Heffernan v Victoria Legal Aid
[2000] VSC 220
•17 May 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 3445 of 1999
| RICHARD JOHN HEFFERNAN | Plaintiff |
| v. | |
| VICTORIA LEGAL AID AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 MAY 2000 | |
DATE OF JUDGMENT: | 17 MAY 2000 | |
CASE MAY BE CITED AS: | HEFFERNAN v. VICTORIA LEGAL AID & ORS. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 220 | |
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CATCHWORDS: Practice and Procedure – Third party notice – Application for leave to file – Wrongs Act 1958, ss.23B, 24(4)(a)(ii).
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. C. Gunst QC and Mr. T. Lynch | Godfrey & Godfrey |
| For the Defendants | Mr. P. Lacava | Carroll & Dillon |
HIS HONOUR:
This is an application by the third defendant for leave to join the plaintiff's solicitors as a third party to the proceeding. The application is made pursuant to the provisions of Rule 11.05(2)(b) of the Supreme Court Rules.
In the normal course of events the application would be made to a Master of the court. However, the third defendant's right to join the plaintiff's solicitors as a third party to the proceeding will expire tomorrow. When the third defendant's solicitors' clerk sought to file a summons in the court with a view to having an urgent hearing of the application by a Master of the court, she was informed by a member of the prothonotary's staff that no Master was available to deal with the matter. In that situation I granted to the third defendant special leave to make the application to a judge of the court.
The background to the application may be summarized as follows:-
In 1991 the plaintiff was conducting a business from premises at the corner of Burke and Waverley Roads, East Malvern.
On 5 June 1991 a fire was deliberately lit at the premises thereby causing substantial damage to them.
On 15 August 1991 the plaintiff was charged with one count of arson and one count of attempting to obtain a financial advantage by deception. It was the case for the Crown that it was the plaintiff who had deliberately set fire to the premises.
At about that time the plaintiff retained his present solicitors to act for him and they continued to so act until a matter of days before the plaintiff's trial in the County Court in May 1993. They represented the plaintiff at the committal and one assumes did those things they considered to be necessary for the proper presentation of the plaintiff's defence.
However, some days before the trial was scheduled to commence, Victoria Legal Aid took over the conduct of the plaintiff's defence. A solicitor in the employ of Legal Aid handled the matter on its behalf and he retained the third defendant who is a member of the Victoria Bar to appear for the plaintiff at his trial.
The plaintiff's trial commenced on 17 May 1993. The plaintiff pleaded not guilty to the two charges. The trial concluded on 2 June 1993. The plaintiff was found guilty of both charges and remanded in custody for sentence.
On 10 June 1993 His Honour Judge Duggan sentenced the plaintiff to be imprisoned for two years on each count with 15 months of each sentence being suspended for two years. The plaintiff served a period of some nine months imprisonment before he was released.
On 20 May 1994 the Court of Appeal dismissed an appeal against conviction brought by the plaintiff on the ground (inter alia) of fresh evidence, in particular the evidence of a forensic chemist named Roberts.
On 14 May 1999 the plaintiff filed a writ in the court whereby he seeks to recover damages for negligence from Victoria Legal Aid, the employee solicitor of Legal Aid, who handled his trial, and counsel who conducted his defence.
His principle complaint in relation to his former counsel, are that counsel should have taken steps to have appropriate forensic evidence available to be called on behalf of the plaintiff at his trial and on 17 May 1993, should have applied for an adjournment of the trial for that purpose.
It can be seen that for reasons best known to himself, the plaintiff allowed almost the whole of the six year limitation period to expire before instituting his proceeding.
The plaintiff's writ was served on the third defendant on 18 May 1999.
By virtue of the provisions of s.24(4)(a)(ii) of the Wrongs Act 1958, any claim by him for contribution from the plaintiff's solicitors will expire on 18 May 2,000. S.24(4)(a) reads:
"(4)Nothwithstanding any provision in any statute requiring a notice to be given before action or prescribing the period within which an action may be brought, where under section 23B any person becomes entitled to a right to recover contribution in respect of any damage from any other person, proceedings to recover contribution by virtue of that right may be commenced by the first-mentioned person -
(a) at any time within the period -
(i)within which the action against the first-mentioned person might have been commenced or;
(ii)within the period of twelve months after the writ in the action against the first-mentioned person was served on him."
The third defendant seeks to join the plaintiff's solicitors as a third party to the proceeding by reason of the content of certain documentation discovered by the plaintiff in his affidavit of documents which was served on the solicitors for the third defendant on 27 April 2,000.
The documentation discloses that at a pre-trial hearing in the County Court shortly before the commencement of the plaintiff's trial, a representative of the plaintiff's solicitors stated to the Registrar that it was not intended to examine any of the prosecution exhibits, that the matter was ready to proceed to trial and that a trial date could be fixed accordingly.
The third defendant contends that if it is found that he acted negligently in failing to have the plaintiff's trial adjourned to enable forensic evidence to be obtained, then it could be argued that the plaintiff's solicitors were themselves negligent in failing to obtain such evidence during the long period of time they had acted for the plaintiff.
In my opinion there is much force in that argument.
However, the plaintiff opposes the third defendant's application basically on two grounds.
In the first place he contends that he will be prejudiced if he is required to change his solicitors at this stage of the proceeding, as of course he certainly will be if the application is granted. In the second place he contends that by virtue of the provisions of s.23B of the Wrongs Act the liability, if any, of his solicitors to the third defendant has now been extinguished and that in that situation it is pointless to grant the third defendant's application.
"23B(1) Subject to the following provisions of this section, a person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with the first-mentioned person or otherwise).
(2)A person shall be entitled to recover contribution by virtue of sub-section (1) nothwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred provided that that person was so liable immediately before that person made or was ordered or agreed to make the payment in respect of which the contribution is sought.
(3)A person shall be liable to make contribution by virtue of sub-section (1) nothwithstanding that that person has ceased to be liable in respect of the damage in question since the time when the damage occurred unless that person ceased to be liable by virtue of the expiry of a period of limitation or prescription which extinguished the right on which the claim against that person in respect of the damage was based."
In my opinion any prejudice which may be caused to the plaintiff by having to change his solicitors, would not, in the circumstances of this case, justify a refusal of the third defendant's application.
There is nothing complex about the issues raised by the parties on the pleadings. Basically the action will require a determination of factual matters relating to the preparation of the plaintiff's trial and whether the factual findings, as made by the court, lead to the conclusion that one or more of the defendants was in breach of the duty which it or they owed to the plaintiff.
I have little doubt that a competent practitioner could adequately grapple with such matters over a comparatively short period of time.
In my view it is not the case that s.23B(3) extinguishes any liability the plaintiff's solicitors may have to the third defendant in the circumstances of this case.
If it did, it would follow that in a case where the plaintiff had the option of suing two people in tort for damage he had suffered by their joint tortious act, he could deliberately extinguish the liability of one by only suing the other, not instituting his proceeding until the Statute of Limitation had almost run, as in the present case, then serve the writ on the tortfeasor he had chosen to sue after any further action against the co-joint tortfeasor was statute barred, again as the plaintiff did in the present case, thereby extinguishing the liability of the other tortfeasor and destroying any entitlement to indemnity the tortfeasor being sued may have had against the other tortfeasor.
I cannot accept that that was the intention of the legislature in passing s.23B(3), nor can I accept that that is the effect of the sub-section.
Rather, I think that the period of limitation or prescription spoken of in s.23B(3) is the period of limitation spoken of in s.24(4).
I say that for the reason that s.24(4)(a) clearly extends the time within which a person may bring proceedings for contribution beyond the normal period of limitation.
A further argument advanced on behalf of the plaintiff is that the joinder of the plaintiff's solicitors as a third party will cause delay. In my opinion, it hardly lies in the mouth of the plaintiff to complain about the delay. In any event, if the plaintiff considers there is unacceptable delay hereafter, it is open to him to make an appropriate application to a Master of the court for directions.
Pursuant to the provisions of Rule 11.05(2)(b) I give leave to the third defendant to file a third party notice against the plaintiff's solicitors Godfrey and Godfrey forthwith.
In the circumstances I consider that the appropriate order to make in respect of the cost of the application is that the plaintiff and the third defendant's costs of the application be their costs in the cause.
This order is to be prepared by the third defendant's solicitors and brought to me tomorrow morning to be authenticated.
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