Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning a claim for contribution between tortfeasors. The Commissioner for Government Transport (the plaintiff) sought to recover £20,000 from Bitumen and Oil Refineries (Australia) Ltd. (the defendant) under section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946-1951 (N.S.W.). The plaintiff alleged that the defendant's negligent driving of a motor vehicle caused a collision with a tram, resulting in injury to a passenger, Leslie Charles Vickery. Vickery had subsequently sued and obtained a judgment against the plaintiff for £14,711 18s. 6d. The defendant sought to strike out the plaintiff's declaration, arguing that the allegations regarding Vickery's judgment against the plaintiff were prejudicial and embarrassing to a fair trial.

The central legal issue before the High Court was the interpretation of section 5(1)(c) of the Act, specifically the meaning of "any tort-feasor liable in respect of that damage" and "any other tort-feasor who is, or would if sued have been, liable in respect of the same damage." The court was required to determine whether the plaintiff's liability, as established by the judgment in favour of Vickery, satisfied the statutory condition for seeking contribution from the defendant. This involved considering whether the word "liable" in the provision required an ascertained liability, and if so, whether that ascertainment could be by judgment.

The High Court, in dismissing the appeal, reasoned that the phrase "any tort-feasor liable in respect of that damage" in section 5(1)(c) refers to a tortfeasor whose liability has been ascertained. The court adopted the reasoning from English authorities, particularly the House of Lords decision in *George Wimpey & Co. Ltd. v. British Overseas Airways Corporation*, which indicated that the word "liable" in this context includes ascertainment by judgment. The court found that the plaintiff's declaration, by alleging the judgment obtained by Vickery against it, sufficiently pleaded the ascertainment of its liability, thereby satisfying the statutory requirement to bring the action for contribution. While acknowledging a minor technical defect in the pleading regarding the nature of Vickery's claim, the court considered it substantially compliant and allowed for potential amendment. The court also noted that the assessment of contribution under subsection (2) would still allow for consideration of equitable factors regarding the extent of each tortfeasor's responsibility.