to third party notice as if the notice were a claim and the defendant making the claim were plated so this is what was um mentioned earlier whereby the in terms of the third party notice the train driver who is the defendant to the original claim now becomes a plaintiff in effect and the state of queensland saberlight and the other one becomes a defendant in relation to this third-party notice okay so just bear that in mind because it can get confusing when you're not used to these things when you know suddenly we have more people one part of it or known as a defendant the train driver but in respect of another aspect of it they're really a plaintiff because the the notice is actually perceived as being a claim okay so that's 192. the reason for the third-party procedure defender may file a third party notice if the defendant wants to okay now it's not a contribution or indemnity as such because um there's a problem isn't it because it's not a contribution or indemnity for the property damage because that's in the original head claim it's about property damage this third-party notice is about um damages for um personal injury i think wasn't it yes which is which means that you're going to rely on 192b claim against a person who is not already a party to the proceeding relief relating to or connecting with the original subject matter the proceeding and substantially the same as some relief claimed by the plaintiff now you can see that this we're starting to get some problems here because it's not actually the same relief claimed by the as claimed by the original plaintiff okay so um let's think about that for a second so let's look at the third party notice to the state of queensland in respect of personal injuries okay it's a personal injuries it's not related to the proceedings for dame brought by damian for property damage so that third party notice is invalid because it doesn't meet the requirements of um rule 192b so there's that issue plus the state of queensland it's not connected to the to to um the railway driver anyway because they're not his employer so they're just like somebody on the street in effect or the man on the clapper mommy muscles they used to say so um in which case it comes back to who exactly was negligent in this matter the railway driver or the train driver could go right back and counter claim against damian for personal injuries who's to say that damian wasn't just idling on that absolutely yeah yeah exactly right that's exactly right so this third party notice from the state of queensland is abs it's just flawed on several dimensions isn't it all right um what about the third party notice to ace and save a light so we're not it doesn't actually tell you if that's in relation to personal injuries or property damage i don't think from memory so if it is actually in relation to the property damage part of it then it would fit within the requirements of 192b because it is substantially the same relief as claimed by the plaintiff so they would be valid if it was in relation to personal injuries it wouldn't be valid on the same basis as the state of queensland one wasn't valid but if it's property damage it would have been being the property damage relating to the um harley-davidson okay but there's also the property damage relating to the train that derailed and it lost thousands of liters of motivation but the train driver doesn't own the train no that's right but his employer could potentially have a suit which is not listed here oh yeah yeah that's that's right that could be a whole other whole other whole another ball yeah so this this little accident at the train crossing has got a lot of twists and turns in it when you actually start to look at it um yeah so that could be that could be another action but anyway we haven't got that on facts it's complicated enough as it is all right so um if the train driver wanted to include additional parties in a counter claim how would that work now the train driver is not counter-claiming against damien for personal injuries at this point okay but he must have been he or she must have been personally injured because they were seeking to make that claim against the state of queensland so if damian um was contributory negligent or that if they were contributing negligent by leaving their motorbike for example on the level crossing um then there is a potential for a counter claim brought by the train driver against dania okay now at the moment um the plaintiff is not a party to any counter claim but if if you're going to do that which provisions would you use if you have a look at um 178 ucp r178 that's the provision that talks about counter claims against an additional party um but there could be a counter claim directly against the um against damian but the only way you can get a counter claim against a person who's not the plaintiff that's damien in the original action would be if the plaintiff was also made a party to the counter claim and that's why i mentioned 178 so it is possible to go after other persons other than the plaintiff but the only way to do that is if the plaintiff has made a party to the counter claim okay so 178 179 through to 181 it's all about counter claims all right so that's probably enough there i mean there are other provisions which enable like a trained driver to seek what's known as a contribution from the queensland rail transit authority and that's under another act known as the law of formax 1995 queensland section 6-3 and that's possible um under the law of form act 1995 so contributions are possible when you look at that provision i'll put that on so if we have a look at this raw law reform act 1995 it says proceedings against and contribution between joint and several taught phases so taught features they're essentially the ones who are responsible or have caused this breach of a tort so where damage is suffered by any person as a result of the tort it doesn't matter if it's a crime or not and you go down to c any taught fees are liable in respect of that damage okay may recover a contribution toward our contribution a payment towards the damages that that first tort leaves them i have to pay may recover a contribution from any other talk visa who is okay so that is who is um or would if sued have been so you can see what ifs would have been they haven't been sued so they're not a party yet um who is liable in respect of the same damage whether as a joint taught fisa or otherwise so there are other provisions that enable the um [Music] the train driver to get a contribution from other parties if for example um the um plaintiff hasn't joined these persons who's received this third party notices as defendants so there is a way of doing that through this backdoor route under this provision but anyway look i think for our purposes at the moment i've included that there it's that that's probably more than i'm expecting you to know i think what we really need to ensure at the moment is that you understand the basic principles in relation to residue to carter issue estoppel you know what that means that you understand um that the plaintiff sues the defendant that the defendant can issue third party notices um but to be valid they have to be in relation to the same events or causes of action and um in this case damages brought by the original plaintiff that you need also to be very aware of who potentially can be liable both as a defendant and uh or under a third party notice when you're confronted with something like state governments where they have lots of agencies and bodies you need to look in in their respective acts that govern those agencies to see uh in what name they could be sued because if you commenced your proceedings in the state of queensland they could could easily argue well we're not a not a valid defendant because um there's an act that says who the defendant is and it's not us so that's what i'm really um concerned with when you're confronting problems like this okay so some of these things that i've included there like these contributions that's getting a lot more advanced than i'm expecting um so don't be too concerned about that last little bit all right it's the basic principles we want to make sure that you understand now the next the next bit of it um is you've got to advise ace proprietary limited of any difficulties with its counter claim and in representing saber light so ace proprietary limited has got a problem because it can't counter claim against damien and the reason is that ace is not a defendant it's a defendant who brings a counter claim and um ace proprietary limited is not a defendant in the proceedings brought by damian they're only a defendant to the third party notice which is the secondary proceedings not the original head proceedings if uh if damien were to join damien joined them yes if they were joined as a defendant yes they can then have a counter claim but he hasn't done that yet uh is ace prevented from bringing a completely separate suit against damien for was it uh defamation um inside of the existing what i'm saying is if if no if damien doesn't join ace that's not going to necessarily prevent ace from bringing an independent except no but you've got another problem the defamation act section 9 says corporations can't sue for defamation so don't don't join don't join there are some exceptions and things here but none of them helped so yeah watch out for weird provisions like that in other bits of legislation so she should put that up because it's it's quite interesting when you look at that because it's not something you'd sort of naturally think of so here's the provision here in the defamation act so certain corporations do not have a cause of action for defamation a corporation has no cause of action for defamation in relation to the publication of the defamatory matter about the corporation unless it was an excluded corporation at the time of the publication it really takes you back to statutory interpretations doesn't it so the next thing is what what is an excluded corporation okay and then it tells you a corporation is an excluded corporation if the objects for which it is formed do not include obtaining financial gain for its members or corporators so that's not going to fit i would have thought save the light because i suspect they're in the business of making these lights and things to make a profit so it's not not-for-profit type corporations would be excluded or and says also there are alternatives next bit it has fewer than 10 employees and is not an associated entity of another corporation so we would have to look at how many employees say the lighthouse um if they have fewer than 10 there may be an excluded corporation and then they can super defamation but if they're big if they're bigger they can't isn't that a weird provision but anyway that's the problem with the defamation manner yeah so you've really got to keep your mind open when you're looking at the parties to a litigation and potential claims and if there's legislation around any of those things you've got to work your way through it make sure there's none of these provisions that can catch you out like that one would that'll catch out most people because you don't necessarily think oh there's something in the defamation act about that but there you go all right um now so that ended the defamation claim the um the other one is this notion of a representative okay so the provisions there um the main thing i want you to to be cognizant of is that a representative action is different from a class action they're different and distinct but they're they look fairly similar on the face of it but they are different at different rules so essentially a class action is a much bigger sort of action than a representative proceeding so for class action you've got to have at least seven group members that's under the civil proceedings act 2011 section um 103 b now a representative party a representative proceeding you have a look at ucpr rule 75 and it says a proceeding may be started and continued by or against one or more persons so you know it's not limited to seven or anything who have the same interest in the subject matter of the proceeding as representing all of the persons who have the same interest and could have been parties in the proceeding so you're going to look at what same interest is and the sorts of things that are relevant there is there's a common interest grievance or relief that they're all trying to seek and then ucpr rule 76 talks about the and making getting an order for representation now it says at any stage of a proceeding brought by or against a number of persons of the same interest under rule 75 the court may so there's the discretion the court may appoint one or more parties named in the proceeding or another person to represent for the proceeding the person's having the same interest so ideally what you would want would be saber giving authority to ace to be its representative that would be handy but that's not fatal because the court has a discretion but you're going to actually have to bring them into locker tree application to get that court order so it's going to cost you money to do that but in a nice it would be nice if it was a consent order it's a lot cheaper there's no argument um but if there's an argument around who's representing whom that you know you you're looking at your usual five thousand dollar plus cost to resolve that um question so the answer to that is yes you can have a representative proceeding uh the court can order it there would need to be an interlocutory application you'd hope that it was a consent order so you would saber should be um or who is going to be the representative should be asking the other one they want to represent for their consent just to make it easier all right so just having a quick look down that chat again and ye if the third party notices are invalid doesn't mean the train driver needs to initiate separate climbing that said yes yes that's right all right all right you have enough of that problem all right 15 minutes to do the next one i'll put up my little um picture of the car there you go all right so the next one on the 4th of november last year christopher chase was involved in a motor vehicle accident in which he suffered personal injuries and property damage okay so he's injured and damaged to his brand new porsche okay the 20th of january this year um his solicitors issued and served a statement of claim in respect of the property damage so they forgot to include the personal injuries okay on the 25th of march this year the defendant nancy rieden delivered her defense so we've then got the defendant putting in their defense um before there's this um attempt to amend the statement of claim to add the damages for personal injuries as well as for the property damage now what's the impact of that on nancy who's the defendant what's the problem here from her perspective what is she sorry sorry vivian vivian what did you want to say that's okay expenses should have spent money already that's right she's forked out the costs for her solicitors to breed for barrister probably um only in respect to property damage and now all of a sudden it now has got a damage displayed so they've got to now prepare and brief the barrister against all of that all of that costs money maybe the solicitor's term did it all but it's still going to add costs and it would have been cheaper if it was all done at the same time so um that's that's the problem so oh yeah that's probably that i should look that up a little diagram i like these little diagrams um so there you have it uh the accident was on the fourth of the eleventh and i put x minus one meaning that it was this year minus one um a service of statement claimed property damage so there was 77 days or thereabouts between those events 64 days between service of the statement of claim and the defense being delivered and then a 10 days after that the amendment of the statement of claim so why have i got all of these dates in there why why have i put the days in what should christopher chase's lawyers have done during that 77-day oh well no after service actually during that 64-day period after service of the statement of claiming statement of claim what should they have done in that 64-day period they should have got okay i said what sorry baby what did you say they should have got a default judgment i think somebody just mentioned it in the chat they could have got a default judgment and how many days after services statement claim could they get this 28 days they could have got a default judgment in relation to the property damage um anyway they didn't do that um the defense was delivered and so it went on okay i just want to point that out because you know um that was a bit of an error on their part if they're seeking to amend you can um you know it comes back to these provisions we were talking about uh earlier there's a power to amend under rule 375 um so that says you can amend at any stage of the proceeding or at any stage of the proceeding the court may allow again wherever you see the word may associated with the court it's a discretion may allow or direct a party to amend a claim anything written in the claim a pleading etc and then it says the court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started that's what we've got here isn't it it's a different cause it's a different cause of action because one was in relation to property damage and the other ones in relation to personal injuries so it is possible under rule 375 sub rule 2 for the court to give leave for that to occur so um there isn't an issue in terms of the limitation period so those provisions relating to rule 376 don't apply um but 377 talks about amendment of the originating process so you would have to amend the claim as well that's the originating process and you will need leave of the court so there's going to have to be an application to seek leave of the court to amend the originating process to include this other claim and then to amend the pleading which is the statement of claim as well there's two things so it'll then come back down to the question will leave be granted okay so nancy might may well object and say you know i've got all of this added cost i've suffered all this prejudice etc etc so you can see how she'll argue all of that so um there's case law on this so i've included a few cases um since it's a discretion all sorts of things can arise so what we know what nancy would be arguing what will our plaintiff be arguing here what's christopher chase going to argue what's his argument we're all in front of the you know the chamber judge now what's the argument going to be for christmas christopher chase so how would you approach it if you think about it how would you approach this question you've stuffed up basically haven't you well i've got something i've got something in mind but i don't think it applies here it's more to do with the negligence of your lawyer in the fact you instructed your lawyers to proceed people make mistakes they dropped the ball they dropped the ball and you know you would you certainly wouldn't be expecting a bill from them would you in relationships um so what what's your argument going to be to the judge who's now looking at you and tapping the bench and saying you know if you're not going to say anything you're going to be chopped out of the chamber so what are you going to say what's your argument is it a situation where you should confess and avoid you know what i mean by that you say um you know the barrister stands up we acknowledge that um the um the pleadings omitted or the claim and the statement of claim admitted to include this other claim and you know and that they um acknowledge that this has potentially caused some prejudice and um added cost to the to the plaintiff so that's your confession and then the avoiding bit would be what what's the other part of the argument so let's confess and avoid so what's the avoid be what would you say you'd say that it's not in the court's interest or in the interest of the plaintiff that he's unable to make a claim for personal injuries particularly into the future and for the losses that he's going to suffer well that's right we firstly you would be saying well that's that's the sort of multiplicity of proceedings bit of it but the other bit is you could say you know we acknowledge that there's been some prejudice and that there has been some cost but that can be cured we can compensate the um the defendant for the costs incurred we're willing to pay those uh it and we'd be saying that the prejudices is minimal there's been no um expiry of a limitation period um uh there's need no death of a witness or anything like that and that um um that really their loss and prejudice can be compensated and it's in the interest of justice that the whole proceeding be determined um through this amendment and you can refer to cases like a on risky services and australian national university um that um you know you don't want to clog up the courts with multiple proceedings and you know that ion one was a bit different because we're talking about a situation which is very early on in the litigation it's not as if it's right at the end of the case where a lot more costs have been incurred um it's early on so they're the sorts of arguments that you would be um running um and um the court will make its decision based on those you know what it considers the weight of those competing arguments to be [Music] so natalie's saying that you certainly don't admit liability in terms of the claim but i mean i don't think it's it's um it's wrong to um recognize the fact that you made an error in not including that in the original claim you're not admitting liability to the claim for example um but you know you don't have to confess you can just say that you can just just have the avoidance part of it if you want and just say that um you know the prejudice can and the costs can be cured and that you're willing to compensate the um the plaintiff's costs that have been lost because of this um situation i suppose there's an element though of saying look we did we didn't change our mind and decide to add this at the last minute that we did forget it was an error on our part yeah there may be some there may be some benefit to making that admission yeah that's that i think there is some benefit in doing it but you don't have to but you do have to cover the prejudice and cost issue because that's the key argument that the um defendant will have comes down to legal linguistics as well it comes down to legal linguistics as well an error was made not we made a mistake well yeah true so stephen if the court says no declines your application are you you're um you're stuck with it unless you want to try and take it on the field do you just discontinue the proceedings and start again or well you could actually discontinue and then um the net result of that would be that you would have to pay all of the costs of the um defendant but it's still within the limitation period so you could start again um and do it properly so there's always that but of course if there'd been a limitation period intervening that would be another story but um on our facts we don't have that problem yeah you could just continue and start again you could start again with a new law firm and then so the previous one for negligence to recover that you could you could um i think at the end of the day it's best to avoid litigation in the first place you don't want to you don't want to have compounding litigations you certainly don't want to have the bill from that law firm you shouldn't be charged where they've stuffed up like that um but your damages i mean what actually is your damages when you think about it you're still able to bring your claim you've had to compensate the your damage is basically going to be what you'd have to compensate the defendant if you were if you um didn't continue with the proceedings and then have to start again that'll be that'll be the extent of it so it's not going to be a huge amount of money uh so the cost of doing that might not be worth it it might just be a case of of sticking with you or um either sticking with your law firm and getting them to fix it so that they're going to carry the costs of a lot of that um you wouldn't know what those costs would be from the um scale of fees in the ucp when you can well yeah and you can always change solicitors you know you can fix that mess up with the existing ones if you wanted to and then change solicitors after that um so but anyway look you just got to bear in mind the costs taking litigation you know commencing litigation is not something you do lightly it's a really really expensive um and the last thing you need is two sets of lawyers bills so this is an unfortunate situation so i think if it was me i would be getting that law firm to fix up the situation and not be expecting to receive any bill in relation to that and i would be expecting that the law firm would be paying the costs uh in fact the courts can order that too is it fair to summarize the situation as a damage limitation exercise for both the law firm and the plaintiff yes yeah you're really trying to minimize the costs and expenses of all of this um and if you're rational and not well if you're rational about it you look for the cheapest way but then again not everyone is rational so you know realistically you want to keep the cost down as as much as possible and get this action framed properly um and then go from go from there i mean they've stuffed up a few times they've stuffed up in framing the action they stuffed up by not getting a default judge or even you know they should have done that that would have been dead easy that's not to say it couldn't have been set aside then the defendant would have been paying you the cost for that so anyway all right that is basically it 702 look at that we're actually a bit better on time this week so um how's the assignment going have you starting to get into that yep no one's saying anything all right yes yes we have broken ground yes broken ground well that's good you want to make sure you start that um stephen may ask a question um when i read about a registrar in the act etc etc is that a judge who has assumed a particular role or is it a separate can you just a registrar is essentially an administrative officer so registrars are employed by the government judicial officers are a different branch of government so you've got effectively the department of justice who employs the registrars and then you've got judicial officers it is possible to have to make it more confusing it is possible to have judicial registrars so they they're still not judges but they can be delegated some of the judicial powers but they're still employees of the um of the state of queensland and they are legally trained persons uh well these days they tend to be but historically no um no so some of your registration will be officers you know they'll be people on the counter in the um in the registry so then they're they're tradition they're not judicial officers they're a completely separate branch okay but they're very important the whole place wouldn't function without them well it's just they they give me calls for thought when i saw some of the decisions that they're empowered to make um something they they they really do uh they're simple matters they've been given simple matters to free up the time of the judges to deal with more complex status essentially they're administering these sort of things like a default judgment they'll bring you essentially you'll have all of the documentation and they will check through it to make sure that everything's there before it's you know stamped in the registry so they you know that's basically their role um even judges associates uh they can have because they're they have roles as well so they're sheriffs as they have multiple roles so um anyway that's a whole other issue anyway now registrars are judicial officers they're administrative people employed by this essentially the department of justice whereas the judges aren't employed by the gut they're a completely separate branch of government yeah all right all right so we're reading week five material that's good have a read through that be conscious of the amount involved and look for the cheapest option that's my advice on this if you go for more expensive options you won't be wrong but the cheaper option is always the best result for your client if if the options include qcat where you're not necessarily going to be allowed to represent your client although it's cheaper is it necessarily going to get them a better result well you're not representing them in the set you can give them advice as to how they might fill in various forms but you know you can write your pleadings for them but you're not you're not sort of arguing in in the face of the tribunal but you can assist them with documents yes yes and then you have to you need to look at the costs of those approaches and then if you get the final result if you go that tribunal route how do you then you know how do you then enforce it and um [Music] etc how do you do with the state service how do you um can you get a default judgment can you how do you enforce our qcat default judgment so you need to look at all of those sorts of things and and the various costs because there's links between qcad and the magistrate school so there's avenues for getting things registered and it's um so it all comes down to costs as well so have a good look at what the costs are filing in a magistrate's court what's the cost of filing in somewhere like qcat um how the forms should you fill in and ultimately uh how do you get it enforced because remember you're trying to help your client to ultimately get compensated so have a think about all those sorts of issues there's plenty of materials about qcad um on the on their website it's fuller and they have good search terms and things there's lots of materials because it's designed to help self litigants do things but um it can be could be used for people who have some a little bit of advice as well that it's not um you're not acting in the face of the tree you know you're not turning up to the tribunal and arguing it for the person that's a different sort of situation okay all right we might stop there it's good to see you all so um persevere get stuck into that this weekend and um get that out of the way and then we can um we can move on now next week i'm just thinking the timing of everything you think next week's tutorial um is it not mid-semester break next week okay is it mid-semester break you actually take it ivan [Laughter] well i'm just thinking i mean what i can do to help you i'm just i'll have to have a look at what the um sort of the next questions are uh there's a lot of them there's a lot of them but um maybe what i can do is is is give you some answer guides to those in advance so that if any of those are relevant to your um [Music] um assignment then you've got the advantage of that is that fair enough sounds good okay and then we can um come back um if next week's mid-semester right now we're quick didn't it then we can come back the week after we'll go through the problems and then discuss them how about we do that all right okay we'll call it a night next week the week after thanks bye thank you everybody okay hi