CSR Limited v. Page & Ors [2002] NSWCA 365

1 GILES JA: I will ask Hodgson JA to give the first judgment. 2 HODGSON JA: On 16 April 2002, Delaney DCJ dismissed an application brought by the appellant, CSR Limited, to put on a cross claim against the first respondent, Gregory Andrew Page and the second respondent, Cedroy Pty Limited, in proceedings brought against it by the third respondent, Joseph Camelleri. The application had been opposed by the first and second respondents, and the primary judge ordered the appellant to pay their costs of the application. The appellant appeals by leave from that decision. 3 The proceedings arose out of an accident which occurred on 23 March 1998, when the third respondent was allegedly injured when struck by a cement truck owned by the second respondent and driven by the first respondent, at premises owned by the appellant. 4 On 21 March 2001, the proceedings were commenced by a statement of claim brought against the first respondent as driver and the appellant, then alleged to be the owner of the truck. On 26 June 2001, Delaney DCJ ordered that the proceedings against the first respondent be dismissed, on the ground that commencement of proceedings against him had been prevented by section 52(1A)(c) of the Motor Accidents Act 1988. For reasons I need not go into, the appellant had not been given notice of the application that gave rise to that order. 5 On 2 July 2001, the third respondent filed an amended statement of claim against the appellant, not alleging it to be the owner of the truck but alleging it to be responsible for operations on its premises and for the maintenance of the truck. This amended statement of claim was served on 13 August 2001. The appellant sought particulars from the third respondent in October 2001, and the particulars were supplied in January 2002. 6 On 20 February 2002, the appellant filed a notice of motion seeking leave to file and serve a cross claim, claiming contribution from the first respondent as driver of the truck and the second respondent as owner of the truck. Leave was necessary because more than three months had elapsed from the service of the amended statement of claim on the appellant. 7 The primary judge gave his decision on this application on 16 April 2002. The appellant applied for leave to appeal from it, and leave was granted on 9 September 2002. The proceedings are set down to be heard in the District Court on 9 December 2002. 8 The primary judge's decision to dismiss the application was based on the view he took as to the effect of s 5(1) of the Law Reform Miscellaneous Provisions Act 1946, which is in the following terms. 5.(1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage, (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the wife, husband, brother, sister, half-brother, half-sister, parent or child, of that person, against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action, (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. 9 In reliance on James Hardie & Co Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53, the primary judge held in effect that the first respondent had been sued and not found liable for the damage in respect of which contribution was sought, and so fell within neither of the alternatives provided by s 5(1)(c) of the Act; and that, because the second respondent was only sued by virtue of the agency of the driver, there was no cause of action against the second respondent either. 10 Mr Deakin QC for the appellant submitted that both the first respondent and the second respondent could fall under the second of the two alternatives in s 5(1)(c), so long as they had not been sued to final judgment and found not liable in such a final judgment. Dismissal of the proceedings because of non compliance with a condition precedent under the Motor Accidents Act was not a final judgment, he submitted, because it did not prevent further proceedings being brought; and he referred to Koc v Kosrawi (2000) 32 MVR 475 at [19]. In any event, he submitted, there was no ground whatsoever for holding that there was no cause of action against the second respondent: the second respondent had not previously been sued and so plainly could fall within the second alternative. 11 Mr Charteris SC for the first and second respondents submitted that the minority judges in James Hardie had expressed the view that the right to sue for contribution was lost only if the person against whom contribution was sought had been sued and there had been a determination on the merits in those proceedings that the person was not liable. He submitted that the majority in James Hardie disagreed with that view, holding that there did not have to be a determination on the merits; so that a consent judgment in favour of the person against whom contribution was sought was sufficient to prevent a contribution being obtained from that person. 12 He submitted that in the present case the dismissal of the proceedings brought against the driver finally put an end to those proceedings. He submitted that the three year limitation period provided by s 52 of the Motor Accidents Act had expired, and that as a practical matter at least there was no possibility of further proceedings; so that the matter was conclusively determined in favour of the first respondent. 13 In my opinion, the effect of the decision in James Hardie is not that any dismissal of proceedings in favour of the person against whom contribution is sought is sufficient to prevent that person being sued under the second alternative in s 5(1)(c): what is required for the result is a judgment in favour of that person which finally determines the issues so as to give rise to res judicata and issue estoppel. A consent judgment as dealt with in James Hardie is such a decision. 14 In Hart v Hall & Pickles Limited [1969] 1 QB 405, it was decided that a dismissal for want of prosecution was not a determination of proceedings which would prevent the contribution being claimed against the defendant. That decision was relied on and adopted by the minority in James Hardie, and was referred to without disapproval by judges of the majority. In my view in principle it is correct. In my view also, the dismissal of the third respondent's proceedings against the first respondent was similarly not a judgment of the kind which would prevent contribution being sought from the first respondent, and a fortiori the second respondent. 15 The additional circumstance that a limitation period has now expired would not on its own preclude the seeking of contribution under s5(1)(c). The case of Brambles Constructions Pty Limited v Helmers (1965) 114 CLR 213 established that the expiry of a limitation period does not prevent the claiming of contribution. In effect, "would if sued" was held to mean "would if sued at any time". In my view also, those words should be construed as meaning, in the case of claims under the Motor Accidents Act or similar legislation, "would if sued in circumstances where any conditions precedent under that Act had been complied with". 16 The two separate submissions relied on for the respondents do not therefore individually prevent the claiming of contribution in this case. In my opinion, it does not assist the respondents to consider them together. 17 I note in passing that it was not submitted for the respondents that the claim for contribution was itself a claim in respect of which the requirements of the Motor Accidents Act had to be satisfied. In that Act in s 41 "claim" is defined to mean "a claim for damages in respect of the death or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of a vehicle". In my opinion a claim for contribution under the Law Reform Miscellaneous Provisions Act 1946 is not a claim for damages within that definition. 18 Mr Charteris also submitted, albeit somewhat faintly, that the application to bring the cross claim should be refused on the ground of futility. He referred to a report by the appellant into the accident, suggesting that the accident was caused by the failure of a warning device on the vehicle as the vehicle was being reversed, which in turn was caused by a chemical used by the appellant to clean the trucks. However, Mr Charteris accepted that that did not exclude liability in the driver for failing to keep a look out, and he accepted that the owner of the vehicle could then be vicariously responsible for that negligence of the driver if that was shown. In my opinion, the application should not be refused on the grounds of futility. 19 In circumstances where this Court has found an error by the primary judge which has resulted in the primary judge not coming to the stage of exercising a discretion, this Court can exercise the relevant discretion; particularly if the matters relevant to the exercise of this discretion are before the Court, and again particularly if the matter is clear. 20 In a case such as this, it is desirable if possible that all issues be determined at one hearing, and desirable that claims for contribution be dealt with not in separate proceedings but in the proceedings brought by the injured party. If there is any difficulty in this case caused by the joining of the additional parties in combination with a hearing on 9 December, in my opinion that difficulty can best be dealt with by a District Court judge, who could determine whether the hearing can proceed with all parties, or whether there should be an adjournment of the hearing, or whether there should be a separation out of the hearing of the claim and hearing of the cross claim. In my opinion, as far as the discretion whether to permit the cross claim is concerned, that discretion should plainly be exercised in favour of permitting it. 21 For those reasons in my opinion the appeal should be allowed, and there is no reason why the costs of the appeal should not follow the event. 22 There has been some argument concerning the costs of the application. It was submitted by Mr Charteris that those costs should be made costs in the cross-claim, or at least left in the discretion of the judge hearing the cross-claim. 23 In my opinion, if the matter determined by the primary judge had been an application by the cross defendants to strike out a cross claim which had already been brought against them, or to have it summarily dismissed, and that application had failed, the costs of that application would have followed the event rather than being left to be determined at the hearing of the action. In circumstances where the necessity for seeking leave was merely the expiry of a three month period due to the seeking and obtaining of particulars, it seems to me that the situation in this case is not different in substance from what the situation would have been in case of an application to strike out or for summary dismissal. On the view of the matter that I have reached, there was no basis to oppose the grant of leave for the bringing of the cross claim after the expiry of three months. In my opinion, the first and second respondents having chosen to oppose it on the ground on which they did, and having failed on that ground, it is appropriate that they be ordered to pay the costs of the application. 24 So for those reasons I propose the following orders. 1. Appeal allowed. 2. Orders of the primary judge of 16 April 2002 set aside, in lieu thereof leave to the appellant to file a cross claim against the first and second respondents in the form appearing at pp 27 to 30 of the Red Book, and the first and second respondents to pay the appellant's costs of the application for leave to put on that cross claim. 3. The first and second respondents to pay the appellant's costs of the appeal and application for leave, and to have a Suitors Fund certificate if otherwise entitled. 25 GILES JA: I agree. 26 CAMPBELL J: Yes I agree. 27 GILES JA: So the orders will be as proposed by Hodgson JA. **********

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