Duke Group Limited (in Liq) & Anor v Pilmer & Ors (No.6) No. Scciv-92-1874

[2004] SASC 147

DUKE GROUP LTD (In Liq) v PILMER & ORS (No. 6)
[2004] SASC 147

Full Court

1. DOYLE CJ, DUGGAN and BLEBY JJ:     In Pilmer & Ors v Duke Group Ltd (In Liq) & Ors [2001] HCA 31; (2001) 207 CLR 165 the High Court allowed an appeal against a decision by this Court, set aside some of the orders made by this Court on appeal to it, and remitted the matter to this Court for the making of orders consistent with the High Court’s reasons for decision.

2. In Duke Group Ltd (In Liq) v Pilmer & Ors (No. 4) [2001] SASC 451, after hearing further submissions, we published our respective reasons indicating the orders that should be made disposing of the appeal to this Court, in light of the decision of the High Court. In our reasons we invited the parties to prepare minutes of order, but they did not do so.

3. Later, the plaintiff Duke Group Ltd (In Liq), the second defendant Mr Quilty, and one of the fourth defendants, Mr Somes, applied to the Court for an order that the Court reopen the hearing of that part of the appeal relating to the trial Judge’s order as to contribution between the defendants.  Our decision on the appeal against the trial Judge’s order as to contribution is to be found in Duke Group Ltd (In Liq) v Pilmer & Ors (No 2) [2000] SASC 418; (2000) 78 SASR 216. Although the reasons of the majority (Doyle CJ and Duggan J) differed from the reasons of Bleby J, we agreed that the trial Judge’s order as to contribution should be set aside, and that contribution as between the defendants should be approached on a basis that differed from the basis adopted by the trial Judge. That aspect of our decision on the appeal against the trial Judge’s decision was not the subject of the appeal to the High Court.

4. We dealt with the application to reopen the hearing of the appeal in our reasons in Duke Group Ltd (In Liq) v Pilmer & Ors (No. 5) [2003] SASC 381; (2003) 231 LSJS 201. Again, separate reasons were published by the majority (Doyle CJ and Duggan J) and by Bleby J. However, we were unanimously of the opinion that the appeal should be reopened, and that the appeal by the partners of the accountancy firm known as Nelson Wheeler (“NWP”) against the trial Judge’s order as to contribution should be dismissed, and that the trial Judge’s order as to contribution should stand.

5. The various parties then turned their attention to the question of the orders that should be made to effect the decisions made by this Court in light of the decision of the High Court, and to effect the decisions made by the Court on the application to reopen the hearing of the appeal against the trial Judge’s order as to contribution.

6. We heard submissions from the parties on more than one occasion, and considered various draft orders submitted by the parties.

7. We made orders on 4 March 2004 dealing with the appeal to this Court to the extent that it was affected by the appeal to the High Court, and on 31 March 2004 we made orders dealing with the orders required to implement our decision in the application to reopen the hearing of the appeal.  There were a number of incidental matters that also had to be dealt with, as well as the question of costs.

8. NWP has sought special leave to appeal to the High Court against our decision in Duke Group Ltd (In Liq) v Pilmer & Ors (No. 5) and the orders made giving effect to that decision.  In connection with that appeal the solicitors for NWP have enquired whether the Court proposes to provide reasons for the orders made on 31 March 2004.

9. Subject to what follows, we take the view that it is neither appropriate nor necessary for us to give any further reasons for the orders made.  The orders made reflect decisions recorded in our earlier reasons, and decisions on matters that are purely incidental in nature, apart from the question of costs.

10. However, the application to the High Court for special leave to appeal complains that we erred “in failing to make an order that the applicants [NWP] be entitled to equitable contribution from the respondents [the other defendants]”.  The possibility of such an order had been touched on in our reasons in Duke Group Ltd (In Liq) v Pilmer & Ors (No. 2) [2000] SASC 418; (2000) 78 SASR 216 at [27] and [82]. In the submissions to the Court on the question of contribution as between defendants, the question of equitable contribution had been touched on briefly by counsel for NWP, in written submissions and in oral submissions, and the glancing nature of the reference that we made to the topic reflects that fact.

11. When the Court heard submissions as to the orders to be made effecting our earlier decisions, counsel for NWP raised the matter again.  He sought an order for contribution as between the defendants, and in favour of NWP, based on principles of equitable contribution, an order that would be more favourable to NWP than the order made by the trial Judge.  After granting the application to reopen the hearing of the appeal against the trial Judge’s orders as to contribution between defendants, we had concluded that the appeal against the trial Judge’s order should be dismissed.  It is also appropriate to record that when we heard the application to reopen the hearing of the appeal in that respect, no prominence was given to a submission that in that event NWP would seek orders for contribution that differed from, or were made on a different basis from, the orders that we proposed in our reasons in Duke Group Ltd (In Liq) v Pilmer & Ors (No. 2).

12. Although counsel for NWP asked the Court to make orders for “equitable contribution” he did not in terms ask the Court to reopen yet again the hearing of the appeal against the trial Judge’s orders.

13. In those circumstances, it is appropriate that we should now indicate briefly why we did not make orders for “equitable contribution”.  It is true that the topic has been touched on at earlier stages of these proceedings.  But the submissions put to us most recently indicate that it is doubtful whether the issue of orders for contribution made in the exercise of an equitable jurisdiction, as distinct from a jurisdiction conferred by statute, was ever fully ventilated before the trial Judge.  And, as we have already indicated, the issue was merely touched on in submissions before this Court on the appeal against the contribution order, and then not re-agitated until this latest stage of the proceedings.  We took the view that having ordered that the hearing of the appeal be reopened, and that the appeal against the trial Judge’s order as to contribution between defendants be dismissed, we should not now depart from that decision.

14. To accede to the submission by counsel for NWP would have involved us reopening the appeal yet again, and then hearing further substantial submissions on the question of whether we have power to order contribution other than pursuant to statute, whether the liability of the several parties is a co-ordinate liability as discussed by Kitto J in Albion Insurance Co Ltd v GIO (NSW) (1969) 121 CLR 342 at 350, whether there is one loss in respect of which an order for equitable contribution can properly be made, and if we have power to make an order, what order would be appropriate. None of these questions have been addressed. This is all in the context of counsel not, in terms, making application for the hearing of the appeal to be reopened.

15. In short, we took the view that we had disposed of the appeal by NWP against the trial Judge’s orders as to contribution.  We were not satisfied that it was appropriate to allow NWP now to raise an issue that had been given such little attention previously, and had not been clearly identified when we considered and disposed of the application to reopen the hearing of the appeal.

16. We take the view that it is appropriate for us to indicate, as we have done, why we did not make orders for “equitable contribution” at the instance of NWP.

17. If the application for the making of such orders is one that we should consider in full, it would require the Court to hear further substantial submissions as to the scope of the Court’s power and the manner in which the power should be exercised and other relevant matters.  No such submissions have been put to the Court.