Lawrence v Faulkner
[2003] TASSC 45
•2 July 2003
[2003] TASSC 45
CITATION: Lawrence v Faulkner [2003] TASSC 45
PARTIES: LAWRENCE, Effingham Frank
v
FAULKNER, Stewart Gregory
FAULKNER, Ian David
LAWRENCE, Effingham Frank
v
FAULKNER, Ian David
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 110/2002
FCA 111/2002
DELIVERED ON: 2 July 2003
DELIVERED AT: Hobart
HEARING DATES: 19, 20 March 2003
JUDGMENT OF: Crawford and Slicer JJ
CATCHWORDS:
Procedure - Supreme Court Procedure - Tasmania - Practice under Rules of Court - Other matters arising before trial - Consolidation of actions - Standing to apply - Whether applicant must be a party to both actions - Exercise of discretion to order consolidation.
Supreme Court Rules 2000 (Tas), rr9, 188.
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, distinguished.
Malika Holdings v Stretton (2001) 204 CLR 290; Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, referred to.
Aust Dig Procedure [277]
Torts - The law of torts generally - Joint or several tortfeasors - Contribution - Limitations as to time - Limitation defence not pleaded by defendant to damages action - Whether available to party against whom contribution is sought.
Wrongs Act 1954 (Tas), s3(1)(c).
Aust Dig Torts [15]
REPRESENTATION:
In appeal FCA 110/2002
Counsel:
Appellant: G Griffith QC and M F Wheelahan
First Respondent: P L Jackson
Second Respondent: J J Graves SC and C H Hobbs
Solicitors:
Appellant: Dobson Mitchell & Allport
First Respondent: Jackson & Tremayne
Second Respondent: C H Hobbs
In appeal FCA 111/2002
Counsel:
Appellant: G Griffith QC and M F Wheelahan
Respondent: J J Graves SC and C H Hobbs
Solicitors:
Appellant: Dobson Mitchell & Allport
Respondent: C H Hobbs
Judgment Number: [2003] TASSC 45
Number of Paragraphs: 75
Serial No 45/2003
File Nos FCA 110/2002FCA 111/2002
EFFINGHAM FRANK LAWRENCE
v STEWART GREGORY FAULKNER AND IAN DAVID FAULKNER
EFFINGHAM FRANK LAWRENCE
v IAN DAVID FAULKNER
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
SLICER J
2 July 2003
Orders of the Court
Each appeal is upheld and in each it is ordered:
That the orders made on 9 December 2002 whereby the interlocutory application filed on 30 August 2002 was dismissed and the appellant was ordered to pay costs, is set aside.
That action 489 of 2000 is consolidated with action 862 of 1999.
That in the consolidated action, Stewart Gregory Faulkner shall be the plaintiff, Ian David Faulkner shall be the defendant and Effingham Frank Lawrence shall be the third party.
That pars 3 - 8, and insofar as it is not determined by this Court, par9 of the interlocutory application are remitted to a judge for rehearing and determination.
Serial No 45/2003
File Nos FCA 110/2002FCA 111/2002
EFFINGHAM FRANK LAWRENCE
v STEWART GREGORY FAULKNER AND IAN DAVID FAULKNER
EFFINGHAM FRANK LAWRENCE
v IAN DAVID FAULKNER
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
2 July 2003
The appellant applied for an order consolidating two actions, in the second of which he was sued as a defendant. He sought to have himself named as a third party in the consolidated action. He also sought other consequential orders upon consolidation. At the hearing of interlocutory applications seeking those orders in each of the actions, the issues were confined, with the agreement of the parties, to the question whether the actions should be consolidated. The appellant failed in his bid for consolidation. See Faulkner v Faulkner [2002] TASSC 107. Subsequently, on 9 December 2002, it was ordered that his interlocutory applications be dismissed with costs. He has appealed.
The first action
The first of the two actions was between a son and his father. By a writ filed in the Hobart Registry on 28 October 1999 in action No 862/1999, Stewart Gregory Faulkner ("son") sued Ian David Faulkner ("father") for damages for personal injuries he claimed to have suffered over 25 years before, in September 1974, as a result of his father's negligence in failing to provide for him necessary medical consultation, treatment and care. The son was born on 29 December 1972 and was 20 months of age at the time the alleged cause of action arose.
By the statement of claim, the son pleaded that at all material times he resided with his father at Hobart. He claimed that on or about 21 September 1974, he contracted a disease known as haemophilus meningitis and as a result suffered permanent injuries and disabilities, that were particularised as including profound sensorial hearing loss in his left ear, total hearing loss in his right ear and a disposition to nervous disorders. He also claimed that his injuries and disabilities were caused by a delay in him receiving proper treatment for the disease. In par3, the son pleaded a duty which he claimed had been owed to him by his father:
"3At all material times it was the Defendant's duty as the father of the Plaintiff, and the Plaintiff relied upon the Defendant, to provide total care and the necessaries of life for the Plaintiff, including all necessary medical consultation, medical treatment and medical care."
The allegation in par3 would not have been pleaded merely for the purpose of expounding the role and responsibilities of fathers concerning their offspring. A statement of claim is required by the Supreme Court Rules 2000, r227(1), to contain in summary form a statement of all the material facts on which the plaintiff relies in support of the claim. Its purpose is to give reasonably explicit notice to the defendant of all grounds of action on which the plaintiff intends to rely at the trial. See r227(3). Therefore, there is no doubt that the purpose of pleading par3 in the statement of claim was to give notice that what the son was claiming was that his father owed him the pleaded duty and that it was a duty upon breach of which, with consequent injury or damage, the son claimed that the civil law of negligence recognised a cause of action for damages had arisen. The additional allegation in par3 that the son relied upon his father for the performance of that duty, bears the hallmark of a pleading of a duty of care under the law of civil negligence.
A breach of that duty by the father was no doubt intended to be pleaded in par7, in which it was alleged that the plaintiff's injuries and disabilities were caused by the father's negligence. The pleaded particulars of the father's alleged negligence included claims that he failed to observe that his son was seriously ill; failed to ensure that his son was seen by a paediatrician and that a general practitioner referred him to one; failed to ensure that his son was admitted to hospital; and allowed too much time to pass between the onset of the illness and the son's admission to hospital for specialist treatment.
The duty was not denied
The father's defence to the statement of claim in the first action was dated 27 January 2000. The only allegation in the statement of claim that he denied was the pleading that his son's injuries and disabilities were caused by his negligence. He expressly admitted everything else. If the father and son were engaged in genuinely contested litigation, conducted at arms length and without the contrivance and collusion between them that the appellant, Dr Lawrence, seeks to maintain, it might well have been expected, if the case had been conducted in the usual way expected of lawyers, that the father would have denied the existence of the duty raised by par3 of the statement of claim. There is authority for the proposition that the moral duties of conscientious parenthood do not as such provide the child with any cause of action when those duties are not, or badly, performed or neglected, and that the law does not impose a general duty to take reasonable care to protect the child against foreseeable danger simply because of the blood relationship. Hahn v Conley (1971) 126 CLR 276 per Barwick CJ at 283, 284. I am unaware of any authority in this country that would support the son's claim to such a duty and that would surely have opened the floodgates of litigation by disgruntled children against their parents. However, it must be presumed that the son had some expectation or at least hope, of hurdling that barrier, when he instituted his action.
No limitation defence was pleaded
It would also normally be expected in a case such as this, that the defendant would have sought to defend himself by pleading the Limitation Act 1974, s5(1). It provides for a basic three year limitation period for the bringing of an action such as the son's action, calculated from the accrual of the alleged cause of action, in this case probably September 1974. Under subs(3), a discretionary power is given to a judge upon an application made by the person claiming the damages, to extend the limitation period, provided that it is not extended beyond six years after the accrual of the cause of action. It seems likely, but not certain of course, that the son's claim became absolutely barred by time in September 1980. Section 26(1), which applies to claimants who are under a disability, such as a person under 18 years of age, might have extended the limitation period in this case so that time did not commence to run until the son's eighteenth birthday, but the writ was issued beyond any such extended date. In that regard, I note that the learned judge stated in his reasons for judgment that it was apparently the case that the son was in the custody of his father when the alleged right of action accrued to him. If so, s26(6) would have prevented s26(1) from assisting the son.
No third party proceedings were taken
If the father had wished to seek contribution or indemnity from the appellant with respect to his son's claim, it would have been expected, if he had followed the course usually adopted by defendants to actions for damages for personal injuries negligently caused when those defendants wish to seek contribution to those damages from another party, that he would have taken third party proceedings against the appellant, seeking to add him as a third party in the action instituted by the son, under the Supreme Court Rules, Pt7, Div15. However, once again, the course taken by the father was unusual. No third party proceedings were instituted.
Interlocutory judgment by consent
The father consented to his son having interlocutory judgment against him. Dated 10 July 2000, it provided that the son recover from his father damages to be assessed.
The second action
Three days later, on 13 July 2000, the father commenced the second action. He sued the appellant for an indemnity in respect of his liability to pay damages to his son. The claim purported to be made pursuant to the Tortfeasors Contributory Negligence Act 1954, s3(1)(c). However, the name of the Act had by that time been amended to the Wrongs Act 1954, by the Tortfeasors Contributory Negligence Amendment Act 2000, s5, that came into operation on 29 June 2000.
By the statement of claim in the second action, the father pleaded the first action. He pleaded that by reason of the interlocutory judgment in that action, he was liable to his son in respect of the damages claimed by him. He further pleaded that the appellant was at all material times a qualified medical practitioner practising as a general practitioner. The appellant admitted all of those facts.
Pleaded in the statement of claim in the second action, and not admitted by the appellant in his defence, were that the appellant had prior to September 1974, practised as a registrar in paediatrics in Canada; that on 21 September 1974, the son became ill; that on the same day, the son was taken to the appellant's surgery for assessment, diagnosis and appropriate medical treatment; that the appellant was provided with a history of the son's condition and examined him; that on 22 September 1974, the appellant was advised by telephone on two occasions, of the progress of the son's condition; that during that evening, the appellant attended the father's home, obtained further advice as to the son's condition and again examined him; that on 24 September 1974, the son was again taken to the appellant's surgery, the appellant was provided with further advice as to the son's condition and the appellant examined him; that the appellant rendered accounts to the father for those medical consultations; that by reason of those facts, the appellant owed a duty of care to both the father and the son; and that at some time on or between 21 and 24 September 1974, the son contracted the disease haemophilus influenzae meningitis ("the disease").
Pleaded in the statement of claim in the second action and denied by the appellant, were that on each of the consultations, the appellant failed to diagnose, ascertain or suspect that the son had or might contract the disease and diagnosed instead that he was suffering from "a virus", and that on each of the consultations the appellant, in breach of the duty of care he owed the son and the father, was negligent. Particulars of negligence included allegations that the appellant failed to realise that the son was critically ill and had the obvious signs of the disease, and to take steps required as a result; that he failed to consult with or refer the son to a specialist paediatrician or other specialist; that he failed to have the son admitted to a hospital; and that he failed to administer or arrange appropriate medical care and treatment for the son. The father claimed that as a result, his son suffered injuries and disabilities.
In the statement of claim in the second action, par16, it was pleaded, no doubt because of the provisions of the Wrongs Act, s3(1)(c), that the appellant was a tortfeasor, who if he had been sued by the son in September 1974, would have been liable in respect of the same damage for which the father was liable by reason of the interlocutory judgment in favour of the son. The appellant denied that. The father claimed from him contribution by way of complete indemnity for the father's liability pursuant to the interlocutory judgment.
It is undoubted that if the son had directly sued the appellant for damages at the time of the institution of the first action, the latter would have been able to successfully defend the action, over 25 years after the material events, by pleading the Limitation Act. But if instead the son commenced an action against his father for damages, as he in fact did, then irrespective of whether the action had a sound basis or could be defeated by the father because he had a good defence, the father had 12 months after the service of the writ upon him in which to make a claim against the appellant to recover contribution, without the risk of being faced with a limitation defence to the contribution claim from the appellant. That is because of the Wrongs Act, s3(5) that provides:
"(5) Notwithstanding any provisions of any enactment requiring notice of damage or injury to be given, or notice of an intended action to be given, or limiting the time within which an action may be brought, proceedings for contribution under this section may, although notice of damage or injury, or notice of an intended action, as the case may be, has not been given, or the time so limited has expired, be commenced at any time within the period of twelve months (or within such extended period as may be allowed pursuant to subsection (6) of this section) after the writ in the original action was served on the person seeking to recover contribution."
In this case, the writ in the first action was served on the appellant no earlier than 28 October 1999 and s3(5) therefore allowed the father 12 months after that date in which to commence proceedings to recover contribution from the appellant pursuant to the Wrongs Act. The position is put beyond doubt by the Limitation Act, s7(1), that provides that where an action is brought against a person in respect of any damage, nothing in that Act shall be taken to prejudice or affect the operation of the Wrongs Act in relation to an action for contribution in respect of that damage. As was noted by the learned judge from whose decision the appeal has been brought, the appellant is unable to rely on any limitation defence in relation to the father's claim against him, unless he is somehow able to take advantage of a limitation defence that was available to the father in the son's action, and not pleaded. His Honour noted that the father and the son did not concede that any unpleaded limitation defence was available.
By his amended defence to the second action the appellant asserted that the father had a complete defence to the first action because of the provisions of the Limitation Act, s5(1), and that the father did not owe a duty of care to his son and did not breach any such duty of care. By pars22 - 25, the appellant raised a claim of an abuse of process by reason of contrivance and collusion by and between the father and son. He pleaded that they had entered into or executed an agreement for the institution of the first action in respect of which the father would and did consent to interlocutory judgment for an improper purpose, namely to create a situation whereby the appellant was unjustly deprived of a limitation defence available to him in any proceedings that might have been brought against him by the son; that the father and the son knew or believed that the claim in the first action had no justification in law or fact; and that the father owed the appellant a duty to defend the first action so as to minimise any damages payable, thereby minimising his claim for damages against the appellant. By par25, the appellant pleaded that the conduct of the father and the son in respect of both proceedings, if they are prosecuted to judgment, would complete the tort of conspiracy by lawful means to the disadvantage of the appellant and that the proceedings should be permanently stayed. By par26, he pleaded that the proceedings in the second action amounted to an abuse of process.
The appellant's interlocutory applications
In both actions, the appellant filed interlocutory applications seeking orders to the following effect:
(i)that the two actions be consolidated pursuant to the Supreme Court Rules 2000, r188;
(ii)that, in the consolidated proceeding, the son be the plaintiff, the father be the defendant, and the appellant be a third party;
(iii)that the appellant as third party have leave to defend the son's action and contest the father's liability to the son, pursuant to the Supreme Court Rules, r208;
(iv)that, in the consolidated proceeding, the consent judgment be set aside;
(v)that, in the consolidated proceeding, there be an enlargement of the time within which an application for summary judgment against the son may be made;
(vi)that, in the consolidated proceeding, summary judgment be entered for the father against the son on the ground that the father has a good limitation defence;
(vii)alternatively, that the consolidated proceeding be dismissed as an abuse of process;
(viii)that the third party proceedings be dismissed; and
(ix)that the son and the father pay the appellant's costs.
At the commencement of the hearing of the interlocutory applications, the appellant sought leave to amend the interlocutory application in the second action so as to seek an additional order that summary judgment be entered for the appellant against the father on the ground that the father had no liability to the son, and that the appellant therefore had a good defence to the father's contribution claim. At the suggestion of the learned judge, all counsel agreed that at that stage his Honour should proceed to determine only those parts of the interlocutory applications whereby the appellant sought consolidation of the two actions with the son standing as plaintiff, the father as defendant, and the appellant as a third party.
The appellant wishes to have the two actions consolidated so that as third party, he can seek leave under the Supreme Court Rules, r208(2)(c), to defend the son's action, and plead the Limitation Act, s5(1), which was not pleaded in the father's defence. Under r208(2)(c), a third party may be granted leave to defend the action, either alone or jointly with the defendant. As pointed out by the learned judge, a direction to that effect will often be appropriate if the defendant does not wish to defend the action, or if the third party wishes to raise a point not pleaded in the defendant's defence. It was said by Bowen LJ in Barton v London and North Western Railway Co (1888) 38 Ch D 144 at 154, that if it can be made out that there was a sham defence, the third party may be allowed to do what the defendant has not been effectively doing. In Callender v Wallingford (1884) 53 LJ QB 569 at 570, Lord Coleridge CJ held that if it appears desirable, an order may be made that puts a third party in the place of the defendant. His Lordship continued: "It is obvious that there may be cases where even without collusion, and a fortiori with collusion, it may not suit the defendant to defend, and in such cases I think the third party should be allowed to take his place." A somewhat different order was made in Witham v Vane (1880) 49 LJ Ch 242, that the third party have liberty to deliver a defence to the plaintiff's statement of claim, limited to such points, if any, as by the defendant's defence might not have been raised.
Standing to apply for consolidation
The learned judge held that because of the provisions of the Supreme Court Rules, r188(2), the appellant had no standing to apply for consolidation. By ground 9 in each appeal, the appellant maintains that was erroneous.
The power to order proceedings to be consolidated is in r188:
"188 ¾ (1) The Court or a judge may order proceedings to be consolidated in any case in which ¾
(a)substantially the same question is involved in all those proceedings; or
(b)the decision in one proceeding will determine the other proceeding.
(2) An application for an order may be made by a party to 2 or more of the proceedings."
The learned judge upheld submissions on behalf of the son and the father that the appellant was not entitled to apply for consolidation because he was a party to only one of the two actions, and therefore not a party authorised by subr(2) to apply for a consolidation order. For the appellant it was submitted that he was entitled to apply for consolidation, and the learned judge had the power to order consolidation, because of the powers given by r9:
"9 ¾ The Court or a judge may exercise any power under these rules ¾
(a)of the Court's or judge's own motion; or
(b)on the application of a person who has a sufficient interest."
The learned judge said that he would have accepted the appellant's submission that r9 gave the necessary power if it was not for r188(2). However, he regarded r188(2) as a rule of special application that applied to consolidation applications, and considered that it prevailed over r9(b) which was a provision of general application, relating to all powers under the Supreme Court Rules. His Honour referred to the general rule of interpretation that where there is a conflict between general and specific powers, the specific provisions prevail, and applied that rule.
With respect, I do not agree. The two rules are not incompatible. There is no sound reason why r9 should be read down. It is specific in its terms and clear when it provides that "any power under these rules" may be exercised by the court or a judge either of the court's or judge's own motion or on the application of a party who has a sufficient interest. The effect of r188(2) is that a party to both actions has a sufficient interest to apply for consolidation, but under r9(b), another party, who can persuade the court or a judge of a sufficient interest, may also apply. In particular, there is no reason to read down the power given to the court or a judge by r9(a) to exercise any power under the Rules of the court's or judge's own motion. That was ample authority for the learned judge to make the order for consolidation in this case.
The father and son rely on the dictum of Mason J in Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678, that "when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power". See also Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7. However I do not read r188(1) as conferring the power to order consolidation subject to any limitations or qualifications. Subrule (2) is not expressed as imposing any such restrictions, but is facultative. In my view, r9 is as much a special power as r188. It expressly applies to all powers of the Court or a judge under the Rules and should not be read down.
I point out that if there is any doubt as to the procedure to be followed, as evidenced by the contrary submissions of the parties and the different views of judges, it may be resolved by exercising the jurisdiction given by the Supreme Court Civil Procedure Act 1932, s201(1), to make such orders and give such directions as may be necessary to meet the case.
I therefore hold that the learned judge was in error when he held that he did not have the power to make an order consolidating the two actions.
Whether consolidation could be permitted
It was argued for the son and the father that r188(1) does not permit the consolidation of the two actions because neither par(a) nor par(b) was satisfied. I do not agree. Substantially the same questions are involved in both actions, the liability of the father to the son and the amount of damages to which the son is entitled, if that liability is established.
The exercise of the discretion whether to order consolidation
In the event that he had the power, the learned judge held that he would exercise the discretion against the appellant and decline to order consolidation. The appellant asserts that the discretion miscarried. It is necessary to consider why the learned judge would have exercised the discretion in that way.
It was submitted to the learned judge on behalf of the appellant, that the son's claim against his father was barred by the Limitation Act, s5(1), when the writ in the first action was filed. However, his Honour noted that a prospective defendant is entitled to waive the right to rely on a limitation defence, and can engage in conduct that gives rise to an estoppel precluding reliance on a limitation defence. Commonwealth of Australia v Verwayen (1990) 170 CLR 394. When a limitation defence is available, a defendant may choose not to plead it, in which the case the plaintiff's claim will be determined at trial on its merits, without regard to the limitation issue. To be relied on as a defence, the limitation bar must be pleaded. Commonwealth of Australia v Verwayen (supra) at 405 - 406, 425 - 426, 456 - 457, 473 - 474, 497 - 498.
There was no evidence before the learned judge as to whether the father waived the right to rely, nor as to whether he had so conducted himself as to become estopped from relying upon a limitation defence, or as to whether he deliberately chose not to plead the limitation defence. It was submitted for the appellant that it should be inferred that the son's action had been contrived to enable the father to seek contribution from the appellant, and to place the appellant in a position where he would be unable to plead a limitation defence. It was argued that the inference should be drawn from the relationship of father and son, the failure of the father to plead the limitation defence in the son's action, the entry of the consent interlocutory judgment, the institution of the father's action three days later and the fact that counsel for the father adopted the submissions of counsel for the son during the hearing of the interlocutory applications. To those facts I think may be added as material the failure of the father to deny the existence of the duty of care pleaded in par3 of the son's statement of claim and his apparent decision not to commence third party proceedings against the appellant in the son's action, but instead to take what is an unusual course by commencing a separate action against the potential third party, thereby raising the likelihood of inconvenience and extra cost as a result of two actions instead of one. It was submitted to the learned judge that in the absence of any evidence from the son or the father as to waiver, estoppel, the son suffering detriment, or any other matter that would have made a limitation defence unavailable to the father, it should be inferred that the father had, in relation to the son's action, a limitation defence with merit.
Concerning the drawing of an inference of contrivance and collusion against the son and the father, they argued that the onus of proof was on the appellant. None of the parties gave or called evidence. The son and the father made no admissions. The learned judge agreed that the onus of proof was on the appellant and described his submissions as misconceived. Apart from the records of the court, his Honour could find nothing that shed any light on the thinking of the son or the father, or on communications between them or their lawyers. His Honour said that it was possible that the father waived the right to rely on the limitation defence, that events occurred which gave rise to an estoppel precluding him from pleading the defence, or that he had decided in good faith that it would be immoral to plead the defence in bar of his son's claim. His Honour accepted that it was also possible that the son and the father had co-operated with a view to depriving the appellant of the defence. The learned judge held that he could not conclude the factual issues, on the balance of probabilities, one way or the other.
The appellant believes that he will be in a more advantageous position if he can become a third party in the action by the son against the father. Nevertheless, it seems that whichever direction the proceedings take, the appellant will be able to defend the father's claim against him to recover contribution, upon the basis that the father did not owe the duty of care pleaded by the son in his statement of claim, that the father did not breach such a duty and that in fact, the son had no cause of action against his father. The father will bear the onus of proving the contrary, vis-a-vis the appellant, notwithstanding that he has against him a judgment in favour of his son. Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 616 - 617; Ballina Shire Council v Volk (1989) 18 NSWLR 1 at 10; Stott v West Yorkshire Car Co [1971] 2 QB 651 at 657, 659 - 660. Not being a party to the first action or to the obtaining of the consent judgment, the applicant is not bound by the judgment.
The particular disadvantage that the appellant perceives will face him if the two actions are not consolidated and he is not made a third party to the consolidated action and granted leave to defend the son's claim, is that he will not be able to raise the father's limitation defence. If he is made a third party, it may be open to him to raise any defence which was open to the father. Baylis v Waugh [1962] NZLR 44 at 49. See too Cridge v Commonwealth (1961) 10 FLR 275 at 282 - 283 However, he regards it as doubtful that he could raise that limitation defence while a defendant to the father's action against him. It was particularly for that reason that he filed the interlocutory applications. In that respect, the learned judge thought there to be considerable force in the argument that when a separate action is brought for contribution and the original plaintiff's case needs to be proved a second time because the defendant in the contribution proceedings was not a party to the original action, it is only the ingredients of the original plaintiff's case, rather than the absence of a positive defence to it, that need to be proved. It appears that the only suggestion to the contrary in any reported authority, is the obiter dictum of Singleton LJ in Littlewood v George Wimpey & Co Ltd [1953] 2 QB 501 at 510. However, I find it difficult to accept that a mere choice of procedure could so materially affect a party's rights or obligations.
The learned judge avoided determining the issue. He thought it one that would more appropriately be decided at trial. For the purpose of determining the interlocutory applications, his Honour stated that he would assume in the appellant's favour, without deciding the point, that such a defence was available to the father but could not be relied upon by the appellant unless he obtained orders consolidating the two actions, setting aside the interlocutory judgment and giving him leave to defend the son's action pursuant to r208(2)(c).
The Wrongs Act, s3(1)(c), provides that "where damage is suffered by a person as a result of a wrongful act … a person who is liable in respect of that damage may recover contribution from any other person who is, or would, if sued by the person by whom the damage was suffered at the time when the cause of action arose, have been, liable in respect of the same damage …". A right to recover contribution was created, but the Act did not specify the procedures to be followed by the party seeking recovery. They are to be found in the Supreme Court Rules. The learned judge held in that regard that the father had a choice between instituting a fresh action against the appellant by writ and taking third party proceedings against the appellant in the son's action. Although not unknown, to seek recovery by writ is an unusual course for a defendant to follow. The Supreme Court Rules, r88, which prescribes the classes of proceedings that are to be commenced by writ, makes no provision for it. Rule 202(1) certainly provides for a defendant to seek recovery of contribution in third party proceedings. Nevertheless, it was common ground between the parties that the father could choose between issuing a writ or commencing third party proceedings.
Having referred to the choice the father had, the learned judge described what the appellant was seeking to do as a reversal of the choice the father had made. His Honour said:
"If pursuing the contribution claim by way of a second action precluded Dr Lawrence from relying upon a limitation defence not pleaded by the father in the original action, but proceeding by way of third party notice would have exposed the father to some risk of Dr Lawrence obtaining a grant of leave under r208(2)(c) and pleading such a limitation defence, then it was obviously to the father's advantage to choose to proceed by way of a second action. Dr Lawrence is seeking to reverse that choice because it would have been to his advantage to have been proceeded against as a third party, rather than as a defendant to a second action.
Why should I make orders that give Dr Lawrence a strategic advantage, rather than letting the father retain the strategic advantage that he has been able to gain as a result of the provisions of the relevant legislation? It has not been submitted that there was any fraud on the father's part. I am not in a position to make a finding that he and his son contrived to produce the present state of affairs, nor that he was a party to any impropriety. If the son's claim against the father for damages for negligence had no merit because there was no duty of care, or because there was no breach of a duty of care, then the contribution action will fail. If evidence is available to Dr Lawrence to prove that the contribution action is an abuse of the process of the Court, then he can pursue an application for it to be stayed. If he wishes to assert that the interlocutory judgment was obtained by fraud ¾ and he has not asserted that ¾ then I think he would have standing to bring an action to have it set aside."
With respect, the learned judge fell into error when he referred to the question before him as being whether to give the appellant a strategic advantage, rather than letting the father retain the strategic advantage he had gained by seeking recovery in a separate action. A strong smell of contrivance and collusion between the father and the son arose out of the circumstances of the two actions. The appellant had a substantial basis for alleging that the father and the son had endeavoured to concoct a situation whereby money could be extracted from the appellant, no doubt in such an event for the ultimate benefit of the son, which was unlikely to have been achievable if the father and son had been at arm's length and the father had made a genuine attempt to defend himself against his son's action. All the appellant was seeking to do was to give himself a better and fairer chance of defending the claim against him, by ensuring that the son's claim against the father was properly and effectively defended. The appellant was not seeking a strategic advantage against the father, but was seeking to nullify the strategic advantage the father appeared to have given the son by not denying the alleged duty, not pleading the limitation defence and consenting to judgment. In the course of defending himself in a consolidated action, the appellant will seek to defend the father against the son's claim. Further, there could hardly be said to be a strategic advantage for the father if the two actions remain separate, for there would be a consequent risk to the father that he will remain liable to his son by virtue of the consent judgment but fail to recover contribution from the appellant, if the appellant is able to successfully defend the second action.
If the father genuinely had no defence to his son's claim against him, whether the limitation defence or otherwise, then ultimately, consolidation of the two actions will provide no advantage to the appellant and no disadvantage to the father.
The appellant was entitled to a fair chance to defend himself against the possibility that the father and the son contrived and colluded to use the procedures and the processes of the court to his disadvantage.
There were a number of reasons why one action instead of two would have been advantageous to the parties. They are well known as reasons for the introduction of the third party procedures into the rules of courts. They include the prevention of multiplicity of actions and the enabling of courts to settle disputes between all of the parties to them in one action, the saving of the extra expense involved in two independent actions and the prevention of the same questions being tried twice with possibly different results. In the circumstances of these proceedings, they extend to avoiding the trouble and expense of having to access damages twice and the potentially embarrassing possibility that the assessments will be inconsistent.
Having regard to the assumptions made by the learned judge in the appellant's favour, which neither the father nor the son challenged on the hearing of the appeal, it is my opinion that the only way in which the discretion could reasonably have been exercised was by ordering that the two actions be consolidated.
I conclude that ground 3 of each appeal, to the extent that it complains that the learned judge should have found that there were reasonable grounds for the appellant to allege that the proceedings were contrived and an abuse of process, has been made out. Ground 5 has to some extent been made out also. It complains that the learned judge should have found that the entry of the consent judgment was effected for the purpose of denying to the appellant the opportunity to plead a limitation defence, or to have the proceedings determined on the merits, and that the entry of the consent judgment was therefore an abuse of process. In my judgment, the learned judge ought to have found that the entry of the consent judgment may well have been effected for the stated purpose. I am also of the view that ground 7 has been made out at least partly, for I am satisfied that the learned judge's discretion miscarried because his Honour failed to give sufficient weight to the known facts concerning the two actions that were relied upon by the appellant; the interests of justice in ensuring that the Court's processes are not abused by collusive conduct between the son and the father; the interests of justice in ensuring that the proceedings are tried on the merits; the interests of the appellant in seeking to raise a limitation defence to the son's claim, which defence the father failed to raise; and the interests of justice in having only one assessment of damages. The ground has also been made out upon the basis that the learned judge gave weight to an irrelevant and inappropriate matter, namely the preservation of an alleged strategic advantage obtained by the father by issuing a separate contribution action rather than third party proceedings. I also agree that ground 8 has been made out, because each of the matters raised by grounds 3, 5 and 7, to which I have made mention, required the making of a consolidation order.
Orders
I would uphold the appeals and in each make the following orders:
1That the orders made on 9 December 2002 whereby the interlocutory application filed on 30 August 2002 was dismissed and the appellant was ordered to pay costs, be set aside.
2That action 489 of 2000 be consolidated with action 862 of 1999.
3That in the consolidated action, Stewart Gregory Faulkner shall be the plaintiff, Ian David Faulkner shall be the defendant and Effingham Frank Lawrence shall be the third party.
4That pars 3 - 8, and insofar as it is not determined by this Court, par9 of the interlocutory application are remitted to a judge for rehearing and determination.
File Nos FCA 110/2002
FCA 111/2002
EFFINGHAM FRANK LAWRENCE
v STEWART GREGORY FAULKNER AND IAN DAVID FAULKNER
EFFINGHAM FRANK LAWRENCE
v IAN DAVID FAULKNER
REASONS FOR JUDGMENT FULL COURT
SLICER J
2 July 2003
The appellant seeks review of a decision of the learned primary judge refusing both an application for the consolidation of two actions involving the parties to this appeal and the grant of leave to the appellant to defend the proceedings in one of the actions so consolidated.
History and general background
The second respondent, a senior member of the New South Wales Bar and a legal practitioner in the State of Tasmania, is the father of the first respondent. By writ dated 28 October 1999, the first respondent commenced proceedings against his father claiming damages for negligence said to have occurred in September 1974. The statement of claim stated the plaintiff to be some 21 months old at the time of injury and relevantly claimed:
"3At all material times it was the Defendant's duty as the father of the Plaintiff, and the Plaintiff relied upon the Defendant, to provide total care and the necessaries of life for the Plaintiff, including all necessary medical consultation, medical treatment and medical care.
4On or about 21 September 1974 the Plaintiff contracted the disease known as haemophilus meningitis.
5In about September 1974 as the result of contracting haemophilus meningitis the plaintiff suffered permanent injury and disability.
Particulars
The Plaintiff suffered and continues to suffer profound sensorial hearing loss in his left ear, total hearing loss in his right ear and a disposition to nervous disorders.
Further particulars to be provided.
6The Plaintiff's said injury and disability were caused by a delay in him receiving proper treatment for the disease.
7The Plaintiff's said injury and disability were caused by the negligence of the Defendant.
Particulars
The Defendant was negligent in that he:
(a) failed to observe that the Plaintiff had become seriously ill;
(b) failed to consult a medical specialist paediatrician in relation to the Plaintiff's condition;
(c) failed to ensure, or to ensure within adequate time, that a general practitioner's referral was obtained to enable a medical specialist paediatrician to be consulted on behalf of the Plaintiff;
(d) failed to cause the Plaintiff to be admitted to the Royal Hobart Hospital, or other suitable hospital, when the Defendant knew, or ought to have known, that the Plaintiff was critically ill with haemophilus meningitis;
(e) failed to observe that the Plaintiff was critically ill with haemophilus meningitis;
(f) allowed such time between onset of the Plaintiff's illness and his admission to hospital for specialist treatment of haemophilus memingitis [sic] that injury and disability developed and became irreversible.
8As a result of the plaintiff's injury and disabilities the Plaintiff has suffered and continues to suffer loss and expense."
By his defence dated 27 January 2000, the second respondent admitted all of the matters pleaded in the statement of claim other than the allegations of negligence, which were denied. No plea of the bar of limitation was made in the defence.
On 10 July 2000, a consent judgment was entered in the Hobart Registry of the Supreme Court ordering that:
"… the Plaintiff recover against the Defendant damages to be assessed."
By writ dated 13 July 2000, the first respondent commenced proceedings against the appellant seeking indemnity pursuant to the Tortfeasors and Contributory Negligence Act 1954, s3(1), in respect of his liability to pay damages as a result of his own admission of liability, the terms of the consent judgment dated 12 July, and the claimed negligence on the part of the appellant. The appellant raised in his defence issues of limitation, improper purpose, conspiracy and a duty to minimise damages. In the determination of those issues, the appellant sought to re-visit the circumstances giving rise to and surrounding the consent judgment. On 30 August 2000, the appellant sought (inter alia), in both actions, to have the actions consolidated, judgment set aside and leave to defend as a third party, the original action. The interlocutory applications were dismissed ([2002] TASSC 107). This appeal concerns only the applications for consolidation.
Reasons of primary judge
The learned primary judge, in his reasons for judgment (supra) first addressed the question of the failure of the first respondent to plead the provisions of the Limitation Act 1974, s5 and the effect of that failure on the indemnity proceedings. He concluded that the second respondent was entitled to choose not to plead the bar but to have the matter determined at trial on its merits. He drew a distinction between "procedural" limitation provisions which bars remedy only and "substantive" limitation which extinguishes a legal right, and concluded that the bar of limitation created by the Limitation Act was procedural in nature. In relation to the question of impropriety in failing to plead the bar, he held that the appellant had failed to establish by sufficient evidence that, in any event, the father had, because of matters of waiver, estoppel and detriment, a limitation defence with merit, and concluded:
"However the evidence available to me does not compel a conclusion that there was contrivance between the father and the son, nor does it compel a conclusion that there was any impropriety on the part of either of them. I am not satisfied that an unpleaded limitation defence was available to the father, nor am I satisfied as to contrivance or impropriety, on the balance of probabilities."
His Honour made no determination in relation to the question as to whether the appellant could raise, in the indemnity proceedings, the limitation bar, but his approach suggests that he was of the opinion that:
"There is nothing in s3(1)(c) [Wrongs Act 1954] to suggest that the party claiming contribution will be precluded from recovery if it is found that he omitted to plead in the original action some defence involving a positive assertion, by way of confession and avoidance. I think there is considerable force in the argument that, when a separate action is brought for contribution and the original plaintiff's case needs to be proved a second time because the defendant in the contribution proceedings was not a party to the original action, it is only the ingredients of the original plaintiff's case, rather than the absence of a positive defence to it, that need to be proved."
However, for the purpose of his decision, he assumed, at par24, in favour of the appellant:
"… without deciding either point, that such a defence was available to the father, and may not now be relied upon by Dr Lawrence unless he obtains orders for the consolidation of the two actions and the setting aside of the interlocutory judgment, and leave to defend the plaintiff's action pursuant to r208(2)(c)."
His Honour further determined that the provisions of the Supreme Court Rules 2000, r188(2), precluded the appellant from making an application for consolidation and the general power afforded by r9 did not provide an alternative basis so as to provide standing. In the exercise of his discretion, he stated that the appellant was seeking to reverse the choice made by the second respondent not to plead the bar and considered the question of respective advantage. He summarised that question in the following terms:
"Why should I make orders that give Dr Lawrence a strategic advantage, rather than letting the father retain the strategic advantage that he has been able to gain as a result of the provisions of the relevant legislation? It has not been submitted that there was any fraud on the father's part. I am not in a position to make a finding that he and his son contrived to produce the present state of affairs, nor that he was a party to any impropriety. If the son's claim against the father for damages for negligence had no merit because there was no duty of care, or because there was no breach of a duty of care, then the contribution action will fail. If evidence is available to Dr Lawrence to prove that the contribution action is an abuse of the process of the Court, then he can pursue an application for it to be stayed. If he wishes to assert that the interlocutory judgment was obtained by fraud ¾ and he has not asserted that ¾ then I think he would have standing to bring an action to have it set aside: Jonesco v Beard [1930] AC 298; Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1; Walter H Wright Pty Ltd v Commonwealth [1958] VR 318."
Basis of appeal
The appellant challenges both the findings of facts, or their inadequacy, and the legal conclusion reached. Given my conclusion that the appeal ought be upheld, it is not necessary to consider all of the grounds of appeal or to determine the applicability or otherwise of a plea of limitation raised in the indemnity action. The grounds of appeal relevant to my determination are:
"4The learned judge was in error in requiring Dr Lawrence to show on the balance of probabilities or otherwise facts showing collusion or abuse of process. In all the circumstances and in the absence of any evidence or credible explanation from Stewart Faulkner or Ian Faulkner the learned Judge should have found that the proceedings were collusive, and that the entry of consent judgment prior to and followed by the institution of the contribution proceeding constituted an abuse of process.
…
7The learned Judge's discretion miscarried in that ¾
(a) the learned Judge failed to give any or any sufficient weight to ¾
(i) each of the several matters and the conclusion referred to in paragraph 3 above;
(ii) the interests of justice in ensuring that the Court's processes are not abused by collusive conduct between Stewart Faulkner and Ian Faulkner;
(iii) the interests of justice in ensuring that the proceedings are tried on the merits;
(iv) the interests of Dr Lawrence in seeking to raise a limitation defence to Stewart Faulkner's claim, which defence Ian Faulkner failed to raise;
(v) the interests of Dr Lawrence in being heard on the assessment of damages;
(vi) the interests of justice in having only one assessment of damages.
(b) the learned Judge gave weight to irrelevant and inappropriate matters, namely ¾
(i) the preservation of an alleged strategic advantage obtained by Ian Faulkner by issuing separate contribution proceedings rather than third party proceedings;
(ii) in relation to assessment of damages, that Ian Faulkner might reach a compromise with Dr Lawrence, or Stewart Faulkner might reach a compromise with Ian Faulkner.
(c) Having regard to the matters referred to in paragraphs 3 to 6 hereof the learned Judge should have held that any alleged strategic advantage obtained by Ian Faulkner was ¾
(i) in furtherance of an abuse of process; and
(ii) was outweighed by the interests of justice in ensuring that the proceedings are tried on the merits.
(d) the learned Judge erred in holding that the passage of time should not be given great weight in relation to the application for orders as to consolidation.
…
9 The learned Judge erred in holding that r188(2) prohibited the consolidation of the two proceedings.
10 In circumstances where there were plain grounds to find collusion and conduct amounting to an abuse of process the learned Judge should have found that His Honour had powers to protect the integrity of the Court's processes, including power to make the orders sought in the applications, namely consolidation and thereafter summary dismissal, and in the circumstances the learned judge should have made such orders."
Rules of Court
The appellant was a party to the indemnity proceedings and had an interest in the outcome of the action between father and son.
The Supreme Court Rules relevantly provide:
"188 ¾ (1) The Court or a judge may order proceedings to be consolidated in any case in which ¾
(a)substantially the same question is involved in all those proceedings; or
(b)the decision in one proceeding will determine the other proceeding.
(2) An application for an order may be made by a party to 2 or more of the proceedings."
"9 ¾ The Court or a judge may exercise any power under these rules –
(a)of the Court's or judge's own motion; or
(b)on the application of a person who has a sufficient interest."
The two proceedings certainly involve the same questions, namely the amount of damages recoverable by the son, the extent of indemnity for those damages and the concurrent liabilities of the appellant and the second respondent.
Whilst the provisions of r188(2) restrict the making of the application to parties to two or more of the proceedings, it does not follow that they restrict the making of a consolidation order where it appears to the Court, on the material before it, that the preconditions stated in subr(1)(a) or (b) exist. Many of the Rules of Court permit the Court, on its own motion, to make orders irrespective of the wishes of the parties who, for tactical reasons, might prefer a different outcome. The Court might add parties to an action irrespective of the wishes of those already involved (r184). In this case it was open for the learned primary judge to add the appellant as a party to action 862/1999 and then proceed to determine the application for consolidation.
On the approach taken by the learned primary judge, had he found the existence of collusive or fraudulent conduct, he would nevertheless have been precluded from permitting the appellant from challenging the validity of the consent judgment and expose him to the possibility that he could not properly meet or contest the indemnity proceedings. Although the learned primary judge made assumptions favourable to the appellant, his reasoning suggests a different outcome.
The appellant contends that the learned primary judge construed r188(2) as:
"Notwithstanding Rule 9 an application for an order may be made only by a party to 2 or more of the proceedings."
I accept that approach. Rule 188(2) is permissive or facilitative (Malika Holdings v Stretton (2001) 204 CLR 290) and ought be read subject to the general r9 (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). Rule 9 applies to the exercise of any power afforded by the Rules and although its exercise must be within the permitted limits of judicial discretion, it exists to prevent injustice arising from inadvertence, collusion or unreasonable conduct of the parties to an action. It operates as an expression of the inherent power of a court to control its own proceedings (Bradvica v Rudulovic [1975] VR 434; Hunter v Chief Constable of the West Midlands Police [1982] AC 529). The combined effect of rr9 and 188(2) is that provided the preconditions stated by r188(1)(a) and (b) exist, the power may be exercised:
(1)on the application of a person who is a party to two or more of the proceedings;
(2)on the court's own motion;
(3)on the application of a person who has a sufficient interest.
In the circumstances of this case there was sufficient material to enable the Court or the appellant to move for both joinder and consolidation.
In my opinion, ground 9 is made out.
Evidence and exercise of discretion
These were interlocutory proceedings to be determined on the pleadings and any additional material placed before the Court. With due respect to the learned primary judge, he placed too much emphasis on the question of evidence rather than accepting that the pleadings in the two actions themselves constituted a cogent basis for the making of the orders sought.
The second respondent's statement of claim in the indemnity proceedings stated the terms of the original action and the entry of judgment. It relevantly alleged as against the appellant:
"3At all material times the defendant was a duly qualified medical practitioner, practising as a general practitioner at 158 Channel Highway, Taroona in Tasmania.
4The defendant had, prior to September 1974, practised as a Registrar in paediatrics in Colombia in Canada.
…
6On the 21st day of September, 1974, Stewart Gregory Faulkner was taken to the defendant's surgery for assessment, diagnosis and appropriate medical treatment. The defendant was provided with a history of Stewart Gregory Faulkner's condition and the defendant examined Stewart Gregory Faulkner.
7On the 22nd day of September, 1974, the defendant was advised by telephone on two occasions of the progress of Stewart Gregory Faulkner's condition.
8During the evening of the 22nd September, 1974, the defendant attended the plaintiff's home, obtained further advice as to Stewart Gregory Faulkner's condition and again examined Stewart Gregory Faulkner.
9On the 24th day of September, 1974, Stewart Gregory Faulkner was again taken to the defendant's surgery and the defendant was provided with further advice as to Stewart Gregory Faulkner's condition and the defendant examined Stewart Gregory Faulkner.
10The defendant rendered accounts to the plaintiff for the medical consultations on the 21st, 22nd and 24th days of September, 1974.
11By reason of the matters set out above, the defendant owed a duty of care to Stewart Gregory Faulkner and to the Plaintiff.
12At some time on and between the 21st and 24th days of September, 1974, Stewart Gregory Faulkner contracted the disease known as haemophilus influenzae meningitis.
13On each consultation on 21st, 22nd, and 24th days of September, 1974, the defendant:
(a) failed to diagnose, or ascertain, or suspect that Stewart Gregory Faulkner had or might contract haemophilus influenzae meningitis; and
(b) diagnosed Stewart Gregory Faulkner as suffering from 'a virus'."
In the original statement of claim, the particulars of negligence allege that the second respondent on or about 21 September 1974, failed to:
"7The Plaintiff's said injury and disability were caused by the negligence of the Defendant.
Particulars
The Defendant was negligent in that he:
(a) failed to observe that the Plaintiff had become seriously ill;
(b) failed to consult a medical specialist paediatrician in relation to the Plaintiff's condition;
(c) failed to ensure, or to ensure within adequate time, that a general practitioner's referral was obtained to enable a medical specialist paediatrician to be consulted on behalf of the Plaintiff;
(d) failed to cause the Plaintiff to be admitted to the Royal Hobart Hospital, or other suitable hospital, when the Defendant knew, or ought to have known, that the Plaintiff was critically ill with haemophilus meningitis;
(e) failed to observe that the Plaintiff was critically ill with haemophilus meningitis;
(f) allowed such time between onset of the Plaintiff's illness and his admission to hospital for specialist treatment of haemophilus memingitis [sic] that injury and disability developed and became irreversible."
An inference which might be drawn from the original pleadings is that the father failed to seek any medical treatment for his son, or at least failed to seek specialist advice either directly or by referral. The statement of claim in the indemnity proceedings alleges that medical treatment had been sought and obtained (pars6, 7, 8, 9 and 13) and that the appellant had specialist knowledge (par4). It is unlikely that the first respondent only possessed that knowledge either as of 28 October 1999 or the date of the entry of the consent judgment. The different contents of the pleadings are themselves a matter relevant to issues of improper purpose and consolidation.
In his amended defence, the appellant raised the issue of limitation (par2) and denied the breach of duty on the part of the first respondent. Relevant to these grounds of appeal, the amended defence stated:
"22 Further or alternatively the plaintiff and SGF have entered into or executed an agreement for the institution of proceedings number 862 of 1999 in respect of which the plaintiff would and did consent to interlocutory judgment for an improper purpose namely to create a situation whereby the defendant in these proceedings was unjustly deprived of a limitation defence available to him in any proceedings brought against him by SGF.
23At the time of the agreement referred to in paragraph 22 both SGF and the plaintiff knew or believed that the claim in proceedings number 862 of 1999 had no justification in law or fact.
24The plaintiff owed a duty to the defendant to defend proceedings number 862 of 1999 so as to minimise any damages payable, thereby minimising his claim for contribution from the defendant.
particulars of defences available
The defendant refers to and repeats paragraphs 18 to 21 (inclusive) hereof.
25Further or alternatively the conduct of SGF and the plaintiff in respect of proceedings number 862 of 1999 and these proceedings, if these proceedings are prosecuted to judgment would complete the tort of conspiracy by lawful means to the disadvantage of the defendant and the proceedings should be stayed permanently."
The first respondent sought further and better particulars, which were supplied on 2 May 2001. Relevantly they provided:
"2 As to paragraph 23:-
The plaintiff is a legal practitioner specialising in litigation, having practiced [sic] law in Tasmania for several years up to in or about 1985. The plaintiff was and is a practitioner of this court. The plaintiff's practice included personal injuries work in which the plaintiff well knew the provisions of the Limitation Act, 1974 and that section 5(1) of that Act provided the plaintiff with a complete defence to the proceedings. Further, at all material times, the plaintiff was represented in the proceedings by competent solicitors experienced in personal litigation who were aware of the provisions of the Act and:-
(a) advised the plaintiff of section 5(1) of the act;
or, alternatively,
(b) would have advised the plaintiff of the effect of section 5(1) of the Act, had the plaintiff requested that advice.
3As to paragraph 25:-
The defendant repeats the particulars given under paragraphs 22 and 23 above and says that the plaintiff and SGT [sic] combined with the common intention of causing the defendant loss and damage.
4As to paragraph 26:-
The defendant repeats the particulars given under paragraphs 22, 23 and 25 above and says that:-
(a) the consent judgment in the proceedings was improper;
(b) the plaintiff seeks to use the consent judgment improperly entered in the proceedings in these proceedings for the purpose of causing loss and damage to the defendant."
In his reasons for judgment the learned primary judge stated at par26:
"It has not been submitted that there was any fraud on the father's part. I am not in a position to make a finding that he and his son contrived to produce the present state of affairs, nor that he was a party to any impropriety. If the son's claim against the father for damages for negligence had no merit because there was no duty of care, or because there was no breach of a duty of care, then the contribution action will fail. If evidence is available to Dr Lawrence to prove that the contribution action is an abuse of the process of the Court, then he can pursue an application for it to be stayed. If he wishes to assert that the interlocutory judgment was obtained by fraud ¾ and he has not asserted that ¾ then I think he would have standing to bring an action to have it set aside."
With respect to his Honour's conclusions, there were allegations of fraud (implicit), collusion and proper purpose (explicit) in the pleadings. Whether or not the pleadings were warranted and sustainable, or whether the first respondent was doing no more than attempting to advance legal principle or clear a particular thicket of the law, was an issue for trial, not an interlocutory application for consolidation and joinder.
Whether the appellant could rely on the limitation period at trial and the effect of waiver were not matters for final determination at that stage of the proceedings. The appellant ran a risk that he was bound by the outcome of the original proceedings and prevented from even contesting the quantum of the award of damages in the original action. He had raised in his pleadings claims of impropriety and it was that claim, not its proof, which grounded the application.
The material before the learned primary judge included:
(1)The act of injury occurred in September 1974. Proceedings were instituted in October 1999.
(2)The parties to the original action were father and son, both represented by solicitors. The father was a legal practitioner well experienced in civil litigation. No plea of limitation was entered in the action.
(3)Notwithstanding the denial of negligence contained in the defence, a consent judgment was entered on 10 July 2000 with damages to be assessed.
(4)Indemnity proceedings were commenced by the father against the appellant on 13 July 2001.
(5)It was arguable that the form of the proceedings precluded the appellant from relying on any limitation defence and exposed him to full indemnity by reason of the Tortfeasors and Contributory Negligence Act, s3. It was arguable that the appellant was precluded from challenging the quantum of any award of damages assessed in accordance with the terms of the consent judgment.
(6)The original pleadings claim negligence in the father's failure to obtain appropriate medical advice, treatment and referral in September 1974. The indemnity pleadings claim negligent medical advice and treatment in September 1974 by a medical practitioner with some specialist knowledge in paediatrics.
(7)Allegations of collusion, absence of good faith and improper purpose were made in the appellant's proceedings.
It was not incumbent on the primary judge to decide the issues of purpose and collusion as proven before determining the application. In my opinion, his Honour erred in the exercise of his discretion.
Conclusion
The court has power to order the consolidation of the actions and join the appellant as a party to the original applications. His Honour erred in the exercise of discretion in assessing the factors warranting consolidation. Grounds 4 and 7 are made out.
Disposition
It is not appropriate to refer this matter for rehearing. This Court, in upholding the appeal, is entitled to resolve the matter and substitute its own orders. I propose the following orders:
(1)That the appeals be upheld.
(2)That the orders made on 9 December 2002 whereby the interlocutory application filed on 30 August 2002 was dismissed and the appellant was ordered to pay costs, be set aside.
(3)That action 489 of 2000 be consolidated with action 862 of 1999.
(4)That in the consolidated action, Stewart Gregory Faulkner shall be the plaintiff, Ian David Faulkner shall be the defendant and Effingham Frank Lawrence shall be the third party.
(5)That pars 3 - 8, and insofar as it is not determined by this Court, par9 of the interlocutory application are remitted to a judge for rehearing and determination.
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