Wintle v Conaust

5. By a summons of 8th June 2001, orders are sought, in substance, that (1) Anne Wintle, the executrix of the estate of the plaintiff George Wintle be substituted as plaintiff in the 1989 proceeding and that that proceeding be carried on as though constituted; (2) that the plaintiff Mrs Wintle, once substituted, have leave to discontinue the proceeding against the first, second, third and fourth defendant, thereby only proceeding against S.I.F.C.; (3) that she have, as substitute plaintiff, leave to file and serve an amended statement of claim so as to add a claim pursuant to Part 3 of the Wrongs Act 1958, that is, to claim in her own account as widow and not merely as executrix of the estate. I shall refer to the three orders sought respectively as the substitution order, the discontinuance order and the amendment order. The effect of these orders would be to leave the fifth defendant S.I.F.C. as the sole defendant in the proceeding continued by Anne Wintle as executrix of the estate of the plaintiff (a) for the benefit of the estate of the plaintiff pursuant to s.29 of the Administration and Probate Act 1958 and (b) for her benefit as the only dependant of George Wintle, pursuant to Part 3 of the Wrongs Act 1958. As I understand the submissions made to me, if those orders were made, Mrs Wintle would seek an order staying proceeding 4950 of 2000 in which S.I.F.C. is the first-named defendant.

8. With respect to the substitution order, what seems to be stated is that proceeding 1113 of 1989 still remains on foot. It is not necessary to go into the historical detail concerning that, save that, after some dispute about the matter, S.I.F.C. conceded that the proceeding did not stand dismissed by operation of Order 34.05 of the Supreme Court Rules. The proceeding was never discontinued and the plaintiff argues that it is still on foot. The plaintiff's cause of action against S.I.F.C. survived for the benefit of his estate pursuant to s.29 of the Administration and Probate Act 1958 and did not abate by reason of the plaintiff's death[1]. Anne Wintle, as executrix of the plaintiff's estate, wishes to continue that proceeding for the benefit of the estate of the plaintiff but, in order to do so, an order will have to be made that she be made plaintiff in substitution for her husband pursuant to Rule 9.09(2), such an order being necessary before any further step can be taken in the proceeding.[2]

11. So far as the application for discontinuance is concerned, Rule 25.02(2)(b) provides that a plaintiff may discontinue a proceeding, or withdraw any part of it, after the close of the pleadings "by leave of the Court or with the consent of all of the parties". The plaintiff, for whom Mr Sher, Q.C. who with Mr Quinn appeared for the plaintiff, put it that since S.I.F.C. have made claims for contribution against the other stevedoring companies in the proceeding there will be no prejudice to S.I.F.C. if it were discontinued against them and that Mrs Wintle merely pursued the cause of action already pleaded for the benefit of the estate pursuant to s.29. I note, however, that the first four defendants were not served and have not appeared.

14. So far as the amendment order is concerned, the Court's power to make an order permitting amendments of a statement of claim so as to add a claim, as here sought, under Part 3 of the Wrongs Act 1958 derives from Rule 36.01(1) which provides as follows:

"For the purpose of determining the real question of controversy between the parties to any proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings, the Court may at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding."

Rule 36.01(3) specifically provides that the Court may permit amendments to a pleading so as to add a cause of action arising after the commencement of the proceeding.

19. It is necessary also to refer to the provisions of Rule 36.01(6) which are to the following effect:

"The Court may, notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise." (My emphasis.)

On this Rule, however, there arguably impacts the provision of s.34(1) of the Limitations Act 1958 which expressly abrogates the rule in Weldon v. Neal[3]. Section 34(1) is in the following terms:

"If a court would, but for the expiry of any relevant period of limitation after the day a proceeding in the causes commenced, allow a party to amend a document in the proceeding, the court must allow the amendment to be made if it is satisfied that no other party to the proceeding would by reason of the amendment be prejudiced in the conduct of that party's claim or defence in a way that could not be met by an adjournment, award of costs, or otherwise."

25. I set out the provisions of s.20(1) of the Wrongs Act:

"20. Application to court as to cause of action under this part (1) Not more than one action shall lie for and in respect of the same subject-matter of complaint, and (subject to sub-section (1A)) every such action shall be commenced within six years after the death of such deceased person or, where an application is made to a court under sub-section (2), within the period referred to in the order of the court."

As I understand the submission, what the plaintiff proposes is to "prosecute one action", addressing her rights arising under the Wrongs Act by being permitted to bring it as part of the 1989 proceeding by amending the statement of claim to allege that cause of action and to have the whole of the proceeding 4950 of 2000 stayed (there being at the moment a claim by her under the Wrongs Act in that proceeding). It also appeared to be suggested by counsel for the plaintiff that Mrs Wintle would be entitled to discontinue 4950 of 2000, with the right of reinstatement (a matter less certain, to my mind) although it might be possible to strike it out with a right of reinstatement.

30. The relation between s.34 of the Limitations of Actions Act 1958 and Rule 36.01(6) was the subject of consideration by Phillips, J.A. in Anglo-Irish Beef Processors International v. Federated Stevedores Geelong[4]. Primarily, however, his Honour identified some of the issues and questions to which the section and the rule arguably gave rise, including the extent of operation of s.34 and possibly r.36.01(6) and whether the section or the Rule operates when the time bar extinguishes not merely the remedy but the right. I note that Williams Civil Procedure, in its notes to Order 36.01 states:

"As a general rule, a court will not allow a person to be added or substituted as a party at a time when any limitation period applying to the claim by or against that person has expired."

What has been sought here are two amendments to an existing statement of claim (because Mr Wintle is still the plaintiff in the 1989 consolidated proceeding, no amendment having been sought in that respect at any earlier time). No party appears to suggest that with respect to the claim made under the Administration and Probate Act that it is other than proper to substitute Mrs Wintle as plaintiff suing as executor in that proceeding.

35. Mr Robin Gorton, Q.C, who with Mr Saccardo appeared for the first defendant, relied upon a number of authorities referred to in Williams "Supreme Court Practice" 36.01 (4154). An examination of many of them would indicate that they were not concerned with the matter here. Some even pre-dated the abolition of the rule in Weldon v. Neal. The rule in Weldon v. Neal meant that a plaintiff would not be permitted to amend a statement of claim to raise a cause of action that had become barred under the Statute of Limitations since the date of the writ. Its abolition was of importance. Batt, J. appeared to be of the view that s.34, in speaking of any relevant period of limitation, was referring to those provided for in Part 1 of the Limitation Act itself as giving meaning to Rule 36.01. It may be that another perspective is that Rule 36.01 might be more wider in its operation than limitation matters arising under s.34 of the Act because Rule 36.01(6) was aimed at relieving what Ashley, J. in Hatfield v. Agtrack (MT) Pty Ltd[5] termed the procedural "straight jacket" imposed by the Rule in Weldon v. Neal. Indeed, Williams states:

"As to Order 36, the Court is authorized to allow amendment of proceedings in circumstances where formerly the amendment would have by reason of the expiry been refused."

39. Mr Gorton flirted with the argument that the amendments contemplated by Order 36, having regard to its language, and what is here proposed, would not be allowed by virtue of the description in Rule 36.01. I do not share that view. There are a number of likely arguments, for instance, that the real question in controversy is as to what rights arose in what persons by the death of Mr Wintle after the commencement of his proceeding, including his deceased widow's rights or that it was an error in the proceeding not to have amended it to establish her claims as executrix or, arguably that the inclusion of the proposed amendment to allow the Wrongs Act claim in the 1989 proceeding avoids a multiplicity of proceedings.

42. Mr Sher for the plaintiff in the course of the hearing before me made it clear that to put the matter beyond doubt, having regard to the language of the Wrongs Act s.20(1), that the plaintiff would consent to a stay of 4950 of 2000 wherein the Wrongs Act claim was made against all three defendants if the plaintiff were permitted to amend the 1989 writ both as to title and so as to include, along with part of Mrs Wintle's claim as executrix of the estate, her claim as executrix of her entitlements under the Wrongs Act (there being no other dependents, the amendment of the statement of claim, can be done relatively simply in that respect). An order could include that undertaking as part of "Other matters". Naturally enough, the plaintiff would not, at the present time, consent to a final stay of the 2000 proceeding until such time as her right to proceed with the Wrongs Act claim as part of the 1989 proceeding was not in doubt.

45. There had been debate between the parties as to the meaning of the words "not more than one action shall lie" in s.20 of the Wrongs Act. Mr Sher's submission was that the purpose of it was to preclude a plaintiff "double dipping" and to avoid a multiplicity of proceedings in which claims pursuant to Part 3 of the Wrongs Act in respect of the same subject matter might be made. He argued that s.20 did not require that only one action should be commenced in which a Wrongs Act claim is made. He claimed it was more logical for the Wrongs Act claim to be prosecuted through the earlier proceeding rather than be determined in the more complex later proceeding. This bold claim was made with a disarming reticence that glided over the real reason for the application, namely to secure the Wrongs Act claim into the 1989 proceeding, avoiding the limitation difficulties of 4950 of 2000.

48. Mr Gorton evinced notable scepticism as to this proffered reason, claiming that the purpose of the application was to enable the plaintiff to avoid the limitation period. Of course, the exercise of the discretion conferred by Order 36 is an enabling one to enable the "new" claim or cause of action to become part of the proceeding which could not have occurred under the rule in Weldon v. Neal. I note that Ashley, J. in Hatfield took the view that it was doubtful the decisions dealing with applications to join a party could be transposed to provide guidelines of application to amend pleadings. As Rogers, J. explained in Larcos the rule in Weldon v. Neal as to how the discretion in granting the relevant amendment should be exercised was formulated by the judges, he stating that

"That judge-made rule directing and withholding of amendments is no longer to be treated as governing the exercise of discretion. In other words, whatever the practical effect may be, flying from the accepted consequences of amending a pleading, Part 20 p.20, r.4 (the New South Wales rule) did no more than bring about a change of practice. A subject matter of the rule was the exercise of discretion in granting amendments. It did not seek to, as indeed it could not, alter Commonwealth legislation providing for limitation of actions. (In that case, the relevant provisions was Commonwealth in origin.) If the discretion conferred by the Victorian rule is exercised in favour of the plaintiff, the form in which the limitations defence is raised, that will be the time to evaluate to evaluate that although it must be said that if leave is granted the amendment dates from the commencement of the proceedings."

In Bridge Shipping Pty Ltd v. Grant Shipping SA & Anor[6], McHugh, J. (with whom Brennan and Deane, JJ. agreed) construed Rule 36.01(4) as a remedial rule which should be given a broad application. Various parts of Rule 36 should be seen as a set of rules designed to work together and in much the same way. None of them should be construed restrictively, but that also includes the evaluation of "prejudice", the absence of which is critical to the exercise of the discretion..

53. Mr Gorton's argument was that the use of the word "action" rather than "cause of action" in s.20 marked off the legislator's differentiation between the concept of a proceeding and the cause of action, the word meaning in his argument "a proceeding".[7] He therefore argued that the present application for her to be added as a plaintiff and to amend the 1989 proceeding so as to tack on the Wrongs Act claim contravened the provisions of s.20. As I have indicated Mr Sher argued that s.20 did not require that only one action "shall be commenced". However a practical solution to these conundrums is proposed by the plaintiff. The proposal was for a stay of the 2000 proceeding. I note all of Mr Gorton's arguments concerning it and I note that neither of the other two defendants in that action offered any objection to the proposed course although it would follow, as my later discussion would indicate, that some attempt would likely be made to join them in as contribution third parties in the 1989 proceeding. I refer to some aspects of this shortly.

56. The terms of Order 36.06 enable the Court to exercise its discretion to permit a pleading to be amended

"where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of its claim or defence in a way that could not fairly be met by an adjournment, an award of costs or otherwise."

60. In one point of time it appeared to me that Mr Gorton appeared to be arguing that within the scope of "prejudice" might lie the loss of the right to rely upon the limitations defence but that may have been a misunderstanding by me. The main theme of the prejudice was, as it was argued before me, was that S.I.F.C. could not have brought contribution proceedings in relation to the Wrongs Act claim in the 1989 proceedings and cannot do so now. Nor was it made absolutely clear to me why it is impossible that an order might be made joining James Hardie and/or C.S.R. as third parties if the amendment is allowed. There may be issues which could be raised in opposition to that joinder that have not been raised here although the defendant S.I.F.C. appears to assert the proposition that it could not now do so. It suits the defendant to put it this way as it wishes to contend that it will be prejudiced in the conduct of its claim or defence within the meaning of Rule 36.01(6). Of course, I bear in mind the terms of s.34(1) which in fact obliges the Court to allow the late amendment to be made if it satisfied no other party to the proceeding would be prejudiced etc. This, as is self-evident, is the mirror image of the Rule 36.01(6), except for the difference between must and may. The amendments sought by Mrs Wintle would, in my judgment, ordinarily be allowed without any difficulty save for the debate about the limitation and prejudice period. The prejudice contemplated is prejudice in the conduct of the litigation which in my view must include conduct of its defence against the plaintiff's claim and prejudice in the exercise of rights against other parties who might be liable to contribute. The loss of the right to rely upon the limitation defence is not prejudice for this purpose.

63. There was considerable debate between the parties as to the provisions in the Wrongs Act concerning contribution permitting a variety of time-sets. Section 24(2B)(4) sets out what are probably the applicable time-frames in this case. The parties did not address it specifically in front of me, but it is my recollection that the other defendants to the 1989 proceedings all reached "workers compensation" settlements with the plaintiff which involved discontinuance against them. This was apparently never done. The action was never disposed of by its striking out or any order made by any judicial officer of this Court. It was this aspect that led to the ultimately aborted claim that the proceedings no longer existed. Mr Gorton appeared to be submitting to me that his client's right to contribution expired in 1995 plus 12 months. Although I do not decide it now, if the operation of the exercise of the Court's discretion involved permitting the raising by Mrs Wintle of a personal Wrongs Act claim in addition to her claim as the executrix of the estate, it may be arguable that the right to seek under contribution is enabled by the same Order. The language of Order 36 "any document in the proceeding" suggest the possibilities. Indeed, Mr Sher for the plaintiff put the proposition that that was probably correct. He advanced arguments to the effect that the failure of the defendant S.I.F.C. to have joined James Hardie and C.S.R. as third parties in the original proceeding, and to claim contribution from them, was a failure by the defendant to attend to the necessary steps to protect its own interest, thereby diminishing the present claim made about the prejudice that might ensue if the Wrongs Act proceeding were now be permitted to be raised out of time. This was broadly based upon some material filed by Mr Peter Gordon, solicitor for the plaintiff, indicating that in 1990 a case of one McKenzie in which some of these parties were involved threw up a great deal of information indicating the likely culpability in mesothelomia cases of both James Hardie and C.S.R. so that they should have been joined at the outset. Some argument was also advanced that the connexion between working on the wharves handling asbestos shipped, generated or connected with James Hardie and C.S.R.'s activities and the onset of mesothelioma was well known. Mr Gorton's answer to that proposition was that although the proceeding had been and was fixed for hearing, Mr Wintle's death laid the practical movement forward of the case to rest; that the proceeding was an accelerated one and that there had been not been a sufficient period of time in order for all of the facts to be considered and decisions to be made about the joinder of third parties.

66. I am not in a position to make an informed judgment about these matters. That I am not leads me to one matter that I regard as being significant. The Court must be satisfied that there will not be prejudice. The first defendant has filed no affidavits addressing this matter at all. It is commonplace in proceedings in which issues of prejudice are raised that the parties file material to indicate the ways in which that prejudice might arise. The reference to the third Party contribution aspect is one such. That was a matter that could be raised as a matter of law. One accepts that by the year 2000 when the Wrongs Act proceeding was commenced, that the contribution claims were made against James Hardie and C.S.R. by the first defendant. But on the issue of the events of an earlier time, there is no evidence before me. It is not suggested that any relevant witness has died or cannot currently be found. The prejudice that is here concerned is primarily with prejudice and unfairness arising with respect t the conduct of the litigation. The case for prejudice is basically founded on the loss of contribution rights, or the risk of that loss, the difficulty of now joining in James Hardie and C.S.R. and the difficulty in adding to the contribution claims made against the stevedoring companies.

69. I regard it as a significant matter that the Court has been left in this position. Matters of prejudice of that kind are not normally within the knowledge of the plaintiff, although sometimes they may be. Mr Gorton submitted that it was up to the plaintiff to produce that state of satisfaction in the mind of the Court that no prejudice will be occasioned. The Rule does not talk in terms of burdens but I accept that I have to reach a state of positive satisfaction of mind that the first defendant (and for that matter any other defendant or third party) would not by reason of this order be prejudiced in the conduct of its claim or defence in the proceeding.

72. Apart from the question of contribution claims, the first defendant claimed it would be prejudiced because if the matter were allowed and the claim succeeded the defendant would be exposed to damages by way of interest on what could be a substantial award from the whole of the period from 1989 to at the present time. The plaintiff answered this by saying that if the amendments allowing the action succeeded that the Court in considering any award of damages by way of interest on the sum awarded would be bound, and almost certain, to take into account the lateness of the raising of the claim and the technical nature of its admission into the original proceeding. I note, however, that the plaintiff did not proffer any undertaking not to claim interest from 1989.

75. Even if the first defendant's submissions are correct with respect to the interest aspect, S.I.F.C. would not "become entitled to a right to recover contribution in respect of any damage" from James Hardie and C.S.R. until the claim under the Wrongs Act was brought against it. It is, of course, making that claim in the 2000 proceeding. Mr Sher argued that any other construction of the provision would be illogical as it would require a defendant to anticipate amendments to a pleading so as to add a statute-barred claim or cause of action and to issue notices of contribution in advance of that. Nevertheless, the effect of permitting the Wrongs Act claim to be brought as part of the 1989 action relates the right back to that time, the so-called common law doctrine of relation back. Mr Sher argued that the power of the Court to permit amendments pursuant to Rule 36.01 applies to any document in the proceeding and would enable the Court to permit the defendant to amend its notice of contribution against the stevedoring companies. However, I am uncertain as to the status of the proceedings against the defendants other than S.I.F.C. in the 1989 proceeding. As I say, I have been informed in affidavits from time to time that the proceedings against them were settled but I am unaware of the terms upon which those settlements were effected other than that the proceeding would be discontinuing. It is of not much assistance to me that a submission is made about S.I.F.C. amending its notice of contribution against stevedoring companies which in effect have not and have not throughout the whole period of time I have been managing these cases been regarded as existing (active or inactive) defendants in the 1989 proceeding.

78. As I have indicated the first four defendants, the stevedoring companies, are still on the record in the still intact 1999 proceeding, although it would appear that it was intended that the action be discontinued against them. It is only now that the plaintiff takes the necessary step. One would anticipate that they would be surprised to find that they are still on the record. Discontinuance of a proceeding against them will not have the effect negating S.I.F.C.'s notice of contribution to them. They have never been heard at all on any aspect of this and would be entitled to make submissions against the plaintiff's application to amend its statement of claim in the 1989 proceeding, particularly if an arguable consequence was that the fifth defendant S.I.F.C. is entitled to amend its notice of contribution against them. Doubtless, if such an application were made they would then be entitled to resist on many grounds, one of which might include the complaint that they were entitled to have been here to oppose the application by the plaintiff to amend, the step that arguably opens up claims against them.

81. In my view, it is obvious that a number of difficulties are occasioned by the present application and an order should not be made, if it would occasion injustice, even if the matter were not strictly within the parameters of the prejudice issues raised under the Rule 36.01(6). However, having regard to the remarkable history of this matter, it is perfectly understandable that the plaintiff does not wish to conduct two proceedings, all arising out of the one set of events. But the 1989 proceeding is intact and can proceed with the amendment of the title by substituting Anne Wintle as plaintiff as executrix of the estate of the late George Wintle in order to issue the estate claims pursuant to s.29 of the Administrative and Probate Act.

84. I note that S.I.F.C., although ultimately not persisting in its opposition to the re-vivification of the 1989 proceeding, made some admissions almost certainly without knowledge of the plaintiff's intention to make the application here made by summons of 8th June this year.

87. Even if the plaintiff discontinued or stayed its proceeding against James Hardie and C.S.R. in the year 2000 proceeding, the contribution claims by S.I.F.C. would still be intact. From the Court's perspective, there is no conspicuous virtue in having the Wrongs Act and the estate claim heard together, other than it would mean there were not two separate hearings. However, that can be achieved by the making of orders about the proceedings being heard together or consecutively. With respect to the 2000 proceeding, I have already given a number of rulings, which resulted in the question of the Limitation of Actions Act defence raised by the second and third defendants and the plaintiff's application for an extension of time pursuant to the provisions of s.23A the Limitation of Actions Act 1958 being directed to be heard prior to the trial of the last proceeding and heard together. One supposes that the plaintiff, understandably enough, wants to obviate the risk of losing the s.23A application by crossing the Wrongs Act claim over to the existing proceeding 1113.

90. Notwithstanding my understanding of the plaintiff's reasons in this respect, I am unable conscientiously to reach the state of mental satisfaction that no other party to the proceeding would be prejudiced if this order were made, in the terms of Rule 36.01(6). In my view, the combination of all of the problems identified in relation to contribution proceedings raise a clear risk of prejudice. It is not possible to resolve all the issues involved, or which may be raised by amendments being sought to be made to existing notices or by the joinder of the second and third defendants in the 2000 proceeding as third parties in the 1989 proceeding. These are matters right at the cutting edge of the litigation and moreover, there is at least a possibility that, if the plaintiff were successful and the 1989 proceeding is amended, there will be a very substantial award of interest on any award of damages obtained by her in pursuit of her rights arising under the Wrongs Act. It is now more than 12 years since that proceeding was to be heard. Mr Sher may be right that a judge would take a very restrictive view about interest. However, interest is not a benefit or reward bestowed by the Court but an entitlement pursuant to statute. That aspect is arguably prejudicial to the first defendant. From the Court's perspective, and S.I.F.C.'s, the possibility of the involvement of the stevedoring companies in amended contribution proceedings adds an unexplored dimension to prejudice.

93. The plaintiff does not lose her right to prosecute the Wrongs Act claim in 2950 of 2000. She loses the ease and convenience of the single action, but, in my judgment, I am not left with the state of satisfaction that the opposite parties would not be prejudiced.

96. I wish to emphasize that I do not regard the view I take about the risk of prejudice, or my judgment of actual prejudice, in the context of Rule 36.01(6) as being in any way the kind of prejudice that a court might have to consider in the plaintiff's s.23A application. The matters there involving prejudice are to my mind of a different character.

99. The orders I propose to make on these application are as follows:

1. That pursuant to Rule 9.09 of the Rules, Anne Wintle, the executrix of the estate of the plaintiff George Wintle, be substituted as plaintiff in proceeding 1113 of 1989 and that the proceeding be carried on as so constituted.

2. In the absence of consent, the plaintiff's application for leave to discontinue the proceeding against the first, second, third and fourth-named defendants is refused.

3. The plaintiff's application for leave to file and serve an amended statement of claim so as to add a claim pursuant to Part 3 of the Wrongs Act 1958 is refused.

105. I will hear the parties on any aspects as to the form of the orders and costs.

[2] See Fielding v. Rigby (1993) 4 All.E.R. 294.

[3] (1887) 19 Q.B.D. 394.

[4] [1997] 2 V.R. 676.

[5] [2001] VSC 182, paragraph 100.

[6] [1991] HCA 45; (1991) 173 C.L.R. 231 at 260.

[7] See Patterson v. Richards [1963] VicRp 29; [1963] V.R. 179 at 182.