Consideration
98The Applicant challenged the correctness of both bases upon which the primary judge reached her decision. On the day of the hearing of the application I reached the conclusion that her Honour was correct in the conclusion to which she came concerning discretion. I do not intend to delay production of these reasons by deciding whether her Honour's first basis for rejecting the notice of motion was also correct, except in one narrow sense.
99The narrow sense in which the primary judge's first basis is correct is that [37] of the proposed pleading contended that the Builder's breaches "were the cause of all, or the majority of" the loss of the Contracting Respondents, and a claim against those Respondents is in substance that they have deprived themselves of the opportunity of recovering from the Builder. Insofar as that draft pleading seeks to sheet home to the Builder and the Contracting Respondents responsibility for all the loss that has been suffered, it is inconsistent with damages being the gist of an action in negligence, and judgment having been entered in favour of all Respondents. However, if that inconsistency were the only problem with the proposed pleading being allowed, the appropriate remedy would be to permit it with the excision of "all, or" in [37]. The first basis on which the primary judge dismissed the notice of motion saw a much more extensive inconsistency than that between the proposed pleading and the consent judgment. I will not examine whether that more extensive inconsistency was correctly identified.
100In circumstances where her Honour's view that the proposed defence could not succeed without the judgment also being set aside was one of the factors that entered into her reasoning concerning exercise of discretion, and I have declined to decide whether that factor was correct, it is necessary for this Court to approach the discretionary question by assuming, without deciding, that her Honour was wrong in that aspect of her reasoning, and consider the discretionary question afresh for itself.
Principles Concerning Amendment of Pleadings
101Various provisions of the Civil Procedure Act bear upon the Court's exercise of its power to permit an amendment of pleadings:
"56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to a civil dispute or civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
...
57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects:
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
58 Court to follow dictates of justice
(1) In deciding:
(a) whether to make any order or direction for the management of proceedings, including:
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made,
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
...
64 Amendment of documents generally
(1) At any stage of proceedings, the court may order:
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings."
102Section 64(2) is derived from a provision that has been a common feature of legislation governing court procedure since the Supreme Court of Judicature Act 1873 (Eng). Such provisions commonly followed the form of Rule 501 of the Court Procedures Rules (ACT), that the High Court considered in Aon Risk Services Aust Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175:
"All necessary amendments of a document must be made for the purpose of -
(a) deciding the real issues in the proceeding; or
(b) correcting any defect or error in the proceeding; or
(c) avoiding multiple proceedings."
103However, s 64(2) differs from the ACT Rule 501 in two respects. The whole provision is expressed to be "subject to section 58", and the "real questions" concerning which an amendment must be permitted are not only those "raised by" the proceedings, but also those "otherwise depending on" the proceedings. The questions "raised by" the proceedings are ones that exist at the time of the application for amendment: Aon at [31], [71], [119]. It is apparent from the facts in Aon that "at the time of the application" is to be understood in the sense of "before an issue arose about whether the amendment should be permitted", not "on the very day when the judge is considering whether to grant the amendment" - for by the latter time there is a live question about whether the amendment should be allowed, and it has been raised by an application in the proceedings. The "real questions otherwise depending on the proceedings" appear to be ones that are the consequence of the questions that are raised by the proceedings. The allegations of apportionment that the amended defence seeks to agitate were neither "raised by" the proceedings, nor "otherwise depending on" the proceedings, at the time the amendment was sought.
104It is not submitted that there is any "defect or error in the proceedings" that the proposed amendment would cure. Nor was it submitted that the amendment was desirable for "avoiding multiplicity of proceedings". Thus, whether the amendment should be permitted depends upon the considerations of justice, as referred to in s 58.
105It was not disputed that the factors that the primary judge had taken into account - adequacy of explanation for delay, that the proposed pleading is bona fide and has sufficient merit to warrant being allowed, and that any prejudice to the opposite side can be overcome - were proper matters for her to take into account in applying those provisions.
Explanation for Delay
106The defence in the matter had been filed, as mentioned earlier, on 9 September 2011. Quite how that happened is unclear, as even that date was outside the 28 days that UCPR 14.3 permits. Thus, the application to amend was made some eight months after the original defence had been filed.
107The explanation for the delay is quite unsatisfactory. From soon after 12 August 2010, the Applicant was aware of the type of claim that the Respondents wished to make against it ([41] above). From 27 August 2010, the Applicant had all the documents that Sparke Helmore then sent to it ([42] above). These included the plans prepared by Capital Homes, the building contracts with the Builder, and the letter from City Plan Services dated 21 June 2010. Relevant officers of the Applicant would inevitably have known that the Applicant did not provide any surveying services concerning the Land after it provided the contour and detail plan of 17 July 2008. The only new material that it is suggested emerged from the documents produced on subpoena by the Builder are the letters of termination of the contract of 2 March 2011, and the two invoices from Walpole.
108The evidence does not establish that that new material cast a significantly different light on the facts of the case, as previously known. While Mr Gibbons asserts that the records produced did not include any records that confirm that any surveyor provided services concerning the height of the floor slabs installed prior to discovery that the slabs were below the approved level, the evidence provided no explanation of what is involved in the task of "certifying position of formwork", that Walpole charged for. If that task includes checking the height to which the formwork reaches, it might be closely related to the level that the slabs would have once the formwork was filled with cement. Further, production of the letters of termination of the building contracts is unlikely to have revealed any radically new aspect of the factual situation, because before their production it would have been clear that the Respondents were taking no steps to require the Builder to rebuild the houses so that the slabs were at the required levels.
109In any event, the documents produced by the Builder were not dealt with promptly - nearly a month went by before they were copied, and it appears that no serious consideration was given to the documents until early May 2012. During the period from entry of the consent orders on 16 September 2011 the case was made completely ready for trial on the basis, encouraged by an correspondence of Mr Gibbons from 26 August 2011 onwards ([54] above), that all that remained in issue was "the core issue" of the proper measure of damages. There was no hint that the Applicant might later take the stance that it was possible, on a hearing confined to assessment of damages, to raise issues of whether a claim was apportionable, and to use those issues as a way of limiting the damages that would otherwise be payable. The need for a cogent explanation for delay in putting forward an amendment is much greater when the amendment is first sought when a hearing is imminent, as it was here, rather than when a hearing is still a considerable time away.
110Mr Miller says, correctly, that the Respondents were not speedy in issuing the Statement of Claim. However, once they realised that the houses had been constructed defectively they acted promptly to notify the Applicant that they had a claim, provided documentation promptly after Mr Gibbons requested it, and sought settlement discussions. While the evidence does not identify any particular dates other than 14 June 2011 on which settlement discussions took place, by 26 August 2011 Mr Gibbons could say that the proper measure of damages was the "the issue which has separated the parties for a long time" ([54] above), and by 1 September 2011 he could say that the proper measure of the plaintiffs' damages was "the same matter which has been in existence for a considerable period of time" ([56] above). On the basis of those statements I would infer that there had been settlement discussions well before 14 June 2011. As the content of those discussions would inevitably be privileged, it is not particularly surprising that their dates were not identified.
111While the passage of time before a statement of claim was issued must be taken into account, it does not have the same significance for the exercise of the discretion whether to grant the amendment as the lack of cogent explanation for the amendment being sought so long after the defence was filed, and virtually on the eve of the trial. I would not draw the conclusion that Mr Miller's submissions to us presupposed, that the time between the defect in the houses being revealed and the statement of claim being filed involved unacceptable delay on the part of the Respondents, that counterbalanced the delay of the Applicant in seeking the amendment. Cross-examination of Mr Wilson failed to establish that such departures as there had been on the part of the Respondents from the directions for filing evidence had delayed the hearing date.
Prospects of Success
112The evidence before the primary judge did not justify a conclusion that the amendments had any reasonable prospects of success. It is necessary to consider separately whether the Applicant had shown that the amendment had reasonable prospects of success insofar as it is contended that the Builder was a concurrent wrongdoer, and insofar as it contended that the Contracting Respondents themselves were concurrent wrongdoers.
Was the Builder a Concurrent Wrongdoer?
113The amended pleading refers to conditions 7 and 53 of the development consent ([33] above). However, it does not allege any failure to comply with condition 7. Further, there is no evidentiary basis for believing that there was any land filling on the part of the Land on which the houses were to be located (though it is possible that there might have been some filling elsewhere on the site). Thus, there is no basis for concluding that condition 7 of the development consent bears in any way upon the houses being constructed with floor levels at the wrong height, or upon the Builder having a liability to any of the Respondents.
114The pleading also made mention of condition 53 of the development consent. That does not identify any obligation to build in accordance with the approved plans. Rather, clause 53 states that a consequence of failure to do so will be that an occupation certificate will be refused. It is only clause 2 that creates the obligation to build in accordance with the approved plans, that the Builder is alleged to have breached.
115While the proposed amended defence contains an assertion, in [27], that the Builder breached the building contracts by failing to achieve the specified finished floor levels and building levels, it does not assert that that breach of contract is, in itself, a cause of the same loss or damage for which the Applicant is sued. Rather, it pleads that the loss and damage that the First, Third and Fourth Respondents have suffered is a consequence of a failure on the part of the Builder to take reasonable care. That approach to the pleading is consistent with Mr Miller accepting in the course of argument in this Court that a mere breach of contract on the part of the Builder, as opposed to a negligent breach or a breach of a contractual obligation to take reasonable care, did not give rise to a claim for apportionment.
116The only failure to take reasonable care that the proposed pleading alleges the Builder engaged in is that pleaded in [32] ([80] above). However, there was no evidence before the judge on the hearing of the notice of motion that suggested there was a viable case that for the Builder to take reasonable care in building required it to engage a surveyor, or adopt any other method of checking, to check or verify the finished building levels or finished floor levels. Though the affidavit of Mr Golledge was before the primary judge, it was not read in support of the notice of motion.
117On the hearing in this Court, Mr Miller relied on Mr Golledge's affidavit. I will assume, without deciding, that on a re-exercise of the discretion in this Court it is legitimate to take that affidavit into consideration.
118When the Applicant contended at the hearing of the notice of motion that allowing the amendment would not occasion any adjournment, and that the only additional evidence that it wished to file if the amendment was permitted was the affidavit of Mr Golledge, the trial judge would have been justified in assessing the prospects of the amendments succeeding on that evidentiary basis. Even in this Court, when it is known that the trial date has been lost, it is not submitted that there is any identifiable evidence apart from that which was read before the primary judge, the cross-examination on that evidence, and the affidavit of Mr Golledge that should be taken into account for the purpose of re-exercising the discretion. It was submitted that some additional evidence about surveying practice, or building practice, might be called if the amendment were allowed, but no submission was made about what it would show, if permitted. Thus, the prospects must be assessed by reference to such evidence as is before us.
119Mr Golledge's affidavit does not provide sufficient support for the case that had been pleaded. If paragraphs 15 and 16 of that affidavit are put forward as expert evidence, all that Mr Golledge says about himself is that he is a "registered surveyor and Director of the Defendant". That does not show him to have the requisite degree of specialised knowledge or experience to be able to express opinions concerning what is required for the taking of reasonable care in the construction of houses. He says nothing about the extent to which his experience as a surveyor concerns the construction of houses, as opposed to other types of surveying work. If the paragraphs are not put forward as expert evidence, it is hard to see the relevance of Mr Golledge's personal experience.
120Quite apart from that, those paragraphs talk about it being usual to have a check survey prior to the concrete pour. The pleading does not allege a failure to take care through not having a check survey prior to the concrete pour. Rather, it contends that it was the finished floor levels or finished building levels that should have been checked. Thus, even if it were admissible, the evidence does not support the pleaded breach. As well, in at least some circumstances it is possible to fail to do what is usual without thereby being negligent, and the evidence does not negative that this is such a situation.
121Further, there is no evidentiary basis for concluding that the surveying task that Mr Walpole performed, of "certifying position of formwork" did not in substance amount to "a check survey prior to the concrete pour".
122Finally, even if one took [32] of the pleading at face value, and it was negligent of the Builder to fail to engage a surveyor to check the finished building levels or finished slab levels, there was no evidence of how such a check survey would be carried out. It is not shown that a surveyor engaged to perform that task would not start by assuming the accuracy of the datum point that the Applicant had surveyed and measure the height difference between the datum point and the finished slab levels or finished building levels. If a surveyor would proceed in that way, it would not reveal the error in the finished building levels or the finished slab levels. In that situation the assumed negligence would not be the cause of the Respondent's loss.
123For these reasons, the Applicant has not shown that it has a seriously arguable case that the Builder was a concurrent wrongdoer.
124At the hearing in this Court there was some discussion of whether, even if it had been possible to argue that the Builder had failed to take reasonable care in building the houses, any such action brought against the Respondents would fail because the Contracting Respondents would have an equitable set off. The argument being considered was that the set off would arise because the Contracting Respondents would be in breach of the warranty contained in clause 3(a) of the contract (para [36] above), because they had supplied the survey drawing which was inaccurate. I will not take that argument into account, because since the hearing it has occurred to me that there might be an argument that it is an effect of s 18G Home Building Act 1989 (which says that a provision of an agreement that purports to restrict or remove the rights of a person in respect of any statutory warranties is void) that clause 3 of the contract is itself void. Rather than delay the production of these reasons by seeking additional submissions concerning that argument, I will simply not rely on the possibility of the Builder having an equitable set-off for my conclusion that the Applicant has not shown that it has a seriously arguable case that the Builder was a concurrent wrongdoer. My mention of the argument about clause 3 being void does not involve even a tentative expression of opinion about whether the argument is one that should succeed.
Were the Contracting Respondents Concurrent Wrongdoers?
125There was no factual basis for the contention in the proposed amended defence that the Contracting Respondents had not only terminated the contracts with the Builder, but had also released the Builder. No express release has been shown to exist.
126Even if there is no express release, the premise on which the proposed amended pleading against the contracting Respondents proceeds is that by the termination of the contracts the contracting Respondents lost rights that they otherwise would have had against the Builder, and for that reason the act of the Contracting Respondents in agreeing to the termination of the contracts is a cause of the same loss and damage as that for which the Applicant is being sued. A termination of a contract following a breach has the effect that both parties are thenceforth excused from performing the contract, but does not prevent any party from suing another for damages for a breach that has occurred before the termination: McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 at 476-7; Johnson v Agnew [1980] AC 367 at 396. There is no necessity that the same result should follow when a contract is terminated by agreement or by abandonment: the consequences of termination in those circumstances depend on the intention of the parties (JW Carter, Breach of Contract, 2nd ed (2011) LexisNexis Butterworths at [12-18]). However, nothing has been proved to show that there is a case that when the Contracting Respondents agreed to the termination of the building contracts they lost any rights that they might have had to sue the Builder for any past breach of contract. When no basis is shown for believing that any rights that the contracting Respondents might have had against the Builder has been lost because of the termination, there is no basis for the pleading proposed to be brought against the Contracting Respondents.
127A further reason why the case that the Respondents were themselves concurrent wrongdoers was not shown to have real prospects of success is that, even if the Respondents had released the Builder from any claims under the contract, that release did not involve the giving up of anything of substance. I have already explained why it was not shown that the Respondents had an "apportionable claim" against the Builder.
128There is a more fundamental problem concerning the contention that the contracting Respondents are "concurrent wrongdoers". On the proper construction of Part 4 Civil Liability Act as a whole, a plaintiff whose own acts or omissions have been a cause of his own loss or damage is not a "concurrent wrongdoer". This construction highlights the distinction between contributory negligence and proportionate liability.
129I accept that, on a literal reading of s 34(2) Civil Liability Act a plaintiff whose acts or omissions have been a cause of the damage or loss that is the subject of the claim fits within the definition of "concurrent wrongdoer". However, on its proper construction s 34(2) should not be read in that literal fashion. If there is a statutory definition of a term that has an ordinary English meaning, the ordinary English meaning can influence the operation of that definition. In Manly Council v Malouf t/as Fusion Point [2004] NSWCA 299; (2004) 61 NSWLR 394, Handley JA (Mason P agreeing) said at [8] and [9]:
The word defined in a statute may properly influence the interpretation of the definition. See Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522 at 525; [1982] 2 All ER 1 at 4, per Lawton LJ (CA). As F A R Bennion states (Statutory Interpretation, 3rd ed (1997) London, Butterworths, at 434):
'Whatever meaning may be expressly attached to a term, it is important to realise that its dictionary meaning is likely to exercise some influence over the way the definition will be understood by the court'.
The citations to this passage include Delaney v Staples [1992] 1 AC 687 at 692 where Lord Browne-Wilkinson said: '... The proper answer to this case turns on the special definition of 'wages' in section 7 of the Act. But it is important to approach such definition bearing in mind the normal meaning of that word'."
See similarly Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; (2009) 171 LGERA 152 at [17] per Basten JA (Allsop P agreeing).
130Reading s 34(2) with that principle in mind, it is not ordinary English for a person to be a "wrongdoer", of any kind, insofar as he causes harm to himself. In ordinary English, when there is a wrongdoer there is some other, different, person who has been wronged. That shade of meaning continues to apply in the definition of "concurrent wrongdoer".
131Further, in Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, McHugh J said, at [103]:
"As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome."
132If one considers the application of the definition in s 34(2) to the other provisions in Part 4, no purpose of the legislation is served by regarding the meaning of "concurrent wrongdoer" as extending to a person who fails to take reasonable care of his own interests.
133Section 35 is the central provision in Part 4. It sets out the manner in which a limit is imposed on the liability of a "defendant" who is a concurrent wrongdoer and who is not an excluded concurrent wrongdoer. There is no suggestion in the present case that anyone involved in it is an excluded concurrent wrongdoer. There is an extended definition of "defendant" in s 35(5), which would extend to, for example, someone who a plaintiff had not joined as a defendant in proceedings, but who became a party to the proceedings as a cross-defendant. However, s 35(5) expressly excludes a plaintiff from that extended definition.
134Section 35(1) enables the liability of a "defendant" in that extended sense to be limited. Further, s 35(a) proceeds on the basis that a concurrent wrongdoer has a "liability". A person who fails to take reasonable care of his own interests does not have a liability to himself, or anyone else, by virtue only of that failure to take care. Thus, such a person has no liability that is capable of being limited. For these reasons s 35(a) has no work to do concerning a plaintiff.
135Section 35(3)(a) makes specific mention of what is to happen in the situation where there is more than one defendant (in the extended s 35(5) sense) and a plaintiff is contributorily negligent. Section 35(3)(a) requires that when a plaintiff is contributorily negligent a "proportion of the loss or damage" is first excluded under "any relevant law", and only after that proportion has been excluded is responsibility apportioned between the defendants in the proceedings. When s 35 was first enacted there was another "relevant law" under which a plaintiff who is contributorily negligent could be required to bear a portion of the damage or loss that was the subject of an apportionable claim, namely s 9 Law Reform (Miscellaneous Provisions) Act 1965 ("the 1965 Act"). In the situation where there are two defendants, and a plaintiff's failure to take reasonable care of his own interests has caused the same loss or damage as that for which the defendants are sued, s 35(3)(a) requires that there be an exclusion of the proportion of the loss or damage in relation to which the plaintiff is contributorily negligent.
136The test by reference to which a plaintiff's damages are reduced under s 9 1965 Act is "such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". That is indistinguishable from the test by which the limitation of the liability of a defendant is to take place under s 35(1)(b) Civil Liability Act. When that legislation was already in existence at the time of enactment of the Civil Liability Act 2002, there would have been no need for "concurrent wrongdoer", in Part 4 Civil Liability Act, to extend to a person who fails to take reasonable care of his own interests.
137However, a similar situation to that which s 35(3)(a) expressly requires also arises where there is only one defendant. The only liability that s 35(1)(a) limits is that of a defendant (in the extended sense). The "proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the loss or damage", referred to in s 35(1)(a), is a proportion that is ascertained taking into account the extent to which it is just that a plaintiff, by virtue of being contributorily negligent, should share in the responsibility for the damage, and the extent to which a concurrent wrongdoer who is not party to the proceedings should also share in the responsibility for the damage. In that way the policy is effected that each defendant be liable for no more than the proportion of the total damage that is his responsibility, taking into account the extent to which the plaintiff by virtue of being contributorily negligent, other defendants (in the extended sense), and concurrent wrongdoers who are not parties to the proceedings also bear responsibility for that damage. That policy is effected without any need for a plaintiff careless of his or her own interests to be classified as a "concurrent wrongdoer". Of course, before the contributory negligence of a plaintiff entered into the ascertainment of the appropriate proportions, it would be necessary for contributory negligence to be explicitly alleged in the defence of the defendant who sought to have its liability limited.
138At the time s 34 first came into operation on 1 December 2004, it included in the definition of "apportionable claim" a "claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act". Section 42 is closely based on s 52 Trade Practices Act 1974. At one time contributory negligence was not a defence to an action for damages under s 82 Trade Practices Act for breach of (inter alia) s 52 of that Act: I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 at [33], [60]-[61], [112], [122], [211]. However, effective from 26 July 2004, s 82 Trade Practices Act was amended to add sub-s (1B), which allowed damages for contravention of the relevant provisions of the Trade Practices Act to be reduced by reason of the contributory negligence of the applicant. No analogue of s 82(1B) Trade Practices Act has been incorporated into the Fair Trading Act 1987, so contributory negligence cannot reduce the plaintiff's damages for a contravention of s 42 Fair Trading Act: Perpetual Trustee Company Ltd v Milanex Pty Ltd (in liquidation) [2011] NSWCA 367 at [86]-[88]. In deciding what one should regard as "the extent of the defendant's responsibility for the loss or damage", in s 35, it is appropriate to give effect to the legislative policy that contributory negligence should not provide a defence to an action for breach of s 42 Fair Trading Act, and not reduce the "extent of the defendant's responsibility for the loss or damage" by reason of the plaintiff having been careless of his own interests.
139The Fair Trading Amendment (Australian Consumer Law) Act 2010 ("the 2010 Amending Act") came into operation on 1 January 2011. It repealed many provisions of the Fair Trading Act, including s 42 and the provision that empowered a court to award damages for breach of s 42. In their place it adopted the Australian Consumer Law, the text of which is defined by s 27 of the 2010 Amending Act to consist of:
"(a) Schedule 2 to the Competition and Consumer Act 2010 of the Commonwealth, and
(b) the regulations under section 139G of that Act."
140In particular, cl 18 of the Australian Consumer Law is an analogue of the former s 42 of the Fair Trading Act. The 2010 Amending Act also adopted some of the provisions of the Competition and Consumer Act concerning remedies, but not all of them. Schedule 3 cl 2 of the 2010 Amending Act amended the definition of "apportionable claim" in the Civil Liability Act so that para (b) read:
"... a claim for economic loss or damage to property in an action for damages under the Fair Trading Act 1987 for a contravention of section 42 of that Act (as in force before its repeal by the Fair Trading Amendment (Australian Consumer Law) Act 2010) or under the Australian Consumer Law (NSW) for a contravention of section 18 of that Law."
141It is unnecessary to decide whether contributory negligence is now a means of reducing the damages for a contravention of s 18 of the Australian Consumer Law, as adopted in NSW. All that it is necessary to say is that if it is, then that could be taken into account in deciding whether a plaintiff's carelessness provided a reason for reducing the extent to which it was just that a defendant's liability be reduced, under s 35 Civil Liability Act, when the defendant is sued for a breach of s 18 Australian Consumer Law. However, if contributory negligence is not now a means of reducing the damages for a contravention of s 18 of the Australian Consumer Law as adopted in NSW (as would be the case if s 137B Competition and Consumer Act 2010, which makes contributory negligence a defence to certain actions for damages under the Australian Consumer Law, had not been adopted as part of the NSW law) it could not be taken into account in deciding whether a plaintiff's carelessness provided a reason for reducing the extent to which it was just that the defendants liability be reduced under s 35 Civil Liability Act when the defendant is sued for breach of s 18 Australian Consumer Law.
142Contributory negligence is not available as a defence to action for breach of statutory duty that accrued prior to 6 December 2002, but is available as a defence to actions for breach of statutory duty that accrued after that date: Transfield Construction v Peers [2008] NSWCA 215 at [82]. As explained in Transfield v Peers, that situation arises as a consequence of the transitional provisions of the Civil Liability (Personal Responsibility) Act 2002, the legislation introduced the proportional liability provisions into the Civil Liability Act. It is by giving effect to the policy of the law concerning whether contributory negligence provides a defence to an action for breach of statutory duty, as applicable at the time the cause of action accrued, that one decides whether the liability of a defendant who is sued for breach of statutory duty should be reduced by reason of the contributory negligence of the plaintiff. That decision is not made by reference to construing "concurrent wrongdoer" as including a plaintiff who was contributorily negligent.
143For these reasons, s 35 operates to achieve its intended purpose when a plaintiff who is contributorily negligent is not a "concurrent wrongdoer". Likewise, the provisions of s 35A, 36, 37, 38 and 39 have no scope to operate, in relation to a 'concurrent wrongdoer" who was one of the causes of harm to himself or herself.