Judgment Number: [2025] TASSC 67

1. These are my reasons for granting leave to the defendant to file and serve a third party notice. In short, even though the application was made quite late, the proceedings have not yet reached the stage where the prejudice caused by delay should prevent the defendant seeking indemnity or contribution from the third party.
2. This application was made on 25 September 2025, over 14 months after the defence was filed on 9 July 2024, which was also the date when the defendant acknowledged the possibility of likelihood of the need to institute third-party proceedings. The leave of the court or a judge is therefore required to file a third party notice, under r 202 of the Supreme Court Rules, which is in the following terms:

(1) Subject to subrule (2) , a defendant who claims as against any person not already a party to the action to be entitled to contribution or indemnity or any relief or remedy relating to, or connected with, the original subject matter of the action, may file and serve on that person a third party notice directed to that person.

(2) A defendant may file and serve a third party notice -

(a) without leave within 30 days after delivering the defence; and

(b) at any other time with the leave of the Court or a judge."

1. In these proceedings the plaintiff seeks damages from the defendant for psychological harm caused by sexual abuse perpetrated upon him by the proposed third party, who was one of his teachers while he was a student at Bothwell District High School in 2010. The plaintiff pleads that the defendant owed the plaintiff a non-delegable duty to take reasonable care to avoid harm being caused to him by way of sexual abuse by a teacher; and that it breached that duty by failing to take reasonable precautions to prevent the occurrence of that harm. The defendant does not admit that it owed any such duty nor that the alleged duty was non-delegable. Nor does the defendant admit any of the facts which are alleged to constitute the sexual abuse of the plaintiff.
2. On 25 September 2025, without leave and long after the expiry of the period within which such a notice could be filed, the defendant filed a third party notice and now seeks leave to serve it. That order is opposed by both the proposed third party and the plaintiff.
3. The third party notice foreshadows third party proceedings which appear to rely upon the same facts as alleged by the plaintiff as constituting the sexual abuse which the plaintiff alleges the proposed third party perpetrated upon him. The notice recites that:

"...the defendant claims to be entitled to be indemnified by [the third party] on the claim or alternatively to be entitled to contribution from the [the third party] against the claim, to the extent of the whole of such damages and interest the defendant is found liable to pay to the plaintiff or to the extent the Court determines ..."

1. The third party notice then pleads that those acts and omissions were outside the scope of the employment relationship between the defendant and the proposed third party. The notice pleads that the proposed third party "was not authorised, permitted or allowed by the defendant to commit the abuse [or] any of the acts alleged as amounting to her sexual abuse of the plaintiff." Finally, the third party notice pleads that the proposed third party's sexual abuse of the plaintiff amounts to "trespasses" upon him (assault and/or battery, I infer). The plaintiff does not plead any specific allegation about trespass to the person, but he alleges that the proposed third party is vicariously liable for the abuse, on the basis that the proposed third party was acting within in the course of her employment with the defendant when she abused him.
2. I am satisfied that the defendant's third party notice claims an entitlement to contribution or indemnity from the party who is alleged to have perpetrated the sexual abuse of the plaintiff, as required by r 202, and in the sense explained by Porter J in Brooks Lark & Co Pty Ltd v Derwent Park Developments Pty Ltd [2013] TASSC 82.
3. It is equally clear that the notice complies with the formal requirements of r 203(1) (a), (b), (c), (d) and (e). The proposed third party complains that the defence was not delivered as required by r 203(3), but she has made submissions which accurately acknowledge what is pleaded in that defence and so it would not be appropriate to treat that as any impediment to the success of the application.
4. The first issue raised by the proposed third party is that of prejudice. She complains that:

(a) the plaintiff and the defendant have completed discovery, exchanged expert material and an order has been made for mediation (yet no mediation date has been provided);

(b) third party orders will be required, potentially involving further pleadings, discovery and the possible amendment of the defence;

(c) the third party would require "significant time" to digest the materials filed to date and to attend to obtaining any lay or expert evidence with the consequence that there is little to no prospect that the matter would be ready for mediation, let alone trial, in the first half of 2026; and

(d) the plaintiff does not wish the third party claim to proceed.

1. Despite those submissions, the proposed third party expressly states that she does not assert any specific prejudice but submits that "general prejudice inherent in the delay occasioned by the defendant is relevant to the court's discretion". I will return to the question of delay below.
2. The second issue raised by the proposed third party relates to the merits of the proposed third party claim. Those submissions were made despite the clear position that on an application for leave to issue a third party notice, the Court does not enquire as to the merits of the defendant's claim for contribution: see Butler v Dunn Monumental Masons Pty Ltd & Anor and TGIO Ltd [1996] TASSC 84; (1996) 5 Tas R 487 per Underwood J at 493. It would be contrary to principle to embark upon a consideration of the proposed third party's written submissions under the heading "merits of the proposed third party claim" and I will not do so.
3. The third issue raised by the proposed third party is the 14 month delay between the defendant considering third party proceedings on 9 July 2024, and the filing of the notice without leave on 25 September 2025. No satisfactory evidence explains this delay; there is merely an unsworn assertion by counsel for the defendant referring to staff turnover and the transfer of the file between practitioners in the State Litigation office.
4. The plaintiff and the proposed third party submit that the prejudice caused by this delay outweighs any inconvenience to the defendant if leave is refused. They point to the plaintiff's efforts to progress the matter toward mediation and hearing, contrasted with the defendant's compliance issues with discovery which led to an order requiring the defendant to make discovery on 18 June 2025. The plaintiff and the proposed third party submit that joining a third party now would almost certainly delay mediation and trial.
5. While discovery has now occurred and each party has served expert proofs, no trial date has been set and no certificate of readiness filed. The matter was referred to mediation on 18 June 2025, but no date has been yet fixed for the mediation. The mediation cannot occur before March 2026 at the very earliest. But the plaintiff has yet to provide his particulars of loss and damage, being a necessary step to be taken before the mediation could be expected to proceed. If leave is granted to serve the third party notice and the third party proceedings were conducted at the same time as the proceedings as between the plaintiff and the defendant, it does not appear that the proceeding would be significantly longer or more complex.
6. I am not persuaded that the volume of material for the proposed third party to deal with is significant. While the third party might wish to take steps such as delivering interrogatories and obtaining expert reports, proper case management should prevent undue delay. If delay occurs through the defendant's conduct, the Court is able to set aside the third party notice, or to separate the third‑party proceedings from the proceedings between the plaintiff and the defendant. This proceeding has not yet been listed for trial and is presently unready for mediation, to an extent, and so the fact of the mediation referral does not carry the same weight as a trial listing does.
7. The balance of convenience requires a consideration of whether the prejudice to the defendant, if leave is not granted, is outweighed by the prejudice to the plaintiff if it is. I am not satisfied that the balance of convenience favours the dismissal of the application, given the stage of proceedings. Having said that, the parties will now be required to attend to the necessary pre-trial steps with expedition. These matters can be addressed more appropriately at the first directions hearing following the grant of leave to file and serve the third party notice.
8. I turn now to the suggestion - made by the proposed third party - that leave should be refused on the basis that the determination of questions of fact giving rise to liability as between the defendant and the proposed third party, might be litigated in proceedings separate to the proceedings as between the plaintiff and defendant. I reject that submission. It is not a relevant consideration on the application for leave to file and serve a third party notice. Those questions may well arise on a subsequent date, but it is not appropriate to deal with those questions at this stage.
9. The defendant can fairly be criticised for the delay. However, taking into account all of the circumstances above, the defendant appears to properly claim an entitlement to the adjudication of whether - if it is found liable to the plaintiff on the basis of harm caused by sexual abuse perpetrated on the plaintiff by the third party - it may recover against her on an indemnity or contribution basis.
10. For these reasons, I propose to grant leave to the defendant to file and serve the third party notice which was first filed in the Court on 25 September 2025. I will hear the parties as to the form the order should take and what subsequent orders are now necessary.
11. Finally, I will say something tangentially relevant to this particular case in relation to listings for mediation. Current demand for mediation dates is very high. It is increasingly frequent that particulars of loss and damage in personal injury matters are delivered in such close proximity to the scheduled mediation, that the opposing party is afforded insufficient time to properly investigate or formulate a position for the mediation. This is inefficient because it is occupying an increasing amount of court time addressing the procedural impact of the problem; and it wastes valuable mediation time. To mitigate this issue, "timetabling" orders would ideally be structured to incorporate accountability in relation to compliance. Specifically, an appropriate mechanism would provide that the mediation is to be vacated if the timetabled procedural steps (eg, delivery of particulars) have not been completed at least four weeks prior to the scheduled mediation date. Each party would have a responsibility to inform the registry of that. This would require a measure of proactivity on the part of the parties, but it would enable the prompt vacation of an unprepared matter's mediation listing, allowing another matter which is ready to proceed to be listed in its place, thereby optimizing the utilisation of limited mediation resources.