Plaintiffs v Defendant

1 The defendant, Port of Portland Pty Ltd ("Portland"), made an application to join the State Electricity Commission of Victoria ("SECV") as a defendant to these proceedings. Portland made the application under rule 9.06(b) of the Supreme Court Rules 2005 (Vic) and section 24AL of the Wrongs Act 1958 (Vic) ("the Act"). The application is supported by an affidavit of Fiona Jane Hudgson sworn on 10 November 2009, which refers to an affidavit by the same deponent sworn on 8 April 2009.

2 The defendant seeks to join the SECV to these proceedings in order to take advantage of the proportionate liability provisions of Part IVAA of the Act. The application was on the basis that the SECV contributed to the damage incurred by the plaintiffs, Coastal Seafarms Holding Pty Ltd and Coastal Seafarms Pty Ltd ("Coastal Seafarms").

3 Coastal Seafarms owns and occupies an abalone farm which is located about 10 kilometres along the coast from the breakwater at the Port of Portland (the Port). Coastal Seafarms alleges that they have suffered erosion damage to their property as a result of the breakwater at the Port. It is alleged that the breakwater prevents sand within the longshore drift from moving around the coast and replenishing sand eroded by wave action.

4 The defendant acquired the Port from the Port of Portland Authority ("the Authority") pursuant to an Asset Sale Agreement dated 15 February 1996. Prior to that time the Port was operated, pursuant to State legislation, by

(a) The Port of Portland Authority (1982-15 February 1996) pursuant to the Port of Portland Authority Act 1981 (Vic);

(b) The Portland Harbour Trust Commissioners (1951-1982) pursuant to the Portland Harbour Trust Act 1949 (Vic).

5 The defendant admits that in and between 1952 and 1958 the Portland Harbour Trust Corporation caused a main breakwater to be built in Portland Bay. Hence the breakwater was the responsibility of the body which administered the Port from time to time.

6 The Authority was abolished on 10 December 1997. At that time the SECV assumed the liabilities of the Authority pursuant to s 154 of the Port Services Act 1995.

7 The defendants rely on a report prepared by Coast Engineering Services (CES) titled 'Port of Portland - Advice Regarding Sand Disposal North of Anderson Pt' (the Report). In her affidavit 8 April 2008 Ms Hudgson deals with the Report in these terms:

"As part of the analysis in the Report, CES consider the rate at which the sand in the longshore drift moves around the coast. CES concludes "that the bulk of sand movement is at about 1 kilometre per year, or slightly less" (Page 12 of the Report). I am informed by Scott Paterson, Chief Executive Officer of the defendant, that his staff have examined the Port's coastal maps which indicate that the distance between Andersons Point and the abalone farm measured along the coast is approximately 10.5km. Based on CES's conclusion in the Report that the sand travels at a rate of 1 kilometre per year, or slightly less, it would take a sand deficit cause by any interference by the breakwater with the longshore drift at least 10.5 years and possibly longer to reach the site of the alleged erosion damage at the plaintiff's property. Accordingly, any damage (if such damage is proven) from the breakwaters following the purchase of the Port by the defendant in 1996 is unlikely to have occurred until mid to late 2006 at the earliest, after the issue of the writ in September 2005 and over 5 years after the Plaintiffs say they first observed erosion at the property."

8 It is against this background that Portland seeks to join the SECV, to take advantage of the proportionate liability provisions in Part IVAA of the Act. Section 24AL of the Act states that the court may give leave for any one or more persons who are concurrent wrongdoers to be joined as defendants to 'an apportionable claim'. The expression 'an apportionable claim' is defined in s 24AE as meaning 'a claim to which this Part applies'. Section 24AF deals with the application of the relevant Part of the Act, as follows:

(a) a claim for economic loss or damage to property in an action for damages (whether in tort, in contract, under statute or otherwise) arising from a failure to take reasonable care; and

(b) a claim for damages for a contravention of section 9 of the Fair Trading Act 1999.

(2) If a proceeding involves 2 or more apportionable claims arising out of different causes of action, liability for the apportionable claims is to be determined in accordance with this Part as if the claims were a single claim.

(3) A provision of this Part that gives protection from civil liability does not limit or otherwise affect any protection from liability given by any other provision of this Act or by another Act or law."

9 As emphasised by Middleton J in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd[1] the assessment of the application (or otherwise) of Part IVAA of the Act at a preliminary stage of the proceedings does not pre-empt the final determination of that issue at trial. On an application such as this the defendant need only establish that the pleadings contain factual allegations which, if established at trial, arguably support the contention that it is an apportionable claim and that the SECV is a concurrent wrongdoer.[2]

10 In dealing with an application such as this it must be borne in mind that ss 24A1(3) of the Act provides that in apportioning responsibility between defendants the court must not have regard to the comparative responsibility of any person who is not a party to the proceeding.[3]

11 In the context of this case, if the SECV is not joined then any responsibility ultimately apportioned to Portland will not be reduced to any extent as a result of the SECV's responsibility in the event that the SECV would otherwise have been subject to an apportionment of liability.

12 There was an application for joinder granted previously. However, that joinder was invalid as the amended writ was not filed within the specified time. I note that the previous application does not affect the current application.

13 Portland submitted that it is necessary to join the SECV to enable it to pursue the substantive proceedings. Portland submitted that the actions of itself and the SECV constituted the same damage incurred by Coastal Seafarms. Further, that the claim was apportionable due to Coastal Seafarms making only one claim for damages.

14 The SECV contested the application on the basis that Portland's pleadings were deficient. The SECV submitted that Portland failed to demonstrate that the claim was apportionable and that the loss and damage was not the same damage caused by Portland. Further, that Portland failed to make any separate allegations relating to the conduct of the SECV to show that the SECV was a concurrent wrongdoer. Importantly counsel for the SECV did not suggest that the deficiencies in the pleadings were not capable of being fixed.

15 Coastal Seafarms broadly adopted the SECV's submissions.

16 I do not agree with the SECV's submissions. In this instance, the deficiencies in Portland's pleadings were limited to their form. In substance I am satisfied that Portland has a sufficient and legitimate interest in joining the SECV as a defendant to these proceedings. It is at least arguable that this is an apportionment claim in that it can be said to arise out of a failure to take reasonable care. I am also satisfied that the SECV is arguably a concurrent wrongdoer and that the loss and damage is the same damage as alleged to have been caused by Portland.

17 As to the deficiencies in the pleadings I respectfully adopt the observations of Hollingworth J in Cowan v Greatorex:[4]

"What procedure should be followed after joinder will depend on the facts of each case. For example, whether or not the plaintiff will wish to bring a claim against the concurrent wrongdoer, once it has been joined as a defendant, will vary from case to case. Whether and how the concurrent wrongdoer may wish to participate in the proceeding will vary from case to case. Case management issues, including further pleadings and discovery, can be resolved by appropriate directions, once such decisions and steps have been taken."[5]

18 Accordingly, I will order that the application for joinder of the SECV to these proceedings be granted.

[1] [2007] FCA 1216; (2007) 164 FCR 450.

[2] See Atkins v Interprac Financial Planning Pty Ltd [2008] VSC 99 (Unreported, Hargrave J, 8 April 2008).

[3] Subject to limited exceptions which are not presently relevant.

[4] [2008] VSC 401.

[5] Ibid [35]. See further P & V Industries Pty Ltd v Secombs [2008] VSC 209 per Judd J