CMT Pty Ltd v Wilkie - [2008] WADC 120

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CMT PTY LTD & ANOR -v- WILKIE [2008] WADC 120

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 13 AUGUST 2008

DELIVERED : 3 SEPTEMBER 2008

FILE NO/S: CIV 2595 of 2005

BETWEEN: CMT PTY LTD (ACN 009 319 831)
First Plaintiff
LANDTEC PROJECTS CORPORATION PTY LTD (ACN 110 704 875)
Second Plaintiff
AND
ANTHONY WILKIE
Defendant

Catchwords:

Procedure - Application to join second defendant - Stay of related proceedings

Legislation:

District Court Rules 2005 (WA)
Rules of the Supreme Court 1971(WA)

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff          :    Mr B G Grubb
Second Plaintiff          :    Mr B G Grubb
Defendant:    Ms M R Breen
Proposed Second Defendant     :    Mr B P Wheatley

Solicitors:

First Plaintiff          :    Metaxas & Hagar
Second Plaintiff          :    Metaxas & Hagar
Defendant:    DLA Phillips Fox
Proposed Second Defendant     :    Mossensons

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

Brown v Dunn (1893) 6 R 67
Landtec Projects Corporation Pty Ltd v Spies Earthworks Pty Ltd [2007] WADC 204
Mulcahy & Anor v Tomkins & Ors [2007] WADC 212
Qantas Airways Ltd v A F Little Pty Ltd [1981] 2 NSWLR 34
Re Great Eastern Cleaning Services Pty Ltd [1978] 2 NSWLR 278
The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Woodings v Stevenson (2001) 24 WAR 221

PRINCIPAL REGISTRAR GETHING: By chamber summons dated 24 July 2008, the plaintiffs (CMT Pty Ltd and Landtec Projects Corporation Pty Ltd ("Landtec")) seek to join Spiers Earthworks Pty Ltd ("Spiers") as a second defendant to the action. The existing defendant is Anthony Wilkie ("Wilkie"). I will refer to this action (CIV 2595 of 2005) as the "Wilkie Action".
In separate proceedings, Landtec already has an action in progress against Spiers. I will refer to this action (CIV 495 of 2007) as the "Spiers Action". Both actions have a common factual background, the precise extent of which is an important issue for determination in the present application.
In substance, the plaintiffs seek to use the joinder of Spiers to the Wilkie Action as a means of consolidating the two actions. This would be done by staying the Spiers Action if leave is granted (Landtec has filed a minute of proposed orders to this effect in the Spiers Action). Because of the potential impact of the orders sought in the present application on Spiers, I gave leave for counsel for Spiers to be heard on the present application.

The Wilkie action as currently pleaded

The Wilkie Action was commenced in November 2005. The current statement of claim is that dated 23 December 2005. The plaintiffs' claim against Wilkie arises out of an agreement under which Wilkie would provide consulting engineering services to the plaintiffs in relation to a subdivision of land at Pinjarra ("the Land"). The claims are for breach of contract and breach of duty of care.
In par 11 of the statement of claim, five specific breaches are identified, namely that Wilkie:
"11.1failed…

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.

Keep reading for free

Create a free CaseChat account to read CMT Pty Ltd v Wilkie and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] WADC 120
Decision Date: 3 SEPTEMBER 2008

CaseChat Overview and Summary

CMT Pty Ltd, as the plaintiff, sought to join Anthony Wilkie as a second defendant in an existing action against Spiers. The court was asked to stay the existing action until the outcome of an arbitration, which Spiers had commenced against Landtec. The plaintiff also sought to prevent Spiers from proceeding with the arbitration until the action against Spiers had been finalised. The case was heard in the District Court of Western Australia. The legal issues before the court involved the appropriate circumstances under which a stay of proceedings should be granted and the appropriate procedure for joining a second defendant in an existing action. The court needed to decide whether the matters in dispute were closely connected and whether it was desirable to handle both claims in the same court to avoid inconsistent decisions and unnecessary duplication of evidence.

The court considered the previous decision in Landtec Projects Corporation Pty Ltd v Spies Earthworks Pty Ltd, where the Deputy Registrar had granted a stay of proceedings pending the outcome of an arbitration. The District Court Judge had overturned this decision, highlighting the close connection between the claims against Spiers and Wilkie. The court examined the pleadings and contracts to determine if there was a significant overlap between the claims. It was noted that the previous decision had been based on less detailed pleadings and that the current pleadings showed minimal overlap. The court concluded that the risk of inconsistent decisions and the need for repeated evidence justified allowing the existing action to proceed while the arbitration continued. The court also considered the unaddressed issue of Wilkie's role in the contract and the lack of his input in the previous decision.

The court granted the application to join Anthony Wilkie as a second defendant but declined to stay the existing action. The court's decision allowed the action against Spiers to proceed to mitigate the risk of inconsistent outcomes and to avoid repeating evidence from the same witnesses. The court emphasised the importance of handling closely connected claims in the same court where possible to ensure consistency and efficiency in the legal process. The court's final orders permitted the plaintiff to join Wilkie as a second defendant and allowed the action against Spiers to continue without a stay.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

By application in the Spiers Action dated 23 April 2007, Spiers sought to stay that action pending determination of an arbitration of the matters in dispute. The stay was granted by a Deputy Registrar, but overturned on appeal by his Honour Judge O'Sullivan DCJ. Counsel for the plaintiffs placed weight on comments made by the judge in this decision, reported as Landtec Projects Corporation Pty Ltd v Spies Earthworks Pty Ltd [2007] WADC 204. After reviewing the contract between Spiers and Landtec, and the pleadings in both actions, his Honour made the following comments (at [22 – 23], [26]):"22. In my opinion there is a real possibility that issues raised before the Arbitrator will also arise in the action between the plaintiff and Mr Wilkie in this Court.23. Counsel for the defendant argued that the matters pleaded in the two actions in this Court are quite separate and of course that is true. Mr Wilkie's duties to the plaintiff under the contract between them were different to the defendant's duties. But it is quite clear from the affidavit of Mr Spiers dated 30 April 2007 that in defending any claim against it the defendant will say that any defects in the work carried out by it were the responsibility of Mr Wilkie as designer or superintendent or supervisor of the work. As to that cl 8.1, cl 8.4, cl 28.3 and cl 42.6 of the General Conditions would appear to have a bearing.…26. In my opinion it is clear that the matters to be canvassed in the plaintiff's action against Mr Wilkie are so closely connected with those to be argued between the plaintiff and the defendant that it is desirable that both claims be dealt with in this Court. In that way the danger of any inconsistency between the decision of an Arbitrator and a Judge of this Court can be avoided and the need for evidence to be taken more than once from witnesses may also be eliminated." In the hearing of the present application, counsel for Spiers and counsel for Wilkie submitted to the effect that I was not bound by this decision as it concerned a different issue. Moreover, I now have the benefit of more detail in the pleadings and particulars which, it was submitted, makes it clear that there is no real overlap. Counsel for Wilkie also pointed out that Wilkie had not been heard before Judge O'Sullivan. Counsel also submitted that the relevant portion of Mr Spier's affidavit dated 30 April 2007 referred to by the judge does not support the conclusion that Spiers would be defending the claim by attributing responsibility to Wilkie. Indeed, on the pleadings in the Spiers Action, this has not occurred. The salient point for present purposes is that the Spiers Action was allowed to proceed in the District Court to reduce the risk of any inconsistent decision in the determination of the claims against Wilkie and Spiers, and to avoid the need for the same evidence to be taken more than once from the same witnesses. The current statement of claim in the Spiers Action is dated 5 March 2008. The statement of claim sets out in detail the contract between Landtec and Spiers. The documents said to comprise the contract include "letters dated 16 and 21 February 2005 from Anthony Wilkie to defendant" (par 4.2(e)) and "various plans and drawings issued by Wilkie and as stated in the Tender Forms dated 21 and 24 January 2005". The terms of the contract refer at a number of points to a "Superintendent" who has certain defined responsibilities. It was common ground before me, though not yet pleaded, that Mr Wilkie was initially appointed to this role.