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[2015] VCAT 1658
General information, not legal advice.
Victorian Civil and Administrative Tribunal
2015-10-27
Original judgment source is linked above.
[1] Page 4 of application form, grounds of claim, in BP144/2014.
[2] Paragraph 23 of written submission dated 30 July 2015.
[4] Hunt & Hunt v Mitchell Morgan Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 at 625.
[5] Sub-section 23B(1) of the Wrongs Act.
[6] Sections 24AE and 24AF(1).
[10] The Part does not apply to certain claims as set out in section 24AG, such as personal injury and specified Acts (eg, injury, transport accidents, workers' compensation, victims of crime and equal opportunity legislation).
[11] Refer to cases considered below: Godfrey Spowers; Main Road Property Group; Dartberg; and Suncorp Metway.
[12] [2009] VSC 126 at [36]- [37].
[13] [2007] VSC 177 at [65].
[14] [2008] VSCA 208 at [105].
[15] [2010] VSC 5 at [8]- [9].
[18] [2009] VSC 126 at [20].
[19] [2009] VSC 82 at [35].
[20] One may still be a concurrent wrongdoer even if one is insolvent, being wound up, ceased to exist or has died. (Section 24AH(2)).
[23] [2008] VSCA 208 at [55]- [56].
[25] Legislation in New South Wales, Queensland, Australian Capital Territory, Northern Territory and the Commonwealth all provide that a Court may have regard to the liability of persons who have not been joined in the proceeding. In South Australia, Tasmania and Western Australia the Court must have regard to the liability of such persons. In all jurisdictions except Victoria, the defendant is required to identify to the plaintiff any other concurrent wrongdoers who are not parties to the proceeding. In these jurisdictions, unlike Victoria, it is important for the plaintiff to identify and join all relevant defendants to ensure that it is able to fully recover its loss and damage.
[26] By which Ashley JA understood to be a reference to a proceeding which 'culminated in judgment' at p 96 Godfrey Spowers.
[27] [2007] VSC 445 at [4].
[32] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.
[34] [23]-[26] and [31]-[36], footnotes omitted. It should be noted that prior to the introduction of the Part IVAA scheme, the Building Act operated to limit liability of persons who were jointly or severally liable, although the operative provisions, which required a court or the Tribunal to apportion responsibility, only applied to building actions. The relevant ss 131 and 132 of the Building Act were repealed with the introduction of the Part IVAA scheme into the Wrongs Act.
[35] Here Her Honour was referring to the earlier decision of Judd J in P&V Industries Pty Ltd v Secombs (a firm) [2008] VSC 209 at [11].
[36] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd.
[37] Sections 34(2) and 35(1) of the Civil Liability Act 2002 NSW corresponds to ss 24AH and 24AI of the Wrongs Act.
[45] At [104]-[107], footnotes omitted.
[48] At [129] citing with approval Hansen J in McAskell v Cavendish Properties Ltd (No 2) [2008] VSC563 at [39].
[49] Moorabool Shire Council v Taitapanui [2006] VSCA 30; (2006) 14 VR 55 at [127], [140]-[141].
[50] Domestic Building [2013] VCAT 1911.
[60] At [6]-[7], [9]-[12], [20], [22].
[61] Correspondence between solicitors: 21 May 2014, builder's solicitor advised Applicants' solicitor to consider joining the architects; 22 may 2014 Applicants' solicitors reply to effect that it is not their position that architects are at fault.
[62] Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10 at [17].
[63] Nguyen v Dragicevic & Ors 14 October 2015 [13-[17].
[64] See also Croft J in Main Road Property Group Pty Ltd & Ors v Pelligra & Sons Pty Ltd & Ors [2010] VSC 5 at [12].
[65] 5th Edition [VCAT 75.450]-[VCAT.75.460].
Adams
Clark Homes Pty Ltd
The factual precondition to the operation of the relevant statutory regimes does not depend upon how a claim is pleaded but whether the statutory precondition exists, namely whether the claim arises from a failure to take reasonable care. In Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216; ((2007) [2007] FCA 1216; 164 FCR 450) Middleton J said that the words arising from the failure to take reasonable care should be interpreted broadly (ibid) [29]. In my view the State regimes providing for the apportionment of liability between concurrent wrongdoers require a broad interpretation of the condition upon which the apportionment provision depends to enable courts to determine how the claim should be apportioned between those found responsible for the damage. The policy in the legislation is to ensure that those in fact who caused the actionable loss are required to bear the portion of the loss referable to their cause. That task ought not to be frustrated by arid disputes about pleadings.
The issue of whether the further parties might be regarded as concurrent wrongdoers depends upon whether the actions of those parties caused the loss and damage that is the subject of the present claim. The leading Victorian authority on this point is the decision of the Court of Appeal in St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245; (2009) 25 VR 666, a judgment of Nettle JA, with whom Mandie JA and Beach AJA agreed.
(2009) 25 VR 666
(2003) 7 VR 63
(1981) 147 CLR 589
(2006) 14 VR 55
(2013) 247 CLR 613