Plaintiff v Defendant

2 The summons before the master is dated 15 May 2008. By their summons, the solicitors sought to add the barristers as defendants, an order for the filing of an amended and endorsed writ in order to comply with r 9.11 and an order requiring service of the writ on the barristers. No order was sought in the summons for service of any process or pleading on the barristers (apart from the writ and statement of claim) as might be expected in a third party proceeding under Order 11 of the Rules of Court.

3 The purpose of Part IVAA of the Act is to enable a defendant to protect their position against a plaintiff who does not join a concurrent wrongdoer as a defendant. Part IVAA authorises a court to grant leave to join as a defendant in a proceeding, a concurrent wrongdoer in relation to an apportionable claim, provided the added defendant was not a party to any previously concluded proceeding in relation to the apportionable claim. There is no dispute that the plaintiff's claim is an apportionable claim. The solicitors allege that the barristers are concurrent wrongdoers.

4 It seems to be common ground that a third party procedure under Order 11 is not appropriate because the defendant does not and need not make a claim for relief against the barristers that could be the subject of a third party notice. This is consistent with the view expressed by Hollingworth J in Woods v De Gabriele & Ors[1] and followed by Hargrave J in Atkins v Interprac.[2] A Notice of Contribution under r 11.15, whilst superficially attractive as a vehicle for pleading of material facts, is predicated on a claim for relief against the barristers, when the solicitors maintain that they do not and need not make any claim against them.

5 The plaintiff does not submit that the defendants should not have been joined as defendants or that any other order made by the master should not have been made. The only issue before the master and before me was whether the solicitors ought to have been required to deliver a pleading to the added defendants, setting out the material facts upon which they contend that the barristers are concurrent wrongdoers in respect of an apportionable claim under Part IVAA of the Act.

6 On behalf of the solicitors it was submitted that they were required to join the barristers as defendants in order to protect their position against the plaintiff's claim by ensuring that the court could apportion liability, relieving the solicitors of the need to seek contribution from the barristers. There are no rules of court expressly dealing with the way in which a matter is to proceed once a concurrent wrongdoer has been joined as a defendant under Part IVAA. The solicitors accept that it is necessary for them to plead, by way of defence against the plaintiff, the material facts upon which they rely to contend for an apportionment of liability. They submit, however, that they are not required to plead any case against the barristers because they make no claim against them and there is no need for them to do so. The solicitors submit that the procedure adopted in Atkins v Interprac, where the defendants were ordered to plead their allegations of concurrent wrongdoing in a counterclaim against new defendants by counterclaim, is not required or appropriate. They submit that Atkins v Interprac is to be distinguished because in that case the defendants who sought joinder of concurrent wrongdoers under Part IVAA had indicated an intention to seek declaratory relief against the added defendants to the effect that they were concurrent wrongdoers in relation to apportionable claims made by the plaintiff against them.

7 On behalf of the plaintiff it was submitted that, in the absence of a pleaded case against the barristers by the solicitors, case management problems would arise because the issues would not be sufficiently defined, there would be uncertainty as to discovery obligations, doubts about the use of subpoenas against the defendants and uncertainty about the role the barristers would have at trial. The plaintiff submits that the mere fact that the solicitors do not seek any relief against the barristers does not overcome the necessity to plead material facts against them. I was referred to a decision of Kellam J in Walter and ors v National Australia Bank[3] in which his Honour succinctly described the function of pleadings:

The first object of pleadings is to define with clarity and precision the issues or questions which are in dispute between the parties and which are to be decided by the court. Secondly, pleadings are intended to enable each party to give fair and proper notice of the case to be met by the other party. A third object of pleadings is to inform the court of the precise matters in issue between the parties. Fourthly, pleadings provide a permanent record of the issues and questions raised in the proceedings.

8 It was also submitted on behalf of the plaintiff that the solicitors failed to adequately plead and particularise the material facts upon which they rely in their defence under Part IVAA. There can be no doubt that the defence must be properly pleaded.[4] But the thrust of the plaintiff's complaint was not to challenge the adequacy of the solicitors' defence. The plaintiff sought no relief in relation to the defence. Nor did it seek further particulars from the defendant. The plaintiff's singular purpose was to have the solicitors plead a case against the barristers as if a third party proceeding under the rules of court.

9 Merely because the solicitors choose not to make a claim for relief against the barristers does not relieve them of the obligation to sufficiently plead material facts upon which they rely to make out their defence. While it is true that their primary obligation is to do so in their defence, the obligation may also extend to providing the barristers with an opportunity to respond to the allegation made in respect of them and to participate in the proceeding. The question before me is, however, whether a direction for such a pleading ought to be made when joining defendants under Part IVAA of the Act.

10 In my opinion, any defendant joined under Part IVAA of the Act should have the right to participate in the proceeding if so advised. They are, after all, a joined party and presumably bound by the outcome which may have foreseen and unforeseen consequences for them. I respectfully agree with the approach adopted by Hargrave J in Atkins v Interprac but do not consider a claim for a declaration to be a material factor in deciding whether the solicitors should be required to formulate and deliver to the barristers, in appropriate form at the appropriate time, the material facts alleged in respect of them. This may be achieved by way of counterclaim as in Atkins v Interprac or by some other process or procedure.

11 Returning to the summons and appeal, I am not persuaded that an order requiring delivery of a pleading by the solicitors to the barristers is necessary at the time an order is made joining the defendants under Part IVAA of the Act. No doubt the barristers will have an opportunity to apply for directions, including the delivery of a pleading and participate in the proceeding. The plaintiff may, of course, change its mind and join the barristers as defendants to its claim. But in the absence of rules of court prescribing procedures in applications for joinder under Part IVAA, it seems to me that the issue as to whether a pleading should be delivered by the solicitors to the barristers and any subsequent directions as to the role of the barristers in the proceeding, should await an application by the barristers for directions, once served with the proceeding pursuant to the order made by the master.

12 The plaintiff does not submit that the orders sought in the summons and made by the master should not have been made. In my opinion the master was not required to give directions at that time as to the form, content or timing of any pleading as between the solicitors and the barristers.

[1] [2007] VSC 177 at [65].

[2] [2007] VSC 445.

[3] [2001] VSC 143.

[4] Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2001] FCA 1216 [31]; Veak v Avante Developments Pty Ltd [2007] NSWSC 367 [41].