Faulkner v Faulkner; Faulkner v Lawrence

[2002] TASSC 107

[2002] TASSC 107

CITATION:                 Faulkner v Faulkner; Faulkner v Lawrence [2002] TASSC 107

PARTIES:  FAULKNER, Stewart Gregory
  v
  FAULKNER, Ian David

FAULKNER, Ian David
v
LAWRENCE, Effingham Frank

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  862/1999

489/2000

DELIVERED ON:  2 December 2002
DELIVERED AT:  Hobart
HEARING DATES:  18 October 2002
JUDGMENT OF:  Blow J

CATCHWORDS:

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Other matters arising before trial - Consolidation of actions - Who may apply.

Supreme Court Rules 2000, r188(2).
Aust Dig Procedure [277]

Torts - The law of torts generally - Joint or several tortfeasors - Contribution - Limitations as to time - Limitation defence not pleaded in damages action - Whether available to defendant in contribution action.

Wrongs Act 1954 (Tas), s3(1)(c).
Aust Dig Torts [15]

REPRESENTATION:

Counsel:
             Plaintiff in 862/1999:  D J Porter QC
             Defendant in 862/1999:                   D Higgs SC
             Plaintiff in 489/2000  D Higgs SC
             Defendant in 489/2000  M Wheelahan
Solicitors:
             Plaintiff in 862/1999:  Griffits & Jackson
             Defendant in 862/1999:                   C H Hobbs
             Plaintiff in 489/2000  C H Hobbs
             Defendant in 489/2000  Dobson Mitchell & Allport

Judgment Number:  [2002] TASSC 107
Number of Paragraphs:  34

Serial No 107/2002
File Nos 862/1999

489/2000

STEWART GREGORY FAULKNER v IAN DAVID FAULKNER
IAN DAVID FAULKNER v EFFINGHAM FRANK LAWRENCE

REASONS FOR JUDGMENT  BLOW J

2 December 2002

Introduction

1. These two actions relate to allegations of medical negligence on the part of the defendant to the second action, Dr Lawrence, in September 1974.  He has applied for the consolidation of the two actions, and for a series of other orders which, if granted, would result in the summary dismissal of the claim against him. 

1. The first of these two actions was commenced by the filing of a writ on 28 October 1999.  The plaintiff in that action ("the son") sued his father ("the father").  A statement of claim was filed with the writ.  It contains allegations to the effect that it was the duty of the father to provide all necessary medical consultation, medical treatment and medical care for the son; that the son relied upon the father to provide those things; that the son contracted haemophilus meningitis on or about 21 September 1974; that as a result he suffered permanent injury and disability, particularised as including a hearing loss in each ear and a disposition to nervous disorders; that his injury and disability were caused by a delay in him receiving proper medical treatment for haemophilus meningitis; and that his injury and disability were caused by the father's negligence in failing to observe how ill he was, and failing to obtain prompt and appropriate treatment for him.  The father's solicitor delivered a defence denying the allegations of negligence, but admitting the other pleaded allegations, and not pleading any limitation defence.  Subsequently, the father consented to judgment.  On 10 July 2000 interlocutory judgment was entered by consent for the son against the father for damages to be assessed.

1. Three days later, the father commenced the second action.  He sued Dr Lawrence claiming contribution, to the extent of a complete indemnity, pursuant to the Tortfeasors and Contributory Negligence Act 1954 (as it was then named), s3(1)(c), in respect of his liability to pay damages to the son. A statement of claim was filed with the writ. It contains allegations that Dr Lawrence saw the son three times in September 1974 and was negligent in failing to observe significant symptoms, failing to consult appropriate medical practitioners, and failing to obtain prompt and appropriate medical and hospital treatment for the son. Dr Lawrence's solicitors have filed an amended defence joining issue with all the father's allegations, except as to paternity, the entry of the consent judgment, and the status of Dr Lawrence as a medical practitioner. It is further pleaded that the father had a complete defence to the son's claim by virtue of the Limitation Act 1974, s5(1); that the father did not owe the son any duty of care; that the father did not breach any duty of care that he owed the son; that any injury or disability suffered by the son was not caused by any breach of any duty of care owed by the father; that the father and the son made an agreement for the institution of the son's action and the obtaining of consent interlocutory judgment therein for the improper purpose of depriving Dr Lawrence of a limitation defence; that the father and the son both knew or both believed that the son's claim against the father had no justification in law or fact; that the father owed Dr Lawrence a duty to defend the son's action; that the father and the son have committed the tort of conspiring by unlawful means to disadvantage Dr Lawrence; and that the father's action against Dr Lawrence amounted to an abuse of process.

1. If the son had sued Dr Lawrence, rather than his father, in October 1999 in respect of the events of September 1974, it is practically certain that Dr Lawrence would have successfully pleaded the Limitation Act, s5(1). That subsection fixes a limitation period of three years for actions for damages for negligence when damages are claimed in respect of personal injuries. Under s5(3), that period can be extended, but not beyond a period of six years from the date on which the cause of action accrued. Apparently the son was in the custody of his father when the right of action allegedly accrued to him. If that had not been the case, the Limitation Act, s26(1), would have extended the limitation period until the son's 24th birthday. However s26(6) makes s26(1) inapplicable to a plaintiff who was in the custody of a parent when the right of action accrued. Although the Limitation Act did not commence until 1 January 1975, its provisions apply to any cause of action that had accrued prior to its commencement: Jacobson v Taylor [1984] Tas R 197. It is therefore the applicable limitation statute for a negligence action if the cause of action arose in September 1974 and a writ had not been issued before 1 January 1975.

1. However the Limitation Act does not apply to an action for contribution of the type brought by the father against Dr Lawrence.  As I have said, that claim was made pursuant to the Tortfeasors and Contributory Negligence Act, s3(1)(c). Since 29 June 2000 that Act has had a new name ¾the Wrongs Act 1954. The right to recover contribution is conferred by s3(1)(c), which reads as follows:

"3 ¾ (1)    Where damage is suffered by a person as the result of a wrongful act ¾  

(a)   …;

(b)   …;

(c)   a person who is liable in respect of that damage may recover contribution from any other person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage but so that no person is entitled to recover contribution under this section from a person who is entitled to be indemnified by him in respect of the liability in respect of which the contribution is payable;".

1. Under s3(2), a court awarding contribution can grant a complete indemnity or award some lesser amount. That subsection reads as follows:

   "(2)   In proceedings for contribution under this section, the amount of the contribution that is recoverable from a person shall be such amount as may be found by the court to be just and equitable, having regard to the extent of that person's responsibility for the damage, and, for the purposes of this section, the court has power to exempt a person from liability to make contribution, or to direct that the contribution to be recovered from a person shall amount to a complete indemnity."

2. The only limitation provision applicable to an action for contribution under s3(1)(c) is to be found in s3(5), which reads as follows:

   "(5)   Notwithstanding any provisions of any enactment requiring notice of damage or injury to be given, or notice of an intended action to be given, or limiting the time within which an action may be brought, proceedings for contribution under this section may, although notice of damage or injury, or notice of an intended action, as the case may be, has not been given, or the time so limited has expired, be commenced at any time within the period of twelve months (or within such extended period as may be allowed pursuant to subsection (6) of this section) after the writ in the original action was served on the person seeking to recover contribution.

3. The Limitation Act, s7, provides as follows:

"7 ¾ (1) Where an action is brought against a person in respect of any damage nothing in this Act shall be taken to prejudice or affect the operation of the Tortfeasors and Contributory Negligence Act 1954 in relation to an action for contribution in respect of that damage.

(2)     In this section 'damage' has the same meaning as it has for the purposes of the Tortfeasors and Contributory Negligence Act 1954."

1. The father's action against Dr Lawrence was instituted less than twelve months after the institution of the son's action against the father and thus within the twelve-month limitation period fixed by s3(5). Dr Lawrence is unable to rely on any limitation defence in relation to the father's claim against him, unless he is somehow able to take advantage of a limitation defence that was available to the father in the son's action, and not pleaded. The father and the son do not concede that any unpleaded limitation defence was available.

1. Dr Lawrence has filed interlocutory applications in both actions, seeking orders to the following effect: (i) that the two actions be consolidated pursuant to the Supreme Court Rules 2000, r188; (ii) that, in the consolidated proceeding, the son be the plaintiff, the father be the defendant, and Dr Lawrence be a third party; (iii) that Dr Lawrence as third party have leave to defend the son's action and contest the father's liability to the son, pursuant to the Supreme Court Rules, r208; (iv) that, in the consolidated proceeding, the consent judgment be set aside; (v) that, in the consolidated proceeding, there be an enlargement of the time within which an application for summary judgment against the son may be made; (vi) that, in the consolidated proceeding, summary judgment be entered for the father against the son on the ground that the father has a good limitation defence; (vii) alternatively, that the consolidated proceeding be dismissed as an abuse of process; (viii) that the third party proceeding be dismissed; and (ix) that the son and the father pay Dr Lawrence's costs.

1. Under the Supreme Court Rules, r208(2)(c), a third party can be granted leave to defend the action brought by a plaintiff. A direction to that effect will often be appropriate if the defendant does not wish to defend the action, or if the third party wishes to raise a point not pleaded in the defendant's defence. Here, Dr Lawrence wishes to become a third party so that he can seek leave pursuant to r208(2)(c) to defend the son's action, and plead the Limitation Act, s5(1), which was not pleaded in the father's defence.

1. At the commencement of the hearing of these interlocutory applications, counsel for Dr Lawrence sought leave to amend the interlocutory application in the second action so as to seek an additional order that summary judgment be entered for Dr Lawrence against the father on the ground that the father had no liability to the son, and that Dr Lawrence therefore had a good defence to the father's contribution claim.  Counsel also sought to rely on an affidavit that had been served on short notice.  His attempts to amend and to read the affidavit were opposed.  At my suggestion, all counsel agreed that at this stage I should proceed to determine only those parts of the interlocutory applications whereby Dr Lawrence seeks consolidation of the two actions with the son standing as plaintiff, the father as defendant, and Dr Lawrence as a third party.

Availability of a limitation defence to the father

1. It was submitted on behalf of Dr Lawrence, on the basis of the Limitation Act, s5(1), that the son's claim was statute barred when the writ against his father was filed. It is clear that a prospective defendant can waive the right to rely on a limitation defence, and can engage in conduct that gives rise to an estoppel precluding reliance on a limitation defence: Commonwealth v Verwayen (1990) 170 CLR 394. When a limitation defence is available under s5(1), a defendant may choose not to plead it, in which case the plaintiff's claim will be determined at trial on its merits: Dawkins v Lord Penrhyn (1878) 4 App Cas 51 at 58 - 59; The Llandovery Castle [1920] P 119 at 124; Dismore v Milton [1938] 3 All ER 762; Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398; Ketteman v Hansel Properties Ltd [1987] AC 189 at 219; Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488 - 489; Brown v R (1986) 160 CLR 171 at 208; Verwayen (supra) at 405 - 406, 425 - 426, 456 - 457, 461, 473 - 474, 497. I do not think the decision of the High Court in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 has had any impact in relation to this point. It seems from Pfeiffer that a limitation provision should now be regarded as substantive for the purposes of private international law, so that the limitation laws of the lex loci delicti must now be applied.  However it does not follow that the courts should no longer draw a distinction between "procedural" limitation provisions which bar a plaintiff's remedy but not his legal right (which may be enforceable otherwise than by action), and "substantive" limitation provisions whereby the plaintiff's right is destroyed by the expiry of the limitation period.  The Limitation Act, s5(1), is in the former category.

1. There is no evidence before me as to whether the father waived the right to rely upon a limitation defence, nor as to whether he so conducted himself as to become estopped from relying upon a limitation defence, nor as to whether he deliberately chose not to plead a limitation defence.  On behalf of Dr Lawrence, Mr Wheelahan submitted that I should infer that the son's action against his father had been contrived to enable the father to seek contribution from Dr Lawrence, and to place Dr Lawrence in a position where he would be unable to plead a limitation defence.  He submitted that I should infer this from the relationship of father and son, the failure of the father to plead a limitation defence in the son's action, the entry of the consent interlocutory judgment in that action, the institution of the father's action soon thereafter, and the fact that counsel for the father adopted the submissions of counsel for the son during the hearing of these interlocutory applications.  He submitted that, in the absence of any evidence from the son or the father as to waiver, estoppel, the son suffering detriment, or any other matter that would have made a limitation defence unavailable to the father, I should infer that the father had had, in relation to the son's action, a limitation defence with merit. 

1. I think these submissions are misconceived.  Dr Lawrence, as the applicant for interlocutory orders, bears the onus of proving on the balance of probabilities any facts upon which he seeks to rely on the hearing of these interlocutory applications. Apart from the records of the Court, there is nothing before me that sheds any light on the thinking of the father or the son, or on communications between them or between their lawyers.  It may be that each of them believed in good faith that the son's action had merit.  It may be that the father waived the right to rely on a limitation defence, or that events occurred which gave rise to an estoppel precluding him from pleading a limitation defence, or that he decided in good faith that it would be immoral to plead a limitation defence in bar to his son's claim. It may be that the father and the son have co-operated with a view to depriving Dr Lawrence of any limitation defence.  However the evidence available to me does not compel a conclusion that there was contrivance between the father and the son, nor does it compel a conclusion that there was any impropriety on the part of either of them.  I am not satisfied that an unpleaded limitation defence was available to the father, nor am I satisfied as to contrivance or impropriety, on the balance of probabilities.

The position without consolidation orders

1. The right to recover contribution is conferred by s3(1)(c), where "damage is suffered by a person as the result of a wrongful act", on "a person who is liable in respect of that damage". It is clear that a person against whom judgment has been entered in an action for damages is "a person who is liable in respect of that damage" within the meaning of such a provision: Bitumen and Oil Refineries (Australia) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 at 212. However the fact that a person has become liable under a judgment and therefore gained the status to sue for contribution does not relieve that person of the burden of proving, in the contribution action, that the original plaintiff suffered damage as the result of a wrongful act, and that the original plaintiff had a cause of action against him in respect of that damage. That person bears the onus of proving those matters in the contribution action: Baylis v Waugh [1962] NZLR 44 at 49; Stott v West Yorkshire Car Co [1971] 2 QB 651 at 657; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 per Gummow J at 616 - 617.

1. If the two actions are not consolidated, and the father's claim against Dr Lawrence proceeds to trial, the father will need to prove (inter alia) that he owed his son a duty of care relating to the obtaining of medical treatment, that he breached that duty of care, and that the son suffered damage as a result. That is because Dr Lawrence was not a party to the first action or to the obtaining of the consent judgment in that action, and is therefore not bound by that judgment.  The doctrine of res judicata does not apply in relation to him.  There is no issue estoppel in relation to him.  The conferring of a remedy in the nature of contribution on "a person who is liable" by the Wrongs Act, s3(1)(c), did nothing to alter that situation. Parliament clearly did not intend to displace the principle that a judgment binds only the parties to the proceedings.

1. Before the enactment of legislation providing for third party proceedings, a defendant could only pursue a claim for an indemnity or contribution by instituting a second action, in which the matters asserted by the original plaintiff needed to be proved for a second time.  One of the purposes for the introduction of third party proceedings was to avoid the need for the same question to be tried twice, which involves wastage of time and money and the possibility of inconsistent results: Benecke v Frost (1876) 1 QBD 419 at 422; Edwards v Edwards [1913] VLR 30 at 32; Barclays Bank v Tom [1923] 1 KB 221 at 224.

1. Mr Wheelahan, who appeared for Dr Lawrence, submitted that it was doubtful whether, without the orders he is seeking, Dr Lawrence could rely upon a limitation defence that had been available to the father.  It seems Dr Lawrence is seeking the consolidation of the proceedings, together with an order granting him leave to defend the son's claim, in order to overcome any question as to his right to rely in the contribution proceedings upon a limitation defence available to the father and not pleaded in the first action.  On behalf of both the father and the son it was submitted that, if there had been a limitation defence available to the father (and that was not conceded), it could not be relied upon by Dr Lawrence in the contribution proceedings, and that its unavailability would not warrant the making of orders for consolidation. 

1. The question whether such a defence can be relied upon by Dr Lawrence without the orders he seeks is essentially a question of statutory interpretation, the relevant provisions being those I have quoted from the Wrongs Act, s3, and the Limitation Act, s7. In relation to the Limitation Act, s7, I am inclined to think that its only effect was to prevent any argument that the Limitation Act had impliedly superseded the limitation provision in what is now the Wrongs Act, s3(5). It is clear from the enactment of s3(5), which fixes the limitation period for a contribution proceeding of 12 months from the service of the writ in the original action, that Parliament turned its mind to the question of limitation periods when this legislation was enacted in 1954. There had been conflicting decisions in England as to whether a joint tortfeasor's cause of action for contribution arose on the commission of the tort or on judgment being given against him: Merlihan v A C Pope Ltd [1946] KB 166; Hordern-Richmond Ltd v Duncan [1947] KB 545; Littlewood v George Wimpey & Co Ltd [1953] 2 QB 501 at 511. Parliament fixed a limitation period by reference to the date of the service of the writ in the original action. It did not impose a limitation period by reference to the accrual of the cause of action for damages, as it could have done. The possibility that a defendant might not plead a limitation defence of the type now found in the Limitation Act, s5(1), was one well established in case law. There is nothing in s3(1)(c) to suggest that the party claiming contribution will be precluded from recovery if it is found that he omitted to plead in the original action some defence involving a positive assertion, by way of confession and avoidance. I think there is considerable force in the argument that, when a separate action is brought for contribution and the original plaintiff's case needs to be proved a second time because the defendant in the contribution proceedings was not a party to the original action, it is only the ingredients of the original plaintiff's case, rather than the absence of a positive defence to it, that need to be proved.

1. There is remarkably little case law that is of much significance in relation to the critical questions of statutory interpretation.  Singleton LJ made a comment as to what defences are available in contribution proceedings in Littlewood v George Wimpey & Co Ltd (supra) at 510. His Lordship was dealing with the question whether the words "any tortfeasor liable in respect of that damage" in the equivalent of our s3(1)(c) included a person who had become liable otherwise than pursuant to a judgment. He said the following:

"I am prepared to assume that the meaning of 'liable' ought not to be limited to 'held liable,' and that if a tortfeasor paid a claim he might have a right to contribution.  In such a case he would have to prove: (a) that he was a tortfeasor; and (b) that he was liable at the time he paid.  And it would be open to the one against whom contribution was claimed to raise any defence which was open to the one who claimed contribution."

1. That comment was obiter.  It was not agreed with, adopted or approved by either of the other judges in the Court of Appeal nor by any member of the House of Lords on the appeal therefrom: George Wimpey & Co Ltd v British Overseas Airways Corporation [1955] AC 169. The case concerned a public authority that had been sued by an injured person and found not liable on the basis of a limitation defence. The critical question was whether that authority fell within the description, "any other tortfeasor who is, or would if sued have been, liable in respect of the same damage". It was held that a tortfeasor that had been sued, and was not liable in respect of the damage, did not fall within that description. The question of the scope of defences available in contribution proceedings was not fully argued. As far as I am aware, nothing said in any other reported case is directly in point.

1. In Allen v Waters & Co [1935] 1 KB 200 at 215, Goddard J took the view that a plaintiff in a personal injuries action was entitled to recover unpaid hospital expenses by way of special damages, even when the debt had become statute-barred. However his Lordship's conclusion was not supported by the citation of any authority, and the other members of the Court of Appeal took the view that the expenses could be claimed because they were not statute-barred. In Jackson v Stothard [1973] 1 NSWLR 292 at 299, an executor recovered special damages in respect of a statute-barred debt, but only after the defendant had decided not to oppose that course if the executor gave an undertaking to pay the debt from the proceeds of the judgment. These cases hardly form a strong body of authority, and they are distinguishable on the basis that they do not involve statutory contribution claims.

1. The question whether a limitation defence available to the father in the first action, but not pleaded by him, can now be relied upon by Dr Lawrence as a defence to the contribution action is a very difficult one, and I believe that I need not decide it.  It is a question more appropriately decided at trial, perhaps before the determination of other issues.  If such a defence was available in the first action, and is not available to Dr Lawrence in the contribution action, those facts can only weigh in favour of making the interlocutory orders sought by him.  For the purposes of this determination, I will assume in his favour, without deciding either point, that such a defence was available to the father, and may not now be relied upon by Dr Lawrence unless he obtains orders for the consolidation of the two actions and the setting aside of the interlocutory judgment, and leave to defend the plaintiff's action pursuant to r208(2)(c). 

Discretionary considerations

1. The father had a choice as to the type of proceeding to institute against Dr Lawrence.  He could either have proceeded by way of third party notice or by commencing a second action.  He had that choice as a result of the applicable legislation.  The right to bring an action claiming contribution is a consequence of the enactment of the Wrongs Act, s3(1)(c). The right to proceed by way of third party notice derives from the Supreme Court Civil Procedure Act 1932, s10(3), and the Supreme Court Rules, r202. The combined effect of these pieces of legislation is that a choice of procedure is conferred upon the defendant who wishes to claim contribution. What Dr Lawrence is seeking to do is to reverse the choice made by the father. If pursuing the contribution claim by way of a second action precluded Dr Lawrence from relying upon a limitation defence not pleaded by the father in the original action, but proceeding by way of third party notice would have exposed the father to some risk of Dr Lawrence obtaining a grant of leave under r208(2)(c) and pleading such a limitation defence, then it was obviously to the father's advantage to choose to proceed by way of a second action. Dr Lawrence is seeking to reverse that choice because it would have been to his advantage to have been proceeded against as a third party, rather than as a defendant to a second action.

1. Why should I make orders that give Dr Lawrence a strategic advantage, rather than letting the father retain the strategic advantage that he has been able to gain as a result of the provisions of the relevant legislation?  It has not been submitted that there was any fraud on the father's part.  I am not in a position to make a finding that he and his son contrived to produce the present state of affairs, nor that he was a party to any impropriety.  If the son's claim against the father for damages for negligence had no merit because there was no duty of care, or because there was no breach of a duty of care, then the contribution action will fail.  If evidence is available to Dr Lawrence to prove that the contribution action is an abuse of the process of the Court, then he can pursue an application for it to be stayed.  If he wishes to assert that the interlocutory judgment was obtained by fraud ¾ and he has not asserted that ¾ then I think he would have standing to bring an action to have it set aside: Jonesco v Beard [1930] AC 298; Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1; Walter H Wright Pty Ltd v Commonwealth [1958] VR 318.

1. It is true that, unless the proceedings are consolidated, there is a possibility that the Court will have to assess damages twice, and that that involves the potentially embarrassing possibility that the assessments will be inconsistent.  However, there are various means by which that situation could be avoided.  The father might reach a settlement with the son as to the quantum of the son's damages, in which case only one assessment would be necessary.  The father might reach a compromise with Dr Lawrence.  The assessment in the son's action might be delayed, either by choice or as the result of an order of the Court, until it and the assessment of damages in the contribution action can be heard together.  Even if the Court has to assess damages on two occasions, that need not disadvantage Dr Lawrence.  If there are two assessments, and the amount awarded as a result of the first assessment is unable to be fully justified by the father upon the second assessment, any contribution payable by Dr Lawrence will be determined on the basis of the lower assessment.  If, upon the second assessment, it were decided that the amount required properly to compensate the son is greater than that awarded upon the first assessment, the claim for contribution will have to be determined by reference to the father's liability pursuant to the judgment in the first action, and Dr Lawrence will at least share in the benefit of any inadequacy in the award to the son.  In relation to costs, it would have to be taken into account in Dr Lawrence's favour that the father, not Dr Lawrence, made a choice as to procedure which involved the costs of two assessments, rather than one, being incurred.  Whilst two assessments could result in the wasting of Court time, the duplication of judicial work, and possibly the embarrassment of inconsistent awards of damages, there is no reason to think Dr Lawrence would suffer any injustice as a result of there being two assessments.  If the son suffered the injustice of an award that was considered inadequate upon the second assessment, Dr Lawrence would get the benefit of that injustice.

1. Mr Wheelahan made a submission to the effect that I should take into account in Dr Lawrence's favour the difficulties that he is likely to encounter in defending an action concerning events said to have occurred over 28 years ago.  He referred me to the much quoted comments of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 - 553. Certainly I must take into account in Dr Lawrence's favour the possibilities that, after such a lapse of time, relevant documents might no longer be available, relevant witnesses might no longer be available, and memories might have become incomplete or inaccurate. It is over two years since Dr Lawrence's solicitors filed an appearance in the contribution action. There has been ample time to establish whether he is prejudiced in any specific way by the lapse of time, but there is no evidence before me as to any witness or document being unavailable, or any such specific prejudice. In the absence of evidence of specific prejudice, I think the impact of the lapse of time since the alleged events of 1974 should not be given great weight in relation to the applications for orders as to consolidation.

1. Taking all these matters into account I am not persuaded that it would be just to make orders as to consolidation which would have the effect of reversing the procedural choice which the relevant legislation gave the father the right to make.

Standing to apply for consolidation

1. The Supreme Court Rules, r188, reads as follows:

"188 ¾ (1)           The Court or a judge may order proceedings to be consolidated in any case in which ¾  

(a)substantially the same question is involved in all those proceedings; or

(b)the decision in one proceeding will determine the other proceeding.

(2)  An application for an order may be made by a party to 2 or more of the proceedings."

It was submitted on behalf of the father and the son that Dr Lawrence was not entitled to apply for consolidation under r188(1) because he was a party to only one of the two actions, and therefore not a person authorised by r188(2) to apply for a consolidation order. Mr Wheelahan submitted that Dr Lawrence was entitled to apply for consolidation pursuant to r9, which reads as follows:

"9 ¾ The Court or a judge may exercise any power under these rules ¾  

(a)of the Court's or judge's own motion; or

(b)on the application of a person who has a sufficient interest."

1. If r188(2) did not exist, I have no doubt that Dr Lawrence would be entitled to apply for the consolidation of the two actions. However r9(b) is a provision of general application, relating to all powers exercisable under the Supreme Court Rules, whereas r188(2) is a rule of specific application that concerns only consolidation applications. As a general rule, where there is a conflict between general and specific provisions, the specific provisions prevail. Generalia specialibus non derogant.  See Pearce and Geddes Statutory Interpretation in Australia 5 ed, par4.30.  Rule 188(2) should prevail over r9 unless there is some good reason to depart from this principle.

1. If an interlocutory application for the consolidation of the two actions may be made by a person who is a party to only one of those actions, there can never be a situation in which r188(2) can be of any effect. All words in a legislative instrument must prima facie be given some meaning and effect. See Pearce and Geddes Statutory Interpretation in Australia (supra) par2.22. This is a further reason to treat r188(2) as prohibiting an application for consolidation by a party to only one action.

1. There does not appear to be any rule of interpretation that supports the proposition that r188(2) does not prohibit consolidation applications by a party to only one action. In my view it effects such a prohibition. I think consolidation should be refused not only because Dr Lawrence has failed to establish sufficient reasons for ordering it, but also because he did not have the standing to apply for it.

Conclusion

1. For these reasons, the orders sought in pars1 and 2 of each of Dr Lawrence's interlocutory applications are refused.  I will hear counsel as to the other orders sought by those applications.