Atkins v Interprac Financial Planning Pty Ltd - [2008] VSC 99

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL LIST

F6117
No. 2046 of 2007

SHARYN MAREE ATKINS
(As Trustee of the Sharyn Atkins Family Trust)

Plaintiff

and

INTERPRAC FINANCIAL PLANNING PTY LTD

(ACN 076 093 680)

First Defendant

and
GARRY PETER CROLE	Second Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 14 March 2008
DATE OF JUDGMENT:	8 April 2008
CASE MAY BE CITED AS:	Atkins v Interprac and Crole (No. 2)
MEDIUM NEUTRAL CITATION:	[2008] VSC 99

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Practice and procedure – Apportionable claim – Concurrent wrongdoers – Application by defendants to join alleged concurrent wrongdoers as parties – Whether arguable that proposed parties are concurrent wrongdoers – Wrongs Act 1958 (Vic) Part IVAA – Power of Court to reconsider decision before authentication of judgment or order - Texas Co (A’asia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR at 382, 457; R v Billington [1980] VR 625, 628 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. Hibble	Tisher Liner & Co
For the Defendants	Mr M. Osborne	Moray & Agnew

For Property Investment Research Pty Ltd

Mr J.B. Davis

Ebsworth and Ebsworth

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HIS HONOUR:

Introduction

In this proceeding, the plaintiff sues the defendants for damages, including exemplary damages, on a number of grounds. All of the grounds relate to alleged false, misleading or negligent advice given by the defendants to the plaintiff in connection with certain investments made by the plaintiff on the recommendation of the defendants.

The defendants have applied to the Court for leave to join additional parties to the proceeding, in order that the defendants may take advantage of the proportionate liability regime established by Part IVAA of the Wrongs Act 1958 (Vic) (“the Act”).

Section 24AL(1) of the Act provides:

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.

Section 24AL(1) requires two things to be shown before the Court may give leave to join additional parties. First, that the proceeding is, in whole or part, “in relation to an apportionable claim”. For the purpose of this application, the plaintiff accepts that the proceeding relates to an apportionable claim. Second, that the proposed additional party is a “concurrent wrongdoer”.

Section 24AH defines a “concurrent wrongdoer” in the following terms:

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.

The parties agree that, in order for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] VSC 99
Decision Date: 8 April 2008

CaseChat Overview and Summary

Atkins brought an action against Interprac Financial Planning Pty Ltd, alleging breaches of fiduciary duty and negligence. The dispute reached the court with an application by the defendants to join alleged concurrent wrongdoers as parties. The central legal issues involved determining whether it was arguable that the proposed parties were indeed concurrent wrongdoers and whether the court had the power to reconsider its decision before the authentication of judgment or order. The court applied principles from Texas Co (A’asia) Ltd v Federal Commissioner of Taxation and R v Billington to address these issues.

The court considered whether the proposed parties could be regarded as concurrent wrongdoers under the Wrongs Act 1958 (Vic) Part IVAA. It examined the nature of the alleged wrongs and the relationship between the parties, focusing on whether the proposed parties' actions could be considered concurrent with those of the existing defendants. The court also assessed whether there was a sufficient arguability that the proposed parties were indeed concurrent wrongdoers, a key criterion for joining them as parties. In determining this, the court delved into the specific conduct and the legal duties breached by all parties involved.

In its reasoning, the court found that there was an arguable basis to consider the proposed parties as concurrent wrongdoers. The court emphasised the need for a thorough examination of the evidence and the relationship between the parties' actions. Additionally, the court exercised its discretion under the cited authorities to reconsider its decision before the judgment or order was authenticated. This power was exercised to ensure that all relevant parties who might be liable for the same wrongs were included in the proceedings. The court concluded that the application to join the proposed parties was valid and should be allowed.

The final orders of the court permitted the defendants to join the alleged concurrent wrongdoers as parties in the proceeding. This decision aimed to ensure that all potential liable parties were included in the litigation, thereby facilitating a comprehensive resolution of the claims. The court's decision was based on the arguable nature of the proposed parties' concurrent wrongdoing and the statutory powers available to it for reconsidering such applications.

Orders