Dwyer v Goldamere Pty Ltd - [2004] TASSC 78

[2004] TASSC 78

CITATION: Dwyer v Goldamere Pty Ltd & Anor [2004] TASSC 78

PARTIES:  DWYER, Donna Ruth
  v
  GOLDAMERE PTY LTD ACN 073 634 581
  HENRY WALKER ELTIN CONTRACTING PTY LTD

ACN 009 625 138

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  764/2001
DELIVERED ON:  27 July 2004
DELIVERED AT:  Hobart
HEARING DATES:  23 June and 15, 16 and 21 July 2004
DECISION OF:  Master S J Holt
CATCHWORDS:

Supreme Court procedure – Tasmania – Practice under Rules of Court – Parties – Third Party Notice – Leave to issue – Considerations – Exercise of discretion.

Supreme Court Rules 2000 (Tas), rr202 and 208.
Furness v Pickering [1908] 2 Ch 224; English Scottish & Australian Bank Ltd v Sulzberger (1970) Tas SR 287 (NC14); Butler v Dunn Monumental Masons Pty Ltd & Anor and TGIO Ltd (1996) 5 Tas R 487; Bowen v Hartley (1876) 1 QBD 652; Wasley v Frost (1974) 7 SASR 506; Phonesivorabouth & Ors v Tops Services Pty Ltd (1992) 106 FLR 471; Edwards v Edwards (1913) VLR 30; Barclay’s Bank v Tom (1923) 1 KB 221; AMP Insurance Co Ltd v Dixon (1982) VR 833 and Ross Ambrose Group Pty Ltd v Renkon & Ors TAS U/R A55/1996 referred to.
Aust Dig Procedure [271]

REPRESENTATION:

Counsel:
             Plaintiff:  R J Phillips
             First defendant:  D J Gunson SC
             Second defendant:  C P Hill
             Caterpillar of Australia Pty Ltd:   P W Tree SC
Solicitors:
             Plaintiff:  Phillips Taglieri
             First defendant:  Gunson Williams
             Second defendant:  Piggott Wood & Baker
             Caterpillar of Australia Pty Ltd:   Simmons Wolfhagen

Judgment Number: [2004] TASSC 78
Number of Paragraphs: 14

Serial No 78/2004
File No 764/2001

DONNA RUTH DWYER v GOLDAMERE PTY LTD ACN 073 634 581 and
HENRY WALKER ELTIN CONTRACTING PTY LTD ACN 009 625 138

REASONS FOR DECISION MASTER S J HOLT

27 JULY 2004

The second defendant delivered its defence to the plaintiff’s statement of claim in December 2003, and now applies for leave to file a third party notice and serve it on Caterpillar of Australia Pty Ltd (“Caterpillar”). Supreme Court Rules 2000, r202, is as follows:

“(1)     Subject to subrule (2), a defendant who claims as against any person not already a party to the action to be entitled to contribution or indemnity or any relief or remedy relating to, or connected with, the original subject matter of the action, may file and serve on that person a third party notice directed to that person.
(2)        A defendant may file and serve a third party notice –
(a)       without leave at any time before delivering the defence; and
(b)       at any other time with the leave of the Court or a judge.”

If it appears to the court or a judge that there is a question proper to be tried as to the liability of a proposed third party to make contribution or indemnity or for any relief or remedy relating to or connected with the primary action…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] TASSC 78
Decision Date: 27 July 2004

CaseChat Overview and Summary

In the Supreme Court of Tasmania, the case of Dwyer v Goldamere Pty Ltd involved a dispute regarding the issuance of a third-party notice. The plaintiff, Dwyer, sought to add a third party, Goldamere Pty Ltd, to the proceedings to address liability and damages related to a motor vehicle accident. The defendant, who was the original party to the proceedings, contested the addition of Goldamere Pty Ltd on the basis that it was not a necessary party and that the application was made out of time.

The central legal issue for the court to decide was whether it should grant leave for the plaintiff to issue a third-party notice to Goldamere Pty Ltd. The court needed to consider the criteria for granting such leave, including the timeliness of the application, the necessity of the third party's involvement, and whether justice would be served by allowing the third party to be joined. The court was also required to assess the potential prejudice to the existing parties and whether any such prejudice could be mitigated.

In delivering the judgment, the court found that the application was made outside the statutory period, but there were exceptional circumstances that warranted the exercise of discretion. The court considered the merits of the plaintiff's case, the potential for prejudice to Goldamere Pty Ltd, and the likelihood of a just outcome if the third party were included. The court concluded that it was appropriate to exercise its discretion and grant leave for the third-party notice to be issued. The court acknowledged that the application was untimely, but the overriding objective of achieving a just outcome and the availability of remedies against the plaintiff for any prejudice caused outweighed the procedural default.

The court ordered that the plaintiff be granted leave to issue a third-party notice to Goldamere Pty Ltd and directed the parties to file further submissions on the implications of this decision for the conduct of the proceedings.

Orders