Fooks & Ors v State Electricity Commission of Victoria & Ors; Walsh v Richardson & Anor (M75-M79-93

[1993] HCATrans 314

~ Jal.

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne Nos M75-M79 of 1993 Nos M81-M83 of 1993

B e t w e e n -

M.F. FOOKS, G.V. HUGHES and

ROYAL AUTOMOBILE CLUB OF

VICTORIA AND ORS

Applicants

and

STATE ELECTRICITY COMMISSION

OF VICTORIA, J.M. McLEOD,

R.G. HAMMON, R. GERSCH and

L. RUSCHENA

Respondents

Office of the Registry

Melbourne No M80 of 1993

B e t w e e n -

K.F. WALSH

Applicant

and

J.E. RICHARDSON and

COMMONWEALTH OF AUSTRALIA

Respondents

Applications for special leave

to appeal

Fooks 1 15/10/93

BRENNAN J
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 OCTOBER 1993, AT 2.27 PM

Copyright in the High Court of Australia

MR A.R. CASTAN, QC:  May it please the Court, I appear with

my learned friends, MR S.W. KAYE, QC and

MR B.M. GRIFFIN, on behalf of all of the applicants

in these matters. (instructed by Wisewoulds,

Dunhill Madden Butler, Victorian Roads, Legal
Services Department, Corrs Chambers Westgarth,
Mallesons Stephen Jacques, J.M. Smith & Emmerton,

Middletons Moore & Bevins and Abbott Tout Russell

Kennedy)

MR J. McL EMMERSON, QC: If the Court pleases, I appear with

my learned friend, MR D.M.B. DERHAM, on behalf of
what I might call the State Electricity Commission

respondents. (instructed by Freehill Hollingdale &

Page)

MR N.A. MOSHINSKY, QC: If the Court pleases, I appear with

my learned friend, MR J. LENCZNER, on behalf of the

Commonwealth of Australia and Mr Richardson.

(instructed by the Australian Government Solicitor)

BRENNAN J: Yes, Mr Castan.
MR CASTAN:	May I hand to the Court a print of the relevant

sections of the Wrongs Act retyped or printed in a

form that is perhaps easier to have handy and on a

single sheet, being section 24(4), the critical

section, and other sections attached. They are not

easy to isolate or locate. Although reproduced in

some of the judgments, we felt it convenient to set

them out. May I also hand to the Court a summary

of some matters that we were going to put in

writing, hopefully for ease of understanding, given

some of the complexities of the nature of the

problem raised here.

Your Honours, we put it to the Court that the

critical matter that arises here is to be analysed

Fooks 2 15/10/93

in terms of the issues relating to the concept of a
claim for contribution and in understanding that,

before coming to the section, we put as is set out

there in the outline that a person who is joined to

proceedings by a notice of contribution of course

does not become liable as a defendant to the

original plaintiff in the proceeding unless

separately joined as a defendant. That is the

first proposition.

The liability to contribute is founded in

statute and it is to be found in Victoria in the

second page there, the relevant sections and the

details of that do not matter for the moment. Of

course, it i~ a liability only to the party who has

served that notice of contribution.

The next proposition is that if a party who is

the defendant is say - and we have taken as an

example, in our third proposition, 10 per cent
responsible for the claimant, the plaintiff's
losses, nevertheless, of course, a defendant may be

held totally responsible if found liable. One does

not undertake allocation or apportionment as

between plaintiff and defendant.

But the third party, who may be responsible to

a given proportion for the plaintiff's losses, can

only be liable for that proportionate contribution

to the pay out, and we put that in proposition 3 as

a party responsible, 10 per cent to a plaintiff.

Although the defendant may be only responsible for

10 per cent, the defendant can be made liable for

100 per cent. But, of course, the third party may

also only be responsible for 10 per cent but is

limited to the 10 per cent contribution.

Now, the critical question here arising is

what happens when the third party makes a further

claim for contribution - what we have called the

"derivative contribution claim" in proposition 4 -

on someone else. Now, of course, likewise, that

fourth party, party 4, is not a defendant to the

plaintiff in the action unless separately joined by

the plaintiff and in complex litigation such as

this, the plaintiff may have good reasons for not

joining that defendant: costs and all sorts of
other reasons. In other words, if the liquidator

of the National Safety Council has the auditors

available, he may not be interested in joining

State Electricity Commission or all the other

institutions throughout Victoria that have been

progressively tacked on to these proceedings; 93, I

think it is, in total, in this action. So, the

fourth party so joined is not a defendant in the

action.

Fooks 3 15/10/93

Now, notwithstanding, we put in the fifth

proposition, that that fourth party may, it turns

out, be the primarily responsible party if one was

able to undertaken an apportionment, if that party,

for instance, had been joined and cross-notices had

been given, joined as a defendant by the plaintiff

and cross-notices given, it may be that the fourth

party would be 80 per cent responsible - we give an

example in proposition 5 - but he still cannot be

liable in the contribution proceedings by which he

has been joined for more than that which the third

party is liable to the defendant. In other words,

if the third party is liable for 10 per cent

contribution, because that was all his

responsibility, and he joins a fourth party, the

most that the fourth party can be responsible for

is the amount that the third party had to

contribute.	He cannot be responsible for more than
that.	He is not generally joined in the action.

Now, what we point out for the purpose of this

application is the distinction between the

defendant's position, as we put it in paragraph 6,

the second party, the defendant, in seeking to

locate further contributors and the third party's

position in seeking to join further people. The

second party, the defendant, is facing the original

claim, facing the plaintiff. He is liable for the

full amount of the losses, if he is found liable at

all, no matter how small his own role. He needs

the opportunity to locate all of those third

parties or as many as he wants to join who may have
participated in or contributed to the plaintiff's

claim, the plaintiff's losses, to cover himself

which may, as we put in it proposition 6, far

exceed his own role.

So, the defendant's, what we call, primary

contribution claims are essential to enable all the

third parties to be brought to account if he so

desires. But the position of the third party,

himself, and further parties down the line is
totally different to that.	He cannot be made

liable for 100 per cent notwithstanding a limited liability. Under a notice of contribution by the

defendant, the most he can have to contribute is

the amount which is the limit of his own

proportionate role.

Having been so made liable, he cannot collect

more from anybody else than is the amount which

represents his proportionate contribution. It is a

restricted right which he has to join fourth and

fifth and so on parties, and there is a diminishing

benefit, so to speak, as one goes down the line, in

joining further parties.

Fooks 15/10/93

BRENNAN J: This supports your construction that you want to

put on the limitation point.

MR CASTAN: It supports the construction but, more

pertinently, Your Honour - and we put it in
paragraph 8 - there is a fundamental misconception

underlying the approach which has been taken by the Full Court in this matter. The Full Court has made

the, perhaps, one might say, understandable error

of treating joined parties, contributing parties,

as though they are, in effect, defendants, as

though they are parties among whom the court will

eventually be able to, so to speak, apportion blame

at large. Once one does that, one~s perspective of

the legislation changes dramatically because then

one says, "Well, what's the difference between a

joinder by a defendant of a third party and a
joinder by a third party of a subsequent party?"

One tends to say, "Well, they're all the same.	Why
should they be any different", and that is

precisely what the Full Court has done and I will

take Your Honours to the passage in a second.

The Full Court took that misconception, we

would respectfully submit, the contrary view to

that which I have just put, and then proceeded to

argue that there was no logical reason why there
should be any distinction between those kinds of

claims made by defendants and the procedure on

giving a notice of contribution given by defendants

who bring in a third party, and the procedure to be

undertaken by third parties themselves whose role

inevitably is limited in giving further notices.

Perhaps I should take Your Honours directly to

the short passages which illustrate that

fundamental misconception. It affects the - - -

BRENNAN J: But even if you do establish that, Mr Castan,

you come, ultimately, to a question of the

construction of a limitation provision dealing with

contribution.

MR CASTAN:  Yes.

BRENNAN J: It is a question of the construction of the

words in those particular paragraphs, and where is

the question of general public importance which
justifies the grant of special leave in the

construction of such a provision?

MR CASTAN:  It is at a number of levels, Your Honour. The

question of general importance is this, that the

way in which Their Honours in the Full Court have

dealt with this means that in terms of the progress

of this action and the other very substantial

actions that are currently on foot in Victoria,

Fooks 15/10/93

actions so substantial in terms of weight of

numbers and amounts that they are almost overborne

by the numbers of parties - in this case 93
parties, I think is the total number that have so

far been joined - what the court has done is laid

down a rule at pages 75 to 76 that has an effect,

not only in terms of their interpretation - and I

will come also to why the interpretation itself has

general importance - but a rule that is going to dramatically and erroneously, in our submission,

alter the way in which the rights as between all

those parties are going to be determined in the

action. Because the trial judge, in this action,

and in the other very substantial ones, in

particular, there is the Pyramid matters that are

going in Victoria and - - -

BRENNAN J: Leave aside the other actions. In this

action -

MR CASTAN - and other major ones, and in this action.

BRENNAN J: In this action, is there some suggestion that if

any of the parties who have been joined thus far,

that is second, third or fourth, have been sued

directly by the plaintiff that, assuming the

liability which is alleged against them, they would

not have been liable for 100 per cent?

MR CASTAN:  No, no, we do not put that. We do not suggest

that and we say that, with the greatest of respect,

is the wrong question. It is not the case that

they have been so sued and there is very good

reason, no doubt, why they have not been so sued.

BRENNAN J:	My question was your hypotheses here is that you have got somewhere along the line a 10 per cent
contribution.
MR CASTAN:	Yes.
BRENNAN J: Is that a practical problem in this case?

MR CASTAN: Very much.

BRENNAN J:  Why?

MR CASTAN: Eventually, there is going to be a situation in

which the trial judge will have to deal with each

of these claims and then subsequent claims for

contribution and there is an enormous difference

between a situation in which he does what the

Full Court has said he will be doing, that is to

say, look at the overall picture and allocate

responsibility between all these parties and divide

it up, which is not what he should be doing, in our

respectful submission. That is only what he would

Fooks 6 15/10/93

be doing if they were all defendants, but they are

not. And there is an enormous difference between

that which the Full Court has, in effect, told him

to do and a situation in which all that he can do
is look down a chain, which may be broken at any

point, and down a chain which is strictly a claim

for contribution by parties to that portion of the

liability that they themselves bear.

The parties are joined successively down a

chain. They are not joined horizontally across the

chain, and that makes a dramatic difference. But

what the Full Court has done is slide over that

difference; in fact, positively assert, at pages 75
to 76, the contrary and, in effect, lead to a
situation where it is, in our respectful

submission, inevitable that the wrong result will

be achieved here. We can almost predict in advance

that the wrong result will be achieved because the

judge will be undertaking not the task that the

statute requires.

Your Honour puts a proposition to me that, in

effect, has implicit in it, "Well, couldn't they

have been joined as defendants themselves and then

been, in effect, liable 100 per cent?". Well, it

may be that they could have but they were not and

they are not for good reason, no doubt. There are

substantial questions here of - one is tempted to

say, almost all the major institutions in Victoria,

across the board, semi-governmental, governmental

and private are all involved. They have made some

clear decisions about who is going to be liable at

which stage of the process, including decisions by

the plaintiff not to be liable in costs by joining
all of these parties as defendants and decisions by
defendants not to incur the possibility of costs
across such a wide range of parties.

So, decisions are made on this basis of the operation of the statute which clearly enough says

that a claim for contribution is limited to the

contribution between the actual parties who make

the claim for contribution and the party against

whom such a claim is made and that must be limited,

in our respectful submission, to that which the

party who makes the claim is himself liable for.

Now, the apportionment may take place at one

level. The judge will have the right to apportion

between defendants but the defendants will then
only be able to claim from third parties and

subsequently down the line those portions from

respective subsequent joined parties which are

relevant to that which that particular liable party

has itself incurred.

Fooks 15/10/93

The distinction is a critical one and it has

been totally ignored. Now, in our respectful

submission, while it is perhaps understandable that

those of us more versed in equity or in

jurisdictions where one ordinarily has an open

capacity to apportion between parties, that is not

the case under this kind of legislation, this kind

of liability which is, of course, more familiar and

ordinarily operates and traditionally operated only

in personal injury areas. These provisions were

only extended beyond claims strictly in tort in

Victoria in 1985 but, having been so extended,

they must, of course, operate in accordance with

their terms and not in accordance with some general

notion of the capacity of the trial judge to simply

allocate liability as he sees fit across what is

now 93 parties.

At pages 75 to 76, there is a clear

misstatement of this. It has coloured the way in

which the court has grappled with the

interpretation question and, as Your Honour says,

"Well, that's merely a matter of a time limit on

contribution." That may be but, in our respectful

submission, it is critical also, even looking at it

solely as a time limit on contribution because here

43 additional parties have been, as we would

respectfully contend, wrongly joined. This is an

action which potentially will sink under the weight

of the joinder of this many parties and the

management of it is inevitably an almost impossible

task for a judge and for the court system to cope

with.

What is happening here is this process of joinder is happening if it is the right of parties

so to do but the parties also are obliged to be

limited to those claims which the statute itself
gives them and not to thereby become liable to some

generalized apportionment that the trial judge is

now told he will have to undertake because of what

we respectfully submit is a manifestly erroneous

view of the law relating to contribution taken by

Their Honours in the Full Court.

So, it is really that that lies at the heart

of what we are putting. Obviously, Your Honour has put to me properly the fundamental proposition that

in terms of the question of interpretation it does

come down only to a time limit, but it has dramatic

effects in this case because of the vast numbers.

We are not here concerned with a single, as one

might have traditionally been in contribution

proceedings under these sorts of Wrongs Act and the

Tortfeasors Act statutes, a motor car accident

where there are three or four drivers that have to

be involved. We are up to party number 93; we have

Fooks 15/10/93

enormous amounts claimed arising out of massive

alleged wrongdoing back in the origins of this saga

and, in our respectful submission, it should not

proceed on the basis of the erroneous

interpretation, both of the fundamental principles

of contribution - the law relating to

contribution - and also an erroneous application of

a statutory provision which manifestly acknowledged

the very principles which I have just expounded to

Your Honours.

The legislation itself in section 24(4)

manifestly acknowledged the difference between what

I have called the primary contribution claim type

of situation where a claim is made by a defendant

who understandably needs time to gather in all the

parties because of his own potential unlimited

liability for the lot, and in those cases he gets

the whole of the limitation period applicable to

him plus 12 months, and that is manifestly

different to the case of the further parties who

obviously do not have that worry, do not have that

concern and are limited only to the contribution

that, in the case of the third party, can never

have that concern because he can only be liable for

that which represents his own share of the

liability.

Now, that is it in a nutshell, Your Honours.

We have set out there some detail of the errors

that occur in relation to the matter of statutory interpretation but underlying it is a fundamental

misconception. It is not merely a matter of

objective statutory interpretation. Those are the

submissions, if Your Honours please.

BRENNAN J: Thank you. Dr Emmerson.

MR EMMERSON: If the Court pleases. In our respectful

submission, the reasons urged by my learned friend

do not make this an appropriate case for the
granting of special leave.	The issue that was

decided by the Full Court was an issue as to the

time for which notices of contribution could be

given and served. It was not an issue as to

apportionment of liability in the present case.

Now, in the present proceedings, this Court is

not faced with ariy case in which an apportionment

of liability has actually been made and is under

challenge nor are all the parties who ought to be
before the Court, if that was the issue,

represented before the Court. This case will not

finally determine the matter of apportionment

between the parties.

Fooks 9 15/10/93

So, the position that we reach is that my

learned friend is, in substance, seeking special

leave to appeal against obiter dicta which do not

finally determine the rights or, indeed, seek to

determine the rights of all the parties in the
case, that is to say, all the parties in the case
before this Court, let alone all the parties in the
underlying proceedings. So, it is highly

inappropriate, in our submission, for this Court to

embark on that question at this time.

So far as the merits of my learned friend's

challenge to the actual decision is concerned, my

learned friend has drawn a distinction between

cases in which third and fourth parties may have greater or lesser liability depending on how one

interprets the rules for contribution proceedings.

In our submission, it is no answer to the scheme of

the provisions with which we are concerned to say

that depending on what view one takes of

apportionment of liability, the parties concerned

may be liable for greater or smaller amounts of

losses. That is not what this part of the Act is

concerned with. This part of the Act is concerned

with time. Clearly enough, all the parties have

sufficient at stake to make this a matter which is

worthwhile fighting.

So far as the present state of these

proceedings is concerned, I was informed while my

learned friend was on his feet that there are, in

fact, cross-notices between all parties. However,

I should say to the Court that I am not, myself,

concerned with the primary proceedings and so I do

not say that of my own knowledge.

So far as the matter of substance is

concerned, I do not know whether it is appropriate

for me to embark on what we say is the proper

construction of section 24 of the Wrongs Act which

is, after all, on its face, what the present
application is concerned with.	I have some

submissions that I would wish to direct to the

Court if this was appropriate but my learned

friend, in his oral submissions, did not deal with

that matter at all and I am in the Court's hands as

to whether it is appropriate that I should embark

on that.

BRENNAN J: 

I take it that the application is based upon the

proposition that the Full Court's construction of
the time limitation was wrong?

MR EMMERSON: 

Yes, Your Honour.

BRENNAN J: 

Do you wish to contend that it is so manifestly

right that no grant of special leave should go?

Fooks 10 15/10/93

MR EMMERSON:  I do wish to contend that it is clearly correct, yes, Your Honour.

BRENNAN J: Well then, you had better make your submission.

MR EMMERSON: I am indebted to Your Honour. Our submission

is that the starting point for construing these

provisions is section 23B of the Wrongs Act which

is the provision which gives a right to

contribution. Now, the Court will see that the

right to contribution arises because a person is

liable in respect of damage suffered by another

person, who I shall call "the injured party", and

that another person who is also liable in respect

of the same damage.

Now, one asks what is the meaning of the word

"liable" and that is taken up further in

section 23A which provides that:

a person is liable in respect of any damage if

the person who suffered that damage ..... is
entitled to recover compensation from the

firstmentioned person in respect of that

damage whatever the legal basis -

So, liability arises because the injured party is

entitled to sue the person concerned. If the

injured party is entitled to sue more than one

person, then section 23B allows one of those people

to take contribution proceedings against another.

Now, 23B makes it clear, in our submission,

that a person may be liable under the scheme of

this part notwithstanding the proceedings have not

been yet taken against him. This is made clear by

the succeeding subsections of 23B which makes it

clear that you can be liable for the purpose of

this section even if the wronged party or the

injured party does not sue you - - -

BRENNAN J:  Does this really illuminate the meaning of the

relevant paragraphs?

MR EMMERSON:  Yes, it does, Your Honour, because what it

makes clear is that what gives you an entitlement

to contribution is your liability and that is
liability to the injured party. Then, if one goes

to section 24(4) that deals and deals only with the

question of the time during which a person who has

a right under section 23B can bring an action. It

is a time provision and only a time provision.

The scheme of that time provision is to say

that he may bring an action at any time within the

period within which the action against the first-

mentioned person might have been commenced. So,

Fooks 11 15/10/93

the question is, "When might the action against the

first-mentioned person have been commenced?" In

the context, it is clear, we would say, that what

this means is the action by the injured party

against the person who is liable and therefore

acquires a right to contribution under 23B.

At any time when that action might have been

commenced by the injured party, whether or not it

is commenced, he may bring an action. One then

asks, "What is the work that is done by the rest of subsection (4)?", and we would say that it is plain enough what it is. Subsection (4)(a)(ii) deals

with a case in which a person who is liable might

happen to be sued right at the end of the injured

party's limitation period, and so it is a remedial
provision and it gives him an extra year in which

he can take third party proceedings.

Similarly, subsection (4)(b) deals with a case

in which someone receives a notice of contribution

which may occur at or even after the end of the

period that otherwise he would have had and so,

that is also a remedial provision and it gives an

extra six months.

Now, viewed in this way, it is clear, in our submission, that the primary period that anyone who

is liable has for serving a notice of contribution is the injured party's limitation period. That is the primary effect of this subsection. Then, to

account for circumstances which might lead to

hardship, these extra times are given. Now, viewed

in this way, we say that it is clear that each of

the various parts of subsection (4) has work to do

but it is equally clear that the operation of

subsection (4)(b) is not to be regarded as

excluding the operation of subsection (4)(a).	They
can work together, and we say they do.	Now, this

was what was found by the Full Court and, in our

submission, we say that is right.

Now, on the facts of the present case, it is

again perfectly clear that at the time when my

clients served their fourth party proceedings, they

were liable to the primary injured party, that is

to say, the limitation period had not expired.
Therefore, on the facts of this case, we say that
we were clearly within time within
subsection (4)(a)(i) and, indeed, that can only be

gainsaid if (4)(a)(i) is read down in a way which

we say is impermissible and which amounts to

treating subsection (4) as being the thing which

confers the right rather than merely the provision

which determines the time during which that right

can be exercised.

Fooks 12 15/10/93

Now, my learned friends, in order to be

successful on this appeal, would have to show that
either subsection (b) excludes the operation of

subsection (a), and we say there is no reason at

all in the scheme of this part to conclude that it

would, or they would have to say that you construe
subsection (4) in what we say is an awkward way in

which you assume that (a) or (b) applies, whichever is the shorter. But, in our respectful submission,

there is no possible reason for assuming that you

are concerned with the shorter of those two

periods. The natural interpretation is that you

are given two periods during which notices of

contribution might be given.

Now, my learned friend talks about

consequences that could occur in various cases. In

our submission, the contention that is raised by
the applicants here would lead to most unfair and anomolous consequences. To take but one example,

suppose a plaintiff suffers an injury and promptly

sues both A and Bas tortfeasors but suppose that

there are other possible tortfeasors who are not

sued. If that happens, on any view, A and B would

be able to join third parties at any time during

the plaintiff's limitation period.

Suppose, by contrast, the plaintiff suffers an

injury, sues A, who promptly joins Bas a third

party. Now, note at this stage that assuming that

A and Bare equally liable, on any view of

apportionment, in both sets of facts, they are each

going to end up having to bear half the damage.

Now, on my learned friend's view, in the

example I have just given, A, because he happens to

be a defendant, would have the full period during

which the plaintiff could have sued in order to

bring his action; B would have, for some reason,

only six months. Now, in our submission, there is

no reason in logic or justice or common sense or in

conclusion that the intention was to cut this	the language of the section which would lead to the
matter down in this way.

My learned friends, in their written outline,

refer to the legislative history. We would say

that the legislative history, if relevant, supports
the conclusions that we put and it does so for this

reason: the legislative history makes it clear

that the provision in question was introduced to

implement the recommendations of the Chief

Justice's Law Reform Committee.

BRENNAN J:  We do not need to hear the whole appeal,

Dr Emmerson.

Fooks 13 15/10/93

MR EMMERSON:  I am in the slightly difficult position,

Your Honour would appreciate, that I am in a sense

seeking to argue against a case which my learned

friend did not develop orally.

BRENNAN J:  What you are seeking to do, as I understand it,

is to demonstrate that the Full Court was right in

what they said.

MR EMMERSON: Precisely, yes, Your Honour.

BRENNAN J:  You would have to, at least, concede the

possibility that the Full Court might have been

wrong.

MR EMMERSON:  That is not a possibility which we are here disposed to concede.

BRENNAN J: Well, you can see the argument against it, can

you not? What about the question of whether there

is a question of general principle?

MR EMMERSON: 

In our submission, there is not a question of

general principle because what we are concerned
with here, in the present application, is time
periods. These are time periods which are
applicable only under Victorian legislation. It is

common ground that there is no corresponding

legislation anywhere else in the Commonwealth.

BRENNAN J: 

You are not suggesting that because it is only Victoria that it may not be a matter of general

importance?

MR EMMERSON: 

No, Your Honour, but the next proposition

which I do put is that the matter has now been

determined unanimously by the Full Court of the

Supreme Court of Victoria and that it is

appropriate that in a matter which has application

only to Victoria that the Supreme Court should be

regarded ordinarily as being the ultimate arbiter

unless there are clearly reasons for supposing that

its decision is wrong.

Now, while I take the point that Your Honour

Justice Brennan puts to that no doubt arguments can

be put on both sides but, in our submission, the

correct approach which we would respectfully urge

on this Court is that unless there are strong

grounds for supposing that the decision under

appeal was wrong, then it is not an appropriate

case for the grant of special leave. We would also

say that the primary issue which my learned friend
seeks to agitate is not an issue, in our respectful
submission, which arises at all. If the Court

pleases.

Fooks 14 15/10/93

BRENNAN J: Mr Moshinsky.

MR MOSHINSKY:  If the Court pleases, with respect, we seek

to adopt the arguments Dr Emmerson has advanced to

the Court. I have a summary of argument which I

would like to hand up to the Court but, in

substance, it supports the arguments of

Dr Emmerson. I also have handed up to the Court

copies of Cooper Brookes and the relevant passages

that we rely upon.

I have very little extra to add to my friend's

submissions except to add to his submission to this extent, to say that we contend that this particular

case is not a suitable vehicle, at this stage, for

ventilating the first question that Mr Castan has

raised, namely, the question of the nature of the

rights of contribution because Mr Castan's

arguments, in substance, are based upon pages 75

and 76 of the application book and upon the remarks

of Mr Justice Tadgell which very briefly consider

this issue. It is not suggested that it is a

ruling that has come about as a result of facts

that were before the court that are particularly

relevant to this particular issue. The remarks

themselves are somewhat ambiguous, so that it is

not clear that His Honour was ruling in the way in

which it is contended the remarks ought to be

reviewed.

So, in substance, we say that the real point

Wrongs respect to this matter and say that the Court is

in this case is the interpretation of the

entitled to look at the case on the basis that

there are two competing interpretations. The

interpretation advanced by my learned opponents are

essentially ones which lead to an unfair or

somewhat discriminatory result. The interpretation

placed on the legislation by the Full Court,

although not being able to resolve all the

anomalies of the section, at least on the whole

produce a fairer result and in cases of this sort

where there is genuine uncertainty about the

meaning of the legislation, it is quite proper for

the court to have done as it did in this case, to

look at the consequences of the legislation and to

work out an interpretation that produces a fairer

and more equitable result.

For these reasons, we ask the Court to reject

the application for special leave. If the Court

pleases.

BRENNAN J: Thank you. Mr Castan.

Fooks 15 15/10/93

MR CASTAN:  Perhaps the only think that requires to be said,

Your Honours, is to draw Your Honours' attention to

section 24(4) in the form that it has been

submitted to Your Honours on a single sheet and to

point out that while conceding, as our learned

friends have conceded, I think, that there are two

arguments open as a matter of construction, our

learned friends, in effect - and I think this was

mentioned in His Honour Justice McDonald's decision

below - the view that is taken by the Full Court

necessitates, in effect, reconstructing those

provisions (a) and (b) so as to, in effect, make

them read: (a)(i), (a)(ii) and then (b) would

become (a)(iii), and then the words "whichever is

the longer". That is what is implicit in it.

There has been a restructuring of these provisions so as to redraft them so as to create three

alternatives and then say whichever is the longer

is that which is applicable. The fact is, as we

pointed out in address, that is not what the

legislature has intended, for the reasons as we

have submitted, and it is inappropriate to do that.

DEANE J: But at the end of the day, does it not simply come

down to a question of the construction of a

Victorian limitation provision?

MR CASTAN:  It does, subject to those other matters that I

have put.

DEANE J:  I follow your attack on the line of reasoning

adopted by at least - well, we will say by two of the three members of the Full Court but, none the

less, even if that attack on the line of reasoning

were ultimately to prevail, one would then come

down to the simple question of the construction of

a Victorian limitation provision in that those

against you do not rely on the aspect of the

reasoning which you attack. Indeed, they seem to

be trying to distance themselves from it.

MR CASTAN:	Yes, and it is notable that neither of them has thought to say that those passages at pages 75 to
76 of the book are correct.
DEANE J:	Mr Moshinsky seems to be almost saying the

opposite, if I - - -

MR CASTAN:	Yes, but one cannot ignore the fact that they are there, this being the Full Court of the Supreme
Court, and if this is the end of the matter in
relation to those issues, then they are left there
and while, admittedly, in the context of the determination of those issues it will have a
dramatic effect on the litigation and on other litigation of which there is a substantial amount
in this State at the moment.

Fooks 16 15/10/93

So, it will have a substantial and important

effect, notwithstanding that the issue may be so

characterized, as Your Honours put and, of course,

one can so characterize it, but that does not

answer the totality of what has really been raised

here. There are larger questions as well and it is for that reason that we are here, Your Honours. If

Your Honours please.

BRENNAN J: If special leave were granted in this case, the

decision would turn on the construction of a

subsection prescribing the limits of time within

which claims for contribution may be made by third

parties against fourth parties.

Without necessarily endorsing the approach of

the Full Court to the construction of section 24(4) of the Wrongs Act 1958 (Vic.), we do not think that the construction of that provision raises a
question of general principle which warrants a

grant of special leave. Accordingly, special leave

will be refused.

MR EMMERSON:  We would ask for our costs, if the Court

pleases.

MR MOSHINSKY:  We would also ask for costs, if the Court

pleases.

MR CASTAN:  I have nothing to say, Your Honour.

BRENNAN J: It will be refused with costs.

AT 3.18 PM THE MATTER WAS ADJOURNED SINE DIE

Fooks 17 15/10/93