24Recovery of contribution[[3]](#endnote-4)

24 Recovery of contribution[[3]](#endnote-4) S. 24(1) amended by No. 9856 s. 5(a), repealed by No. 10227 s. 8(c)(i). S. 24(2) amended by Nos 10227 s. 5(a), 26/2023 s. 69. (2) Subject to subsections (2A) and (2B), in any proceedings for contribution under section 23B the amount of the contribution recoverable from any person shall be such as may be found by the jury or by the court if the proceeding is without a jury to be just and equitable having regard to the extent of that person's responsibility for the damage; and the jury or the court if the proceeding is without a jury shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. S. 24(2A) inserted by No. 10227 s. 5(b). (2A) Where the amount of the damages which have or might have been awarded in respect of the damage in question in an action brought in Victoria by or on behalf of the person who suffered it against the person from whom the contribution is sought was or would have been subject to— (a) any limit imposed by or under any enactment or by any agreement made before the damage occurred; (b) any reduction by virtue of section 26; or (c) any corresponding limit or reduction under the law of a place outside Victoria— the person from whom the contribution is sought shall not by virtue of any contribution awarded under section 23B be required to pay in respect of the damage a greater amount than the amount of those damages as so limited or reduced. S. 24(2B) inserted by No. 10227 s. 5(b), amended by No. 26/2023 s. 69. (2B) If in any proceedings for contribution under section 23B the jury or the court, if the proceeding is without a jury, finds that the amount of any payment made or agreed to be made in settlement or compromise of a claim was excessive the jury or the court (as the case requires) in assessing the amount of the contribution recoverable from any person shall disregard any part of the payment which appears to it to have been excessive. S. 24(2C) inserted by No. 10227 s. 5(b). (2C) Nothing in subsection (2B) applies to a settlement or compromise of a claim of a minor or person of unsound mind that has been approved by the court. S. 24(3) amended by Nos 10227 s. 8(c)(ii), 57/1989 s. 3(Sch. item 223.5(a)(b)). (3) No execution for the recovery of contribution under section 23B shall issue without the leave of the court. Upon application for such leave the court may direct that payment to the original plaintiff shall be sufficient satisfaction of the order for contribution. S. 24(4) substituted by No. 8330 s. 3(1)(a), amended by No. 10227 s. 6(a). (4) Notwithstanding any provision in any statute requiring a notice to be given before action or prescribing the period within which an action may be brought, where under section 23B any person becomes entitled to a right to recover contribution in respect of any damage from any other person, proceedings to recover contribution by virtue of that right may be commenced by the first-mentioned person— (a) at any time within the period— S. 24(4)(a)(i) amended by No. 10227 s. 6(b). (i) within which the action against the first-mentioned person might have been commenced; or S. 24(4)(a)(ii) amended by No. 10227 s. 6(b). (ii) within the period of twelve months after the writ in the action against the first-mentioned person was served on him— whichever is the longer; or S. 24(4)(b) amended by No. 10227 s. 6(c)(d). (b) where another person liable in respect of that damage, within the period within which the action against him might have been commenced or within twelve months after the writ in the action was served on him, serves a writ on the first-mentioned person seeking to recover contribution in respect of that damage from the first-mentioned person—at any time within the period of six months after that writ is so served. S. 24(4A) repealed.[[4]](#endnote-5) S. 24(5) repealed by No. 10227 s. 8(c)(i), new s. 24(5) inserted by No. 102/2003 s. 6. (5) For the removal of doubt, if an action (the **existing action**) was commenced in a court against the first-mentioned person referred to in subsection (4) before 1 October 2003, the period referred to in subsection (4)(a)(i) is to be taken to be the period within which the existing action might have been brought at the time the existing action was brought. S. 24(6) repealed.[[5]](#endnote-6) S. 24AAA inserted by No. 80/2010 s. 160, amended by No. 67/2013 s. 649(Sch. 9 item 36(1)). 24AAA When employer not liable to indemnify third party in relation to an injury A term of a contract that requires, or has the effect of requiring, an employer within the meaning of the **Accident Compensation Act 1985** or the **Workplace Injury Rehabilitation and Compensation Act 2013** to indemnify a third party, or make contribution, in respect of the third party's liability to pay damages for an injury to, or death of, a worker within the meaning of that Act arising in the course of the worker's employment with the employer is void. S. 24AA inserted by No. 10227 s. 7. 24AA Proceedings against persons jointly liable for the same debt or damage Judgment recovered against any person liable in respect of any debt or damage shall not be a bar to an action, or to the continuance of an action, against any other person who is (apart from any such bar) jointly liable with the first-mentioned person in respect of the same debt or damage. S. 24AB inserted by No. 10227 s. 7. 24AB Successive actions against persons liable (jointly or otherwise) for the same damage If more than one action is brought in respect of any damage by or on behalf of the person by whom it was suffered against persons liable in respect of the damage (whether jointly or otherwise) the plaintiff shall not be entitled to costs in any of those actions, other than that in which judgment is first given, unless the court is of the opinion that there was reasonable ground for bringing the action. S. 24AC inserted by No. 10227 s. 7. 24AC Application to the Crown Where the Crown is subject to any liability by virtue of the **Crown Proceedings Act 1958**, this Part shall bind the Crown in respect of the liability to which it is so subject in the same manner and to the same extent as if the Crown were a subject. S. 24AD inserted by No. 10227 s. 7. 24AD Savings (1) This Part as amended by the **Wrongs (Contribution) Act 1985** shall not affect any case where the debt in question became due or (as the case requires) the damage in question occurred before the commencement of that Act. (2) A person shall not be entitled to recover contribution or liable to make contribution in accordance with section 23B by reference to any liability based on breach of any obligation assumed by that person before the commencement of the **Wrongs (Contribution) Act 1985**. (3) This Part as in force immediately before the commencement of the **Wrongs (Contribution) Act 1985** shall continue to apply with respect to torts committed before the commencement of that Act. (4) The right to recover contribution in accordance with section 23B supersedes any right, other than an express contractual right, to recover contribution (as distinct from indemnity) otherwise than under this Part in corresponding circumstances but nothing in this Part shall affect— (a) any express or implied contractual or other right to indemnity; or (b) any express contractual provision regulating or excluding contribution— which would be enforceable apart from this Part or render enforceable any agreement for indemnity or contribution which would not be enforceable apart from this Part. (5) Nothing in this Part shall— (a) affect any criminal proceedings against any person in respect of any wrongful act; or S. 24AD(5)(b) amended by No. 57/1989 s. 3(Sch. item 223.6). (b) affect the operation of sections 45 to 47 of the **Supreme Court Act 1986**. S. 24ADA inserted by No. 26/2023 s. 70. 24ADA Transitional and validating for Part IV—Justice Legislation Amendment Act 2023 (1) The amendments to this Part by sections 68 and 69 of the amending Act apply on and after the commencement date whether the damage in question occurred before, on or after the commencement date. (2) In addition to subsection (1), but subject to subsection (3), a decision, order or declaration made or purportedly made by VCAT under this Part before the commencement date is as valid and effective as it would have been if the amendments made by sections 68 and 69 of the amending Act had been in operation at the time the decision, order or declaration was made or purportedly made. (3) Subsection (2) does not apply in relation to a decision, order or declaration of VCAT if— (a) an order was made by the County Court or the Supreme Court (including the Court of Appeal) before the commencement date which quashed, overturned or reversed the decision, order or declaration on the ground that VCAT had no jurisdiction to make a decision, order or declaration in respect of contribution under this Part; or (b) an appeal or a review which includes the ground that VCAT has no jurisdiction to make a decision, order or declaration in respect of contribution under this Part has been commenced but not determined before the commencement date. (4) In this section— ***amending Act*** means the **Justice Legislation Amendment Act 2023**; ***commencement date*** means the day on which Division 2 of Part 10 of the amending Act comes into operation. Pt IVAA (Heading and ss 24AE–24AS) inserted by No. 60/2003 s. 3. Part IVAA—Proportionate liability S. 24AE inserted by No. 60/2003 s. 3 (as amended by No. 102/2003 s. 36). 24AE Definitions ***apportionable claim*** means a claim to which this Part applies; ***court*** includes tribunal and, in relation to a claim for damages, means any court or tribunal by or before which the claim falls to be determined; ***defendant*** includes any person joined as a defendant or other party in the proceeding (except as a plaintiff) whether joined under this Part, under rules of court or otherwise; S. 24AF inserted by No. 60/2003 s. 3 (as amended by No. 102/2003 s. 37). 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 S. 24AF(1)(b) amended by No. 72/2010 s. 48(Sch. item 25). (b) a claim for damages for a contravention of section 18 of the Australian Consumer Law (Victoria). (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. S. 24AG inserted by No. 60/2003 s. 3. 24AG What claims are excluded from this Part? (1) This Part does not apply to claims arising out of an injury. (2) Without limiting subsection (1), this Part does not apply to the following— S. 24AG(2)(b) amended by No. 67/2013 s. 649(Sch. 9 item 36(2)). (b) a claim to which Part IV of the **Accident Compensation Act 1985** or the **Workplace Injury Rehabilitation and Compensation Act 2013** applies; (c) a claim in respect of an injury which entitles, or may entitle, a worker, or a dependant of a worker, within the meaning of the **Workers Compensation Act 1958** to compensation under that Act; (d) a claim for compensation under Part V of the **Country Fire Authority Act 1958** or a claim for compensation under a compensation scheme established under the regulations made under that Act; S. 24AG(2)(e) substituted by No. 51/2005 s. 58(10). (e) an application for compensation under Part 4 of the **Victoria State Emergency Service Act 2005**; (f) a claim for compensation under Part 6 of the **Emergency Management Act 1986**; (g) an application for compensation under the **Police Assistance Compensation Act 1968**; (h) an application for assistance under the **Victims of Crime Assistance Act 1996**; S. 24AG(2)(ha) inserted by No. 21/2022 s. 89. (ha) an application for assistance under the **Victims of Crime (Financial Assistance Scheme) Act 2022**; S. 24AG(2)(i) substituted by No. 16/2010 s. 209(Sch. item 11.1). (i) a dispute or a proceeding under the **Equal Opportunity Act 2010**; (j) a claim for compensation under Part 8 of the **Juries Act 2000** or Part VII of the **Juries Act 1967**; S. 24AG(2)(k) amended by No. 24/2006 s. 6.1.2(Sch. 7 item 49). (k) a claim for compensation under Part 5.6 of the **Education and Training Reform Act** **2006**. (3) This Part does not apply to claims in proceedings of a class that is excluded by the regulations from the operation of this Part. S. 24AH inserted by No. 60/2003 s. 3. 24AH Who is a concurrent wrongdoer? (1) A concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions caused, independently of each other or jointly, the loss or damage that is the subject of the claim. (2) For the purposes of this Part it does not matter that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died. S. 24AI inserted by No. 60/2003 s. 3. 24AI Proportionate liability for apportionable claims (1) In any proceeding involving an apportionable claim— (a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just having regard to the extent of the defendant's responsibility for the loss or damage; and (b) judgment must not be given against the defendant for more than that amount in relation to that claim. (2) If the proceeding involves both an apportionable claim and a claim that is not an apportionable claim— (a) liability for the apportionable claim is to be determined in accordance with this Part; and (b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant. (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. S. 24AJ inserted by No. 60/2003 s. 3. 24AJ Contribution not recoverable from defendant Despite anything to the contrary in Part IV, a defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim— (a) cannot be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim; and (b) cannot be required to indemnify any such wrongdoer. S. 24AK inserted by No. 60/2003 s. 3. 24AK Subsequent actions (1) In relation to an apportionable claim, nothing in this Part or any other law prevents a plaintiff who has previously recovered judgment against a concurrent wrongdoer for an apportionable part of any loss or damage from bringing another action against any other concurrent wrongdoer for that loss or damage. (2) However, in any proceeding in respect of any such action the plaintiff cannot recover an amount of damages that, having regard to any damages previously recovered by the plaintiff in respect of the loss or damage, would result in the plaintiff receiving compensation for loss or damage that is greater than the loss or damage actually suffered by the plaintiff. S. 24AL inserted by No. 60/2003 s. 3. 24AL Joining non-party concurrent wrongdoer in the action (1) Subject to subsection (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. (2) The court is not to give leave for the joinder of any person who was a party to any previously concluded proceeding in relation to the apportionable claim. S. 24AM inserted by No. 60/2003 s. 3. 24AM What if a defendant is fraudulent? Despite sections 24AI and 24AJ, a defendant in a proceeding in relation to an apportionable claim who is found liable for damages and against whom a finding of fraud is made is jointly and severally liable for the damages awarded against any other defendant in the proceeding. S. 24AN inserted by No. 60/2003 s. 3 (as amended by No. 102/2003 s. 38). 24AN Liability for contributory negligence not affected Nothing in this Part affects the operation of Part V or Division 7 of Part X. S. 24AO inserted by No. 60/2003 s. 3. 24AO Effect of Part IV Except as provided in section 24AJ, nothing in this Part affects the operation of Part IV. S. 24AP inserted by No. 60/2003 s. 3. 24AP Part not to affect other liability Nothing in this Part— (a) prevents a person from being held vicariously liable for a proportion of any apportionable claim for which another person is liable; or (b) prevents a person from being held jointly and severally liable for the damages awarded against another person as agent of the person; or (c) prevents a partner from being held jointly and severally liable with another partner for that proportion of an apportionable claim for which the other partner is liable; or (d) prevents a court from awarding exemplary or punitive damages against a defendant in a proceeding; or (e) affects the operation of any other Act to the extent that it imposes several liability on any person in respect of what would otherwise be an apportionable claim. S. 24AQ inserted by No. 60/2003 s. 3. 24AQ Supreme Court—limitation of jurisdiction It is the intention of sections 24AI and 24AL to alter or vary section 85 of the **Constitution Act** **1975**. S. 24AR inserted by No. 60/2003 s. 3. 24AR Regulations (1) The Governor in Council may make regulations generally prescribing any matter or thing required or permitted by this Part to be prescribed or necessary to be prescribed to give effect to this Part. (b) may apply, adopt or incorporate, wholly or partially or as amended by the regulations, any matter contained in any document as existing or in force— S. 24AS inserted by No. 60/2003 s. 3. 24AS Transitional This Part applies to proceedings that are commenced in a court on or after the commencement of section 3 of the **Wrongs and Limitation of Actions Acts (Insurance Reform) Act 2003**. Pt 4A (Heading) inserted by No. 10227 s. 8(e). Part IVA—Abolition of doctrine of common employment S. 24A inserted by No. 8915 s. 4. 24A Abolition of doctrine of common employment S. 24A(1) amended by No. 6/2004 s. 5(a)(b). (1) Where any injury or damage is suffered by an employee by reason of the negligence of a fellow employee the employer of those employees shall be liable for damages in respect of that injury or damage in the same manner and in the same cases as if those employees had not been engaged in a common employment. S. 24A(2) amended by No. 6/2004 s. 5(a). (2) This section applies to every case in which the relation of employer and employee exists whether the contract of employment is made before or after the commencement of this Act. Part V—Contributory negligence No. 5594 s. 2.