Community Corporation 21561 v Pier Apartment Hotel Pty Ltd (No 2) - [2014] SADC 130

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
COMMUNITY CORPORATION 21561 & ANOR v PIER APARTMENT HOTEL PTY LTD & ORS (No 2)
[2014] SADC 130
Judgment of His Honour Judge Slattery
25 July 2014
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - OTHER MATTERS
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - RULES OF COURT
Application by second defendant to join to the action as a secondary party Aurecon Australia Pty Ltd ('Aurecon') which had been a party to the action since commencement of the action in 2007 and until 21 March 2014. On 21 March 2014 the plaintiffs discontinued its action against Aurecon following a settlement between them. After that date a document filed at Court by the plaintiffs on 16 December 2013 (without leave or consent) called the Fourth Statement of Claim was ordered to be removed from the Court file (Community Corporation 21561 & Anor v Pier Apartment Hotel & Ors [2014] SADC 111, delivered 23 June 2014). Leave was later granted, by consent, for the plaintiffs to file and deliver a fifth statement of claim which contained allegations pleaded for the first time that the second defendant as a contractor under a design and construct building contract was vicariously liable for the wrongs committed by its subcontractors including Aurecon. In its defence, the second defendant denied the plaintiffs' claims and it sought to have any liability upon it under contract with the plaintiffs reduced to nil pursuant to s 72 Development Act 1993 (SA) ('Development Act') and s 8 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) ('Law Reform Act') as that Act operated after 1 October 2005.
Whether special circumstances exist for rule 131(6) of the District Court Civil Rules 2006 (SA) ('DCR 6R') and if so, whether leave should be granted to the second defendant under DCR 6R 74 for the rejoinder of Aurecon to the action as a secondary party. Aurecon contended that s 72 Development Act properly construed obviates any necessity or reason for joinder because under that section the court may apportion liability for any wrong committed by Aurecon and the settlement reached between Aurecon and the plaintiff constitutes a bar to the plaintiffs seeking to make any recovery against it of any apportioned loss found to be caused by it; Whether s 72(2) precludes the operation of s 72(1) in circumstances where the second defendant is vicariously liable for the wrongs committed by Aurecon; whether the Law Reform Act (after 1 October 2005) operated in respect of the claim of the plaintiffs against the second defendant as vicariously liable for the wrongs committed by Aurecon; whether and to what extent the Law Reform Act, as it existed as at and prior to 30 September 2005 governed any rights as between the second defendant and Aurecon.
Consideration of the facts, matters and circumstances to be considered on the question of the late joinder of a party to a proceeding including questions of delay, merit, prejudice and the balance of convenience.
Held:
1) Leave granted to the second defendant to join Aurecon as a secondary party to the action.
2) Leave granted to the second defendant on terms that any issue arising between the second defendant and Aurecon be heard and determined following the close of the evidence of the action between the plaintiffs and the defendants.
3) Leave granted to Aurecon to participate in the action between the plaintiffs and the defendants in any manner that it considers appropriate.
4) Consequential orders and ancillary directions made for the management and hearing of the secondary party proceedings.
District Court Civil Rules 2006 (SA) rr 74, 117(2)(b), 131, 160(5), 210; Corporations Act 2001 (Cth) ss 440D, 440F, 444E(3)(c); Development Act 1993 (SA) ss 72, 72(1), 72(2) ; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) ss 3, 3(1), 3(2), 4, 4(2), 6, 7, 8(1)-(6), 9; Builders Licensing Act 1986 (SA) s 27(2); Negligence Act 1979 RSBC; Civil Liability Act 1936 (SA) s 59, referred to.
Mulvaney (as liquidator of the Hellenic Athletic & Soccer Club of SA Inc) v The Commissioner of Taxation (Cth) [2004] SASC 166; Imagecolor (SA) Pty Ltd (in liq) v Curtis [2000] SASC 316 ; Rini Coolen v Adelaide United Football Club Pty Ltd [2012] SADC 179; Parletta Constructions Pty Ltd v Prince (No 2) [2000] SADC 101; Nbd Bank v South Italy Tiling SA [1997] SADC 3596; Wells et al v McBrine (1988) 54 DLR (4th) 708 (BC CA); Thompson v ACTV (1996) 141 ALR 1; Glenmont Investments Pty ltd v O’Loughlin (1999) 79 SASR 185; Godfrey Spowers (Victoria) Pty Ltd v Lincolne Scott Australia Pty Ltd (2008) 21 VR 84; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (no 2) [2008] FCA 1656; Wealthsure Pty Ltd v Selig [2014] FCAFC 64; ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; Barclays Bank v Toms [1923] 1 KB 221; AMP Fire and General Insurance Company Ltd v Dixon (1982) VR 833; JN Taylor Holdings Ltd v Bond (1993) 59 SASR 432; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555, considered.

COMMUNITY CORPORATION 21561 & ANOR v PIER APARTMENT HOTEL PTY LTD & ORS (No 2)
[2014] SADC 130

Interlocutory application of the second defendant, Lend Lease Building Contractors Pty Ltd (formerly known as Baulderstone Hornibrook Pty Ltd)(‘the second defendant’) seeking an order pursuant to rule 117(2)(b) of the District Court Civil Rules 2006 (‘DCR 6R’) that the second defendant have an extension of time within which to issue a secondary party notice and a secondary party statement of claim against Aurecon Australia Pty Ltd.[1]
[1] FDN 119.
In an earlier judgment in this matter: Community Corporation No 21561 Inc v Pier Apartment Hotel Pty Ltd [2014] SADC 111 published 23 June 2014, I set out a full history of this matter up to and including 23 June 2014. I refer to that history which I will not repeat here.
The respondent to this application, Aurecon Australia Pty Ltd (‘Aurecon’), a firm of engineers was until 24 March 2014 a party to these proceedings, it having been a party since the commencement of the proceedings in 2007. On 24 March 2014, Aurecon entered into a consent judgment with the plaintiff in the action.[2] Under the terms of this consent judgment, the plaintiffs and Aurecon reached an agreement under which, for the payment of an amount of money and the registration of a judgment, the action between the plaintiffs and Aurecon would be resolved. At that time, the extant pleadings were the third statement of claim filed by the plaintiffs on 22 March 2012.[3] In my reasons published on 23 June 2014, I decided that the document entitled fourth statement of claim which had been filed by the plaintiffs at court on 16 December 2013 (and which had been the subject of orders of a master of the District Court in relation to amendments thereto) was not an extant pleading before the court because the filing of the document in the manner in which it occurred was not in compliance with the rules of this Court. I then gave leave to the plaintiffs to file a fifth statement of claim and I made other ancillary orders.
[2] FDN 115, [3A.4].
[3] FDN 43.
One complicating feature is that at a time after 16 December 2014[4] the directors of the fourth defendant, Woodhead Pty Ltd (‘Woodhead’) resolved to appoint an administrator to that company. At the time of my judgment, it was not clear whether a deed of company arrangement had been accepted by the creditors of Woodhead and whether, if that were the case, the administrator of the company became a deed administrator in accordance with the terms of the deed. Since that date, there has been some clarification of the matter and I will deal with those issues later. One issue that required resolution at the time that I handed down my judgment of 23 June 2014 was that if any steps were to be taken in respect of Woodhead, then it was necessary that leave be obtained to proceed against Woodhead.[5] I am now informed that such leave has been granted by the Supreme Court upon particular terms and I will also deal with those matters later. An important feature of this collocation of circumstances is that in respect of a trial of this matter due to commence on 7 October 2014, there were a number of issues still to be resolved about the identity of parties to the proceedings. To the extent possible, I dealt with all of those matters in my judgment of 23 June 2014. There are still issues to be resolved.
[4] The date upon which the plaintiffs filed and delivered (without appropriate leave or consent) the fourth statement of claim.
[5] Corporations Act 2001 (Cth) ss 440D, 440F, 444E(3)(c).
After 23 June 2014, the plaintiffs’ solicitors delivered to the solicitors for the first and second defendants and to the solicitors for the fourth defendant a proposed fifth statement of claim dated 25 June 2014.[6] The plaintiffs have also provided a copy of my decision delivered on 23 June 2014 as well as minutes of order to the solicitors for the fourth defendant.[7] On 27 June 2014, the plaintiffs’ solicitors filed in the court the tenth affidavit of Sarah Jane Southern which contains the plaintiffs’ proposed fifth statement of claim and correspondence between the first and second defendant’s solicitors with respect to that proposed pleading.[8]
[6]    FDN 112, [5] (Tenth Affidavit of Sarah Jane Southern).
[7]    Ibid, [6].
[8]    Ibid, [7].
On 30 June 2014, I convened a directions hearing at which I granted leave for the plaintiffs to amend and file their fifth statement of claim and their third Scott Schedule in the form as had been agreed between the plaintiffs and the first and second defendant. I also extended the time for the first and second defendants to issue an application to join Aurecon as a secondary party to these proceedings. That time was extended to Friday, 4 July 2014. It is appropriate that I set out in these reasons my basis for so deciding. I refer to paragraphs [73] et seq of these reasons. I also extended the time for the first and second defendants to issue any contribution or other notice against the fourth defendant until midday on Friday, 4 July 2014, but that leave was made subject to any contrary orders made by the Supreme Court of South Australia.
On 1 July 2014, the plaintiffs’ solicitors filed the plaintiffs’ fifth statement of claim and third Scott Schedule at court in accordance with the orders made by me on 30 June 2014. On 2 July and 3 July 2014, I amended and initialled various minutes of order in respect of the orders that I made on 30 June 2014.[9] On 3 July 2014, the first defendant filed its second defence at court[10] and on the same day, the second defendant filed its second defence at court.[11]
[9] FDN 118.
[10] FDN 116.
[11] FDN 117.
A day later, on 4 July 2014, the second defendant filed an interlocutory application[12] supported by the affidavit of Jonathon Peter McRostie sworn 4 July 2014.[13] This is the application currently before me which was set for argument for 14 July 2014.
[12] FDN 119.
[13] FDN 120.
A copy of the secondary party notice and statement of claim is exhibited as JPM1 to the affidavit of Jonathon Peter McRostie.[14] Before considering that pleading, it is necessary to identify that in the defences filed by the first and second defendants, each of them plead (in summary) that the claims of the plaintiffs relate to building works and that s 72 of the Development Act 1993 (SA) (‘Development Act’)[15] has application. The defences also plead that because the claim relates to or concerns building work then by operation of s 72(1) of the Development Act, the court is obligated to make an order under which it would apportion the liability, if any, of parties to the proceedings for the loss and damage allegedly suffered by the plaintiffs. It may be assumed that parties would attempt to reduce the level of their liability on an apportionment basis (to zero if possible).
[14] FDN 120.
[15] 72—Negation of joint and several liability in certain cases
In the first defendant’s second defence, the first defendant repeats the pleas that had been set out in its first defence concerning s 72 of the Development Act. Paragraph 3.3 of the first defendant’s second defence (and therefore of the first defendant’s first defence) reads as follows:-
3.3If there are defects in the 21561 Common Property and/or the 21562 Common Property (which is denied), and if Pier would be jointly and severally liable for the Plaintiffs’ damage and loss (which is denied):
3.3.1 The acts or defaults of Pier are such that, pursuant to s 72 of the Development Act 1993 (SA), it would not be just and equitable for this Honourable Court to give judgment against Pier in respect of the Plaintiffs’ damage or loss.
Particulars
a)The acts and omissions of Pier to which the Plaintiffs’ claim relates comprise “building work” within the meaning of the Development Act 1993 (SA);
b)The defects arise from the wrongful acts or defaults of the other Defendants alleged by the Plaintiffs;
c)Pier refers to and repeats its admission of paragraph 7 of the Claim.
3.3.2 To the extent that s 72 of the Development Act 1993 (SA) does not apply:
a)The Plaintiffs’ harm is apportionable within the meaning of s 3(2) of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA);
b)Pier’s liability to the Plaintiffs is reduced to zero pursuant to s 8 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA);
i)Pier is not responsible for the harm; and
ii)The responsibility for the harm lies with the other Defendants for the reasons pleaded at [3.3.1b)].
In summary, the effect of this plea is that because the subject of the action comprises building work, the defects alleged in the pleading arise from wrongful acts or defaults of other defendants. Under s 72 of the Development Act it would not be just and equitable for the court to give judgment against the first defendant (Pier Apartments Pty Ltd) in respect of the plaintiffs’ damage or loss because of the wrongful acts or defaults of other defendants.
In the alternative, the first defendant pleads that if s 72 of the Development Act does not apply, the harm is apportionable within the meaning of s 3(2) of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) (‘Law Reform Act’)[16] and that, for the reasons set out in the pleadings, the first defendant’s liability to the plaintiff is reduced to zero under s 8 of the Law Reform Act.[17] The basis is that it is alleged that the first defendant is not responsible for the harm which is the responsibility of other defendants.
[16] 3—Interpretation
(2)A liability is an apportionable liability if the following conditions are satisfied:
(a)the liability is a liability for harm (but not derivative harm) consisting of—
(i)economic loss (but not economic loss consequent on personal injury); or
(ii)loss of, or damage to, property;
(b)2 or more wrongdoers (who were not acting jointly) committed wrongdoing from which the harm arose;
(c)the liability is the liability of a wrongdoer whose wrongdoing was negligent or innocent.
...
[17] 8—Limitation of defendant's liability in cases of apportionable liability
(1)If a defendant's liability on a claim for damages is apportionable, the liability is limited under this section.
(2)If the limitation applies, the defendant's liability is limited to a percentage of the plaintiff's notional damages that is fair and equitable having regard to—
(a)the extent of the defendant's responsibility for the harm; and
(b)the extent of the responsibility of other wrongdoers (including wrongdoers who are not party to the proceedings) whose acts or omissions caused or contributed to the harm.
(3)For the purpose of subsection (2)—
(a)2 or more wrongdoers who are members of the same group are to be treated as a single wrongdoer; and
(b)if the plaintiff was guilty of contributory negligence, that contributory negligence will be brought into account as wrongdoing and a percentage assigned to it; and
(c)if 2 or more wrongdoers are each entitled to the benefit of a limitation of liability under this section (for some reason other than that they are members of the same group), the aggregate percentage assigned to them cannot exceed—
(i)if there is no contributory negligence on the plaintiff's part—100%; or
(ii)if there is contributory negligence on the plaintiff's part—100% less a percentage representing the extent of the plaintiff's responsibility for his or her harm.
(4)In a case involving apportionable liability, the court must proceed as follows:
(a)the court first determines the plaintiff's notional damages;
(b)the court gives judgment against any defendant whose liability is not subject to limitation under this section for damages calculated without regard to this Part;
(c)the court determines, in relation to each defendant whose liability is limited under this section, a proportion of the plaintiff's notional damages equivalent to the percentage representing the extent of that defendant's liability;
(d)the court then gives judgment against each such defendant based on the assessment made under paragraph (c) (but in doing so must give effect to any special limitation of liability to which any of them may be entitled).
...
The second defendant’s defence[18] was also filed on 3 July 2014. Paragraph 105A, 105B, 105C and 105D read as follows:
[18] FDN 117.
Baulderstone’s further pleas
105AIf (which is denied) there are defects in the 21561 Common Property and/or the 21562 Common Property and if (which is denied) Baulderstone would be jointly and severally liable for the plaintiffs’ damage or loss;
105A.1the Common Property is located in a marine environment;
105A.2the plaintiffs have failed to adequately maintain the Common Property in that environment and the plaintiffs have failed to take ant or any reasonable care for the protection and preservation of the common property;
105A.3as a result of which if (which is denied) Baulderstone is liable to the plaintiffs, the plaintiffs are liable to bear a proportion of the loss pursuant to s 7 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001.
105BIn further answer, if (which is denied) there are defects in the 21561 Common Property and/or the 21562 Common Property and if (which is denied) Baulderstone would be jointly and severally liable for the plaintiffs’ damage or loss;
105B.1the acts or defaults of Baulderstone are such that pursuant to s 72 of the Development Act 1993 (SA) it would not be just and equitable for this Honourable Court to give judgment against Baulderstone in respect of the plaintiffs’ damage or loss as:
105B1.1the acts and omissions of Baulderstone to which the plaintiffs’ claim relates comprise, “building works” within the meaning of the Development Act 1993 (SA); and
105B1.2the defects arise from the wrongful acts or defaults of the third and fourth defendants as alleged by the plaintiffs.
105CIn still further answer, to the extent that s 72 of the Development Act 1993 (SA) does not apply:
105C1.1the plaintiffs’ harm is the same harm for which the other defendants are liable within the meaning of s 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) for any harm suffered up to and including 30 September 2005;
105C1.2Baulderstone’s liability to the plaintiffs should be reduced to zero pursuant to s 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) for any harm suffered prior to 30 September 2005 since:
105C1.2.1Baulderstone is not responsible for the harm; and
105C1.2.2the responsibility for the harm lies with the other defendants in that Baulderstone carried out the building work in accordance with the design prepared by the third and fourth defendants.
105DIn still further answer, to the extent that s 72 of the Development Act 1993 (SA) does not apply:
105D.1the plaintiffs’ harm is apportionable within the meaning of s 3(2) of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) for any harm suffered after 1 October 2005;
105D.2Baulderstone’s liability to the plaintiff should be reduced to zero pursuant to s 8 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) for any harm suffered after 1 October 2005; since
105D2.1Baulderstone is not responsible for the harm; and
105D2.2the responsibility for the harm lies with the other defendants in that Baulderstone carried out the building work in accordance with the design prepared by the third and fourth defendants.

The effect of this pleading is that the second defendant alleges that there is joint and several liability amongst the defendants for the plaintiffs’ damage and loss, that it would not be just and equitable for the court to give judgment against the second defendant in respect of any part of the plaintiffs’ damage or loss because the defects arise from the wrongful acts or defaults of the third and fourth defendant as alleged by the plaintiffs and that either as a matter of contribution under the Law Reform Act or as a matter of apportionment under the Law Reform Act and s 72 of the Development Act the whole of the responsibility for the harm lies with the other defendants and not upon the second defendant.
In support of the interlocutory application[19] in which the second defendant applied for orders pursuant to DCR 6R 117(2)(b) for the second defendant to have an extension of time within which to issue a secondary party notice and secondary party statement of claim against Aurecon and, pending leave being granted to take a step in the proceedings against the fourth defendant pursuant to s 444E(3)(c) of the Corporations Act 2001 (Cth) (‘Corporations Act’) for an extension of time to issue a cross action (contribution notice) against the fourth defendant, the second defendant filed a further affidavit of Jonathon Peter McRostie.[20] That affidavit exhibited a proposed secondary party statement of claim.
[19] FDN 119.
[20] FDN 120.
In that proposed pleading the second defendant intends to plead that it entered into a building contract with the first defendant for the construction of building work and that it executed an agreement with Aurecon for it to provide engineering services to the second defendant. Those engineering services were in respect of design and documentation, clarifying documents and inspection, inspections to verify construction and to assess work standards. These are called the services that are associated with and are pertinent to the building work done by the second defendant.
The second defendant proposed then to set out the terms of the engineering contract and in particular the responsibilities upon Aurecon under the terms of that engineering contract; to plead a duty of care owed by Aurecon to the second defendant in providing the engineering service; and to plead that Aurecon breached its duties under the engineering contract and its duty of care because it failed to ensure, to the extent of its responsibility under the engineering contract (and presumably its duty arising at common law) that the works were constructed:-
17.1   In accordance with the codes and standards (as defined in the claim);
17.2   In accordance with the development approval (as defined in the claim);
17.3   With due care, skill and competence.
The second defendant then proposed to plead that the breaches by Aurecon referred to in paragraph 17 of its proposed pleading caused or contributed to the 26^th – 33^rd defects as defined in the claim. The second defendant then proposed to plead as follows:-
19If, or the extent that the plaintiffs are successful in their claim against Baulderstone, Baulderstone claims against Aurecon as a person liable for the same harm as Baulderstone, to the extent it is found to be responsible for the 26^th – 33^rd defects (as defined in the claim) any damages, compensation, costs and/or interest, and/or sums of money Baulderstone has incurred and might be ordered to pay to the plaintiffs.
The same affidavit also disclosed the content of the proposed cross action (contribution notice) which the second defendant sought leave to issue against Aurecon and, with leave, Woodhead.
At the hearing on 18 July 2014, Master Roder, in the Supreme Court, made orders in respect of the application of the plaintiffs under s 440D of the Corporations Act for leave to proceed against the fourth defendant. The terms of those orders are as follows:-
UPON NOTING that the deed administrators do not oppose any orders sought for leave to proceed in the District Court proceedings against Woodhead, on the condition that:-
a.   Woodhead’s insurer either accepts liability or continues to defend the District Court proceedings on behalf of Woodhead;
b.   the Plaintiffs agreeing to stay or dismiss the District Court proceedings against Woodhead in circumstances that the insurer denies liability and an order is not made by the Court requiring the insurer to continue to defend the proceedings in the shoes of Woodhead;
c.   the Plaintiffs acknowledging that the deed administrators are not personally liable in relation to any aspects of the District Court proceedings or the claim;
d.   the Plaintiffs not making any claim against the deed administrators or Woodhead for the costs of the within proceedings; and
e.    the Plaintiffs acknowledging that if they cease to be an “insurance creditor”, for the purpose of the Deed of company arrangement, the Deed administrators will not be bound by the quantum of the Plaintiffs claims contained in their proofs of debt and will have the power to adjudicate on those proofs of debt.
AND UPON NOTING that the Plaintiffs agree with and make the acknowledgements in Recitals a. to e. above:-
THE COURT ORDERS that:
1.   The Plaintiffs be at liberty to proceed District Court of South Australia Action No. 2075 of 2007.
2.   The action be prosecuted to the entry of judgment only and that no further steps be taken without leave of this Court.
3.   Further consideration of the application be adjourned.
4.   The Plaintiffs ACN 007 747 748 Pty Ltd, and any other person may apply for further orders and directions.
At the hearing on 18 July 2014, Mr Mitchell appeared on behalf of the fourth defendant.[21] Mr Mitchell informed me that there were still issues in relation to questions of risk and coverage and therefore indemnity under Aurecon’s insurance policies with its insurer. Issues to be resolved included whether any of the policy or policies respond in respect of this claim. He said that he was giving consideration to whether advice of senior counsel was required and he was obtaining instructions. He was not able to provide a time estimation about these matters and he could not speculate as to what his position may be. It is worth noting however that the issues mentioned by Mr Mitchell in court on 18 July 2014 presumably must be the same issues that will have exercised the minds of those solicitors and the insurers, prior to the time that the fourth defendant was placed in administration by its directors. The fourth defendant had been a party to these proceedings since inception in 2007. The firm of solicitors Minter Ellison has appeared as solicitors for the fourth defendant over a long period of time apparently instructed by both Woodhead and the insurer that were, obviously enough, resolving their position on indemnity. It is puzzling that the question of indemnity has not been resolved by now. The changes in the pleadings against the fourth defendant have been set out in my earlier judgment dated 23 June 2014. Mr Mitchell merely mentioned those changes without indentifying whether those changes would definitely affect the question or questions to be addressed by the insurer. In my opinion, that matter needs to be resolved quickly. On one view, it should have been resolved a long time ago. There is also an apparent tension of interests in this position of the firm of solicitors Minter Ellison acting for Woodhead and the insurer but that is not a matter for me here.
[21] On previous occasions before the Court and prior to the company being placed in administration by the directors, the firm Minter Ellison appeared on behalf of the fourth defendant. It became clear during those appearances that the question of insurance cover and risk had not been resolved between insured and insurer.
Be that as it may, the issue for my consideration is the resistance of Aurecon to the application brought by the second defendant. There were three main bases of resistance. The first was that there had been a substantial (and presently unexplained) delay between 21 March 2014 (being the date of settlement of the plaintiffs’ proceedings against Aurecon) and 4 July 2014 (when FDN 119 was issued). The second is that it is alleged that Aurecon would be prejudiced if it was required to be ready for a trial of the third party proceedings, if heard together with the main action commencing on 7 October 2014. The third and principal contention of Aurecon was that the extension was not required to reasonably protect the interests of the second defendant. Aurecon contends that the second defendant is in a position to plead and seek the protection provided by s 72 of the Development Act; that if the second defendant pleaded the operation of s 72, then that would effectively preclude the need for any contribution proceedings at all as between the second defendant and Aurecon.
It is apparent that at the time that Aurecon decided to resist the application by the second defendant for joinder to the proceedings, Aurecon’s solicitors were not aware that the second defendant had already pleaded the protection provided by s 72 of the Development Act. Notwithstanding, it was necessary to consider the bases of resistance put forward by Aurecon and to consider the question of the merits of the application in light of the submissions made on behalf of Aurecon and on behalf of the second defendant.
On the question of delay, Aurecon contended that the second defendant was notified of the settlement between the plaintiffs and Aurecon on 21 March 2014 but still took nearly 3 and a half months to make application to rejoin Aurecon to the proceedings. Aurecon also contends that there was no explanation for this delay in the affidavit materials. Aurecon relied upon the relevant authorities concerning the failure of the second defendant to explain or to properly explain delay.[22] The affidavit material filed discloses that from December 2013, Aurecon were a party to the proceedings and it had not challenged the existence of the fourth statement of claim. I refer to my earlier judgment in this matter of 23 June 2014. In that judgment I indentified that the fourth statement of claim filed on 16 December 2013 was not an extant pleading before the court because the process used by the plaintiffs to amend the third statement of claim was not in accordance or in conformance with the requirements of the rules. The question of the status of that pleading was a matter before a master of this Court. By an order of the Chief Judge of this Court, the matter was referred to me for judge management. That occurred in March 2014. At about the same time, the plaintiffs achieved their settlement with Aurecon.
[22] Mulvaney (as liquidator of the Hellenic Athletic & Soccer Club of SA Inc) v The Commissioner of Taxation (Cth) [2004] SASC 166 (‘Mulvaney’), [21] per Besanko J; Imagecolor (SA) Pty Ltd (in liq) v Curtis [2000] SASC 316 (‘Imagecolor’), [13] – [19]; Rini Coolen v Adelaide United Football Club Pty Ltd [2012] SADC 179, [202] – [204].
I am aware that a mediation had been conducted during 2013 over several months.[23] I would accept and assume as a matter of reasonable commercial practicality, that even though the mediation was not successful between all parties, some of the parties to the mediation would have continued their discussions. I would also assume, as a matter of ordinary commercial practicality, that in respect of the orders of the court concerning the ongoing management of the proceedings, the parties who continued in negotiation (as has obviously occurred here between the plaintiffs and Aurecon) may have ‘taken their eye of the ball’ in respect of those matters in order to achieve a settlement in a cost effective way. No doubt that is what occurred here.
[23] Refer Community Corporation No 21561 Incorporated v Pier Apartment Hotel Pty Ltd [2014] SADC 111, [17], [55], [150].
That said, it is still the case that Aurecon were a party to the proceedings up until the time of the discontinuance of the plaintiffs’ claim against it. It was aware, because it was a party to the proceedings, of the issues being ventilated by the first and second defendants concerning, inter alia, the status of the fourth statement of claim filed 16 December 2013. There is no doubt that the first and second defendants contended from the outset that the fourth statement of claim was not a pleading before the court because it had been filed without leave and outside of the operation of the rules. Aurecon would also therefore have been aware of the need for that issue to be resolved. That issue was not finally resolved until my judgment of 23 June 2014. It was soon after that time that the second defendant brought its application to rejoin Aurecon to the proceedings. It follows that albeit that there may not be an affidavit which gives an explanation for the delay, the matters which are notorious in these proceedings concern the status of the fourth statement of claim, the challenge to that pleading raised by the first and second defendants, the need for the court to resolve that matter and the need, consequently, for the plaintiffs to amend their pleadings. These matters further explain why the second defendant did not act earlier. On one view, it could not have acted earlier.
Also on this topic, Aurecon contended that at 21 March 2014, the plaintiffs’ case was as set out in the fourth statement of claim filed 16 December 2013 together with the second Scott Schedule. That is the foundation upon which Aurecon also contends that under the operation of s 72 of the Development Act, it may be seen that the plaintiffs were prosecuting claims against both the second defendant and Aurecon in identical terms. This is because it may be seen that the plaintiffs were alleging that the jointly caused defects (described as defects 26–33) arose from the wrongful contractual and/or tortious acts or omissions of them both. Aurecon relied upon the decision of Judge Sulan (as his Honour then was) in Parletta Constructions Pty Ltd v Prince (No 2) (‘Parletta’).[24] In my opinion, Aurecon is correct to contend that when the respective positions of Aurecon and the second defendant are properly analysed, there was a sufficient risk of a finding against them that they were jointly and severally liable for loss and damage arising out of defects which may be said to be jointly caused. These principles have been explained in detail in a number of decisions of this Court.[25]
[24] [2000] SADC 101, [11] – [19].
[25] Ibid; Nbd Bank v South Italy Tiling SA and Ginos [1997] SADC 3596.
There was also a confluence between the second aspect of the first submission of Aurecon and its third submission concerning s 72 of the Development Act. Aurecon asserted that as at 21 March 2014, the second defendant must have been aware of the identity of the nature of claims brought by the plaintiffs against the second defendant, that those complaints gave rise to an allegation of defective building work and in particular the identification of defects 26-33. It was also submitted that there was a ‘concurrence’ as that term is used by his Honour Judge Sulan (as his Honour then was) in the decision in Parletta.[26] This was because, it is said, the acts or omissions of the second defendant were to be identified with the acts or omissions of Aurecon in its position as engineer. In that position Aurecon had specified particular building work to be performed and that work had been done by the second defendant and as a consequence, there was an exposure to the risk of being held jointly and severally liable.
[26] [2000] SADC 101, [19].
A criticism made by Aurecon was that in the knowledge of the whole of that background, it was incumbent upon the second defendant to act quickly in relation to the joinder (if that was to be the case) of Aurecon back into the proceedings because all of that information would have been available to the second defendant as at March 2014, the date of settlement between the plaintiffs and Aurecon.
Aurecon also submitted that by delaying, it suffered a tactical disadvantage because the second defendant would be in a position where it would proceed to prepare itself for a trial on 7 October whereas Aurecon ‘downed tools’ in relation to the trial because of the settlement that it reached with the plaintiffs. This is a complaint which at one level requires a comparative assessment. I am not in a position to make that comparative assessment because the affidavit material does not make clear to me what level of preparation had been reached by Aurecon as at the date of settlement. As I have said previously, I would assume that, in accordance with usual commercial practice, Aurecon would not have been keen to incur legal costs in preparation for a trial where it had the real possibility of forging a settlement with the plaintiffs. I have taken that into account. However, it is to be recalled that Aurecon had been in these proceeding since 2007. It has been readying itself for the proceedings and the trial of the action since that time. It is a significant piece of litigation. It is very difficult to accept an assertion that Aurecon would now need to pour enormous resources into the preparation of the trial on a short term basis (as if it had never been involved in the matter previously) when the true position is that it had been involved in the action for some six or more years. Therefore, the submissions made by Aurecon in relation to that alleged disadvantage must be seen in the context of the background facts.
In my opinion, it is necessary to address the concurrence argument at the same time as I address the question of s 72 of the Development Act. The second aspect raised by Aurecon was prejudice and in particular, Aurecon alleges that it must now respond to a completely new style of pleading because of the addition of the claim based upon alleged tortious breach of duty owed by Aurecon to the second defendant. Complaints are also made about the content of the secondary party statement of claim. However in my opinion, those are matters of pleadings rather than matters that go to the exercise of the discretion. I will deal with the exercise of discretion before I deal with the content of the statement of claim.
Although it is correct to say that the case now put by the plaintiffs against the first and second defendants involves an allegation of a breach of a duty of care owed by a subcontractor to a contractor, it is my opinion, that such a case would be addressed in the same way as Aurecon would address the case made against it by the plaintiffs. No submission has been made to me of any different style of approach that would be necessary in order to meet that case. I have already made some comments in relation to the nature of that case in my earlier judgment of 23 June 2014. In my opinion, in order to place any significant weight upon this submission, it would have been necessary for Aurecon to have disclosed by some further affidavits, how it may be said that although to an extent this is a new case and is different, it is materially different and, more importantly, would place such a burden upon Aurecon (to meet it) sufficient to guide the exercise of my discretion in this matter. These are all questions of fact and matters for judgment.
Another aspect of the question of prejudice was the necessity of Aurecon to respond to any expert report of the plaintiffs or the first and second defendants. No information was put before me about the status of the expert reports that Aurecon were required to obtain under the extant orders of the court prior to the termination of the claim by the plaintiffs against it. It is common ground that the court had made orders for the provision of experts’ reports by all parties. Aurecon were within the scheme of the requirements of those orders to provide those reports. The time limits for the provision of the reports had been extended by the consent of all parties. At the time of the discontinuance of the proceedings Aurecon was still within the time limit prescribed by the court (as extended) for the provision of experts’ reports.

However there is no affidavit information before me to indicate what steps have been taken by Aurecon to identify the relevant experts, to retain the experts, to produce a timeline for the production of the reports and to address the matters that may have been required by those experts. There is no information of those matters before me in the affidavit of Mr Jamie Ling.[27] In that affidavit, Mr Ling addresses prejudice at paragraph 16 et seq. He informs the court that it will be necessary for Aurecon to instruct up to four independent experts to respond to the 26^th – 33^rd defects.[28] There is no evidence from Mr Ling as to why it would be necessary to instruct four experts. It is to be recalled that there are only nine defects that are involved here. Mr Ling also informs the court that Aurecon has not been served with any expert reports relied upon by the second defendant and Aurecon will not know if it needs to obtain and serve experts reports in response. All that is said is that as at 21 March 2014, the date of acceptance of the offer, Aurecon had not retained the independent experts. The affidavit does not say that Aurecon had not identified, made preliminarily contact with and had obtained an understanding of the ability of the expert or experts to assist it. All that is said is that the experts had not been retained.
[27] FDN 125.
[28] Ibid, [17].
It is also said in the same affidavit[29] that it would not be possible for Aurecon to obtain all of the necessary responding reports from experts prior to 7 October 2014. Even if those reports could be obtained, there is no information to indicate, one way or other, whether the experts might be available to give their evidence at that time. I accept the factual matters in this respect set out by Mr Ling. They are largely self evident.
[29] Ibid, [19].
In my opinion, the prejudice that may be suffered by Aurecon in this respect may be dealt with by appropriate orders of the court. It is never the case that when a party is joined in an action in these circumstances that no prejudice would arise or that the court can completely overcome the prejudice that a party might suffer. In my opinion, the proper way in which to address the issue is to identify that prejudice and to indentify the ways (if that is possible) in which that prejudice can be ameliorated to an extent which is sufficient, consistent with the interests of the administration of justice and efficiency of the court processes. If that question is answered in the positive it would enable the court to decide whether that party is to be joined in circumstances that, though not perfect, are sufficiently satisfactory.
I am of the view that the submission on prejudice put by Aurecon are both significant and of sufficient certainly that they are matters that weigh heavily in the balance. However, I am also of the view that the prejudice suffered by Aurecon in these circumstances is not so great as to obviate the possibility of an order for joinder on particular terms. I will address that matter later.
In Nbd Bank v South Italy Tiling SA,[30] Judge Kitchen of this Court was called upon to consider a dispute concerning a domestic building contract and allegations about inadequate foundations and other defects. The action was taken by a subsequent purchaser of the house against the builder and the foundation engineer. Issues arose concerning statutory warranties by the builder under s 27(2) Builders Licensing Act 1986 (SA). His Honour decided that the builder and engineer were negligent and were jointly and severally liable to the plaintiff. His Honour addressed s 72 of the Development Act at page 44 and following of the judgment. His Honour decided that in order for s 72 of the Development Act to be given effect, it is necessary first to find that the persons in respect of whom the section operates were jointly and severally liable for a plaintiff’s loss and damage. One of the questions that occupied his Honour is whether it is necessary that such persons, if not already parties, must be joined by the defendant as a party to the proceedings. This, according to the submissions of Mr Goodall, is relevant here because if it be the case that it is not necessary to join a party to proceedings but that an order could be made under s 72 of the Development Act absent that joinder, there would be no need to join Aurecon to the proceedings. The second question was the issue of joint and several liability for damage by the persons identified as being responsible for the damage. Judge Kitchen found that s 72 of the Development Act is not relevant until a court finds that a defect in a building work arises from the wrongful acts or defaults of two or more persons. At page 45 of his Honour’s judgment, he said:-
Section 72 does not become relevant until the court finds that a defect in building work arises from the wrongful acts or defaults of two or more person. In my opinion, ‘wrongful’ in this context means a breach of a tortious, or perhaps a contractual, duty imposed by the general law.[31]
[30] [1997] SADC 3596.
[31] Ibid, 45.
His Honour then considered the question of whether or not s 72 can operate in respect of both persons before the court and persons who are not parties to the proceedings. This would occur in context where the only judgment that could be entered would be against the party to the proceedings and, conversely, the liability of that party would be determined according to its share of the responsibility which may be nil. Judge Kitchen considered a comparative act, the Negligence Act RSBC 1979 of the province of British Columbia, Canada and a decision of the British Columbia Court of Appeal in Wells et al v McBrine.[32] His honour found that it was not necessary for a party who was jointly and severally liable for a wrongful act or default to be joined as a party to the proceedings. His Honour said as follows:-
Upon reflection I have come to the view that it is not a precondition to the operation of s 72 in a particular case that the persons whose act or default is claimed to have contributed to use a short hand expression, must be joined in one way or another as parties. Section 72 does not specifically require that and the language of the section does not imply that such a joinder is necessary. An perceived or possible injustice to a plaintiff can be met by insisting that a defendant specifically raise the issue of s 72, that he identify the others whose fault he alleges, that he give sufficient particulars of the material facts upon which he relies and he gives or adduces credible evidence which, if accepted, would enable the court to give effect to s 72.[33]
[32] (1988) 54 DLR (4^th) 708 (BCCA).
[33] Nbd Bank v South Italy Tiling SA [1997] SADC 3596, 47.
In his Honour’s judgment in Parletta, Judge Sulan (as his Honour then was) agreed with and adopted those comments.[34] His Honour applied the approach of the High Court in Thompson v ACTV[35] and summarised the position as follows:-
[19] I consider that in respect of the alleged defective work and the consequential damage, there is concurrence in the act or acts of the architect and builder. Of course, they have different functions to perform, but those functions are carried out to achieve a satisfactory result for the proprietors. In respect of the subject work, there is concurrence in that the architect has designed and specified the work to be carried out, the builder is required to undertake the work and the architect is required to certify the satisfactory completion of the work. In that regard, they are, in my view, jointly and severally liable for any work negligently carried out, if negligence against them is established. (See Carosella and Carosella v Ginos & Gilbert Pty Ltd and Others (1981) 27 SASR 515) The question is whether both can be said to have breached their duty of care and if so, whether liability ought to be apportioned between them.[36]
[34] [2000] SADC 101, [16] et seq.
[35] (1996) 141 ALR 1, 4.
[36] Parletta [2000] SADC 101, [19].
The other authority relied upon by Aurecon was the decision in Glenmont Investments Pty ltd v O’Loughlin[37] where the court held that a wrongful act or default for s 72(1)(b) of the Development Act includes a breach of a tortious duty of care as well as a breach of a contractual duty of care. These principles were not in contest between the parties. The principal submissions of Aurecon was that in light of those matters decided by the court and in light of the terms of s 72 of the Development Act, it is not necessary to join Aurecon in the proceedings.
[37] (2000) 79 SASR 185.
The second defendant has already pleaded the operation of s 72 of the Development Act. Under the wording of that provision, the court is obligated to apply a scheme of apportionment between parties jointly and severally liable for the damage suffered by a plaintiff so that only that proportion of the damage caused by that defendant becomes the responsibility for the defendant under any judgment entered in favour of the plaintiffs. That being so, any question of the need for or requirement to join Aurecon in the proceedings stands to one side because, consistent with Judge Kitchen’s decision in Nbd Bank v South Italy Tiling SA,[38] it is not necessary for Aurecon to be a party to the proceedings in order for the court to apportion to it the liability, if any, for which it is jointly and severally liable for a breach of any tortious duty of care or contractual duty of care with the second defendant. Aurecon says that this is also a complete answer to the position of the second defendant because if it be the case that the court attributes some particular proportion of liability to Aurecon in the proceedings, it would not be possible for the plaintiffs to pursue Aurecon in respect of that liability because the settlement reached between the plaintiffs and Aurecon raises an immediate estoppel against the plaintiffs further proceeding against Aurecon in respect of the proportion of that loss. It is plainly not a res judicata because the court has not decided upon the point but it is sufficient to raise an immediate estoppel and bar to the plaintiffs purporting to proceed against Aurecon.
[38] [1997] SADC 3596.
Finally, Aurecon also submitted that the new pleadings raised in the fifth statement of claim concerning the vicarious liability of the second defendant for the actions of Aurecon, still fall within the operation of s 72 of the Development Act and nothing has been altered by the introduction of the new plea. To that extent, Aurecon acknowledge that this submission weakened their earlier submission in relation to prejudice.
For all of those reasons including the question of the interests of justice, Aurecon opposed the application of the second defendants.
Mr O’Sullivan QC referred to s 72(2) of the Development Act which reads:-
(2)An act or default for which a person is vicariously liable will be taken to be an act or default of that person for the purposes of this section.
The reference to that subsection was made in the context that it is now alleged in the fifth statement of claim that second defendant is vicariously liable for the actions of Aurecon and Woodhead. On that basis he submitted that s 72(1) of the Development Act has no work to do because there is nothing against which to apportion liability. If the second defendant is vicariously liable for all of the actions of Aurecon and Woodhead under an alleged duty owed by Aurecon and Woodhead to the second defendant, then the act or default of the ‘person’ for whom the second defendant is vicariously liable will be seen to be the act or default of the second defendant as the ‘person liable’ under the subsection. Therefore, there can be no operation of s 72 of the Development Act at least for the liability in respect of which the second defendant is said to be vicariously liable.[39]
[39] One further complication is the possible circumstance of the court making a finding of liability upon another party to the action and for which the second defendant is not alleged to be vicariously liable.
If Aurecon is not joined to the proceedings and there is some other separate claim made against Aurecon by the second defendant (having regard to the second defendant’s primary liability as the person vicariously liable) then there is a real risk of inconsistent findings in such separate proceedings. This includes a risk of inconsistent findings on the law in the event that another court differs from the view put by Aurecon that the operation of s 72(2) of the Development Act is confined only by virtue of the fact that the act or default for which the second defendant is vicariously liable does not detract from the fact that there may be an apportionment under subsection (1) of section 72 of the Development Act.
Mr O’Sullivan QC also argued that this position was complicated by the content of the Law Reform Act. Paragraph [3] of the defence of the first defendant and the defence of the second defendant pleads both s 72 of the Development Act and the Law Reform Act and claims a reduction of liability to nil under s 8 of the Law Reform Act (after 1 October 2005).
However, there are two relevant versions of the Law Reform Act under consideration here because of the fact that the plaintiffs plead that the relevant events under their claim had their genesis in 2001 and following years.
The two versions of the relevant Law Reform Act are the first version which operated prior to 1 October 2005. This version of the Act provides for what may generally be described as aspects of contribution between wrongdoers for damages and for derivative harm. The Law Reform Act operating after 1 October 2005 provides for apportionment of liability between wrongdoers (s 7) as well as a limitation of liability of a defendant (theoretically to zero) under s 8 of the Act. There was no change to the regime in relation to contribution (s 6) under the earlier Law Reform Act.
Mr O’Sullivan QC drew attention to s 3(2) of the Law Reform Act,[40] the terms of which are as follows:-
[40] (after 1 October 2005).
3—Interpretation
(2)             A liability is an apportionable liability if the following conditions are satisfied:
(a)the liability is a liability for harm (but not derivative harm) consisting of—
(i)    economic loss (but not economic loss consequent on personal injury); or
(ii)   loss of, or damage to, property;
(b)2 or more wrongdoers (who were not acting jointly) committed wrongdoing from which the harm arose;
(c)the liability is the liability of a wrongdoer whose wrongdoing was negligent or innocent.
The term ‘harm’ is defined in s 3(1) to include ‘loss of life, personal injury, damage to property, economic loss and loss of any other kind (whether the harm is primary or derivative)’.’Primary harm’ is defined to mean ‘harm other than derivative harm’ and ‘derivative harm’ is defined to mean ‘harm suffered as a result of injury to, or death of, another...’. The definitions of ‘harm’, ‘primary harm’ and ‘derivative harm’ do not inform the discussion and the focus is therefore upon s 3(2)(b) of the Law Reform Act. Under that subsection the wrongdoer cannot be acting jointly.
‘Derivative liability’ is defined within subsection 3(1) of the Law Reform Act as follows:-
derivative liability means—
(a)a vicarious liability (including a partner's liability for the act or omission of another member of the partnership); or
(b)a liability of a person who is subject to a non‑delegable duty of care for the act or omission of another that places the person in breach of the non-delegable duty; or
(c)if an insurer or indemnifier is directly liable to a person who has suffered harm for the act or omission of a person who is insured or indemnified against the risk of causing the harm—the liability of the insurer or indemnifier; or
(d)a liability as nominal defendant under a statutory scheme of third-party motor vehicle insurance;
Therefore, a derivative liability will include a vicarious liability in so far as the Law Reform Act has operation (after 1 October 2005). In order for s 3(2) of the Law Reform Act to apply, there must be two or more wrongdoers who were not acting jointly, who committed the wrongdoing from which the harm arose. ‘Wrongdoers’ is defined within s 3(1) as follows:-
wrongdoer means—
(a)a person who commits an act, or makes an omission, that causes or contributes to harm (including a person whose act or omission contributes to his or her own harm); or
(b)a person who has a derivative liability for harm resulting from the act or omission of someone else;
Note—
A person may be considered a wrongdoer even though the person—
·has died; or
·has been wound up or has ceased to exist; or
·has become insolvent; or
·cannot be found.
Importantly, ‘wrongdoer’ is defined to mean a person who commits an act that causes harm or a person, such as a person who is vicariously liable for a derivative liability for harm resulting from the act or omission of somebody else. Therefore, as the argument was put, it is possible for a wrongdoer to be a person who commits the harm or to be a person who is vicariously liable for the harm..
The application of the Law Reform Act (after 1 October 2005) is governed by s 4 of that Act. That section reads as follows:-
4—Application of Act
(1)This Act applies to liabilities of the following kinds—
(a)a liability in damages that arises under the law of torts;
(b)a liability in damages for breach of a contractual duty of care;
(c)a liability in damages that arises under statute.
(2)This Act—
(a)has no effect on criminal proceedings; and
(b)does not make enforceable an agreement for an indemnity that would not have been enforceable apart from this Act; and
(c)does not apply to liability subject to apportionment under section 72 of the Development Act 1993.
There is a specific exclusion within s 4(2)(c) of application to liability subject to apportionment under s 72 of the Development Act.[41]
[41] There is now a considerable body of authority in Australia about what claims are apportionable: viz Godfrey Spowers (Victoria) Pty Ltd v Lincolne Scott Australia Pty Ltd (2008) 21 VR 84; BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 2) [2008] FCA 1656 and there are also demonstrable differences of approach: cf Wealthsure Pty Ltd v Selig [2014] FCAFC 64; ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65.
On the assumption that the second defendant’s submissions on the operation of s 72 of the Development Act is correct and if the Law Reform Act (prior to 1 October 2005) has application, there will be a difference of approach concerning the position of the second defendant relative to Aurecon and the plaintiffs up to and including the commencement of the operation the Law Reform Act (on 1 October 2005). If it is the case that a decision is made by the court that loss was suffered in the period up to and including 1 October 2005, then it is argued that a different scheme applies because of the absence in the Law Reform Act between 2001 and 30 September 2005 of the right to claim apportionment. That is to be contrasted with the operation of s 72(1) of the Development Act which does allow for apportionment as well as the operation of s 72(2) of the Development Act (as the second defendant contends) which does not operate because the liability of the second defendant as the entity vicariously liable is not covered by s 72 of the Development Act. This is because the second defendant would not seek to apportion liability against itself.
Mr O’Sullivan QC also contended that there may be damages claims occurring which straddle the dates of the operation of each version of the Law Reform Act and the great difficulty for any court will be to attempt to decide which act applies at which date and in respect of which damage.

Reference was made to s 8 of the Law Reform Act (after 1 October 2005). That section reads as follows:-
8—Limitation of defendant's liability in cases of apportionable liability
(1)If a defendant's liability on a claim for damages is apportionable, the liability is limited under this section.
(2)If the limitation applies, the defendant's liability is limited to a percentage of the plaintiff's notional damages that is fair and equitable having regard to—
(a)the extent of the defendant's responsibility for the harm; and
(b)the extent of the responsibility of other wrongdoers (including wrongdoers who are not party to the proceedings) whose acts or omissions caused or contributed to the harm.
(3)For the purpose of subsection (2)—
(a)2 or more wrongdoers who are members of the same group are to be treated as a single wrongdoer; and
(b)if the plaintiff was guilty of contributory negligence, that contributory negligence will be brought into account as wrongdoing and a percentage assigned to it; and
(c)if 2 or more wrongdoers are each entitled to the benefit of a limitation of liability under this section (for some reason other than that they are members of the same group), the aggregate percentage assigned to them cannot exceed—
(i)if there is no contributory negligence on the plaintiff's part—100%; or
(ii)if there is contributory negligence on the plaintiff's part—100% less a percentage representing the extent of the plaintiff's responsibility for his or her harm.
(4)In a case involving apportionable liability, the court must proceed as follows:
(a)the court first determines the plaintiff's notional damages;
(b)the court gives judgment against any defendant whose liability is not subject to limitation under this section for damages calculated without regard to this Part;
(c)the court determines, in relation to each defendant whose liability is limited under this section, a proportion of the plaintiff's notional damages equivalent to the percentage representing the extent of that defendant's liability;
(d)the court then gives judgment against each such defendant based on the assessment made under paragraph (c) (but in doing so must give effect to any special limitation of liability to which any of them may be entitled).
...
(5)The plaintiff is not entitled to recover, by way of damages under the judgment, more than the amount fixed as the plaintiff's notional damages.
...
(6)However, this section does not affect the award of exemplary damages and, if such damages are awarded, they may be recovered in the ordinary way from a defendant against whom they were awarded.
Mr O’Sullivan QC submitted that as far as he was aware, there is no decided authority dealing with s 8 of the Law Reform Act (after 1 October 2005) or the Law Reform Act (after 1 October 2005) concerning the apportionment of claims between parties and non parties. That is different from the situation under the corporations legislation.[42]
[42] See ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65.
Under s 8(2) of the Law Reform Act (after 1 October 2005), a defendant’s liability is limited to a percentage of the plaintiffs’ notional damages based upon fairness and equity having regard to the matters set out in subparagraph (a) and (b) of the subsection. One the considerations under s 8(2)(b) is the extent of the responsibility of other wrongdoers (including wrongdoers who are not party to the proceedings) whose acts or omissions caused or contributed to the harm. Under s 8(3) Law Reform Act (after 1 October 2005) where two or more wrongdoers who are members of the same group then those persons are to be treated as a single wrongdoer and the limitation of liability under ss 8(3)(c)(i) and (ii).
Mr O’Sullivan QC argued that those subsections must be read in light of s 8(1) of the Law Reform Act (after 1 October 2005) and that if a defendant’s liability on a claim for damages is apportionable, the liability is limited under that section. The argument of Mr O’Sullivan QC was that s 8 of the Law Reform Act (after 1 October 2005) established the basis upon which defendants are to be treated as wrongdoers and if those wrongdoers are members of the same group, they are to be treated as a single wrongdoer. If there is contributory negligence, it will be brought into account as wrongdoing and a percentage assigned to it. Therefore, under the operation of s 9 of the Law Reform Act (after 1 October 2005), there may be contribution between wrongdoers except for wrongdoers whose liability is limited. However contribution will be allowed between wrongdoers who are members of the same group in respect of the liability of the group in the same way as applies under part 2 of the Law Reform Act (after 1 October 2005). Therefore, according to the argument of Mr O’Sullivan QC, if his first argument is right namely that s 72(1) of the Development Act, properly construed does not apply where, as here, the second defendant is said to be vicariously liability for the wrongs committed by Aurecon then in the event that Aurecon is not joined to the proceedings, and s 72 of the Development Act does not apply, there will be two different proceedings in relation to what would otherwise be identified as members of the same group. If that is the case, then there is a real possibility of inconsistent findings in different cases in relation to the liability of wrongdoers who would otherwise fall into the same group. That would offend the principle enunciated in Barclays Bank v Tom[43] cited with Besanko J in Mulvaney.[44]
[43] [1923] 1 KB 221.
[44] [2004] SASC 166.
There is a further complicating feature because of the difference in the content of the Law Reform Act operating prior to and after 1 October 2005. The Law Reform Act (before 1 October 2005) does not carve out s 72 (as does the Law Reform Act (after 1 October 2005)) presumably because of the absence within the Law Reform Act (before 1 October 2005) of a provision relating to apportionment. Section 6 of the Law Reform Act (before 1 October 2005) has application to loss or harm occasioned prior to 1 October 2005 and that gives rise to the claim for contribution.
If a loss arose prior to 1 October 2005, then the party against which the claim for loss is made has a right to claim for contribution under the Law Reform Act. That is self evident and does not inform the discussion about the joinder of a secondary party. What is not so self evident is the situation where claims are made that damages arise under any of the pleaded causes of action straddle the dates of the operation of the Law Reform Act. Another complicating feature is to identify the date when a loss may be suffered within a particular date range having regard to the pleaded cause of action. These features must inform the question of apportionment as well as contribution because, as in the usual course, the date for assessment of damages will or may vary according to the cause of action pleaded. This is another circumstance that may give rise to the possibility of inconsistencies in separate proceedings about events falling into that date range.
If in these particular circumstances there were two proceedings, one as currently subsists and one as between the second defendant and Aurecon, there is a real risk of inconsistent findings, both as to credit and as to the facts. That is particularly accentuated in building style matters where it is notorious that on occasions, instructions are given on site to vary the designs and there are later disputes between builder, engineer and architect about the instruction for that variation and its sequelae.
On the question of prejudice, Mr O’Sullivan QC pointed to the fact that the plaintiffs have not served any further experts reports since 28 March 2014 and there have been no expert engineering reports served since the end of January 2014. Therefore, some two months before the settlement of the proceedings, Aurecon were in possession of all of the plaintiffs’ engineering reports as they may relate to the conduct of Aurecon. That was the last date upon which those reports have been provided and there was no challenge to the suggestion that other reports had been supplied over a period of years before that time.
Mr Goodall rejected the interpretation of s 72(2) of the Development Act put by Mr O’Sullivan QC. He submitted that, properly read in context, the subsection means, for example, that an employer is vicariously liable for the acts of an employee and it is the employer who is the ‘person’ to be considered for the purposes of any apportionment under s 72(1) of the Development Act.[45] Therefore, there is no reason to view the matter any differently merely because for the purposes of the argument the second defendant may be seen to be vicariously liable. It would still be open to the court to achieve a just and equitable outcome and there is no reason, even having regard to the allegations of vicarious liability, to approach the situation in any different way.
[45] Therefore, and to that extent, s 72 of the Development Act is consistent with s 59 of the Civil Liability Act 1936 (SA).
Absent the complicating feature that the second defendant is alleged to be and may be found to be vicariously liable for the conduct of Aurecon, Mr Goodall’s argument is demonstrably correct. However, that is not necessarily the situation that is presently before this Court.
Mr Goodall’s submissions in reply do not necessarily completely address the point made by Mr O’Sullivan QC. That is because it is now alleged that Aurecon which is one of the entities that would logically be seen to be within the ‘group’ for the apportionment legislation after 1 October 2005, would now be ‘carved out’ of that group and dealt with separately notwithstanding that there is an allegation pleaded of the vicarious liability of the second defendant for the actions of Aurecon.
Whether or not Mr O’Sullivan QC’s argument is correct is not a matter upon which I can finally rule in this application. The question for my determination is whether, in the exercise of my discretion, the difficulties that may arise having regard to the matters put to me would necessitate the joinder of Aurecon as a party to the proceedings. In coming to that decision, I need to exercise my discretion in the whole of the background circumstances of the matter and they include not only the history of the proceedings but also the difficulties that might arise in the event that Aurecon is not rejoined to the proceedings. In my opinion, it is not a matter where I should or should not accept the construction put upon s 72 by Mr O’Sullivan QC. Having reviewed the submissions and the legislation as well as the authorities, my researches do not indicate that the point has been considered previously. It would not be appropriate in those circumstances to merely dismiss the argument on Mr O’Sullivan QC and therefore completely foreclose the matter. In so saying, I accept that if I reject the application of the second defendant the result would not foreclose the possibility of a separate action between Aurecon and the second defendant. However that second action raises all of the difficulties normally to be expected to occur in separate proceedings on matters such as this which derive from the same or similar circumstances and which involve determinations of issues arising out of the same or similar relationships. Those are the matters that I must keep firmly in the forefront of my mind in coming to my decision in this matter.
I accept the submissions of Mr Goodall about the potential prejudice that may be suffered by Aurecon in the event that his client was joined to the proceedings and required to participate in the proceedings from the time of its commencement. I have also kept those matters also firmly in my mind in coming to my decision in this matter.
The operation of the relevant rules
DCR 6R 74 reads as follows:-
74—Joinder and disjoinder of parties
(1)The Court may, on application or on its own initiative, order that a person who is not a party to the action be joined as a party if satisfied that—
(a)the person has an interest in the subject matter of the action or in a question of law or fact involved in the action; or
(b)the Court may require the person's cooperation in order to enforce a judgment; or
(c)the person has a right to joinder as a party under an Act or rule; or
(d)the person should be joined as a party to ensure that all matters in dispute in the action are determined; or
(e)the person should be joined as a party in order to enable determination of a related dispute and thus avoid multiplicity of proceedings.
(2)The Court may, on application or on its own initiative, order the disjoinder of a party if satisfied that it is in the interests of the efficient administration of justice to do so.
(3)Before the Court makes an order for the joinder or disjoinder of a party, the Court must ensure that all parties to the action and, if appropriate, the person who may be joined as a party, have had notice of the proposed joinder or disjoinder and an opportunity to be heard on the question.
(4)The Court may make an order for the joinder or disjoinder of a party on conditions the Court considers appropriate.
(5)The Court cannot join a person as a defendant to an action under this rule if, because of the expiration of a period of limitation, an action based on the relevant cause of action could not be commenced against the person at the date of the order for joinder.
(6)However—
(a)the Court may treat an application to join a person as a defendant as originating process for an action against the person sought to be joined and may exercise any statutory power to extend the period of limitation accordingly; or
(b)the Court may, after the expiration of a relevant period of limitation, join a person as a defendant to an action if satisfied that the plaintiff genuinely intended to bring the action against that person but, as a result of a genuine mistake, failed in the action as originally formulated to identify that person, or to identify that person correctly, as a defendant.
DCR 6R 210 reads as follows:-
210—Trial of action
(1)Unless the Court otherwise directs, all issues involved in both primary and secondary actions are to be tried together.
(2)A party to a secondary action is entitled to introduce, to the extent permitted by the trial judge, evidence relevant to the primary action and, if the party's interest may be affected by the outcome of another secondary action, that other secondary action.
(3)A party to a secondary action is entitled to cross-examine, to the extent permitted by the trial judge, the witnesses of—
(a)a party to the primary action; or
(b)if the party's interest may be affected by the outcome of another secondary action—a party to that secondary action.
(4)Each party is bound by the Court's judgment so far as it determines issues affecting the interest of the party even though the party's participation in the action arose from a secondary action in which those issues were not raised.
At the time that the second defendant brought its application to rejoin Aurecon, the trial of this action had been set to commence hearing on 7 October 2014. That date and fact has been known by all parties for some time. As a result any interlocutory applications taken by a defendant to issue a secondary action was governed by DCR 6R 131, the contents of which are as follows:-
131—Interlocutory applications
(1)An interlocutory application is to be in an approved form.
(2)The applicant must give the other parties affected by the application written notice of the time and place appointed for hearing the application at least two days before the time appointed for the hearing.
(3)Notice to other parties is not required if—
(a)the application does not affect the interests of other parties; or
(b)the applicant is authorised to make the application without notice to other parties.
(4)The Court may, on conditions the Court considers appropriate, dispense with requirements of this rule—
(a)if the urgency of the case so requires; or
(b)by consent of the parties; or
(c)if for any other reason the Court considers it appropriate to do so.
…
(5)When the Court has made an order under rule 120(5) that an action proceed to trial, an interlocutory application may only be made with the Court’s permission.
(6)However, if the application should have been made before the action was referred for trial, the Court will only permit the application if satisfied that special circumstances justify the grant of permission.
The question arising under DCR 6R 131 is whether or not there are special circumstances to justify the grant of the permission. I have already set out in detail above, the quite unusual factual circumstances in this matter. In particular I draw attention to the existence of the third statement of claim as the extant proceeding before the court as at 15 December 2013; the fourth statement of claim filed by the plaintiffs on 16 December 2013 but without the leave of the court or the consent of the parties; the applications taken by the first and second defendants challenging the status of the fourth statement of claim; the intervening discontinuance of the action as between the plaintiffs and Aurecon on 21 March 2014; the hearing and determination of the application of the first and second defendants concerning the fourth statement of claim; the judgment of this Court of 23 June 2014; the leave given to the plaintiffs to file and deliver the fifth statement of claim; and the defences filed by the first and second defendants and their application to issue a secondary action against Aurecon. All of that occurred in the background where Aurecon had, for some six or seven years before 21 March 2014, been a party to the proceedings. In my opinion, there are factual peculiarities of this matter which take it out of the ordinary. I will deal with those matters later.
In Barclays Bank v Tom,[46] Scrutton LJ suggested that conventional practice was that the plaintiff’s claim was to be disposed of and then later, if necessary, there would be a trial of the secondary action. The relevant passages are as follows:-
I think it is important to keep clearly in mind what the third party procedure is. A plaintiff has a claim against a defendant. The defendant thinks if he is liable he has a claim over against a third party. With that matter between the defendant and the third party the plaintiff has obviously nothing to do. He is not concerned with the question whether the defendant has a remedy against somebody else. His remedy is against the defendant. But the defendant is much interested in getting the third party bound by the result of the trial between the plaintiff and himself, for otherwise he might be at a great disadvantage if, having fought the case against the plaintiff and lost, he had then to fight the case against the third party possibly on different materials, with the risk that a different result might be arrived at. The object of the third party procedure is then in the first place to get the third party bound by the decision between the plaintiff and the defendant. In the next place it is directed to getting the question between the defendant and the third party decided as soon as possible after the decision between the plaintiff and the defendant, so that the defendant may not be in the position of having to wait a considerable time before he establishes his right of indemnity against the third party while all the time the plaintiff is enforcing his judgment against the defendant. And thirdly, it is directed to saving the extra expense which would be involved by two independent actions. With these objects in view the third party order usually provides that the third party may appear at the trial between the plaintiff and the defendant.[47]
[46] [1923] 1 KB 221, Scrutton LJ.
[47] Ibid 223-224.

As appears obvious from what fell from Scrutton LJ, the pre-eminent feature is the interests of justice and a question which arises is whether the third party may be identified as an intrinsic participant in the primary proceeding. A second important question is whether, if the submissions of Aurecon are accepted, there would be a multiplicity of proceedings with the usual associated risks of inconsistent findings both in relation to facts and credibility which may affect the overall result.
In my opinion, one of the primary considerations in this case is that notwithstanding the comparative strength of the submissions made by Mr Goodall concerning the interpretation of s 72(2) of the Development Act, it is not possible to rule finally on that matter at this interlocutory stage. If it be the case that Mr O’Sullivan QC is correct in his submissions, then, in the peculiar circumstances of this matter where it is alleged by the plaintiffs that the second defendant at least is vicariously liable for the actions of its subcontractors, Woodhead and Aurecon, difficulties may arise in relation to the application of both s 72 of the Development Act and the apportionment provisions under the Law Reform Act. It is not appropriate nor is it possible to rule upon these matters finally at this interlocutory stage. The arguments must be properly ventilated in a proceeding before a court and with sufficient time and information to give proper and mature reflection to the arguments put on both sides. It is sufficient to say currently that the arguments put by Mr O’Sullivan QC are matters that cannot be discounted out of hand and will require proper ventilation before a trial court.
The speech of Scrutton LJ in Barclays Bank v Tom has been cited with approval by a number of decisions of justices of the Supreme Court.[48] Having regard to the very well settled principles as discussed by King CJ in JN Taylor Holdings Ltd v Bond (‘JN Taylor case’),[49] the question of the interests of justice include, where possible, the avoidance of the multiplicity of proceedings and so far as possible, to ensure that all issues arising between affected parties are resolved at the same time.
[48] See Mulvaney [2004] SASC 166; See also AMP Fire and General Insurance Company Ltd v Dixon (1982) VR 833.
[49] (1993) 59 SASR 432, 440-442.
One of the issues for my consideration is, if I make a finding that special circumstances exist and the discretion under DCR 6R 74 and DCR 6R 210 ought to be exercised favourably to the second defendant, what, if any, directions need to be made in relation to the conduct of the proceedings.
In the JN Taylor case,[50] King CJ pointed to the importance of findings of fact in the principal proceeding as well as findings about breaches of any particular party to the proceedings that may have caused loss. His Honour re-emphasised what is generally understood to be the undesirability of matters being covered twice in evidence. This was particularly important in a case where a second proceeding would canvas the same evidence and in particular about the same topics. I have taken all of those matters into account and I have also had regard to the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University.[51] In the exercise of my discretion, I am mindful of the decision of Doyle CJ in the Imagecolor case.[52] His Honour expressed the view that in the event that the secondary party proceedings were to be protracted, then the appropriate approach was to dispose of the main proceedings without further delay and dispose of the subsequent party proceedings after the main proceedings. That approach is appropriate when considering the question of the interests of justice and the balance of convenience.
[50] (1993) 59 SASR 432.
[51] (2009) 239 CLR 175.
[52] [2000] SASC 216.
In the opinion that I have formed in this matter, and having regard to the interests of justice and the balance of convenience, it is appropriate that leave be given to the second defendant to issue an application pursuant to DCR 6R 74 to rejoin Aurecon to the proceedings. There are several reasons for my decision. Aurecon were a party to the proceedings for many years prior to the settlement of the plaintiffs’ claim against it. It is not coming to the proceedings fresh and is very familiar with the issues arising in the proceedings. There are new matters arising in the proceedings. They arise as a result of the amendment of the plaintiffs’ statement of claim and the new allegation of a duty owed by a subcontractor to the second defendant as principal contractor and consequently, the issue of vicarious liability of the second defendant for the actions of its subcontractors. That, in turn, gives rise to issues concerning the operation of the apportionment legislation and, anterior to that issue, the operation and proper construction of s 72 of the Development Act. I have canvassed the issues concerning those matters earlier in these reasons. Balanced against those considerations is the fact that if leave is granted, Aurecon will have to recommence its participation in the proceedings. However, as I have said, Aurecon were in the proceedings for a very long time, it is well familiar with the proceedings and there have been no further experts reports received from the plaintiffs in respect of Aurecon since the commencement of the 2014 year. That is, the proceeding is, in terms of experts reports, as it was at the time of the settlement between the plaintiffs and Aurecon. That said, it is obvious that there will be some significant effort required to bring Aurecon ‘up to speed’ in the proceedings because I accept that Aurecon would have focused its efforts upon settling the plaintiffs’ claim against it so as to achieve the settlement on 21 March 2014. I have taken all of those matters into account.
In my opinion, special circumstances exist for the purposes of DCR 6R 131. Those special circumstances are: the changed nature of the proceedings, bearing in mind the amendment of the plaintiffs’ statement of claim; the different claims brought against the first and second defendants; the proper interpretation of the apportionment legislation both within the Development Act and in the Law Reform Act; the different versions of the Law Reform Acts operating prior to 1 October 2005 and after 1 October 2005; and questions generally concerning the application of that legislation. Other significant matters are the necessity to avoid duplication of proceedings and the necessity to avoid, in as far as possible, inconsistent findings. In my opinion, those two matters loom large in the relevant considerations applicable to this case.
For the same reasons, it is my decision to grant leave to the second defendant to bring the secondary proceedings, to grant leave to the second defendant to file and deliver a secondary party notice and statement of claim and to give directions in relation to the conduct of that claim.
It is also my view that Aurecon should not, unless it otherwise chooses, be required to be involved in the trial of the proceedings from the outset. In my opinion, all that is necessary currently is for Aurecon to be joined in the proceedings and for directions to be given in relation to the hearing of the subsequent party proceedings between the second defendant and Aurecon. In my opinion, that proceeding can await the disposition of the action as between the plaintiffs and the first, second and fourth defendants (assuming that the terms of leave given to proceed against the fourth defendant can be satisfied). It follows that I envisage that there will be a splitting of the trial to deal first with the plaintiffs’ claims against the extant defendants and then secondly and subsequently, to deal with the defendants’ claims as between themselves and against any secondary party. Whether or not it is necessary to hear and determine any claims as between the defendants or any claim by a defendant against a secondary party is a matter to be seen. For example, it may be anticipated that the contentions of Aurecon in relation to the operation of s 72 of the Development Act will be canvassed and decided upon in the principal proceeding. That must be the case because both the first and second defendants have pleaded the operation of s 72 of the Development Act prior to the pleading in relation to the Law Reform Act both before and after 1 October 2005. In my opinion, there is no reason why, at that stage, Aurecon could not make submissions to the court in relation to those matters.
Considering the four matters raised by Doyle CJ in Imagecolor,[53] I am of the opinion that there is no explanation required for the delay in issuing the third party proceedings because of the matters that I have already canvassed. In my opinion, there will be no significant impact of the proposed secondary party proceedings on the orderly conduct of the proceedings between the plaintiffs and the defendants. This is because it may be anticipated that the first and second defendants will attempt to sheet home to Aurecon or to Woodhead or both of them the majority if not the whole of the responsibility for the losses, if any, suffered by the plaintiffs as claimed. That is, the mere joinder of Aurecon to the proceedings will not change what may be predicted as the attitude of the first and second defendants to the proceedings because of the matters already pleaded by them in their defence.
[53] [2000] SASC 316.
In light of the arguments put by Mr O’Sullivan QC and which I have canvassed above, there is a significant risk of inconsistent findings if the two sets of proceedings are not tried together. Potentially there are all manner of issues to be canvassed about which no firm prediction could currently be made and it is to be recalled that this is a matter concerning building works and by its very nature, is both complex and convoluted.
The overall efficiency of the disposition of the action is best served by allowing the joinder. In my opinion, there will be common witnesses in relation to the plaintiffs’ claim against the first and second defendants and the first and second defendants’ claims as against Aurecon. Overall efficiency may also be best served by Aurecon, as it chooses, cross examining any witnesses that it sees fit in the proceedings without otherwise taking an active part in the proceedings and also addressing the court on the legal effect of s 72 of the Development Act. What cannot be overlooked is the fact that if any apportioned responsibility for the alleged loss falls upon the shoulders of Aurecon, then Aurecon has a complete answer to that claim for damages because of its settlement with the plaintiffs. No prejudice would thereby be suffered by Aurecon in the circumstances.
At one level, if Mr O’Sullivan QC is correct about the questions of law that he canvassed in response to Aurecon’s submissions, the position does not change because Aurecon would still be required to address those matters in detail in any hearing before the court. There is no reason why that could not be done either at trial or in the subsequent proceedings immediately following the trial between the plaintiffs and the first and second defendants. At another level, when considering the question of the time line of losses allegedly arising from the breaches of duty and the existence (or not) of the right to such apportionment, it becomes necessary to identify whether in respect of such a claim there is any obligation upon the court to apportion loss. In turn, that question potentially informs the question of contribution between wrongdoers for losses arising prior to 1 October 2005 and absent the operation of s 72 of the Development Act.[54] In my opinion, overall efficiency favours the joinder.
[54] Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555.
I therefore make the following orders:-
1.That leave pursuant to DCR 6R 131 be granted to the second defendant to make an interlocutory application for the rejoinder of Aurecon Australia Pty Ltd as a party to a secondary action to this action.
2.That pursuant to DCR 6R 74 Aurecon Australia Pty Ltd be joined as a secondary party to this action.
3.That by the close of business on Wednesday, 30 July 2014 the second defendant shall file and deliver upon the solicitors for Aurecon Australia Pty Ltd a statement of its secondary claim in a form that complies with the rules as to pleadings.
4.That by close of business on Wednesday, 20 August 2014 Aurecon Australia Pty Ltd shall file and deliver its defence to the statement of claim in the secondary action.
5.That by close of business on Wednesday, 3 September 2014 the second defendant and Aurecon Australia Pty Ltd shall make disclosure in respect of the secondary action.
6.That by the close of business on Friday, 29 August 2014 the second defendant shall deliver to Aurecon Australia Pty Ltd any experts reports upon which it relies in respect of the secondary action.
7.That by close of business on Friday, 10 October 2014 Aurecon Australia Pty Ltd shall deliver to the second defendant any expert evidence reports upon which it intends to rely at the trial of the secondary action.
8.That by close of business on Wednesday, 3 September 2014 the second defendant shall deliver to Aurecon Australia Pty Ltd all of the documents and all of the details described in DCR 6R 160(5) and that by the close of business on Friday, 26 September 2014 Aurecon Australia Pty Ltd shall deliver to the second defendant all of the documents and all of the details described in DCR 6R 160(5).
9.That in respect of the action of the plaintiffs against the defendants (the primary action) and in respect of the action by the second defendant against Aurecon Australia Pty Ltd (the secondary action):
9.1    the trial of the primary action shall commence on Monday, 13 October 2014;
9.2    Aurecon Australia Pty Ltd shall be at liberty, if so advised and at its discretion to attend the hearing of the primary action by its counsel: for the avoidance of doubt, counsel for Aurecon Australia Pty Ltd shall be at liberty to cross examine any witness called by any party to the primary action and to make submissions at the completion of evidence in the primary action; and
9.3    the trial of the secondary action shall commence two days after the completion of the primary action and shall thereafter continue until completion of that action.

(1)If—
(a)building work is defective; and
(b)the defect or defects arise from the wrongful acts or defaults of two or more persons; and
(c)those persons would, apart from this section, be jointly and severally liable for damage or loss resulting from the defective work; and
(d)an action is brought against any one or more of those persons to recover damages for that damage or loss,
the court may only give judgment against a defendant, or each defendant, for such amount as may be just and equitable having regard to the extent to which the act or default of that defendant contributed to the damage or loss.
(2)An act or default for which a person is vicariously liable will be taken to be an act or default of that person for the purposes of this section.