Haylock v Amaca Pty Ltd - [2005] SASC 413

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HAYLOCK v AMACA PTY LTD & ORS
Reasons of Judge Lunn a Master of the Supreme Court
3 November 2005
PROCEDURE
Offer by defendant to consent to judgment under R40 - offer lodged by defendant to consent to judgment for the defendant with no order as to costs - held not to be an offer where acceptance could be made a judgment under R40.03 as it was not for a sum of money and judgment entered administratively by Registrar should be set aside.
Offer by plaintiff to consent to judgment under R41 - offer lodged by plaintiff to consent to judgment for the defendant with no order as to costs - held not tyo be an offer for a "stated amount" within R41.01 and judgmententered administratively by Registrar should be set aside.
Review of acts of Registrar under R107.03 - nature of review of administrative act held to be in the nature of a hearing de novo.
Consent judgment under R84.05 - held the consent of the parties included any party not a party to the judgment but whose interests were indirectly affected by the proposed judgment.

HAYLOCK v AMACA PTY LTD & ORS
[2005] SASC 413
Reasons on application by First Defendant to set aside Consent Judgments entered between the Plaintiff and the Second and Third Defendants.

JUDGE LUNNThe plaintiff sues for damages in this action from her having contracted mesothelioma from exposure to asbestos dust. Initially she sued the first defendant, Amaca Pty Ltd (“Amaca”), the second defendant, B I (Contracting) Pty Ltd (“BI”), and the third defendant, St George Bank Limited (“St George”), alleging separate exposures to asbestos dust by each of those defendants. Assuming the plaintiff had proved her pleaded allegations against each defendant, and subject to the matters related below, all three defendants would have been joint tortfeasors in respect of her claim. Each defendant has issued a contribution notice against the other two defendants seeking contribution in the event of the plaintiff succeeding against it. The action is being pursued with urgency because of the plaintiff’s limited life expectancy.
On 12 September 2005, BI filed an offer purportedly under R 40.01 offering “to consent to judgment whereby judgment is entered in favour of (BI) against the plaintiff with no order as to costs”. On the same document was endorsed an acceptance of that offer signed by the plaintiff’s solicitor. On 16 September the Registrar entered a sealed judgment purporting to be pursuant to the offer and its acceptance in which it was stated:
THE COURT ORDERS, pursuant to R 40 of the Supreme Court Rules, that judgment be entered in favour of the second defendant against the plaintiff with no order as to costs.
On 16 September an offer was filed purportedly under R 41.01 whereby the plaintiff offered to consent to judgment in favour of the third defendant against her with no order as to costs. That document was endorsed with an acceptance under R41.02 of that purported offer by St George. On 20 September the Registrar entered a sealed judgment pursuant to this offer and its acceptance which stated:
THE COURT ORDERS, pursuant to R 41 of the Supreme Court Rules, that judgment be entered in favour of the third defendant against the plaintiff with no order as to costs.
On 4 October Amaca issued an application seeking orders under R 107.03 that the decision and/or the act of the Acting Deputy Registrar to enter each of the judgments for BI and St George against the plaintiff be reviewed by the Court and for extensions of time to bring such an application. (The application also sought other orders but in view of my conclusions on the reviews it is not necessary to pursue them).
The plaintiff has amended her statement of claim to delete her claims against BI and St George. Amaca seeks to pursue its contribution notices against BI and St George. Neither BI nor St George have taken out applications to strike out the contribution notices against them by Amaca.
Amaca relies on the now repealed s 25 of the Wrongs Act 1936 for its claim to contribution against BI and St George. (There was some dispute initially about whether s 25 was the applicable statutory provision, but counsel for St George later conceded that it was the relevant provision). In relation to a claim for contribution under s 25 Lander J, with whom the other members of the Full Court agreed, said in Goodwin v Ron Heath Tyre Service (SA) Pty Ltd (1999) 74 SASR 508 at 516:
A party however cannot seek contribution from another person under s 25(1)(c) if that second party has been found not to be liable to the party who suffered the damage: ….. Nor can a tortfeasor seek contribution from a party where that party has obtained a consent judgment against the person who suffered the damage and in circumstances where the court has made no determination of liability for the damage: James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53.
The decision cited for this proposition of Seltsam concerned a similar, but not identical, New South Wales statute. Counsel for Amaca argued that the differences in the legislation meant that Seltsam’s case was not applicable to the operation of s 25 of the Wrongs Act, and so a consent judgment between the plaintiff another tortfeasor was not a bar to a claim for contribution. However, I am bound what was stated by the Full Court on the point. Accordingly at least at this interlocutory stage the existence of these consent judgments in favour of BI and St George are major obstacles to Amaca succeeding in its claims for contribution against them. However, as BI and St George have not, at least as yet, applied to strike out Amaca’s contribution notices against them I do not have to decide here whether those judgments are a complete bar to Amaca succeeding on its contribution notices.
In order for any consent under either R40 or R41 to produce judgments of the Court it was necessary for the Registrar to do certain acts to convert the consents into judgments: Verco v Strata Corporation No 2822 Full Court, 28 October 2005, judgment No [2005] SASC 403, unreported. The acts of the Registrar in settling, sealing and entering the two consent judgments were administrative, and not judicial acts: Hughes v Hughes (1971) 2 SASR 368 and 373-4. There is nothing to suggest that the Deputy Registrar did not follow the ordinary practice of the Court of relying on only the face of the documents presented to him in carrying out these acts.
Such acts of the Registrar are reviewable by the Court under R 107.03 which provides:
(1)Every decision, direction, certificate or act made or done by an officer of the Court is subject to review by the Court.
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(3) Such a review is to be initiated by an application taken out under Rule 67 within 7 days of the decision, direction, certificate or act complained of and is to be disposed of in chambers.
(4)Upon the review the Court in its discretion may receive further evidence, and in matters involving the exercise of a discretion may exercise its own discretion without regard to the manner in which the discretion has been exercised by the officer of the Court.
“Review” is a protean concept, and its precise meaning depends upon its context. I set out what I said about ‘review’ in the context of s 38(6) of the Magistrates Court Act 1991 in Lawrence v Sambevski (1996) 189 LSJS 451 at 452-3:
“Review” is not defined by the Act. There are many instances of powers of review being conferred on Courts and like bodies in other legislation. While there are reported cases about the meaning given to “review” in other pieces of legislation it is clear that many of the finer points of the definitions there given turn on the actual working of the legislation in question and are not therefore usually of general application: eg Boston Cloth Co Pty Ltd v Marqaronis (1992) 27 NSWLR 580; Colpitts v Australian Telecommunications Commission (1985) 70 ALR 554 at 656-6; Re Brindle ex parte F B & F A McMahon Pty Ltd (1992) 108 ALR 470; Smith v St Johns Ambulance (1991) 162 LSJS 404 (but the question of the nature of a review in that case was left open by the Full Court (1992) 166 LSJS 231). Insofar as the cases have considered “review” in relation to administrative as distinct from judicial, functions they are of limited application to “review” of judicial or quasi judicial acts: Boston Clothing v Marqaronis op cit at 587D. The starting point in the various cases has been the dictionary definition of “review” as “the act of looking over something again, with a view to correction or improvement … a judicial re-examination, as by a higher Court, of the decision or proceedings in a case”: Re Brindle op cit at 473.
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In respect of the related concept of “appeal” it has been held that appeal is a word of flexible meaning for which there are three broad categories, being firstly a strict appeal where the issue was whether the judgment was right when it was given on the material which was then before the lower Court, secondly an appeal by way of rehearing where there is a limited power to receive further evidence and the issue is whether the judgment ought to be overturned in the light of the material before the appeal Court, and thirdly an appeal de novo in which the appeal Court conducts a fresh hearing of the whole matter. Ultimately it is a question of statutory interpretation as to the precise nature of an appeal which has been created by a particular statute and whether it falls into one of the three categories mentioned or is a hybrid of some sort: Wigg v Architects Board (1984) 36 SASR at 112-114; D M & A J Bell Pty Ltd v Motor Fuel Licensing Appeal Tribunal (1988) 50 SASR 39 particularly at 45. Likewise it is possible for a review to fall into similar categories or to be some form of hybrid depending on the proper construction of the particular statute.
As the acts of the Registrar were administrative a review of them under R107.3 is akin to an appeal de novo: Builders Licensing Board v Sperway Constructions Pty Ltd (1976) 235 CLR 616. This is consistent with subr107.03(4). Accordingly, in conducting a review I revisit what was done by the Registrar and decide on the evidence before me whether what should have been done accorded with what the Registrar did. (In the context of this matter it is immaterial whether I view the facts as those existing when the Registrar performed his acts or those at the time of the review).
I deal first with the BI judgment entered under R 40. For present purposes I am prepared to assume, without deciding, that the offer of BI did come within R40.1(1)(c), and thus was a valid offer for the purposes of that Rule.
R 40.03 provides:
Where the offer to consent is for a particular sum, unless the Court otherwise orders:
(a)The plaintiff may:
(i)sign judgment for the amount offered;
(ii)tax his costs against the consenting defendant incurred up to 14 days after the service of the notice on him together with the costs of filing and serving his notice of acceptance and signing judgment;
(iii)proceed to enforce such judgment.
(b)The action shall proceed in respect of any other cause of action or any other defendant but the plaintiff shall not be entitled to recover a second time the money or percentage of claim accepted by him.
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This is the only provision in R 40 for converting an acceptance of an offer under R 40.02 into a judgment. The defendant’s offer is not within R 40.03. It is not “for a particular sum”. It cannot be for nought dollars because R 40.03(a)(i) requires that it should be for “the amount” (of money). Also R 40.03(a)(iii) makes it clear that the procedure is to result in an enforceable judgment, but in this judgment there is nothing to enforce. R 40.03 envisages that it will be a judgment for the plaintiff, and not a judgment for the defendant. Furthermore, R40.03(a)(ii) gives the plaintiff her costs against the consenting defendant. As the judgment here excludes such a right to costs it cannot be within R 40.03.
I adhere to what I have said in [R 40.01.15] in “Civil Procedure South Australia” Volume 1 that if an offer under R 40.01 is not within R 40.03 it requires some further act of the Court under RR 25 or 84.05 to convert the acceptance into a judgment of the Court. As that did not occur here, and as the judgment on its face incorrectly purports to be under R 40, the act of the Registrar in sealing and entering this judgment was incorrect, and must be set aside.
I now turn to the consent judgment in favour of St George which was entered under R 41. R 41 permits making offers which come within R 41.01(1) or (2), which provide:
(1)A plaintiff may at any time up to 21 days prior to trial lodge with the Registrar and service on all other parties a notice offering to accept a stated amount, or a judgment for a stated amount where it is necessary to enter judgment, together with his costs of action, in satisfaction of the plaintiff’s cause of action or where there are more causes of action than one, of one, some or all designated causes of action.
(2)A plaintiff may at any time up to 21 days prior to trial lodge with the Registrar and serve on all other parties a notice offering to accept a stated percentage of liability or to accept a stated sum after giving credit to the defendant for any set-off counterclaim or cross-demand claimed by the defendant against the plaintiff, and in each case stating whether the offer requires the defendant to pay the whole or some stated proportion of the plaintiff’s costs of action and that the offer so made is in satisfaction in the first case of the plaintiff’s claim as to liability and in the second case in satisfaction of all nominated liabilities by the plaintiff and the defendant to each other.
These subrules only permit offers for either “a stated amount” or “a stated percentage of liability”, and not for any other form of relief: Simmons v Williams (No 2) (2003) 229 LSJS 474. “A stated amount” means some amount of money and does not extend to judgment for nought dollars. The alternative of a “stated percentage of liability” is not relevant. The Rule envisages an offer which will produce a judgment for the plaintiff and does not encompass an offer which produces a judgment for the defendant. The defect is not a mere irregularity under R 3.05, but something which is quite outside of R 41 and of no effect under it: Normington v Frost (1982) 104 LSJS 180 at 181; Benton v Noy (1990) 101 FLR 18..
Accordingly, the acceptance by St George of the plaintiff’s offer was outside of R 41 and could not have authorised the Registrar to have entered a consent judgment under R 41 in favour of St George. Thus this judgment must be set aside.
R 107.03 does not say who can initiate a review against an act of the Registrar. It was not submitted here that Amaca was not entitled to do so. Anyone who is otherwise a party to the action, and who is at least indirectly affected by the act of the Registrar, has locus standi to seek a review of the act in question. In any event there is some authority, at least in the Probate jurisdiction, for a stranger who is affected by an order to be able to appeal against it: Birch v Birch 1902 P 130.
It is a proper exercise of my judicial discretion in the circumstances that the time for Amaca to initiate its review under R 107.03(3) be extended until 4 October 2005. It was not disputed that for several days before each consent judgment was obtained Amaca’s solicitors were aware that the other parties were negotiating a settlement and that consent judgments were contemplated. Amaca did not take any steps to prevent this occurring. Mere inaction is not consent: Chandlers v Nicholson [1942] 2 KB 321 at 324. It did not consent to the judgments and it did nothing which now stops it from challenging them: Rogers v Curnow (1979) 22 SASR 204. At a directions hearing on 29 September counsel for Amaca indicated that an application for review was to be instituted and I directed that it be filed by 4 October. The delay after the expiration of 7 days allowed by subr (3) was only a few days and there is nothing to suggest that any other party has been prejudiced by this short delay. Amaca’s solicitors have not explained their delay, but that does not outweigh the factors for granting an extension of time.
Usually where a consent judgment under either RR 40 or 41 is held to be ineffective, and the parties still wanted a consent judgment, the Court would without undue formality or delay enter a consent judgment under R 84.05: Xenophon v Lucas, Perry J 18 May 2001, judgment No [2001] SASC 160, unreported. Usually where a party seeks a consent judgment the Court has no power to refuse it unless there has been unconscionable conduct or an abuse of process by some party: City of Unley v Verco (2005) 91 SASR 102. (Although that decision was reversed on appeal, this point was not dealt with by the Full Court: Verco v Strata Corporation No 2822 above). There may also be other circumstances in which the Court has a residual discretion to refuse to enter a judgment on grounds of public policy or because it would be against the interests of justice: ACCC v Real Institute of WA (1999) 161 ALR 79; ACCC v Woolworths (2003) 198 ALR 417. There are also authorities that a Court will allow a party to set aside its own judgment where there would be an injustice to it if it was allowed to stand: Ansett Transport Industries Pty Ltd v Newtons Travel Services Pty Ltd [1990] VR 37; Macquarie Bank Ltd v Beaconsfield [1992] 2 VR 461; Sunray Irrigation Services Pty Ltd v Hortulan Pty Ltd [1993] 2 VR 40. However, I need not now pursue this interesting question as in any event judgments under R 84.05(1) are conditional upon the “consent of the parties”. I consider that means the parties to the action and is not confined to the parties to the judgment. Where the judgment being sought can indirectly affect a party to the action which is not a party to the judgment R 84.05 does not authorise the judgment to be entered without the consent of that other party. Here no consent judgment should be entered between the plaintiff and BI or St George which could prejudice Amaca in pursuing its contribution claims against BI or St George unless Amaca consents to it or it is worded in such a way that it does not prejudice the position of Amaca.
There was some inconclusive debate at the end of submissions about what form of order might be made, or undertakings given, which would allow BI and St George to have their judgments against the plaintiff without prejudicing the position of Amaca on its contribution notices. I am of the view that the reviews must be allowed and both consent judgments set aside, but I will hear the parties on what, if any, further orders should now be made to reflect the settlements between the plaintiff and BI and St George.
This matter is adjourned to Monday 7 November 2005 at 12 noon.