Australia: Council's application to be released from claim falls down the manhole

Last Updated: 9 November 2016
Article by Robert Parcell

Plaintiffs often join multiple parties to a claim where it is uncertain as to who the relevant Defendant should be. In factually complex cases it is often left open to the Court to decide liability and the responsible Defendant. The recent decision of Bradfield v Moreton Bay Regional Council [2016] QDC 67 ("Bradfield") affirms that the threshold for release from a claim is set high by the Court.

"The Plaintiff . . . fell into a manhole . . . The manhole was usually covered by a heavy concrete collar and steel lid, but these had been dislodged and were found nearby. It was unclear how the collar and lid had become dislodged or which party was at fault."

In Bradfield, McGill SC DCJ found that Moreton Bay Regional Council could not be released from the action involving five parties in circumstances where the Plaintiff was unable to identify the relevant Defendant, notwithstanding a lack of evidence against the Council. This case highlights that even if there is an apparent lack of evidence, a court is unlikely to release a defendant from trial unless it can be definitively shown on the evidence that the defendant has not or will not be implicated in the trial.


The Plaintiff visited a building site to recover a trowel and in returning to his vehicle, crossing a vacant block of land, he fell into a manhole which had been installed for the purpose of inspecting the sewerage line. The manhole was usually covered by a heavy concrete collar and steel lid, but these had been dislodged and were found nearby. It was unclear how the collar and lid had become dislodged or which party was at fault. The Plaintiff brought an action against:

  • the developer of the estate ("the Developer");
  • the owner of the land ("the Owner");
  • the sewerage/water provider ("the Provider");
  • the company charged with sewerage design ("the Designer"); and
  • Moreton Bay Regional Council, as the local authority ("the Council").

Substantial investigative effort was undertaken by each of the five parties although the cause of the dislodgement could not be determined. Evidence was submitted that the Developer would usually be held responsible for defects on the land and that the Council had informed them of such. Further, the ownership of sewerage assets had been transferred to the Provider and were thus not owned by the Council. Thus, the Council brought an application for the claim against it to be dismissed prior to trial based on lack of evidence.


The Plaintiff is authorised under the Uniform Civil Procedure Rules 1999 ("UCPR") to bring a good cause of action against multiple defendants where they are unsure as to who the correct defendant is. A body of case law illustrates that defendants involved in such action should not be allowed out of proceedings prior to trial. In Broken Hill Pty Co Ltd v Waugh (1988) 14 NSWLR 360 it was determined that where prima facie at least one defendant may be at fault the Court is bound to hear the whole of the evidence before deciding there is no case against any other defendant. His Honour highlighted that the underlying rationale was that a defendant might succeed at trial by implicating the defendant who had been previously dismissed as the party who was actually at fault. However, Pao v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 1216 provided that a defendant could be dismissed at summary judgement where there was no evidence and no possibility of evidence arising at trial that would implicate that defendant.

"His Honour fount that the could not be satisfied that no evidence had arisen or would arise that would implicate the Council even though he strongly suspected no such evidence existed."


McGill SC DCJ found that for the Council to succeed he would have to be satisfied that the Plaintiff had no real prospects of succeeding on any part of the claim against the Council based on all the evidence which had been revealed or would likely be revealed at trial. Ultimately, the distinct lack of evidence indicating how the manhole had been uncovered, notwithstanding that it could have become dislodged by unidentifiable means, was problematic for allowing the release of the Council from the action. Furthermore, there was uncertainty surrounding the information held by the Developer and whether that would implicate the Council. Therefore, His Honour found that he could not be satisfied that no evidence had arisen or would arise that would implicate the Council even though he strongly suspected no such evidence existed. The application was dismissed and the Council had to pay the Plaintiff's costs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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