Boral Resources Pty Ltd v Robak Engineering & Construction Pty Ltd & Anor; FCH Consulting Pty Ltd v Wimmera-Mallee Rural Water Authority & Anor [1999] VSCA 66

Boral Resources Pty Ltd v Robak Engineering & Construction Pty Ltd & Anor; FCH Consulting Pty Ltd v Wimmera-Mallee Rural Water Authority & Anor [1999] VSCA 66 - VSCA 1999 case summary — Zoe

[10]

A cardinal object of Rule 9.06 is the avoidance of multiplicity of proceedings: cf. Byrne v. Brown (1889) 22 Q.B.D. 657, at 666-7; Montgomery v. Foy Morgan & Co. [1895]2 Q.B. 321, at 324-5 and 326; Bentley Motors (1931) Ltd. v. Lagonda Ltd. [1945] 2 All E.R. 211, at 212-3; pace Amon v. Raphael Tuck & Sons Ltd. [1956] 1 Q.B. 357, at 378, per Devlin, J., whose view of the scope of the rule under consideration was, however, disapproved by the Court of Appeal in Gurtner v. Circuit [1968] 2 Q.B. 587, at 595, per Lord Denning, M.R. and at 601-2, per Diplock, L.J. These authorities were decided by reference to what were in effect provisions equivalent to the forerunners of paragraphs (a) and (b)(i) of Rule 9.06; but the philosophy behind them should surely apply also to paragraph (b)(ii), which evidently intends to enlarge the power to order that a person not a party to an existing proceeding be added as a party. When one considers that object, the question (in each of the cases with which we are dealing) that D seeks to have determined as between D and X may be seen not only to arise out of P's claim against D but also to be one "relating to" or "connected with" P's claim. If it be assumed that the only parties to the proceeding were P and D, and that P were to obtain judgment against D for damages, it would be open to D to sue X in a fresh proceeding, alleging that X was partly responsible for causing P's compensable damage and claiming contribution from X in respect of D's established liability to P in respect of that damage. D's right of contribution from X (if X were proved to have been partly responsible for P's damage) would prima facie exist, subject of course to any valid defence, independently of s.131 of the Building Act 1993: the right would not be affected by s.132 of that Act, which applies only to deny rights of contribution and indemnity between persons found jointly or severally liable in the same action. The availability to D, under Part 4 of the Wrongs Act 1958, of a right of contribution from X would be expressly preserved by s.133 of the Building Act.

[26]

The question, then, arises whether addition pursuant to sub-rule (ii) is available to FCH and Boral because the question existing between each of them and the respective third party is not at present in issue between the plaintiff and the defendant. Now, the sub-paragraph requires that the relevant question be just and convenient to determine as between the proposed additional defendant and a party (in these appeals the existing defendant, rather than the plaintiff) as well as between the parties to the proceeding (being the plaintiff and the defendant). The sub-paragraph does not speak of the question's being just and convenient to determine both between the proposed additional defendant and the party and between the parties to the proceeding, but uses the expression "as well as". That might be said to suggest that, in the contemplation of the sub-paragraph, the question is already in issue between the parties to the proceeding (here, the plaintiff and the existing defendant). Otherwise, it might be said, since a party is seeking to add a defendant to the existing proceeding, one would expect that the sub-paragraph would require that the question be just and convenient to determine between the parties to the proceeding as well as between the proposed additional defendant and the party: that would be the natural order in which to express the members of the sentence. Compare Rule 11.01(c) in relation to third party proceedings, where, however, the members are in the reverse order because "not only ... but also ..." is used. The similarity of the corresponding two English Rules is discussed in The Supreme Court Practice 1999, para.15/6/8. The view of sub-paragraph (ii) which I am discussing might be supported by passing observations by Phillips, J.A. (with whom Tadgell, J.A. and, on this, Ormiston, J.A. agreed) in C.E. Heath Casualty & General Insurance Ltd. v. Pyramid Building Society (in liq.) ]1997] 2 V.R. 256 at 293 and 294. A wider view of sub-paragraph (ii) was taken in TSB Private Bank International SA v. Chabra [1992] 1 W.L.R. 231, at 238E, but the point I am considering was not adverted to. It may be observed that in Telstra Corporation Ltd. v. Australian Telecommunication Authority (unreported, Hayne, J., 7 October 1993) and in Tatterson v. Wirtanen [1998] VSC 88 the question between the existing party and the proposed additional defendant was already in issue between the plaintiff and existing defendant. That is also true of In re Vandervell's Trusts [1971] A.C. 912. I mention that case because the decision of the House of Lords in it led to the making of the English rule from which sub-paragraph (ii) derives, O**.**15 r.6(2)(b)(ii), and the words in that rule and in the sub-paragraph, "just and convenient", appear to be taken from Lord Denning M.R.'s judgment in the Court of Appeal in that case as reported in [1970] Ch. 44 at 56.

[27]

Notwithstanding the linguistic argument in favour of a narrower construction of sub-paragraph (ii) which I have set out in the preceding paragraph, I have in the end concluded for several reasons that it is not necessary that the question existing between the proposed additional defendant and the party applying for addition should already exist in the proceeding between the plaintiff and the defendant. First, such a construction would undesirably fetter the operation of a provision, sub-paragraph (ii), which, as its history shows, was obviously intended to liberalise the Court's power to add parties. A mechanism for any control considered necessary is to be found in the concepts of justice and convenience on which the operation of the sub-paragraph pivots. Secondly, I have found no case in which the construction under consideration was adopted. As I have already indicated, the observations of Phillips, J.A. were obiter. The fact that the question was already in issue between plaintiff and defendant in Telstra Corporation Ltd. v. Australian Telecommunication Authority and Tatterson v. Wirtanen was accidental rather than essential. It may be thought surprising, if the anterior existence of the question in the proceeding is necessary, that that requirement has not been exposed by judicial decision when the rule has been in existence for more than a quarter of a century in England and over a decade in Victoria and when countless applications under it must have been heard by Masters and, on appeal, judges over those years. Thirdly, and most significantly, the fact that the question is specified as one "arising out of or relating to or connected with any claim in the proceeding" demonstrates, I consider, that the question need not exist in the proceeding as constituted at the time of the application for addition. It is, for instance, sufficient that it be "connected with a claim" in the proceeding as so constituted. Questions of that kind are not limited to questions already in issue between the plaintiff and the defendant. If the interpretation under consideration were correct, one would have expected to find the question described as a question "arising in the proceeding" simply.

[69]

This conclusion is supported by matters which point against interpreting "defendant" as including a party such as a third party. First, the person responsible for drafting the legislation, having used the word "person" in s.131(2), obviously could have used it in conjunction with other appropriate words in place of "defendant" where it first appears in s.131(1), so as to encompass third and subsequent parties joined by the defendant. It must have been obvious to the draftsperson that "defendant" normally means the respondent to the plaintiff's claim, yet an alternative expression which has a wider meaning, was not used. Next, the court can only give judgment for the plaintiff against persons who are defendants. It cannot give judgment for the plaintiff against persons who are, say, third parties in the proceeding. If the construction of s.131(1) favoured by FCH were accepted, FCH would have to go on to argue that in building actions involving third parties, the court may be required to give judgment (for the plaintiff) against mere third parties in the proceeding. There is nothing in the Act (or in the Parliamentary Debates) which would support that this was intended by the legislation. Moreover, given that the court is to give judgment "against each defendant who is found to be jointly and severally liable for damages", it is unlikely that "defendant" was intended to mean anything but a person whom the plaintiff joined as a respondent to its claim. Thirdly, as was pointed out by Dr. Pannam Q.C., who appeared with Mr. Tiernan for the Authority and Robak, s.133 leaves intact the operation of Part IV of the Wrongs Act 1958 (subject to s.132). There would be no point to having s.133 if all the third and subsequent parties would be automatically treated as defendants in the plaintiff's proceeding. Further, if reference to Parliamentary Debates is permissible, the speech of the Minister and Mr. Knowles, who had the carriage of the Bill, show that they used the word "defendant" in relation to the operation of the liability provisions in its ordinary and usual sense.

At a glance

Court

Decision date

Before

Source

Judgment (106 paragraphs)