Insurance Exchange of Australasia v Dooley

[2000] NSWCA 159

Reported Decision: [2000] 50 NSWLR 222

New South Wales

Court of Appeal

CITATION:	Insurance Exchange v Dooley [2000] NSWCA 159
FILE NUMBER(S):	CA 40247/98
HEARING DATE(S):	19 May 2000
JUDGMENT DATE:	16 August 2000
PARTIES :	Insurance Exchange of Australasia Group v Mick Dooley Pacific Coast Baseball League Incorporated
JUDGMENT OF:	Handley JA at 1; Giles JA at 65; Fitzgerald JA at 66

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 5146/96
LOWER COURT JUDICIAL OFFICER :	Mahoney DCJ

COUNSEL:	J E Sexton QC (Appellant) D A Caspersonn (Respondent 1) M A Barko (Respondent 2) D H K Donovan QC/M F Eagle (Respondent 3)
SOLICITORS:	Connery & Partners (Appellant) McClellands (Respondent 1) E H Tebbutt & Sons (Respondent 2)
CATCHWORDS:	APPEAL - standing - whether third party has standing to appeal from judgment in favour of plaintiff - NEGLIGENCE - sporting injury - baseball - collision between fielder and runner - fielder obstructing runner contrary to rules - whether Baseball League allowed or tolerated dangerous conduct - RES JUDICATA - third party bound by judgment between plaintiff and defendant
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Judicature Act 1875 (UK) District Court Act 1973 (NSW) Supreme Court Act 1970 (NSW)
CASES CITED:	The Commissioner of Police v Tanos (1958) 98 CLR 383 Maxwell v Murphy (1957) 96 CLR 261 Sandtara Pty Limited v Abigroup Limited (1997) 42 NSWLR 5 Barclays Bank v Tom [1923] 1 KB 221 Benecke v Frost (1876) 1 QBD 419 Coles v Civil Service Supply Association (1884) 26 ChD 529 Barton v London & North Western Railway Co (1888) 38 ChD 144 CA Re Salmon (1889) 42 ChD 351 CA Eden v Weardale Iron & Coal Company (1887) 35 ChD 287 Cojuanco v Routley [1983] 1 NSWLR 723 Berkeley Challenge Pty Ltd v Potbury CA 18/12/97 unrep Bremner v Sinclair [No 2] CA 29/10/99 unrep Attorney General for Australia v The Queen [1957] AC 288 Hanson v Wearmouth Coal Co [1939] 3 All ER 47 CA Unsworth v Commissioner for Railways (1958) 101 CLR 73 Castellan v Electric Power Transmission Pty Limited (1967) 69 SR (NSW) 159 Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Limited (1986) 160 CLR 626 James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 Kelly v Newcastle Protective Coating Pty Ltd [1973] 2 NSWLR 45 Taren Point Bowling and Recreation Club v Shapter [1982] 1 NSWLR 219 Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd (1974) 132 CLR 1 The Milllwall [1905] P 155 CA Cottingham v Earl of Shrewsbury [1843] 3 Hare 627 Munni Bibi v Tirloki Nath (1931) 58 LR Ind App 158 Asphalt & Public Works Ltd v Indemnity Guarantee Trust Ltd [1969] 1 QB 465 CA Stewart v Sydney County Council [1973] 1 NSWLR 444 Legal and General Assurance Society Limited v The Commonwealth (1985) 3 ANZ Ins Cas 60-621 Giumelli v Johnston (1991) Aust Torts Rep 81-085 Agar v Hyde [2000] HCA 41 Edwards v Insurance Office of Australia Ltd (1933) 34 (SR) NSW 88 VACC Insurance Ltd v BP Australia Ltd (1994) 47 NSWLR 716
DECISION:	Appeal allowed with costs - orders made

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40247/98
DC 5146/96

HANDLEY JA
GILES JA
FITZGERALD JA

16 August 2000

INSURANCE EXCHANGE OF AUSTRALASIA GROUP v MICK DOOLEY & ANOR

APPEAL - standing - whether third party has standing to appeal from judgment in favour of plaintiff

NEGLIGENCE - sporting injury - baseball - collision between fielder and runner - fielder obstructing runner contrary to rules - whether Baseball League allowed or tolerated dangerous conduct

RES JUDICATA - third party bound by judgment between plaintiff and defendant

During a baseball game the plaintiff, a member of the fielding team, deliberately obstructed the first defendant, a member of the batting team, as he attempted to run for second base. The first defendant collided with the plaintiff who was injured. The plaintiff sued the first defendant and the League that controlled the baseball competition claiming damages for negligence. The second defendant joined the appellant as a third party pursuant to DCR Pt 21, claiming indemnity under its policy. The first defendant cross-claimed against the appellant pursuant to DCR Pt 20 and also claimed indemnity under the policy.
The trial Judge held that the defendants were each liable but were entitled to be indemnified by the appellant. The appellant was granted leave to appeal from the judgments against it and the judgments against the defendants in favour of the plaintiff. The plaintiff objected to the competency of the third party’s appeal against his judgments against the defendants.

HELD, allowing the appeal: (1) The insurer’s appeal against the judgments for the plaintiff against the defendants was competent and the Court had power to set aside those judgments. (2) The standing of the third party and cross-defendant depended on the effect of the judgments in favour of the plaintiff on the liability of the third party or cross-defendant to the defendants. (3) Under DCR Pt 21 r 4(1) a third party is “a party to the action” and bound by the decision as between the plaintiff and defendant. Sandtara Pty Ltd v Abigroup Ltd (1997) 42 NSWLR 5 followed. Eden v Weardale Iron & Coal Company (1887) 35 ChD 287, Barclays Bank v Tom [1923] 1 KB 221, Cojuanco v Routley [1983] 1 NSWLR 723, Re Salmon (1889) 42 ChD 351 CA referred to; Berkeley Challenge Pty Ltd v Potbury (CA 18/12/97 unrep); and Bremner v Sinclair [No 2] (CA 29/10/99, unrep) not followed. A third party bound by a judgment against the defendant adverse to its interests has the necessary standing to appeal. (4) DCR Pt 20 r 4(b) which applied to the first defendant’s cross-claim provides that the Court may give the defendant to the cross-claim leave to defend the plaintiff’s claim. Rule 4(d) empowers the Court to determine the extent to which the third party shall be bound by the trial of issues between the plaintiff and defendant. Orders were not made under DCR Pt 20 but the trial was conducted on the basis that the insurer had full rights of defence in respect of the plaintiff’s claims against the defendants. The case should be treated as if an order giving the cross-defendant leave to defend the action has been made. In such a case the cross-defendant will be bound by the result of the trial of issues between the plaintiff and defendant which are relevant to his liability to the plaintiff and will have standing to appeal against a judgment for the plaintiff.
Helicopter Sales (Australia) Pty Ltd v Rotor-Work (1974) 132 CLR 1 applied; The Millwall [1905] P 155 CA; Legal and General Assurance Society Limited v The Commonwealth (1985) 3 ANZ Ins Cas 60-621 not followed.
(3) The trial Judge erred in holding the defendants liable to the plaintiff.
Guimelli v Johnson (1991) Aust Torts Rep 81-085; Agar v Hyde [2000] HCA 41 applied.

ORDERS
(1) Appeal allowed with costs;
(2) Set aside the judgments entered for the plaintiff against the defendants Mick Dooley and Pacific Coast Baseball League Incorporated, and the judgments entered for the defendants Mick Dooley and Pacific Coast Baseball League Incorporated against Insurance Exchange of Australasia Group;
(3) In lieu thereof order that judgments be entered in the action for the defendants Mick Dooley and Pacific Coast Baseball League Incorporated and for the third party and cross-defendant Pacific Coast Baseball League Incorporated in the third party proceedings and the cross-claim;
(4) The plaintiff is to pay the costs of the defendants Mick Dooley and Pacific Coast Baseball League Incorporated of the trial;
(5) The defendants Mick Dooley and Pacific Coast Baseball League Incorporated are to pay the costs of Insurance Exchange of Australasia Group of the third party proceedings and the cross-claim respectively;
(6) No order as to the costs of the other cross-claims;
(7) The respondents Mick Dooley and Pacific Coast Baseball League Incorporated are to pay the appellant’s general costs of the appeal, other than the costs of the application for leave to appeal, and half the costs of the appellant of the hearing on 19 May 2000;
(8) The orders for costs made on 1 November 1999 are confirmed;
(9) No order as to the costs of the application for leave to appeal;
(10) The respondent William Raymond Eisenhuth to pay half the appellant’s costs of the hearing on 19 May 2000 being the proportion referable to the unsuccessful objection to the competency of the appeal against the judgments in his favour;
(11) The respondents Mick Dooley and Pacific Coast Baseball League Incorporated to have certificates under the Suitors Fund Act, in the latter case if the corporation is qualified;
(12) Costs to be set off.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40247/98
DC 5146/96

HANDLEY JA
GILES JA
FITZGERALD JA

16 August 2000

INSURANCE EXCHANGE OF AUSTRALASIA GROUP v MICK DOOLEY & ANOR

JUDGMENT


1    HANDLEY JA: This appeal from a decision of Mahoney DCJ arises out of injuries sustained by the plaintiff during a game of baseball on 26 November 1994. The contestants were two teams in the Pacific Coast League conducted by the second respondent (the League). The plaintiff, Mr William Eisenhuth, was fielding at second base, and the first defendant, Mr Mick Dooley from the other team, was at first base. The batter struck the ball and Mr Dooley ran for second base. The plaintiff, who was not fielding the ball, stood in his way, and Mr Dooley ran into him causing the injuries for which the action was brought. The plaintiff also sued the League.
2 The League joined the appellant as a third party by a third party notice filed on 23 October 1996 while DCR Pt 21 was in force. At the trial, which commenced on 2 February 1998, Mr Dooley was granted leave to file a cross-claim against the insurer seeking indemnity under the policy. This was governed by the new Pt 20 which took effect on 1 January 1997.
3    The trial Judge entered judgments for the plaintiff against Mr Dooley and the League for $31,900.83 and for both defendants against the insurer.
4    The insurer sought leave to appeal making the plaintiff and both defendants opponents to its summons. Leave was sought for an appeal against the judgments for the plaintiff against the defendants as well as the judgments for the defendants against the insurer. The defendants did not seek to appeal against the judgments for the plaintiff. Senior counsel appearing for the plaintiff on the leave application contended in his written submissions and orally that the plaintiff was not a necessary party to the insurer’s appeal.
5    Counsel for the insurer did not resist this submission, and the Court as then constituted granted leave limited to the judgments against the insurer. The notice of appeal as filed challenged the trial Judge’s findings that the defendants were negligent (see grounds 1, 2, 5, 6 and 7), but did not seek to have the judgments for the plaintiff set aside. Needless to say the plaintiff was not then a respondent party to the appeal.
6    When the appeal came on for hearing on 1 November 1999 the Court, which was differently constituted, raised with counsel for the appellant the problems created by an appeal which challenged judgments in favour of the plaintiff but did not, and could not, seek orders setting them aside because the plaintiff was not a party. The Court suggested that the judgments in favour of the plaintiff might be binding on the appellant and res judicata in the appeal as then constituted. Counsel for the appellant elected to seek an adjournment to allow it to join the plaintiff as a respondent and amend its notice of appeal and this was granted on terms.
7    On 13 December 1999 a Registrar made an order on the appellant’s notice of motion of 30 November adding the plaintiff as a respondent and granting leave to amend the notice of appeal to include prayers for the setting aside of the judgments in favour of the plaintiff. The notice of motion, in so far as it sought enlargement of the leave earlier granted and an extension of time for the filing of that application, was stood over for hearing by a Full Court.
8    Mr Donovan QC, who appeared for the respondent plaintiff at the hearing before us, opposed any extension of time and the enlargement of the leave. He relied on discretionary grounds arising from the original leave application, and the dismissal of the plaintiff from the proceedings which then occurred. He also argued that the appellant third party and cross-defendant had no standing to attack the judgments in favour of the plaintiff against the defendants. The Court decided, by majority, that the leave should be enlarged to permit the appellant to attack the judgments in favour of the plaintiff but we did not, at that stage, decide whether an appeal by a third party or cross-defendant against judgments for the plaintiff was competent.
9    The question of standing in a case such as this depends on the effect of a judgment in favour of a plaintiff on the liability of a third party to the defendant. If a judgment in favour of the plaintiff binds the third party as a res judicata, one would think, on first principles, that the third party would have the normal right of a litigant to be heard before that judgment was given, and to appeal against it should it be adverse. As Dixon CJ and Webb J said in The Commissioner of Police v Tanos (1958) 98 CLR 383, 395-6:
“… it is a deep-rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi-judicial proceeding he must be afforded an adequate opportunity of being heard … The general principle has been restated in this court … It is hardly necessary to add that its application to proceedings in the established courts is a matter of course”.

10    The starting point of the enquiry must be the procedural framework which authorised the joinder of a third party and governed the conduct of the third party proceedings. Part II of the Law Reform (Miscellaneous Provisions) Act 1946, including s 3 which authorised third party proceedings, applied to the District Court until the amendment by Act No 3 of 1978 to s 1A of the 1946 Act. Third party proceedings in the District Court were then governed by DCR Pt 21 until the new Pt 20 took effect on 1 January 1997. Amendments to the laws of practice and procedure normally apply to pending proceedings because “no suitor has any vested interest in the course of procedure” (Maxwell v Murphy (1957) 96 CLR 261, 267). However the new Rules contained a transitional clause (Government Gazette 1996 Vol 7 p 6977 (18/10/96)) which provided:

“The amendments made by this Rule do not apply in respect of notices of cross-claim or third party notices filed before 1 January 1997”.

11 Accordingly DCR Pt 21 continued to apply to the third party proceedings initiated by the League. Pt 21 rr 4 and 5 provided, so far as relevant:

“4(1) A third party shall, as from the time of service upon him of a third party notice, be a party to the action in which the notice was filed and, subject to the Rules, he shall have the same rights, and be subject to the same liabilities, in respect of the action as he would have had and been subject to if he had been sued in a separate action by the defendant.
(2) Without limiting the generality of sub rule (1), the third party shall plead in his notice of grounds of defence any grounds on which he disputes the plaintiff’s claim against the defendant or the defendant’s claim against the third party.
5(1) The Court may direct what part the third party shall take in the trial and generally the extent to which the usual procedures at a trial shall be modified because of the joinder of the third party”. (emphasis supplied)

12    Rule 4(1) makes the third party “a party to the action”. The effect of this is not in doubt. As the decision of this Court in Sandtara Pty Limited v Abigroup Limited (1997) 42 NSWLR 5 makes clear, with its citation from Barclays Bank v Tom [1923] 1 KB 221, 224, “The object of the third party procedure is … to get the third party bound by the decision between the plaintiff and the defendant” that is to make that decision a res judicata as between the defendant and the third party. This has been accepted ever since the third party procedure was introduced under the Judicature Act 1875. See Benecke v Frost (1876) 1 QBD 419, 421, 422; Coles v Civil Service Supply Association (1884) 26 ChD 529, 531; Barton v London & North Western Railway Co (1888) 38 ChD 144 CA (Barton), 149-50 per Cotton LJ: “… obtained an order for leave to serve them as third parties in order that they might be bound by the decision of the matters to be tried in the action”; 152 per Lindley LJ: “They are to be bound by the result of the trial of the question”; 152-4 per Bowen LJ: “A judgment obtained … against the company would only be a judgment inter partes, and but for the third party rule would not bind the transferees if they chose to re-ventilate the question … the third party … is being brought in that he may be bound by the result of a litigation into which he was not originally introduced”; and In re Salmon (1889) 42 ChD 351 CA, 360, 361 per Lord Esher MR, 362 per Cotton LJ. 13 The second limb of r 4(1) confers on the third party “rights and liabilities” in the action. A defendant who sued the third party in separate proceedings would have to establish his liability to the plaintiff as against the third party. The second limb enables the third party to contest the defendant’s liability to the plaintiff, and for that purpose, to participate in the trial between plaintiff and defendant, and invoke pre-trial procedures against the plaintiff. 14 The provisions of r 4(2) support this construction because they require the third party to plead to the plaintiff’s claim against the defendant, as well as the defendant’s claim against him. There would be no point in requiring the third party to plead to the plaintiff’s claim if he had no right to contest it at the trial. This provision reverses that part of the decision in Barton (ibid at 151) where Cotton LJ held that persons served as third parties were not at liberty to deliver defences as if they were defendants. It has long been settled that a third party may raise a defence on behalf of a defendant which the defendant himself has not raised: Barclays Bank v Tom [1923] 1 KB 221, 224. 15 Rule 5(1), which is incorporated in r 4(1) by the expression “subject to the Rules”, enables the Court to direct “what part the third party shall take in the trial”. The fundamental principle must be the right of the third party to procedural fairness in the trial of the action as between plaintiff and defendant. The common law right of the third party to be heard, on an issue which could impose on him a liability to the defendant, cannot be denied by directions under a procedural power such as this. However there may be issues between plaintiff and defendant which are of no concern to the third party, who should not be permitted to meddle in the hearing on such issues. 16 The right of a third party to full procedural fairness has been accepted since shortly after the introduction of the third party procedure. In Eden v Weardale Iron & Coal Company (1887) 35 ChD 287, the Court of Appeal held that a third party was entitled to interrogate the plaintiff to establish, in the words of Scrutton LJ in Barclays Bank v Tom (ibid at 224), “… that the plaintiff ’s claim against the defendant cannot be supported”. Cotton LJ said at 292:

“… the order puts them in this position, that before that question of indemnity arose at all, they were to come in and at the trial of the action to contest with the plaintiff the right which he claims as against the original defendant. They were entitled for the purpose of litigating the question raised by the plaintiff in his action to appear at the trial, and to contest that with him, and to attend the proceedings in the action, where the plaintiff, as against the defendants, was seeking to obtain judgment”.

17    See also Cojuanco v Routley [1983] 1 NSWLR 723.

18    In Barton (ibid) the Court of Appeal held that the pre-trial and trial procedures must ensure that third parties are not “subjected to injustice” (per Cotton LJ at 151), exposed “to any risk of injustice”, have the opportunity “of seeing that these questions are fairly and properly investigated” (per Lindley LJ at 152), and are “provided with adequate machinery for protecting their title”, so that what is “necessary for the purpose of justice … will be done” (per Bowen LJ 153, 155). Then in Re Salmon (1889) 42 ChD 351, 362 Cotton LJ said:

“Mr Justice Kekewich seems to have made use of some expressions which might be construed to mean that he must try the whole case over again between the third parties and the Defendant. That would defeat the intention of the third party rules. The third party is at liberty to appear at the trial and, in my opinion, if they wished to cross-examine the Plaintiff ’s witnesses on the question whether the Defendant was liable to the Plaintiff, they were entitled to do so, and Mr Justice Kekewich would have been wrong in refusing to allow them to do so”.

19    These cases reveal a growing recognition of the right of the third party to participate in the trial as between the plaintiff and the defendant, so far as relevant to the defendant’s claim against the third party, culminating in the recognition by Cotton LJ in the passage quoted of the right to cross-examine the plaintiff ’s witnesses. In the same case the Court of Appeal upheld the right of a third party to be heard on an appeal by the plaintiff against a judgment for the defendant. 20    In the light of these authorities, I must respectfully differ from the opinion expressed by Powell JA in Berkeley Challenge Pty Ltd v Potbury (CA 18/12/97 unrep) at p 3 where his Honour said:

“Despite the provisions of Part 21 r 4 of the District Court Rules, as they then were, third and subsequent parties, while becoming parties to the action, did not become parties to the issues raised between the plaintiff and the defendant”.

21    Nor am I able, with respect, to accept his Honour’s statement at p 6:

“Since the District Court Rules as they then were did not - and since the new Rules which came into operation from 1 January do not - provide for a third party being given leave to defend the action between the plaintiff and the defendant, the position, as I have earlier recorded, is that a third party in the District Court - and, for that matter, in this Court, where the position is the same - did not - and does not - become a party to the action between a plaintiff and the defendant. That being so a third party cannot appeal against the Judgment in that action even if it is adverse to his interests”.

22    See also Bremner v Sinclair [No 2] (CA 29/10/99 unreported per Powell JA at 42-44). 23    The first of those cases was heard on 6 November 1997 after the judgment of this Court in Sandtara Pty Limited v AbigroupLimited (1997) 42 NSWLR 5, delivered on 6 August 1997 before it was reported. This unanimous and considered decision on the effect of a third party being a party to the action is also applicable in the District Court where the third party procedure was governed by DCR Pt 21. The Court was not invited to reconsider this decision. 24 A litigant who is a party to proceedings, and bound by a judgment which is adverse to his interests must, in principle, have the necessary standing to appeal. In the present case there is no difficulty because s 127(1) of the District Court Act provides that “A party who is dissatisfied with a Judge’s judgment or order in an action may appeal to the Supreme Court”. In Attorney General for Australia v The Queen [1957] AC 288 the Attorney General, as an intervener in the proceedings below, was permitted to appeal from the decision of the High Court. 25 It is also well established that a defendant who is prejudiced by a judgment against another defendant may appeal and secure its reversal or variation. See Hanson v Wearmouth Coal Co [1939] 3 All ER 47 CA, 55; Unsworth v Commissioner for Railways (1958) 101 CLR 73, 88, 94, 95 (where the appellant obtained an order increasing the amount of the judgment entered against another defendant); Castellan v Electric Power Transmission Pty Limited (1967) 69 SR (NSW) 159, 175, 186-7, 188; Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Limited (1986) 160 CLR 626, 670-2 per Brennan J and 679-80 per Deane J; James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53, 63 per Gaudron and Gummow JJ; Kelly v Newcastle Protective Coating Pty Ltd [1973] 2 NSWLR 45, 52-3; and Taren Point Bowling and Recreation Club v Shapter [1982] 1 NSWLR 219, 223-4. 26 Similarly in Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd (1974) 132 CLR 1 (Helicopter) the High Court allowed an appeal by a third party against a judgment for the plaintiff. This decision will be considered in more detail when dealing with the cross-claim under DCR Pt 20. 27 For these reasons in my judgment the third party’s appeal against the judgment entered in favour of the plaintiff against the League is competent, and this Court has the power in that appeal to set aside that judgment. 28 DCR Pt 20, in force when Mr Dooley issued his cross-claim, provides in r 1(1) that a claim “on any cause of action on which the defendant might have brought an action in the Court” may be pleaded as a cross-claim. Rules 4 and 6 provide:

“4 The Court may, at any stage of an action, on terms:
(a) order that any cross-claim or any question or issue in or arising on any cross-claim shall be separately tried;
(b) give to a defendant to the cross-claim leave to defend the claim on the statement of claim … either alone or in addition to any other party;
(c) give to a defendant to the cross-claim leave to appear at the trial or hearing of the claim on the statement of claim … and to take such part in the trial or hearing as the Court thinks fit;
(d) determine the extent to which the cross-claimant and a defendant to the cross-claim shall be bound as between themselves by a judgment … or decision … on the claim on the statement of claim …


6(4) Subject to this Part, the trial or hearing and all other steps in the proceedings on a cross-claim in an action shall as far as practicable be carried on together with the trial or hearing and similar steps in the action”.

29 The trial commenced and continued without any orders being made pursuant to DCR Pt 20. It was conducted on the basis that the insurer had full rights of defence in respect of the plaintiff ’s claims against the League and Mr Dooley, and counsel for the insurer cross-examined the plaintiff without objection. 30 The decision in Helicopter (ibid) is directly relevant to the cross-claim. That case was heard in the Supreme Court of Queensland under rules of court substantially in the terms of DCR Pt 20 and an order was made giving the third party leave to defend the plaintiff’s action. No order was made determining the extent to which the third party was to be bound by any judgment in the action (ibid 14). Judgment was given for the plaintiff against the defendant and for the defendant against the third party. The third party appealed to the High Court against both judgments. There was no objection to the competency of the appeal against the judgment for the plaintiff, but the Court considered that question. Barwick CJ said at 4-5:

“It seems to me that a third party who is given leave to defend a plaintiff ’s action, and who does so, is bound by the result of the issues which that third party contests. That it seems to me is so, not only on principle but having regard to the case law on O 16 r 4 of the Supreme Court Rules (Eng) … In my opinion, the function of par 4 of that Rule, and of like words in O 17 r 4(4) of the Rules of the Supreme Court (Q) is to enable the Court to limit the extent to which such a third party may be so bound … the result of the third party contesting issues in the action does not depend on the making of an order determining the extent to which the third party should be bound but upon the making of an order giving the third party leave to defend the plaintiff ‘s action. Further where a third party does contest that action without leave to defend having been given, it may well be proper to deal with the case as if an order giving leave had been made”.

31    Mason J said at 15:

“I do not feel … any difficulty in dealing with both of the third party’s appeals. The third party defended the plaintiff ‘s action pursuant to an order giving it leave so to do. Although no order was made binding the third party to the result of the trial of the issues between the plaintiff and the defendant, it was in my view in these circumstances entitled to appeal against the judgment against the defendant. I should have taken the same view had the third party defended the plaintiff ’s action without the benefit of an order giving it leave so to do”.

32    Thus Barwick CJ and Mason J considered, albeit only in dicta, the situation which occurred in the present case where a third party defended the action against the defendants without any order being made under r 4(b), (c) or (d). Both Justices considered that in such a case the third party would have standing to appeal against a judgment entered for the plaintiff. Stephen J, with the agreement of Menzies J, joined in allowing the third party’s appeal and setting aside the judgment for the plaintiff. Stephen J said at 14: “the appropriate course appears to be to treat the matter … as if an order had been made binding [the third party] by the result of the trial of the issues between the plaintiff and defendant …”. 33 There are statements in The Millwall [1905] P 155 CA which suggest a contrary result. Cargo owners sued the owners of the carrying barge and the owners of the tug. The trial Judge found the owners of the tug liable and exonerated the owners of the barge. In third party proceedings he ordered the owners of the barge to indemnify the owners of the tug under an indemnity clause in the hiring contract. The owners of the barge sought to appeal against the judgment for the plaintiff against the owners of the tug. 34 Collins MR said at 162-3:

“The point is taken for the plaintiffs that that is not an appeal which the owners of the barge are in a position to make. It is an appeal as to a decision between the plaintiffs and other parties, namely the owners of the tug; and the plaintiffs say, therefore, that the owners of the barge cannot draw that question into discussion by way of appeal unless they were … themselves parties to that decision … Obviously they are not parties to the decision … Counsel for the owners of the barge … rest their case … upon the machinery of the third-party procedure of the Judicature Act . When, however, we come to examine what is taking place … it seems to me that there has been no decision which will put the owners of the barge into the shoes of the tug-owners for the purpose of questioning the decision of the court below as between the plaintiffs and the owners of the tug. There would, I think, have been power under the Judicature Act had the court been invited to do it; but there is no order… [His Lordship then referred to the rules of court which were substantially in the same terms as DCR Pt 20 r (4).] No order has been made determining that the third parties, the owners of The Millwall, were bound by the judgment in the action, and therefore, so far as I can see - without expressing any opinion - there is nothing binding the barge owners by the result of the judgment between the plaintiffs and the tug-owners ”. (emphasis supplied)

35    Matthew LJ agreed with the Master of the Rolls. Cozens-Hardy LJ said at 165-6:

“… the mere bringing in of a third party does not, apart from some subsequent order, make the judgment in the action binding upon him … no order has been made enabling the third party to defend the action by the plaintiffs against the tug-owners. There was a lis as between the plaintiffs and the owners of the barge, in which the plaintiffs were unsuccessful; there was another lis between the plaintiffs and the tug-owners, in which the plaintiffs had been successful … If the owners of The Millwall had obtained an order allowing them to defend the action against the tug-owners, then they might possibly have appealed against the judgment. That they cannot now do”.

36    Although Collins MR said that the barge owners were not parties to the decision against the owners of the tug, and Cozens-Hardy LJ said at the trial there was one lis (issue) as between the plaintiffs and the owners of the barge, and another lis (issue) as between the plaintiffs and the tug owners, the owners of both vessels were defendants in the action. Where either one or both of two defendants may be liable to the plaintiff there is also an issue between the defendants, and a decision that one defendant is liable and the other is not binds the defendants not only against the plaintiff but as between themselves. There is ample authority for this proposition dating from Cottingham v Earl of Shrewsbury [1843] 3 Hare 627, 638 including several decisions in the Privy Council. In Munni Bibi v Tirloki Nath (1931) 58 LR Ind App 158, 165-6, Sir George Lowndes held that there could be res judicata estoppels between co-defendants and continued:

“ … three conditions are requisite:
(1) there must be a conflict of interest between the defendants concerned;
(2) it must be necessary to decide the conflict in order to give the plaintiff the relief he claims; and
(3) the question between the defendants must have been judicially decided”.

37    Accordingly the owners of the barge who were held not liable to the plaintiff were bound by the decision that the owners of the tug were liable quite apart from the effect of the third party proceedings. See generally Spencer Bower, Turner & Handley “Res Judicata” 3rd Ed p 112. 38    This part of the reasoning in The Millwall is unsatisfactory and it is also contrary to the decisions recognising the right of one defendant to appeal against a judgment in favour of another. It was followed in Asphalt & Public Works Ltd v Indemnity Guarantee Trust Ltd [1969] 1 QB 465 CA. The plaintiffs sued the indemnity company under a bond given for the due performance of work by a sub-contractor. The company brought in the guarantors of the sub-contractor as third parties. The plaintiff succeeded against the company which succeeded against the third parties. The company accepted its liability but one of the third parties appealed and sought to challenge the judgment for the plaintiff. The third parties had been given leave to appear at the trial and oppose the plaintiff ’s claim so far as they might be affected, and for this purpose to call evidence and cross-examine the plaintiff ’s witnesses (ibid 466). Lord Denning MR said at 470:

“The third party was not made a party to the action between the plaintiffs and defendants … he remained only a third party who was allowed to take part at the trial so as to see whether … the Indemnity Trust Co would be liable on the bond … ”.

39    His Lordship then referred to The Millwall [1905] P 155 CA and continued:

“There are observations by Collins MR and Cozens-Hardy LJ which show that if … an order has been made binding [the third party] as against the plaintiff, then he may be allowed to appeal direct against the plaintiff … It remains for us then to say when a third party can appeal directly against the plaintiff. In my opinion a third party cannot do so except by leave of the court: but the court can give leave whenever it thinks it just and convenient to do so”.

40    Edmund Davies LJ also referred to The Millwall and continued at 473:

“… it is perfectly clear from the order made by the official referee (1) that this third party was not bound by the judgment awarded in the plaintiff ’s favour … It is … not right to say that in every case where a third party has been given leave to defend he is thereby ipso facto entitled to appeal directly against the judgment awarded in the plaintiff ’s favour. Certainly in the present case I concur with the Master of the Rolls, in holding that it has not been made out that such a right exists”.

41    This decision was referred to by Stephen J in Helicopter (ibid at 14) but only as authority for the proposition that if the trial is conducted as if an order had been made binding the third party by the result of the trial as between plaintiff and defendant, the third party is entitled to appeal against a judgment in favour of the plaintiff. The reasoning in the later decision of the Court of Appeal adds nothing to the reasoning in The Millwall. 42    If the result of the rules of court, or directions given under them, is that a third party is not bound by the decision as between the plaintiff and the defendant, the third party would lack the standing to appeal against that decision. However in that event the defendant would have to prove his liability to the plaintiff all over again as against the third party. This would defeat the purpose of the third party procedure which is to make a judgment as between plaintiff and defendant binding on the third party. As Blackburn J said in Benecke v Frost (1876) 1 QBD 419, 422:

“The object of the Act was not only to prevent the same question being litigated twice, but to obviate the scandal which sometimes arose by the same question being differently decided by different juries”.

43    The working out of these principles, where the actions against the defendant and the third party were tried with a jury, was considered in Stewart v Sydney County Council [1973] 1 NSWLR 444 (Stewart). Kerr CJ said (ibid 450) that it was the duty of the trial Judge to secure “consistency of result in the two actions” and (450-1) “he should, for that purpose have directed the jury that if they found the disputed questions of fact in favour of the plaintiff, then, on the basis of those facts, the defendant was entitled to a verdict against the third party”. Hutley JA said (457-8):

“… a trial involving third and further party issues is not just a series of separate trials. It is a set of trials submitted to a single tribunal of fact … which has the same evidence before it when it deals with the successive issues which it has to decide … In a third party situation the trial judge is bound to give directions which will contribute to the internal consistency of the verdicts of the jury as between the multiple parties to the proceedings. One of the objects of a third party procedure is to ensure as far as possible that the apportionment of responsibility and loss in a complex situation proceeds on a consistent basis … the objective of the third party procedure will not be realised if judges do not direct juries as to the consequences of the bases upon which they are entitled to find for the plaintiff upon secondary claims, and that they should follow these consequences”.

44    In Legal and General Assurance Society Limited v The Commonwealth (1985) 3 ANZ Ins Cas 60-621 Ryan J, who delivered the principal judgment in the Full Court of Queensland on these questions, referred to the passage from the judgment of Scrutton LJ in Barclays Bank v Tom quoted by this Court in Sandtara Pty Limited v Abigroup Limited (1997) 42 NSWLR 5, 8 and said at 78, 799:

“It follows from this that a judgment will be defective if inconsistent factual findings are made in an action and in a third party proceeding”.

45    He then referred to the reasons for judgment of Hutley JA in Stewart to the same effect and continued at 78, 800:

“It is an unwarranted step from this to assert that the third party may not on an appeal attack a judgment given in an action insofar as it has the effect of imposing a liability upon it. A third party has no standing which will enable it to appeal against the judgment given in the action between the plaintiff and the defendants. That judgment subject to appeal will be conclusive as between the plaintiff and the defendant. But it will not necessarily be conclusive in an appeal by the third party as to its liability. The third party procedure should ensure a consistent set of findings at a trial but it does not preclude the third party on appeal from asserting that its liability to a defendant is not determined by findings in the action brought by the plaintiff against the defendant … To conclude otherwise would impose a restriction on the right of appeal of a third party which would prevent it from challenging a central issue on which its own liability depends …”.

46    This reasoning would deny a third party standing to appeal against a judgment for the plaintiff, and would, following a successful appeal, countenance conflicting judgments in the same proceedings. This is contrary both to the res judicata principle, which seeks to avoid conflicting judgments, and to the decision of the High Court in Helicopter, which Ryan J did not refer to.

47    In my view the Court must follow the decision in the Helicopter case and should apply the dicta of Barwick CJ and Mason J to hold that this appeal by the cross-defendant from the judgment entered for the plaintiff against the second defendant is competent. 48    I can now turn to consider the merits of the appeal. The Judge heard evidence about the collision between Eisenhuth and Dooley over several days from a number of witnesses. He preferred the evidence of the umpire, Mr Andrews, and this finding was not challenged. The batter hit the ball and ran for first base. Dooley, who was on first base, ran for second base which was being guarded by Eisenhuth. The fielder at short stop threw the ball to first base. The Judge recorded the following findings:

“Eisenhuth positioned himself in a way in which he was trying to impede Dooley from gaining second base safely … Dooley was trying to run through Eisenhuth and thereby gain second base before he was tagged. Seventh, Eisenhuth was expecting that Dooley would not break the rules of baseball by trying to run though him, while at the same time Dooley believed he was entitled, under the rules as he understood them, to run through Eisenhuth because Eisenhuth was not ‘in the act of fielding’. I find also that Eisenhuth did not voluntarily assume the risks to which he was exposed by the conduct of Dooley … nor did Eisenhuth voluntarily expose himself to the risks which [the League] allowed to exist … by allowing games to be played in an environment in which players … such as Dooley believed he could legitimately do what he did on this particular occasion”.

49    The rules of baseball do not support the Judge’s view that Dooley broke them by trying to run through Eisenhuth. The fielder had created an obstruction within the meaning of the rules by standing on the base line between first and second bases when he did not have the ball and was not in the course of fielding it. The ball was being thrown to first base. A note to rule 7.06(b), which is itself part of the rules, states:

“NOTE: The catcher, without the ball in his possession, has no right to block the pathway of the runner attempting to score. The base line belongs to the runner and the catcher should be there only when he is fielding a ball or when he already has the ball in his hand”.

50    With respect his Honour’s finding that Eisenhuth was not expecting Dooley to try to run through him cannot be supported either because it was contrary to Eisenhuth’s own evidence. He said that the game, including running between bases, is played at a fast pace (20). A collision could occur if a fielder got in the way of a runner and someone could get hurt (20), this can occur if the game is played correctly in accordance with the rules (21), and he agreed that he played “accepting that that sort of thing can occur under normal circumstances” (21). 51    Later in his cross-examination he gave the following evidence (46):

“Q. Or you might run into or be run into by one of the opposing team?
A. Yes.
Q. That sort of incident can occur accidentally?
A. For sure.
Q. And you accept that as part and parcel of the game?
A. Oh yes, of any sport.
Q. Do we take it that what you do not accept is that an intentional attempt may be made to hurt you or to injure you by an opposing player?
A. I don’t accept, like, that sort of thing happening at all.
Q. But unintentional accidents you accept may occur?
A. Yeah I have had broken fingers and things by people sliding into second on tags and it’s all legit. Probably happens all the time. Just a lot of people never notice it.
Q. In your mind you brought these proceedings because you thought that Mr Dooley had acted intentionally when he collided with you?
A. Yes”.

52    He gave the following evidence (23-4):

“Q. You indicated that the line between the two bases is where the runner you thought should run?
A. Right.
Q. What would be the situation if for example one of the fielding side was to stand between the two bases on the line where the runner is supposed to run?
A. Without the ball in his hand?
Q. Without the ball in his hand?
A. He’d get bowled.
Q. He’d get?
A. Probably hit.
His Honour: Q. What by the runner?
A. Hit by the runner, be called for obstruction.

Polin: Q. And so what would you say the runner is entitled to do if the fielder was standing in that sort of position?

A. They can either go around him or push him out of the way.
Q. So are you saying that the runner has effectively the right of way in that situation?
A. In some instances yes.
Q. In what instances doesn’t he have the right of way in that situation I described?
A. If a man is fielding a ball”.

53    Evidence to the same effect was given by Mr Seitz, a player in Eisenhuth’s team who sometimes acted as a referee. He confirmed that in the situation which arose Mr Dooley, the runner, had the right of way (83-4). This was also the understanding of Mr Andrews, who refereed the game (110-111), who also gave this evidence (120):

“Q. Is it alright for a player who was obstructed by a fieldsman to just run him down under the rules?
A. If the fieldsman is not giving way to the runner then he is allowed to - is generally allowed to barrel the fielder.
Q. Could you point out in the rule book where the rule is that permits that sir?
A. No.
Q. There’s no such rule is there?
A. Not well not in that rule book no.
Q. So in effect what you are saying sir, and correct me if I’m wrong, the rule book says one thing about that sort of behaviour but the League condoned that sort of violence on the field occurring?
A. No not at all no. If there’d been any violence I would’ve ejected him.
Q. What do you understand the word ‘barrelled’ to mean?
A. To run into.
Q. That’s not a form of violence as far as you’re concerned?
A. That is contact but there is a difference between violence - -.
Q. Sir let’s just talk about barrelling then. It’s a type of contact that can result in injury to players isn’t it?
A. Correct.
Q. And the League condoned that didn’t it?
A. No.
Q. Isn’t that what you’ve just told us?
A. No.
Q. Tell us again what you consider the position to be about barrelling players in that situation?
A. What I am saying is that if a fielder gets in the road of a runner where there’s no play being made in the runner, many runners will run into the fielder looking for the obstruction call to get the extra base.
Q. And they weren’t breached when they did that?
A. No”.

54    The award of an extra base by the umpire in such circumstances can arise under r 7.06(b) which provides:

“If no play is being made on the obstructed runner, the play shall proceed until no further action is possible. The umpire shall then call ‘time’ and impose such penalties, if any, as in his judgment will nullify the act of obstruction”.

55    Both Eisenhuth (43) and Andrews (above) understood that in the event of an obstruction the runner could be awarded, as a penalty against the fielding team, an extra base. This was the means used by umpires to enforce the right of way in favour of the runner conferred by the note to rule 6.06(b). Dooley had the same understanding (red 50). Andrews, the umpire, saw nothing unusual in Dooley’s running (105), and after the collision took no action against Dooley (119). The only question he considered was whether he should call obstruction on Eisenhuth (108), but did not do so because Dooley could have run around him. However a runner who deviated from the base line took the risk that he could be given out for doing so if the umpire did not call obstruction. 56    The Judge accepted Dooley’s evidence that he did not intend to hurt Eisenhuth (72). The evidence from the plaintiff referred to above demonstrates that the Judge was in error in finding that he did not expect that Dooley would try to run through him to gain second base. It also establishes that Eisenhuth knowingly took a risk when he obstructed Dooley’s run along the base line, and that Dooley, who did not intend to hurt Eisenhuth, was not negligent in attempting to exercise his right of way to gain second base and perhaps force an obstruction call and the award of a further base. 57    In the passage quoted, the Judge found that Dooley’s actions involved a breach of the rules of baseball, but an examination of the rules referred to, and the evidence of Andrews and Seitz, establishes the opposite, namely that Dooley had the right of way. Indeed the Judge, earlier in his reasons, made findings based on a correct understanding of the rules (42-3, 52). Claims of assault and battery and negligence arising from injuries sustained during a sporting contest must be determined in the light of the rules which govern the relevant sport. It was common ground that the relevant legal principles were correctly stated by King CJ in Giumelli v Johnston (1991) Aust Torts Rep 81-085 at 68709-68710:

“Although a player’s consent to the application of force to him in the course of the game extends not only to the application of force within the rules of the game but also to certain commonly encountered infringements of the rules, … such consent cannot be taken to include physical violence applied in contravention of the rules of the game by an opposing player who intends to cause bodily harm or knows, or ought to know, that such harm is the likely result of his actions”.

58    In view of the Judge’s findings, no question of intentional violence can arise, and on other unchallenged findings of the Judge, and the additional findings which in my view should be substituted, the collision between Eisenhuth and Dooley was either within the rules of the game or was the result of a commonly encountered infringement of those rules, the infringement in this case being that of Eisenhuth, not Dooley. In my opinion therefore the judgment in favour of the plaintiff against Dooley must be set aside. 59    The judgment against the League was based on the Judge’s findings that it allowed games to be played “in an environment in which players … such as Dooley believed he could legitimately do what he did on this particular occasion” (61) and that it tolerated “a state of affairs such as was conceded by Mr Andrews as existing within this particular League” so that it was incumbent upon it “either by way of changing the rules or publishing some form of bulletin or communique to all involved in the game [to inform them] that the black letter of the law was to be regarded as having been overtaken by the transgression of that black letter law in practice”. The evidence given by Mr Andrews to which the Judge referred was that given by him at 120-121. He had earlier found that as at November 1994 when the accident occurred baseball was a non-contact sport but that this changed in 1995 or 1996 he continued:

“It would seem then, and I am drawing an inference from his evidence, that the dynamics of the game had been changing or evolving over some period of time since when the rules, as set out in exhibit 11 were formulated up to and including 26 November 1994 … but that the rules were not keeping pace with those changing or evolving dynamics of the game. Next it seems that the rules were updated in 1995 or 1996 to accommodate to the de facto situation which both umpires and [the League] had allowed to evolve or to happen in the period leading up to and including 26 November 1994”.

60    There was no evidence that the relevant rules of baseball played within the League had been changed between November 1994 and the trial. No witness gave evidence to that effect, and Andrews and the scorer at the game, Mrs Franco, said that the rules had not been changed since 1993 (64, 109). Baseball had not officially become a contact sport. 61    Moreover, with respect, the rules cover the situation which arose in this case by declaring, with utter clarity, that the runner had the right of way. The rule, which both players understood, is intended to prevent collisions just as the right of way rules in the motor traffic regulations are intended to prevent traffic accidents. The problem in this case, on the unchallenged findings of the Judge, was that Eisenhuth stood his ground and attempted to obstruct Dooley’s progress to second base. 62    In addition there was no evidence that the League “allowed” any risks to exist, or “allowed” games to be played with violence, or “tolerated” any dangerous state of affairs in the competition it organised. Referees such as Andrews belonged to a different association. They were charged with the responsibility for enforcing the rules but were not otherwise under the control of the League. An attempt to prove a history of dangerous and violent collisions during games conducted by the League established no such thing (53-4), and the relevant documents were not even included in the appeal book. See also Young (72). Since writing the foregoing the High Court has given judgment in Agar v Hyde (3/8/2000 [2000] HCA 41). This decision provides a further reason for setting aside the judgment against the League. 63 For these reasons the judgment in favour of the plaintiff against the League must also be set aside. 64 The following orders should be made:

(1) Appeal allowed with costs;

(2) Set aside the judgments entered for the plaintiff against the defendants Mick Dooley and Pacific Coast Baseball League Incorporated, and the judgments entered for the defendants Mick Dooley and Pacific Coast Baseball League Incorporated against Insurance Exchange of Australasia Group;

(3) In lieu thereof order that judgments be entered in the action for the defendants Mick Dooley and Pacific Coast Baseball League Incorporated and for the third party and cross-defendant Pacific Coast Baseball League Incorporated in the third party proceedings and the cross-claim;

(4) The plaintiff is to pay the costs of the defendants Mick Dooley and Pacific Coast Baseball League Incorporated of the trial;

(5) The defendants Mick Dooley and Pacific Coast Baseball League Incorporated are to pay the costs of Insurance Exchange of Australasia Group of the third party proceedings and the cross-claim respectively;

(6) No order as to the costs of the other cross-claims;

(7) The respondents Mick Dooley and Pacific Coast Baseball League Incorporated are to pay the appellant’s general costs of the appeal, other than the costs of the application for leave to appeal, and half the costs of the appellant of the hearing on 19 May 2000;

(8) The orders for costs made on 1 November 1999 are confirmed;

(9) No order as to the costs of the application for leave to appeal;

(10) The respondent William Raymond Eisenhuth to pay half the appellant’s costs of the hearing on 19 May 2000 being the proportion referable to the unsuccessful objection to the competency of the appeal against the judgments in his favour;

(11) The respondents Mick Dooley and Pacific Coast Baseball League Incorporated to have certificates under the Suitors Fund Act, in the latter case if the corporation is qualified;

(12) Costs to be set off.

65    GILES JA: I agree with Handley JA. 66    FITZGERALD JA: The judgment of Handley JA enables me to express my conclusion and reasons briefly. 67 On 26 November 1994, the plaintiff Eisenhuth, who was a member of the fielding team, deliberately obstructed one of the defendants, Dooley, who was a member of the batting team, as he ran between bases during a game of baseball. Eisenhuth did not have the ball in his possession and knew that his obstruction of Dooley was a breach of the rules. 68 Dooley could have run around Eisenhuth. Instead, in an attempt to gain the base to which he was running, he ran in a straight line, which, as he expected, brought him into collision with Eisenhuth. 69 Eisenhuth was seriously injured. Dooley did not intend to injure Eisenhuth or know or have reason to suspect that he would be injured. 70 The League organised and controlled the competition in which the teams of which Eisenhuth and Dooley were members were playing when Eisenhuth was injured. 71 Eisenhuth sued Dooley and the League, claiming damages for negligence. A claim against Dooley for trespass to the person was abandoned during the trial. 72 On 23 October 1996, the League joined the appellant, its insurer, as a third party, claiming an indemnity under the applicable policy of insurance if it was held liable to Eisenhuth. In its defence to the League’s third party claim against it, the appellant pleaded that Dooley was also insured under the material policy in order to allege a breach of the policy entitling it to deny liability to the League. On about 2 February 1998, Dooley served a cross-claim on the appellant, claiming an indemnity in respect of his liability, if any, to Eisenhuth. The League’s third party claim was instituted prior to 1 January 1997 and is governed by Part 21 of the District Court Rules, which, although repealed, continues to apply to proceedings brought by a defendant against an additional party prior to that date. Dooley’s cross-claim against the appellant was instituted after 1 January 1997 and is governed by Part 20 of the District Court Rules. There are substantial differences between Part 20 and Part 21. 73 The trial judge held that Dooley and the League were each liable to Eisenhuth for negligence and that Eisenhuth was contributorily negligent. Judgment was given for Eisenhuth against each of Dooley and the League for $31,900.83. His Honour also held that each of Dooley and the League is entitled to be indemnified by the appellant under the insurance policy. 74 His Honour found that Eisenhuth had “made out his case in negligence” against Dooley because Dooley’s conduct in running into Eisenhuth was “proscribed by the rules”, notwithstanding that the rules “contemplate the likelihood of there being physical contact from time to time between a … runner and a fielder.” Although “Dooley believed he was entitled, under the rules as he understood them, to run through Eisenhuth”, Dooley breached the rules because he “could have run around Eisenhuth without colliding with him.” On the other hand, while “Eisenhuth was expecting that Dooley would not breach the rules of baseball by trying to run through him”, Eisenhuth was also “at fault” because he was in breach of the rules by obstructing Dooley. His Honour stated that “Eisenhuth did not voluntarily assume the risks to which he was exposed by the conduct of Dooley executing what Dooley thought he was entitled to do on the day in question ….” 75 His Honour continued: “… nor did Eisenhuth voluntarily expose himself to the risks which [the League] allowed to exist in the league which it was conducting by allowing games to be played in an environment in which players, not brand new players either, such as Dooley believed he could legitimately do what he did on this particular occasion.” 76 In later passages, his Honour said:

“…it was incumbent upon [the League] either by way of changing the rules or publishing some form of bulletin or communique to all involved in the game that the black letter of the law was to be regarded as having been overtaken by the transgression of that black letter in practice. To do anything less than that deprived players such as [Eisenhuth], who it must be remembered must have been a senior player - he was almost twice the age of Doley, as were at least two other members of his team - having the opportunity of electing whether or not to stay in and voluntarily assume the risk of young, if I may describe them in this way, tearaway players such as Dooley or whether to retire from the game and take on lawn bowls or croquet or something of that nature.”
……
“In coming to this view I have had regard to the fact that both Eisenuth and Dooley had been playing the game during all of the time that the social dynamics were bringing about the stage where, in a year or two after the incident, the rules were changed and it was thereafter declared a contact sport. Also, Eisenhuth and Dooley were trying to achieve their respective aims, which were in competition with one another’s respective aims. Either could have backed off and risked earning the opprobrium of their respective team mates. Neither of them did. The honour and glory of playing the game goes to the winner. Both of them knew that a measure of physical contact was, if not allowed by the rules, then nevertheless condoned or tolerated to a greater or lesser degree. These factors have led me to the view that the plaintiff and each of the defendants whom he seeks to make responsible were equally to blame.
…
..it seems to me, as I have said, the factual matrix surrounding two contesting teams in a game of baseball, which is being organised in a competition for a pennant or a shield for the winner at the end of the season, to my mind calls for a significant amount of give and take.
…
As I have indicated previously, this was not an assault. I accept Dooley’s evidence that he did not intend to hurt anyone and I therefore am of the view that there was no relevant animus in Dooley to constitute an assault…… It was a sport, at the time that the policy was issued, which contemplated a measure of physical contact between opposing team members.
…
…I accept Dooley’s evidence that he genuinely thought that he was entitled to run through an obstructing player who was not “in the act of fielding”.

77    With the possibility of an appeal in mind, the trial judge recorded in his reasons for judgment that he was not influenced by the demeanour of any of the witnesses, that he had not “relied on anything other than their spoken word as it will appear in the Appeal Book”, and that he “would imagine that anyone else who saw fit to re-evaluate the evidence would be able to make just as fair an assessment of the evidence, as I have sought to do in this judgment, without having resort to hearing the witnesses give the evidence”. 78    The evidence established that obstructions in breach of the rules were common, and, whether or not their conduct technically breached the rules, runners who were impermissibly obstructed commonly ran into obstructing fielders. A runner who ran into an obstructing fielder usually was awarded the base to which he was running, whereas a runner who deviated more than 3 feet from either side of a straight line drawn between the bases between which he was running might be given out. Both Eisenhuth and Dooley were experienced players, and Eisenhuth was aware when he obstructed Dooley that obstructed runners commonly ran into obstructing fielders and that Dooley might run into him. 79    Further, there was no evidence of injuries from collisions between fielders and runners prior to the injury which Eisenhuth sustained when Dooley ran into him, and no reason for the League to consider that the manner in which the game was played was dangerous. 80    I cannot identify any actionable negligence by either Dooley or the League. Even if baseball was not officially a “contact sport”, collisions such as that between Eisenhuth and Dooley commonly occurred, did not cause injury, and were accepted by participants in the sport as an ordinary feature of their game. Cf Agar v Hyde 2000 HCA 41. 81 I agree with the other members of the Court that the trial judge erred when he held Dooley and the League liable to Eisenhuth. 82 Neither Dooley nor the League appealed against the judgments in favour of Eisenhuth, who has no judgment against the appellant insurer. Further, if the judgments in favour of Dooley and the League against the appellant were set aside, Eisenhuth would not be entitled to recover from the appellant under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946. 83 On the other hand, unless the appellant is entitled to rely on a breach of the policy, the liabilities of Dooley and the League to Eisenhuth which are established by his judgments against them entitle them to indemnity from the appellant. Edwards v Insurance Office of Australia Ltd (1933) 34 (S.R.) NSW 88,94; VACC Insurance Ltd v BP Australia Ltd (1994) 47 NSWLR 716, [26]. 84 In these circumstances, Eisenhuth’s erroneous judgments against Dooley and the League should be set aside if the Court has power to do so on an appeal by the appellant without an appeal by Dooley and the League. 85 As noted earlier, para 7. the appellant was joined by the League as a third party in a proceeding governed by Part 21 of the District Court Rules. As a third party, the appellant is a party to the action between Eisenhuth and the League and is bound by Eisenhuth’s judgment against the League See the cases cited in para 12 of the reasons for judgment of Handley JA. There was no order for a separate trial under Rule 6.. As a party dissatisfied by that judgment in that action, the appellant has a right of appeal to this Court. District Court Act 1973, s 127; Supreme Court Act 1970, s 48. 86 Because of a change in the Rules, Dooley did not join the appellant as a third party but cross-claimed against it in a proceeding governed by Part 20 of the District Court Rules. However, the trial was conducted without any distinction being drawn between the League’s and Dooley’s respective claims against the appellant. In the circumstances, the question whether the appellant is entitled to appeal against Eisenhuth’s judgment against Dooley should be determined as if directions had been given under Rule 4 which had the effect of attaching the same consequences to the separate proceedings of the League and Dooley against the appellant. cf Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1. 87 I agree with the orders proposed by Handley JA.

******