Just GI Pty Ltd v Nomoheith Pty Ltd

[2000] QSC 163

SUPREME COURT OF QUEENSLAND

CITATION:

Just GI Pty Ltd & Ors  v Nomoheith Pty Ltd [2000] QSC 163

PARTIES:

JUST GI PTY LTD ACN 010 645 708
(first plaintiff)
and
NOMOHEITH PTY LTD ACN 060 188 367 as trustee of the Nimrod Discretionary Trust
(second plaintiff)
and
MARKEV PTY LTD ACN 078 666 476 as trustee of the Evans Family Trustee
(second plaintiff)
and
PIG IMPROVEMENT COMPANY AUSTRALIA PTY LTD ACN 058 819 328
(defendant)

FILE NO:

S5461 of 1998

DIVISION:

Trial Division

DELIVERED ON:

8 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2000

JUDGE:

Mackenzie J

ORDER:

1. The application be dismissed with costs to be assessed.

CATCHWORDS:

PRACTICE – LEAVE TO FILE THIRD PARTY NOTICES – Application to join third parties in action for damages – breach of contract – negligence – Trade Practices Act – Question whether leave should be granted – will cause delay – lost revenue.

Trade Practices Act 1974

UCPR 192

AMP Fire & General Insurance Company Limited v Dixon (1982) VR 833
Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471
Wasley v Frost (1974) 7 SASR 506

COUNSEL:

K.A Barlow for the plaintiffs
R. Myers for the defendant 

SOLICITORS:

Russell and Company for the plaintiffs
Carter Newell for the defendant

1. MACKENZIE J:  The action in which the application is brought is one where the plaintiffs seek to recover damages from the defendant who allegedly was responsible for introducing an infectious disease into the plaintiff's piggery.  The applicant defendant seeks leave to file third party notices against several persons who are alleged to have been involved in aspects related directly or indirectly to the transaction. 

1. It is pleaded in the amended statement of claim that in 1997 a partnership (the Silpurse Partnership) was entered into by the plaintiffs to conduct a commercial piggery at Westbrook and a specialised wholesale pork business called Riverside Wholesale Meats.  The defendant was a pig breeder and trader. 

1. At about the time the partnership commenced there were discussions between the plaintiff and defendant about destocking the piggery and repopulating it with  a new herd of breeding stock of high health status.  Subsequently, the defendant advanced a proposal for it to restock the piggery with its genotype from the Pepperina facility.  At a later date, an agreement for the plaintiff to lease breeding stock from the defendant was entered into and pigs were supplied. Some time later diseased pigs were introduced into the piggery which, despite efforts to stop the disease spreading, caused loss.  The prayer includes claims for damages for breach of contract, negligence and under the Trade Practices Act.

1. There are four identifiable categories of proposed third parties.  The first group Campastco Pty Ltd and/or four individuals named Cameron, who comprised the Cameron Pastoral Company, are alleged to be persons from whom the defendant acquired the pigs for supply to the plaintiff.  The second group, Mr Sullivan and his eponymous company, were allegedly retained by Campastco or Cameron Pastoral Company to advise them of the health status of the pigs.  It is alleged that the defendant was dependant on all of these parties for advice as to the existence of disease in the herd. 

1. The third group, Mr Cutler and Ross Cutler & Associates Pty Ltd, are alleged to have negligently or in contravention of the Trade Practices Act advised the plaintiffs to slaughter the pigs after the outbreak of the disease.  The fourth category, Herd Management Services Pty Ltd, is alleged to have induced the plaintiff to deal with the defendant by making representations concerning the benefit of herds with the health status of those in which the defendant dealt.  The defendant alleges that these representations were not made on behalf of the defendant or was in breach of the Trade Practices Act by rendering services to the plaintiff without due care and skill. 

1. The writ was filed on 18 June 1998.  The statement of claim was not filed until 27 July 1999 and was amended on 30 July 1999.  The defence was delivered on 10 September 1999 but, if filed as the parties assert, it seems to be missing from the file.  In any event, the defendant requested particulars of the statement of claim on 15 October 1999 which were filed on 1 December 1999.  There was a change of solicitors for the plaintiff, notice of which was filed on 7 February 2000, although it appears that the defendant knew of this no later than early January 2000.  At the time of the hearing before me it was foreshadowed that there might be issues with respect to the extent of disclosure, particularly with respect to the allegation of loss. 

1. It can be seen from what has been said that the matter has moved fairly expeditiously once the plaintiff filed the statement of claim, although the filing of it was quite belated, since 13 months elapsed after the writ was filed before it was delivered. 

1. An affidavit from Mr Lewis, General Manager of Silpurse Partnership, deposes to the partnership's desire to bring the matter to trial as soon as possible because of the financial effects of delay.  This is understandable.  Resistance to the application to join the third parties is on the basis that inconvenience to the plaintiffs of delay and the additional costs involved outweigh the inconvenience to the defendant of having to make its claims in a separate action.  Amongst specific factors identified as supporting the submission were the risk of further delay because of uncertainty and imprecision in the defendant's case against at least some of the three parties, differences between the issues in the plaintiffs' action and the defendant's claims and the absence of any explanation why the issue of third party notices had not been pursued until so late.

1. UCPR 192 allows a defendant to file a third party notice if it wishes to:

(a)         claim contribution or indemnity against a person who is not a party;

(b)         claim relief against a person who is not a party;

(i)        relating to or connected with the original subject matter of the proceedings; and 

(ii)       substantially the same as relief claimed by the plaintiff; or

(c)         require a question or issue relating to or connected with the original subject matter of the proceedings to be decided not only as between the plaintiff and the defendant but also as between either of them and a person not already a party to the proceedings.

1. It is not disputed that the case was one where notices could be filed against the proposed third parties.  The dispute concerned whether at this point leave should be given. 

1. Examples can be found in the cases where leave to file a third party notice has been refused.  In Wasley v Frost (1974) 7 SASR 506 Mitchell J observed that an application for leave to issue a third party notice made after pleadings had closed is less likely to be granted than one made immediately after the filing of the defence. In that particular case the proposed third parties were not material to the principal relief, specific performance of a contract to purchase a home, but only to damages. In Phonesivorabouth v Tops Services Pty Ltd (1992) 106 FLR 471, Kearney J was concerned with a case where the plaintiff had to close a leased market stall because of non-compliance with fire regulations. The claim was based on breach of covenant of quiet enjoyment and the defendant wished to join the Northern Territory as third party on the basis it had given negligent advice about the fire safety requirements. The rationale for joining third parties was expressed in the following passage:

"The public policy sought to be advanced by allowing a third party to be joined in an action is the need to ensure finality in litigation and to avoid multiple proceedings with their associated extra costs.  Further, by preventing the same questions being tried twice, the possibility of different decisions on the same issues being given by differently constituted courts is avoided, that possibility being a matter calculated to bring the administration of justice into disrepute.

The grant of leave ..... to file a third party notice out of time is discretionary.  In general, there is a strong argument against granting such leave where the effect of doing so would be to embarrass or delay the plaintiff.  Nevertheless, it is a matter of balancing the inconvenience to the plaintiffs of the inevitable delay which will be caused by a late joinder in this case, against the inconvenience to the defendant of not having the claims of the plaintiffs and its claim against the Northern Territory of Australia heard at the same time."

1. For the applicant reliance was place on AMP Fire & General Insurance Company Limited v Dixon (1982) VR 833. That appears to be a case where a third party notice had issued and the court was concerned with the question of separate trials of the issues under it. In that sense it is different from the present case. Nevertheless, it is authority for the proposition that it is only in exceptional circumstances that the power to order separate trials of the plaintiffs' claim against the defendant and the defendant's claim against the third party should be exercised.

1. The issue is whether the case is one where leave should be refused.  The delay in filing the statement of claim has been referred to above.  A complaint was made that the defendant has not adequately explained why the application has not been brought until recently.  It is true that it is some time since the defence was filed.  However, the action has moved relatively quickly since that point and there has been a change of solicitors in the meantime.  I am not prepared to treat this as a matter of particular significance in resolving the matter. 

1. However, if the third parties were joined the proceedings would be complex because of the variety of issues raised.  The trial would be significantly lengthened and the hearing date significantly delayed.  These are not decisive factors but where a balance has to be made the last matter particularly is one element to be considered, in a case where considerable financial stress has been placed upon a party, especially in a case where there seems to be little if any dispute that the pigs supplied were diseased. 

1. Further, the issues relating to the alleged conduct of the first to fourth third parties are concerned with breaches of warranty and implied conditions of merchantable quality and misleading and deceptive conduct as well as with an allegation of negligence.  While the allegations of the defendant may go to the question of negligence it is less easy to see how they are likely to be of the same kind of impact in relation to the other claims.

1. If the third party notices issue the effect will be that a simple case where the plaintiff alleges that pigs, warranted to be disease free or delivered subject to a condition of merchantable quality, will balloon into a case where the role of the first four third parties, with three potential separate interests, who may each wish to defend their own conduct inter se, will be examined in detail.  If one concentrates on the breach of warranty and of the condition of merchantable quality it is not easy to see why the resolution of issues relating to the quality of conduct of the first to fourth defendants can impinge on the plaintiff's rights.  Nor will there be much in common between the evidence in the case as between the plaintiff and the defendant and the issues as between the defendant and the first to fourth third parties on those claims.

1. So far as the fifth and sixth third parties are concerned the issue raised goes principally to mitigation although it is drafted in such a way as to raise an issue in negligence or breach of warranty or conditions of merchantability as between the plaintiff and the fifth and sixth third parties.  In practical terms the defendant is not precluded from raising any of the issues bearing on mitigation if the third party claim is not allowed to proceed at this time.

1. With respect to the seventh third party the allegation is that a person Hitchens, who is alleged to have made certain representations to the plaintiff on behalf of the defendant, was in fact making them on behalf of the seventh third party.  It is a question of fact which the defendant can raise without recourse to third party proceedings.  If it is established to be the case the defendant is not liable for the representations.  It is noted that where the allegation is made that Hitchens made the representations he is alleged to be in company with one or more persons whose status as someone speaking on behalf of the defendant is not in issue.  It is not clear that in the circumstances any prejudice could occur to the plaintiff in this regard in the absence of third party proceedings. 

1. In my view the case is one where because of the factors to which reference has been made, I should refuse leave.  The order is that the application be dismissed with costs to be assessed.