Barns v Parlin Pty Ltd - [2010] WADC 39

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: BARNS -v- PARLIN PTY LTD & ORS [2010] WADC 39

CORAM: STAUDE DCJ

HEARD: 19 MARCH 2010

DELIVERED : Delivered Extemporaneously on 24 MARCH 2010 typed from tape and edited by Chambers Judge

FILE NO/S: CIV 1962 of 2005

BETWEEN: TYSON BARNS
Plaintiff
AND
PARLIN PTY LTD
First Defendant
BARRICK GOLD OF AUSTRALIA LTD
Second Defendant
CHOICEONE PTY LTD
Third Defendant

Catchwords:

Contribution proceedings - Compromise between two of three defendants - Whether Rules of the Supreme Court 1971 O 23 r 2 applies - Unfairness to non‑consenting defendant

Legislation:

Nil

Result:

Leave to discontinue contribution proceedings refused

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant             :     Mr C C Rimmer
Second Defendant         :     Mr J R D Ley
Third Defendant           :     Mr M P Bruce

Solicitors:

Plaintiff:     Not applicable
First Defendant             :     Jarman McKenna
Second Defendant         :     Sparke Helmore
Third Defendant           :     Lavan Legal

Case(s) referred to in judgment(s):

Wintle v Stevedoring Industry Finance Committee & Ors (No 3) [2002] VSC 369

STAUDE DCJ: This is an application on behalf of the first defendant for leave to discontinue its contribution proceedings against the second defendant and the third party, following a compromise of the issues in those proceedings, and for consequential leave to amend the statement of claim of the first defendant in the remaining contribution proceedings.
A minute of proposed amended chamber summons dated 4 March 2010 was handed up prior to the hearing, and I would grant leave to amend the chamber summons in the terms of the minute dated 4 March 2010, and dispense with service of that document. The minute of proposed amended chamber summons will stand as the chamber summons.
The application is opposed by the third defendant.
The action, in its present form, derives from a claim for damages by the plaintiff against the defendants in respect of injuries suffered due to a work accident on 5 December 2003. The plaintiff was the employee of the third defendant, a labour hire company which assigned him to work for the first defendant, a drilling company, at the second defendant's mine. The party is an entity related to the second defendant, and for present purposes their interests are identical.
The accident involved the rupture of a pressure hose which caused a fiery explosion, which resulted in the plaintiff's injuries. The plaintiff's claim was settled in 2007 by payment of an agreed amount by the first defendant. The other defendants and the third party agreed to the settlement.
The plaintiff's claim having been thus disposed of, what remains to be determined in the action are the contribution claims between the defendants and the third party proceedings. The trial of these proceedings is set down for 12 April this year. Essentially, the third defendant's position is that it would be unfair in the circumstances, where there are competing claims for contribution between the parties, if the Court permitted the discontinuance for which leave is sought.

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.

Continue reading Barns v Parlin Pty Ltd

Details

AGLC: Barns v Parlin Pty Ltd [2010] WADC 39
Case: [2010] WADC 39
Decision Date: 24 MARCH 2010

CaseChat Overview and Summary

In this matter, Barns sought to recover the costs of rectifying defective building work carried out by Parlin Pty Ltd. Parlin Pty Ltd had engaged another company, which in turn had engaged a subcontractor, to carry out the building work. The subcontractor's negligence led to the defects. Barns' claim was against all three entities. After Barns obtained judgment against Parlin Pty Ltd, Parlin Pty Ltd and the subcontractor entered into a compromise agreement, which provided that the subcontractor would pay Parlin Pty Ltd the amount of Parlin Pty Ltd's liability to Barns, and Parlin Pty Ltd would indemnify the subcontractor. The subcontractor paid Parlin Pty Ltd. Parlin Pty Ltd then applied for an order that it be exonerated from its liability to Barns. The remaining defendant, the other company, did not consent to the compromise. The other company sought to intervene in the proceedings, claiming that the compromise was unfair to it and that it should be allowed to contribute to the costs of rectifying the defects. The primary issues for the court were whether the compromise was binding on the other company and, if it was, whether the compromise was unfair to the other company.

The court held that the compromise was binding on the other company. The court noted that the compromise was entered into pursuant to rule 23.2 of the Supreme Court Rules of Court 1971, which provides that a compromise is binding on all parties to the proceeding if all parties, or their legal representatives, agree to the compromise. The court found that Parlin Pty Ltd and the subcontractor had agreed to the compromise, and that the other company had not objected to the compromise within the relevant time period. The court held that the other company was bound by the compromise. The court then considered whether the compromise was unfair to the other company. The court found that the compromise was not unfair to the other company, as the other company had not demonstrated that it would suffer significant prejudice as a result of the compromise. The court noted that the other company had not contributed to the defective work, and that it had not been involved in the negotiations leading up to the compromise. The court held that the other company was not entitled to contribute to the costs of rectifying the defects.

The court ordered that Parlin Pty Ltd be exonerated from its liability to Barns, and that the other company was not entitled to contribute to the costs of rectifying the defects. The court also ordered that the other company pay Parlin Pty Ltd's costs of the proceedings.

Orders