The Supreme Court has allowed an appeal by Robert O’Byrne Senior and Charis O’Byrne against a decision refusing to set aside a third-party notice issued by Michael Stein Travel Limited. The Court found the company had not explained its considerable delay in seeking to join them to their son’s personal injury action.
The appeal concerned procedure, not the underlying injury claim. The Court’s judgment, delivered by Chief Justice Denham on 19 December 2012, addressed whether the third-party proceedings should remain in place. It did not determine liability for the injuries or the company’s claim against the parents.
The action arose after Robert O’Byrne, then 17, was seriously injured diving into a swimming pool at night during a package holiday with his parents on 18 July 2005. He later sued the travel company, alleging negligence, breach of duty and breach of contract.
In 2011, the company sought leave to join his parents as third parties, claiming they were responsible for his welfare and owed him a duty of care. Its supporting affidavit alleged that they had allowed him to drink alcohol and had failed to supervise him. Those were allegations, not findings in the Supreme Court appeal. The parents disputed the account in an affidavit, and the company’s third-party notice sought indemnity or contribution if it was held liable to their son.
The High Court granted leave to issue the notice in May 2011 and later refused the parents’ application to set it aside. The parents appealed, arguing that the company had delayed too long and had provided no adequate reason for doing so.
The Supreme Court said the relevant period ran from when the company’s defence should have been delivered, not from the later amendment to that defence. It accepted that the company’s January 2011 application came after a very considerable delay from October 2008. Although replies to particulars and the amended defence were among the circumstances raised by the company, the Court said those matters still left a “vacuum of information” about why it had waited.
The Court held that the company bore the onus of explaining the delay, but had provided no details or excuse. It allowed the appeal, finding that the High Court had erred in failing to have regard to the delay and the absence of an explanation. The judgment does not state any further order setting out the resulting disposition of the third-party notice.