Plaintiffs v First Defendant Second Defendant Third Defendant Fourth Defendant Fifth Defendant Sixth Defendant

Supreme Court of Victoria|2010-01-15|Before: CROFT J

Practice and procedure - Apportionable claim - Concurrent wrongdoers - Application by some of the defendants to join alleged concurrent wrongdoers as parties - Whether arguable that proposed parties are concurrent wrongdoers - Wrongs Act 1958 (Vic) Part IVAA

2 The trial in the proceeding is scheduled to commence on 1 February 2010 and all of the parties expressed the desire that the trial should proceed as scheduled and without further delay.

3 The fifth and sixth defendants applied by summons dated 8 January 2010 for an Order for leave to amend the defence in the form of Exhibit "MAA K" to the affidavit of Michael Anthony Artusa dated 8 January 2010. The document contained in this exhibit is described as the "Proposed Fourth Amended Defence and Amended Counterclaim of the Fifth and Sixth Defendants"("the proposed amended defence"). It is noted that the proposed amended defence is a pleading to the Third Amended Statement of Claim which was amended pursuant to the order of Byrne J dated 4 June 2009 ("the amended statement of claim").

4 The fifth and sixth defendants also seek an order that David Galtieri be joined as a defendant to the proceedings.

5 It is noted that the first to the fourth defendants neither consented to nor opposed the application. It is also noted that at the hearing of this application counsel appearing on behalf of the plaintiffs was also instructed by solicitors also acting for Mr Galtieri.

6 The application for joinder of Mr Galtieri was pursuant to s 24AL(1) of Part IVAA of the Wrongs Act 1958, which is in the following terms:

"24AL. Joining non-party concurrent wrongdoer in the

action

(1) Subject to sub-section (2), the court may give leave

for any one or more persons who are concurrent

wrongdoers in relation to an apportionable claim

to be joined as defendants in a proceeding in

relation to that claim."

7 The expression "apportionable claim", upon which the provisions of s 24AL depend, is defined in s 24AE as meaning " a claim to which this Part applies". The application of the relevant part of the Wrongs Act, Part IVAA, is provided for in s 24AF, as follows:

"24AF. Application of Part

(1) This Part applies to -

(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."

The critical parts of s 24AF in the current context are paragraphs (a) and (b) of sub-section 24AF(1).

8 The proper approach of the courts in determining whether a claim is an "apportionable claim" under Part IVAA of the Wrongs Act for the purposes of applications such as the present one was considered in Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216. In that case Middleton J said:

As the respondents observed, in drafting the provisions of Pt IVAA of the Wrongs Act, the legislature deliberately chose to define "apportionable claim" by reference to an action for damages arising from a failure to take reasonable care. The provisions do not require that the claim itself be a claim in negligence or for a breach of duty - it only requires that the claim arise from a failure to take reasonable care. The expressions "arising from" or "arising out of" are of wide import - see the discussion in A Stephenson, "Proportional Liability in Australia - The Death of Certainty in Risk Allocation in Contract" (2005) 22(1) ICLR 64 at 71 to 73, and generally B McDonald, "Proportionate Liability in Australia: the Devil in the Detail" (2005) 26(1) ABR 29.

30. In my view, Pt IVAA could apply in the circumstances of this proceeding according to its own terms. Where a claim brought by an applicant does not have as one of its necessary elements any allegation of failing to take reasonable care, an additional enquiry into the failure to take reasonable care may become relevant in the course of a trial to determine the application of Pt IVAA. Even though the claims in this proceeding themselves do not rely upon any plea of negligence or a "failure to take reasonable care" in a strict sense, a failure to take reasonable care may form part of the allegations or the evidence that is tendered in the proceedings. At the end of the trial, after hearing all the evidence, it may be found that Pt IVAA applies."

9 Similarly, in Suncorp Metway Pty Ltd v Panagiotidis [2009] VSC 126, Associate Justice Evans said:

"20. In Solak v Bank of Western Australia,[1] Pagone J expressed his opinion (obiter) as to the proper approach in determining whether or not a proceeding relates to an apportionable claim under Part IV AA and similar regimes as follows:

'the factual precondition to the operation of the relevant statutory regimes does not depend upon how a claim is pleaded but whether the statutory precondition exists, namely whether the claim arises from a failure to take reasonable care. In Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216; ((2007) [2007] FCA 1216; 164 FCR 450) Middleton J said that the words arising from the failure to take reasonable care should be interpreted broadly (ibid) [29]. In my view the State regimes providing for the apportionment of liability between concurrent wrongdoers require a broad interpretation of the condition upon which the apportionment provision depends to enable courts to determine how the claim should be apportioned between those found responsible for the damage. The policy in the legislation is to ensure that those in fact who caused the actionable loss are required to bear the portion of the loss referable to their cause. That task ought not to be frustrated by arid disputes about pleadings.'"

10 As was emphasised by Middleton J in Dartberg the assessment of the application or otherwise of Part IVAA of the Wrongs Act at a preliminary stage of the proceedings does not pre-empt the further consideration and final determination of the issue in the course of the trial, in light of a full hearing of the evidence and submissions. This process at trial will involve the determination whether or not a claim is an "apportionable claim" under Part IVAA and, if so, the consequences in the particular circumstances with respect to the apportionment of liability among each of the defendants subject to such a claim. In my view the final determination of the issue at an earlier stage of proceedings carries a significant risk of injustice when the result is to preclude the reduction of proportionate liability of a defendant or defendants as a result.

St George Bank Ltd v Quinerts Pty Ltd [2009] VSCA 245 is an example of an aspect of the process of final determination of the question whether a claim is an apportionable claim as a result of the process of trial and, in that instance, an appeal.

11 At this point it should also be noted that the Victorian legislation, the Wrongs Act, unlike the Trade Practices Act 1974 (Cth), does not, with some exceptions not relevant in the present proceedings, allow apportionment of responsibility with respect to the plaintiff's apportionable claim among any persons other than persons who are defendants in the proceeding. This is the position established by sub-section 24AI, as follows:

"24AI. Proportionate liability for apportionable claims

...

(3) In apportioning responsibility between defendants

in the proceeding the court must not have regard

to the comparative responsibility of any person

who is not a party to the proceeding unless the

person is not a party to the proceeding because the

person is dead or, if the person is a corporation,

the corporation has been wound-up."

12 The effect of sub-section 24AI(3) is that if a defendant fails to ensure that any other person against whom he, she or it seeks to apportion responsibility is not joined in the proceedings this failure is at the existing defendant's peril. This is because any responsibility apportioned to the existing defendant will not be reduced to any extent as a result of the responsibility of any person not joined in the event that they would otherwise have been subject to an apportionment of liability.

13 It is not necessary for present purposes to set out in detail the amendments which the fifth and sixth defendants seek to make in the proposed amended defence. Nevertheless, it is necessary to consider the proposed amendments in more general terms on the basis that in the context of this pleading summons the authorities indicate that it is plainly necessary for the applicants to establish an arguable case that the proposed amendments are with respect to apportionable claims which either go to the proportion of liability of Mr Galtieri or to the reduction in the proportion of liability of the applicants.

14 In relation to the principles to be applied in relation to the application the following passage in the judgment of Hargrave J in Atkins v Interprac Financial Planning Pty Ltd [2008] VSC 99 was relied upon:

"12. Having considered the matter I am now of the view that the proposed pleadings by the defendants against PIR do not raise a case which is so hopeless that it does not emit of argument. Issues such as whether a duty of care is owed, a class of persons to whom a duty of care is owed and whether an arguably misleading statement was the cause of loss to persons relying upon it are all questions to be resolved on the basis of the evidence presented at trial. On an application such as this, the defendants need only establish that the pleadings contain factual allegations which, if established at trial, could arguably found one or more of the causes of action alleged. If the court is satisfied such an arguable case has been put forward, joiner should be allowed."

15 In this context it was submitted by the applicants that paragraphs 62 to 66 of the amended statement of claim are based on an allegation or allegations of a failure to take reasonable care, in spite of the manner in which these claims are pleaded.[2] The failure to take reasonable care arises , it was said, in the context of these claims which relate to representations which are alleged to have been made by various defendants with respect to costs involved in the investment project. It was submitted that paragraphs 93B to 93H of the proposed amended defence were responsive to these claims. It was specifically noted in the applicants' submissions that paragraph 93B(b) refers only to s 9 of the Fair Trading Act 1999 and makes no reference to the corresponding misleading or deceptive conductive provisions of s 52 of the Trade Practices Act.

16 Reference was also made by the applicants to Exhibit "MAA E" to the affidavit of Michael Anthony Artusa sworn 8 January 2010 which, it was said, sought to establish that Mr Galtieri was an "investment professional" and that it was likely, or at least arguable, that his investment expertise had been relied upon in connection with the alleged representations. In this context reference was made to paragraph 93C of the proposed amended defence, which relies upon Mr Galtieri's investment expertise being established for the purpose of a pleading that he owed a duty of care to the investors. Critical provisions of paragraph 93C are paragraphs (h) and (i) as follows:

"(h) David Galtieri knew or ought to have know that at the time of the representations that the investors would have acted upon the faith of the representations and by induced by them and he thereby came under a duty to take reasonable care.

Particulars

In the October 2001 meeting referred to in paragraph 10(b) (vii) of the third amended statement of claim, Artusa said 'that without David Galtieri's efforts in putting the investment proposals together, we would be lost. I want everyone to acknowledge his efforts by a round of applause,' and David Galtieri was aware that the purpose of the meeting was to provide information to potential investors to determine if they would invest in the projects at Hampstead Road and Geelong Road.

(i) David Galtieri made the representations negligently and in breach of the duty of care owed to the investors (it being expressly denied that there was any negligence or breach of duty of care):

(i) by failing to undertake any enquiries to verify that the price of $170,000,000 for a non fixed price contract and $1,720,000 for a fixed price contract was fair and reasonable;

(ii) by failing to utilise his professional expertise and experience in verifying that the representations were fair and reasonable; and

(iii) by failing to obtain any quotes from any builders as to the cost of construction at Hampstead Road and

(iv) by failing to obtain any quotes from any other experts, including architects and concreters or consulting Rawlinsons or other text books as to the average square metre price of construction."

17 Reference was also made to extracts from the signed but unsworn witness statement of Mr Galtieri, which was provided as Exhibit "MAA D" to the affidavit of Michael Anthony Artusa sworn 8 January 2010. It is noted that, in summary, Mr Galtier's position is that he had no significant role in the preparation of documents with respect to the cost of the investment scheme and that he did little more than "reformat" the document and did not provide advice or utilise his investment expertise. In any event, these are matters for determination at the trial.

18 It was stressed by the applicants in their submissions that they make no claim against Mr Galtieri and, consequently, seek no relief which could be the subject of a pleading or claim under a third party notice or other process of claim. It was also submitted by the applicants that Mr Galtieri is well aware of the claims made in these proceedings and would be aware of the contents of the proposed amended defence. In this respect the applicants relied upon various authorities in this Court which are considered in more detail below.[3]

19 The plaintiffs opposed the granting of leave for the proposed amendments and the joinder of Mr Galtieri. Although the amendments and joinder are in some respects separate matters they are, in the present context, intimately related and it would not be appropriate to give leave for one and not the other. It has been noted the first to fourth defendants did not oppose the application but did not consent to it either.

20 In relation to the application the plaintiffs raised two separate matters. The first was that leave should not be granted on the basis that the applicants had not provided a proposed third party notice, notice of contribution, or any other document serving the purpose of a notice against Mr Galtieri, referring to paragraph 48(iii) and 52 of Byrne J, "Proportionate liability - Some Creaking in the Superstructure",19 May 2006. On this basis it was submitted as follows:

"a. Consequently neither Mr Galtieri nor this Court are informed as to the case to be pleaded against him. This is unsatisfactory, as it means Mr Galtieri and the Court are required to speculate as to the nature of the case made against him, assisted only by that which is set out in the proposed amendments to the defence.

(b) Consequently, Mr Galtieri is not informed as to whether Mr Artusa proposes:

(i) To plead that he, Galtieri, was a party to the fraud alleged against Mr Artusa, whether as an accessory or as a principla;

(ii) To plead that he, Galtieri, was engaged as a professional adviser by Mr Artusa, or by the investors, or by Main Road, or otherwise, and was negligent in performing the engagement;

(iii) To plead that he, Galtieri, independently of Artusa, promoted the investment to the other investors, and/or

(iv) To plead that he, Galtieri, as a de facto director of Main-Road breached corporate or fiduciary duties;

(v) To plead that he, Galtieri, was the ultimate source of the alleged false statements made to investors by Artusa and Pelligra; or

(vi) To plead something quite different to all of these matters.

The absence of a properly pleaded notice places an unreasonable and improper burden on the Court in determining this application. Likewise, these submissions, necessarily, must be made by first speculating as to what it is that will be, perhaps, pleaded against Galtieri."

21 In relation to the contents of the proposed new pleadings, the plaintiffs submitted that substantial parts did not raise claims that could be the subject of apportionment under Part IVAA of the Wrongs Act and, consequently, there was no basis upon which the court might give leave for the joining of Mr Galtieri under sub-section 24AL(1). These submissions were as follows:

"By paragraph 93C, Artusa proposes to allege (inter alia) that Galtieri made false representations to the investors (see 93C(f)). If so, that would result in a finding of fraud against Galtieri, and apportionment is then denied by s 24AM Wrongs Act.

By paragraph 93C, Artusa proposes to plead that the representations were made by Galtieri negligently (see 93H)), relying on an allegation that he had special expertise (see 93C(d)-sic). If made out that would result in a different class of loss to that suffered by reason of the alleged wrongdoings of Artusa and therefore would not be the 'same loss' - see St George bank Limited v Quinerts Pty Ltd [2009] VSCA 245 [63]-[64], and [75]-[77].[4] Consequently the Artusa loss is not apportionable with Galtieri.

The liability of Artusa arising under the Corporations Act is one of the claims sought to be apportioned (see paragraph 93B(a) where it refers to paragraphs 66(c) and 67(d) of the Amended Statement of Claim). Loss arising pursuant to breaches of those statutory provisions is not apportionable under s 24AF Wrongs Act or s 87CB Trade Practices Act.

The liability of Artusa for breaches of fiduciary duties (see paragraph 93B(a) where it refers to paragraphs 66(b), (c) and (d), and 67(b), (c) and (d) of the Amended Statement of Claim) are not apportionable under s 245AF Wrongs Act or s 87CB Trade Practices Act."

22 Finally, the plaintiffs submitted that the claims sought to be raised against Mr Galtieri are now statue barred, as follows:

"Further, any proposal to seek contribution (and so apportionment) against Galtieri is statute barred, in that liability, if established, arose in late 2001 and early 2002 (see particulars to 93C(e)), and that is well outside the 6 year limitation provision for contribution - see ss 24(4) and 24AO Wrongs Act.

Even absent that limitation period, all of the claims sought to be made against Galtieri are barred by other statutory limitation periods (all being of 6 years) - see s 82(2) of the Trade Practices Act, s 159(3) of the Fair Trading Act 1999 (Vic); ss 5 and 21(2) of the Limitations of Actions Act 1958(Vic)."

23 In relation to the question whether or not this application should have been made without the provision of a third party notice, notice of contribution or other documents serving the purpose of notice against Mr Galtieri, I am of the opinion that the authorities indicate that whether or not the court would insist upon this as a requirement in an application such as the present depends very much on the particular circumstances. As also seems to be clear, one critical circumstance is whether or not the defendant seeking to join another person as a defendant is seeking to make a claim against the person to be joined. The applicants in the present matter stressed in their submissions that no claim was being made by them against Mr Galtieri, although it was conceded in the course of submissions that the joinder of Mr Galtieri does raise the possibility of proportionate liability on his part if the plaintiff chose to seek recovery from him. In this respect it is also noted that the plaintiff said that the plaintiff would not be seeking recovery against Mr Galtieri.

24 The authorities in this respect were considered by Hollingworth J in Cowen v Greatorex.[5] Having done so Hollingworth J concluded:

"31. Part IVAA of the Wrongs Act clearly allows a defendant to raise concurrent liability defensively as against the plaintiff, without serving a notice of contribution on the alleged concurrent wrongdoer. However, unless the concurrent wrongdoer is dead or wound up, it must be joined as a party.

The purpose of these provisions is to avoid "deep pocket syndrome", in which a plaintiff seeks to pursue only the defendant(s) with assets_.[6]_
Where, as in Atkins[7], the defendant wishes to seek declaratory or other relief against the additional party, that can be done by adding the party as a defendant to counterclaim. Such a procedure has the advantage of requiring the plaintiff, as well as the additional defendant to counterclaim (if it chooses to participate in the proceeding), to specifically plead to the allegations said to give rise to concurrent liability.
But if, as is the case here, the defendant does not wish to seek declaratory or other relief against the additional party, it should not be forced to bring a counterclaim simply in order to bring the additional party before the court. It can seek the joinder of the additional party as a necessary defendant under r 9.06(b), notwithstanding that the plaintiff opposes that course.
I agree with Judd J[8] that it is not necessary for an existing defendant to deliver a pleading to the additional defendant at the time of ordering joinder, although it may be necessary to do so subsequently. 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. That is particularly so in a judge-managed list such as the Commercial List."

25 In all the circumstances of this matter, having regard to the fact that there is no claim is made by the applicants against Mr Galtieri, that Mr Galtieri has had the plaintiffs' solicitors acting for him, I am of the opinion that no third party notice, notice of contribution or any other document needed to be served on Mr Galtieri for the purposes of this application.

26 In relation to the contents of the pleadings and the proposed amended defence, I am of the opinion that the amendments as proposed do relate to claims which are arguably apportionable claims, applying the approach to this matter as a preliminary question as applied in Dartberg v Wealthcare Financial Planning Pty Ltd and Solak v Bank of Western Australia.[9]

27 Specific objection was raised in relation to proposed paragraph 93C on the basis that it contained an allegation of fraud which is excluded from the proportionate liability scheme under Part IVAA of the Wrongs Act by s 24AM. The applicants response was that this pleading was no more than a pleading of a "failure to take reasonable care" and did not by reason of the allegation of the falsity of the representations take the next pleading step of alleging knowledge of falsity, hence the ingredients of a plea of fraud. In my opinion this position is arguable in the relevant sense for the purpose of the applicants' position and the ultimate determination of the possible application of s 24AM is a matter for trial.

28 The proposed pleading in paragraph 93C was also attacked on the basis that representations were made by Mr Galtieri negligently, relying on an allegation that he had special expertise. The position put by the plaintiffs was that this was not responsive to a claim put by the plaintiffs in their pleadings, and consequently, was outside the proportionate liability regime of Part IVAA. Again, I am of the opinion that the approach adopted in Dartberg and Solak v Bank of Western Australia should be adopted for the purposes of this application and, particularly, the view as expressed by Pagone J in Solak that "the factual precondition to the operation of the relevant statutory regime does not depend upon how a claim is pleaded but whether the statutory precondition exists...". I note the plaintiffs in their submissions made reference to the St George Bank Limited case, with detailed references to the judgment of Nettle JA. However, as indicated previously, this appeal followed the trial of the matter and consideration of the proportionate liability issues and the application or otherwise of the statutory regime under PartIVAA with the benefit of consideration of all the evidence and submissions at trial. Consequently I am of the view that these principles are not applicable with their full rigour for the purposes of an application of this kind which is made at a preliminary stage of the proceedings; in the sense that it is made before the trial[10]

29 Objection was also raised to the applicants seeking to apportion claims under the Corporations Act in paragraph 93B(a) of the proposed amended defence. The point was made that loss arising pursuant to breaches of these provisions is not apportionable under s 24AF of the Wrongs Act. In my opinion the same considerations apply with respect to this objection as apply with respect to previous objections and the approach in Dartberg and Solak should be applied. I take a similar view with respect to the objection to the proposed amendments with respect to breaches of fiduciary duties which the plaintiff submitted were not apportionable under s 24AF of the Wrongs Act. In my opinion it is arguable in that context that these claims are claims that arise from a failure to take reasonable care on the basis of the approach adopted in Dartberg and Solek v Bank of Western Australia.[11]

30 Finally, with respect to the limitation of actions issues, I am of the opinion that these matters are not matters which are in the ordinary course determined in an application such as the present. I made reference during the hearing of the application, in general terms, to authorities in support of this position.[12] Quite apart from this general position I am fortified in this view by the discussion during the hearing of the application and also submissions by the first and fourth defendants that the running of the limitation period does, as the authorities indicate, depend upon the date upon which the relevant damage was suffered.[13] I am in no position on the basis of the material before me to make any determination in this respect, even if I thought it appropriate to do so.

31 For these reasons I will make the orders sought by the applicant save that I will hear the parties in relation to the costs of this application.

[2] See Solak v Bank of Western Australia [2009] VSC 82 at [35], Pagone J; the passage set out above, para 9.

[3] Cowen v Gratorex [2008] VSC 401; Woods v De Gabriele [2007] VSC 177; P & V Industries v Seccombs (a firm); [2008] VSC 109 Tulip Investments Pty Ltd v Edwards [2009] VSC 492; and see paragraphs 19 to 22, below.

[4] For an outline of the law of proportionate liability under the Wrongs Act 1958, see Nettle J at [53]-[96].

[6] Woods at [42], approved in Tyrell v Tyrells Building Consultancy Pty Ltd [2008] NSWSC 416 at [11]- [12] per Austin J.

[7] Atkins v Interprack Financial Planning Pty Ltd (No.2) [2008] VSC 99.

[8] In P & V Industries Pty Ltd v Secombs (a firm) [2008] VSC 209.

[12] See, for example, Wardley Australia Limited v State of Western Australia [1992] HCA 55; (1992) 175 CLR 514.

[13] See, for example, Wardley Australia Limited v State of Western Australia.

Fair Trading Act 1999

At a glance

Court

Decision date

Before

Source

Judgment (60 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)