Manassen Foods v Seaway Logistics (No 2)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
ADMIRALTY LIST

S ECI 2018 00309

MANASSEN FOODS AUSTRALIA PTY LTD (ACN 001 356 449)	Plaintiff
v
SEAWAY LOGISTICS PTY LTD (ACN 094 204 609)	Defendant
- and -
INTELLIGENT SCM LLC	Third Party

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JUDGE:	Steffensen AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2022
DATE OF RULING:	3 November 2022
CASE MAY BE CITED AS:	Manassen Foods v Seaway Logistics (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 659

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PRACTICE AND PROCEDURE – Application for joinder of concurrent wrongdoer and leave to amend to plead proportionate liability defence – Whether proposed defence is arguable and has real prospects of success – Discretionary factors – Whether there has been delay in bringing application for joinder – Where defendant has not previously alleged the concurrent wrongdoer bears responsibility – Where tactical decision not to raise proportionate liability defence – Whether delay adequately explained – Prejudice arising from delay – Risk of prejudice to plaintiff and defendant being time barred from suing concurrent wrongdoer – Part IVAA, s 24AL, Wrongs Act 1958 (Vic) – Rule 9.06(b) Supreme Court (General Civil Procedure) Rules 2015 – ss 7, 8, 9 and 25 Civil Procedure Act 2010 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M N C Harvey QC with A C L Campbell	Cusack & Co (as town agents for McCabe Curwood)
For the Defendant	C G K Madder	Colin Biggers & Paisley
For the Third Party	M I Ravech	Weinberg Lawyers (as town agents for Carmody Lawyers)

TABLE OF CONTENTS

A.. Introduction

B... Procedural History

C.. Present Application

D.. Applicable Principles

E... Is the Proportionate Liability Defence Arguable?

F... Discretionary Factors

G.. Conclusion

H.. Costs and Orders

HER HONOUR:

A Introduction

The plaintiff, Manassen Foods Australia Pty Ltd (‘Manassen’), was the importer of salad dressing from the United States of America to Australia in 2017 by way of three cargo shipments in refrigerated containers.
It is alleged that the refrigerated containers were set to the wrong temperature for storage, in that they were set to minus 10 degrees Celsius, rather than positive 10 degrees Celsius. As a consequence, the salad dressing spoiled, leading to Manassen suffering loss and damage.
As described by Digby J, the kernel of the dispute is determining which of the parties is liable for damage caused to the cargo as a result of the incorrect instruction as to the temperature setting.[1]
[1]Manassen Foods v Seaway Logistics [2020] VSC 835, [21] (Digby J).
This ruling addresses the application made by Summons filed on 8 March 2022 by the third party, Intelligent SCM LLC, known as ‘AWA’. AWA seeks orders to join a third party to the proceeding and amend its defence for the purpose of bringing a proportionate liability defence. By the proportionate liability defence, AWA seeks to have its liability (if any) reduced by reason of an asserted failure by the third party to comply with AWA’s instruction as to the correct temperature.
For the reasons that follow, whilst AWA’s proportionate liability defence is arguable, AWA’s Summons is dismissed on the grounds that the significant delay in bringing the application for joinder and associated proportionate liability defence has not been satisfactorily explained, and gives rise to prejudice to the other parties to the proceeding. Joinder of the third party at this late stage would not be in the interests of justice or consistent with the Court’s obligation to further the overarching purpose to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

B Procedural History

This proceeding has been on foot for four years and accordingly, it is necessary to have regard to its procedural history in some detail.
This proceeding was commenced by writ filed by Manassen on 12 July 2018 against:
(a)Seaway Logistics Pty Ltd (‘Seaway’), the first defendant, a transport and logistics provider, who was engaged to effect the import of the cargo; and
(b)ANL Singapore Pte Ltd (‘ANL’), the second defendant, the ocean carrier of the cargo.
The Statement of Claim was filed one year later on 19 July 2019.It pleads that the cargo was damaged as a result of Seaway’s conduct in instructing a third party freight forwarder, AWA, to set the refrigerated containers to minus 10 degrees Celsius, or alternatively, that AWA instructed or arranged those temperatures. Manassen claims that Seaway is responsible for AWA’s conduct, and makes no separate claim against AWA.
In its defence filed on 23 August 2019, Seaway admits that it engaged AWA to arrange carriage of the cargo, but denies that it instructed AWA to set the containers to minus 10 degrees Celsius. Seaway says that the proper defendant to Manassen’s claim is AWA, as it was party to the relevant bills of lading.
As against ANL, the Statement of Claim alleges that by keeping the cargo at minus 10 degrees Celsius, ANL breached duties owed to Manassen as bailee (in respect of the first and third cargos), or alternatively, ANL breached common law duties of care in respect of all three cargos.
On 4 September 2019, orders were made by consent, inter alia, for the defendants to join any additional parties by 26 September 2019, mutual discovery, and for a private mediation to be held. No additional parties were joined to the proceedings. Discovery was made by Seaway on 25 October 2019 and ANL on 22 November 2019, and by further order, the mediation was to be held by 20 December 2019.[2]
[2]Order of Digby J, 11 December 2019.
On 7 February 2020, by consent, Manassen was granted leave to discontinue the proceeding against ANL and was ordered to pay ANL’s costs of the proceeding in the amount of $7,500.00. Orders were also made extending the time for Manassen’s discovery, for supplementary discovery by Seaway, and for any joinder application by Seaway to be made by 23 March 2020.
On 25 March 2020, Seaway filed its Third Party Notice against AWA pursuant to leave granted that day. The Third Party Notice alleges that if Seaway is liable to Manassen (which is denied), that liability is dependent upon the acts or omissions of AWA as Seaway’s agent, or alternatively, as its subcontractor.
On 23 June 2020, AWA filed its Defence to the Third Party Notice, which denies that AWA was an agent or subcontractor of Seaway, and asserts that these allegations ought to be struck out. No case is pleaded by AWA which addresses how or why the containers were set at minus 10 degrees Celsius, or who was responsible for this.
Summary judgment applications were then filed by AWA as against Seaway (by Summons dated 24 July 2020), and by Seaway as against Manassen (by Summons dated 7 August 2020). In each case, summary judgment was sought on the basis that the claims against AWA and Seaway have no real prospects of success. These Summonses were heard by Digby J on 1 October 2020.
By ruling delivered on 18 December 2020, Digby J dismissed both applications, finding that neither Seaway nor AWA had demonstrated that the claims against them had no real prospects of success.[3] Digby J found that there were key discovered documents which sufficiently supported Manassen’s pleaded case as against Seaway, and Seaway’s case as against AWA.[4] The court further found that the evidence sufficiently supported Manassen’s case that it has a real prospect of success in establishing that Seaway engaged AWA, either as subcontractor or as agent, and that AWA instructed or advised incorrect temperature settings in relation to the cargos.[5]
[3]Manassen Foods v Seaway Logistics (n 1) [101], [116].
[4]Ibid [79], [110].
[5]Ibid [79].
On 11 February 2021, Seaway filed an Amended Third Party Notice, which pleads further facts and particulars of Seaway’s claim that AWA was its agent or subcontractor by reference to the bills of lading.
On 19 May 2021, AWA filed its Defence to the Amended Third Party Notice. AWA admits that it was the carrier of the cargos pursuant to the bills of lading, but says that Seaway was the ‘Merchant’ under them. AWA denies that the bills of lading constitute contracts of agency or are subcontracts. Further, AWA pleads that any claim under the bills of lading is out of time under the Hague Visby Rules which apply by operation of Part 2 of the Carriage of Goods by Sea Act 1991 (Cth) (‘Hague Visby Rules’). Alternatively, AWA says that it did not pack or load the containers, and that therefore under the relevant terms and conditions, it has no responsibility or liability for damage arising from the incorrect temperature setting. Again, AWA does not plead any positive defence which responds to the allegations made in Manassen’s claim, and repeated in Seaway’s defence, that AWA gave instructions to set the containers at minus 10 degrees Celsius.
At the directions hearing held on 29 July 2021, Connock J gave AWA leave to file an amended defence to the Amended Third Party Notice, limited to the inclusion of a claim for contributory negligence against Seaway. The matter was referred to a judicial mediation, and detailed pre-trial directions were made for the exchange of lay and expert evidence, preparation of the court book, chronology, and exchange of opening submissions and authorities.
On 2 August 2021, AWA filed its Amended Defence to the Amended Third Party Notice. By this, AWA pleads an alternative claim of contributory negligence by Seaway under the Wrongs Act1958 (Vic) (‘Wrongs Act’), by reason of Seaway failing to inform AWA of the correct carriage temperature.[6] By its Reply filed on 9 August 2021, Seaway denies contributory negligence on the grounds that it did not know and could not know the correct carriage temperature. Seaway pleads that it did not advise AWA or any other person as to the carriage temperature.
[6]Third Party’s Amended Defence to Amended Third Party Notice, 2 August 2021, [28]–[29].
On 15 September 2021, the parties attended a judicial mediation. The proceeding did not resolve, and the timetable for pre-trial directions set on 29 July 2021 was extended by consent orders made on 15 September 2021,[7] and 11 October 2021.[8]
[7]Order of Caporale JR, 15 September 2021.
[8]Order of Connock J, 11 October 2021.
In October 2021, the primary proceeding between Manassen and Seaway resolved, subject to an outstanding issue as to costs.[9]
[9]This occurred by reason of Seaway accepting an offer of compromise made by Manassen dated 4 October 2021. See Seaway’s Further Amended Third Party Statement of Claim dated 20 December 2021, but filed on 18 February 2022, [22]–[26]; Manassen, ‘Plaintiff’s Outline of Submissions in Opposition to Amendment and Joinder Applications’, 6 April 2022, [3].
On 21 December 2021, Connock J made orders by consent giving Seaway leave to file and serve a further amended third party statement of claim against AWA by that day, in substantially the same form as emailed to the Court on 17 December 2021. Seaway was ordered to pay AWA’s costs thrown away by reason of the amendment.
On 18 February 2022, Seaway filed its Further Amended Third Party Statement of Claim, albeit it is dated 20 December 2021 (‘FATPC’). The FATPC removes the previous claims in agency and subcontract. The new pleading alleges a ‘freight forwarding agreement’ between Seaway and AWA, whereby AWA was appointed as Seaway’s US local agent. Seaway particularises the alleged breach of the freight forwarding agreement by reference to documents said to be instructions by AWA to ANL that the container temperature be set to minus 10 degrees Celsius. Seaway pleads its settlement with Manassen, and alleges that AWA’s breach caused Seaway to suffer loss and damage referable to the settlement sum it has paid to Manassen, plus its own costs.[10] Seaway makes an alternative claim under ss 23B and 24 of the Wrongs Act for indemnity or contribution by reason of a breach of duty of care owed by AWA to Manassen.
[10]FATPC, [29].
On 18 February 2022, AWA filed its Defence to the FATPC. In this Defence, AWA’s primary case comprises bare denials as to the existence of the freight forwarding agreement,[11] its alleged breach,[12] the loss and damage said to have been suffered by Seaway,[13] and Seaway’s claim for indemnity or contribution pursuant to the Wrongs Act.[14] In its alternative claim, AWA pleads that if it is found that AWA has breached the freight forwarding agreement causing loss or damage to Seaway, that loss is pure economic loss partly resulting from Seaway’s contributory negligence in failing to give AWA adequate instructions regarding the container temperature settings.[15]
[11]Defence to FATPC, [4]–[5].
[12]Ibid [27].
[13]Ibid [28]–[29].
[14]Ibid [32].
[15]Ibid [30]–[31].
Importantly for the purpose of the present controversy, by its Defence to the FATPC, AWA pleads a new alternative proportionate liability defence under the Wrongs Act.[16] By this, AWA seeks to hold ANL, the former second defendant to Manassen’s claim,[17] responsible for some or all of the damage to the cargo. AWA alleges that ANL is a concurrent wrongdoer and is responsible on the basis that it did not comply with AWA’s instructions to set the temperature at positive 10 degrees Celsius.
[16]Ibid [33]–[36].
[17]See paragraphs [7(b)], [12] above.
On 28 February 2022, consent orders were made for AWA to file any application for leave to join ANL by 8 March 2022, and for Seaway to file by 8 March 2022 further and better particulars of its FATPC together with the Reply to the Defence to the FATPC.[18] The timetable for witness statements was extended. Seaway has since filed one witness statement,[19] and AWA has filed two witness statements.[20]
[18]Order of Connock J, 28 February 2022.
[19]Witness Statement of Pravin Singh, 16 March 2022.
[20]Witness Statement of Graham Burford, 7 April 2022; Witness Statement of Stacey Prestwood, 7 April 2022.

C Present Application

By its Summons filed on 8 March 2022, AWA seeks orders for:
(a)ANL to be joined as a defendant to the proceeding pursuant to s 24AL(1) of the Wrongs Act and further or alternatively, rule 9.06(b)(i) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’); and
(b)leave to amend its defence to the FATPC in substantially the form annexed to the affidavit of Mark Carmody filed on 8 March 2022, pursuant to rule 36.01(1) of the Rules.
AWA’s proposed amended defence seeks to replead its proportionate liability defence. It seeks to allege that Seaway’s alternative claim arising from a duty of care said to be owing by AWA to Manassen is also apportionable under the Wrongs Act, and that ANL is a concurrent wrongdoer in respect of this claim. AWA proposes to plead that ANL owed duties to Seaway and to Manassen which it breached by failing to set the container temperatures at positive 10 degrees Celsius in accordance with AWA’s instructions. The proposed pleading particularises the emails sent by AWA to ANL which are alleged to be the instructions with respect to the carriage temperature of positive 10 degrees Celsius.
Pursuant to s 24AI(3) of the Wrongs Act, the court must not have regard to the comparative responsibility of any person who is not a party to the proceeding. Thus, AWA seeks ANL to be joined so that AWA may properly raise its proportionate liability defence, whether in the form pleaded in its Defence to the FATPC filed on 18 February 2022, or the proposed amended defence. Without joinder, AWA’s proportionate liability defence will have no work to do.
AWA relies upon the affidavits of Mark Carmody filed on 8 March 2022 (‘Carmody 1’) and 22 April 2022 (‘Carmody 2’), and its written submissions filed on 26 April 2022. AWA’s appearance sheet also indicated that it would rely upon the witness statements of Stacey Prestwood and Graham Burford, both filed on 7 April 2022. However, these were not referred to in AWA’s written or oral submissions.
Manassen and Seaway oppose the joinder and pleading amendment on the grounds that the proposed proportionate liability defence has no real prospects of success. They also argue that the delay in advancing this case has not been adequately explained, and that they would suffer prejudice should joinder and amendment be allowed.
Manassen relies upon its written submissions filed on 6 April 2022, and an aide memoire emailed to my Chambers on 15 August 2022.
Seaway relies on the affidavits of Pravin Singh filed on 6 April 2022 (‘Singh 1’) and 13 May 2022, and its written submissions filed on 13 May 2022.

D Applicable Principles

The power to join parties to a proceeding is discretionary. This is so whether the power is exercised under s 24AL of the Wrongs Act for the purpose of joining concurrent wrongdoers as defendants to an apportionable claim, or alternatively under rule 9.06(b)(i) of the Rules, on the basis that the party is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon.
As set out in Fabfloor (Vic) Pty Ltd v BNY Trust Company of Australia Limited (‘Fabfloor v BNY Trust’), whether the court acts under s 24AL or rule 9.06(b)(i), the application is approached in the same way.[21] That is, through addressing first, whether the claims are apportionable claims, and secondly, whether the allegations, if proved at trial, could establish that the proposed party was a concurrent wrongdoer. These matters are to be tested by reference to the traditional pleadings test, where the court assumes that the party advancing the pleadings can establish its allegations at trial.[22]
[21][2016] VSC 99, [39] (John Dixon J) (‘Fabfloor v BNY Trust’).
[22]Ibid [45].
The authorities provide that subject to considerations that might persuade a court in its discretion to refuse the application, such as prejudice, joinder of concurrent wrongdoers and associated pleading amendments should follow, provided that the proposed proportionate liability defence is arguable.[23]
[23]Ibid [39], [41]; Payton Securities Pty Ltd v Mason White McDougall (Hurstbridge) Pty Ltd [2021] VSC 375, [47] (M Osborne J).
In Payton Securities Pty Ltd v Mason White McDougall (Hurstbridge) Pty Ltd, M Osborne J summarises that:
Joinder requires a ‘tenable’ proportionate liability defence with a ‘real (not a fanciful) prospect of success’ alleging ‘material facts that establish the responsibility of that other concurrent wrongdoer for the loss and damage claimed by the plaintiff in the proceeding’.[24]
[24][2021] VSC 375, [48] (citations omitted). See also Utility Services Corporation Ltd v SPI Electricity Pty Ltd (2012) 35 VR 628, 635 [24] (Dixon AJA).
A party opposing leave to amend may do so on the basis that they would have a good application under rule 22.03 of the Rules for summary judgment, due to the proposed defence having no real prospects of success.[25] Other examples of grounds of opposition may be that the defence is defective in form, or is otherwise scandalous, frivolous or vexatious, may prejudice, embarrass or delay the trial of the proceeding, or is otherwise an abuse of process.[26]
[25]Fabfloor v BNY Trust (n 21) [46].
[26]Ibid.
Where the application is opposed on the basis that the defence has no real prospects of success, evidence may be admitted which addresses the merits of the proportionate liability defence by the opposing party, and the party seeking leave to amend may adduce responding evidence.[27]
[27]Ibid [47].

The moving party is usually required to adduce evidence in order for the court to have a proper basis to exercise its discretion judicially. For example, evidence may be required to explain reasons for delay where the opposing party claims to be prejudiced by reason of that delay.[28]
[28]Ibid [48].
There are a number of provisions of the Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’) which are relevant to the present application, in particular:
(a)section 7, which provides that the overarching purpose of the Act and the Rules is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute;
(b)section 8, which provides that the court must seek to give effect to the overarching purpose in the exercise of any of its powers;
(c)section 9, which provides that in making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose; and
(d)section 25, which provides that for the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to act promptly and minimise delay.
In Jackson v GP & JM Bruty Pty Ltd (Ruling No 1), an application for leave to amend to bring a new case as to the likely cause of a fire was considered.[29] J Forrest J considered relevant provisions of the Act, and the statements of principle of the High Court set out in Aon Risk Services Australia Ltd v Australian National University,[30] and concluded:
[29][2016] VSC 717.
[30](2009) 239 CLR 175, 182 [5] (French CJ), 217 [111], [113] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).
With each of these matters in mind, I have identified the following factors as being relevant to the consideration of an amendment to a pleading:
(a)whether there will be a substantial delay caused by the amendment;
(b)the extent of any wasted costs;
(b)[sic]whether there is an irreparable element of unfair prejudice caused by the amendment;
(c)concerns of case management arising from the stage in the proceeding when the amendment is sought;
(d)whether the grant of the amendment will lessen public confidence in the judicial system; and
(e)whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.
To this list I would add the following observation which, I am afraid, is trite: each case turns on its own circumstances and that, at the end of the day, the primary question must be: what do the interests of justice dictate? In reaching any determination, one does not look solely at the question of injustice for the party seeking the amendment but also to any consequential effects upon his or her opponents and, perhaps not equally as important but no doubt relevant, the Court in the management of its business.[31]
[31]Jackson v GP & JM Bruty Pty Ltd (Ruling No 1) (n 29) [12]-[13] (citations omitted).
In Olympic Place Pty Limited v Gamcorp (Melbourne) Pty Ltd, an application for joinder and leave to amend to plead a proportionate liability defence three and a half years after the proceedings had been commenced was considered.[32] Following consideration of relevant provisions of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW), Henry J concluded that when exercising the discretion to grant leave to amend, particular consideration is to be given to:
(a)the nature and importance of the amendments to the party applying;
(b)the delay in making the amendments and the explanation for it; and
(c)any prejudicial effect on the opposing party.[33]
[32][2020] NSWSC 261.
[33]Ibid [56], referring to Aon Risk Services Australia Limited v Australian National University (n 30) [102].

E Is the Proportionate Liability Defence Arguable?

I will now address the two questions identified in Fabfloor v BNY Trust, namely whether the claims are apportionable claims, and secondly, whether the allegations, if proved at trial, could establish that the proposed party was a concurrent wrongdoer.[34]
[34]Fabfloor v BNY Trust (n 21). See paragraph [36] above.
As to the first question, it is common ground that the claims against AWA are apportionable.
As to the second question, Manassen and Seaway submit that AWA’s proportionate liability defence is not arguable. They say that the claim against ANL has no real prospects of success. Seaway also argues that that the pleading contains a number of defects.
Manassen and Seaway argue that the proportionate liability defence has no reasonable prospects of success as:
(a)the documents pleaded by AWA to be instructions to carry the goods at positive 10 degrees Celsius cannot reasonably be construed to be instructions in the manner alleged by AWA; and
(b)these documents are, in any event, contradictory to the contemporaneous documents that show AWA confirming that the temperature ought to be negative 10 degrees Celsius.
In relation to the first and third cargos, AWA alleges in its proposed amended defence that it gave instructions to ANL for the carriage temperature to be positive 10 degrees Celsius by way of an email to ANL dated 19 May 2017.[35]
[35]Proposed amended defence, [34(b)(2)(a)], in Exhibit MC-1 to Carmody 1, 10. See Exhibit MC-1 to Carmody 1, 13 for a copy of the email.
The 19 May 2017 email is part of an email chain with the subject line ‘Manassen Open Orders 5/10/17’.[36] The first email in the chain is from Newman’s Own to AWA dated 10 May 2017. It has a table which identifies a number of orders by reference to their name, destination, container size/type, purchase order numbers (or ‘PONbr’) and requested pickup date. The email states ‘[s]ee below open Manassen orders for pickup … I have listed new orders in red below’. Eight orders have the word ‘new’ in red font next to their order details.[37]
[36]See Exhibit MC-1 to Carmody 1, 13-16 for a copy of the email chain.
[37]Ibid 15-16.
On 18 May 2017, this email is forwarded to ANL by AWA with a request, ‘[c]an you please make the below new bookings in red’. It is common ground that the first and third cargos are identified in red font. ANL then requests loading addresses and contact details for the two pick up locations. AWA responds by the email dated 19 May 2017. This email states ‘[y]our [sic] should have this on file. Previous for each is below … [f]or the reefer bookings the temp is 10’C’.[38]
[38]Ibid 13.
Manassen argued that this could not be construed as an instruction for the reefer temperatures to be set at 10 degrees Celsius, as it is not apparent that the email relates to the first or third cargos.[39] I disagree. Reading the email chain in its entirety, I do not consider that AWA has no reasonable prospects of success of establishing that this is an instruction to ANL for the correct carriage temperature. The temperature instruction appears on its face to relate to the ‘new’ bookings referred to in red font in the email dated 10 May 2017. The purchase order numbers of the first and third cargos are specifically referred to as two of the ‘new’ orders that AWA has requested ANL to make.[40] Accordingly, I consider that AWA has real prospects of establishing that these instructions relate to the first and third cargos.
[39]Transcript of Proceedings, Manassen Foods Australia Pty Ltd (ACN 001 356 449) vs Seaway Logistics Pty Ltd (ACN 094 204 609) (Supreme Court of Victoria, S ECI 2018 00309, Steffensen AsJ, 17 August 2022) 59-65 (‘Transcript’).
[40]The purchase order number of the first cargo is 2100907 and the purchase order number for the third cargo is 2100591. Both of these are identified as ‘new’ orders in the email from Newman’s Own to AWA dated 10 May 2017, in Exhibit MC-1 to Carmody 1, 15-16.
The following documents refer to a minus 10 degrees Celsius temperature setting for the first and third cargos. Each of these documents are dated after the 19 May 2017 email that AWA relies upon as the correct temperature instructions:
(a)an email from ANL to AWA dated 20 May 2017 which attached booking confirmations for the first and third cargos. The email and the booking confirmations both record the carriage temperature as negative 10 degrees Celsius;[41]
(b)the ANL bill of lading for the first cargo signed on 2 July 2017 notes the carriage temperature of negative 10 degrees Celsius.[42] The AWA bill of lading does not appear to identify a carriage temperature;[43]
(c)an email from AWA to ANL on 6 July 2017 confirming the carriage temperature for the first cargo to be negative 10 degrees Celsius.[44] This email does not appear to relate to the third cargo; and
(d)the ANL bill of lading for the third cargo signed on 9 July 2017 notes the carriage temperature of negative 10 degrees Celsius.[45] The AWA bill of lading does not appear to identify a carriage temperature.[46]
[41]Exhibit MC-1 to Carmody 1, 13 (first and third cargo).
[42]ANL Bill of Lading Document No. OCE0114573, in Exhibit PS1 to Singh 1, 5-6.
[43]AWA Bill of Lading Document No. S00081200, in Exhibit MC-1 to Carmody 1, 18.
[44]Exhibit MC-1 to Carmody 1, 43 (first cargo).
[45]ANL Bill of Lading Document No. OCE0114570, in Exhibit PS1 to Singh 1, 9-10.
[46]AWA Bill of Lading Document No. S00081197, in Exhibit MC-1 to Carmody 1, 104.
Manassen and Seaway say that these subsequent materials evidence that AWA always believed the correct carriage temperature to be minus 10 degrees Celsius, and that it gave ANL the incorrect temperature instructions. Accordingly, they say that AWA’s proportionate liability defence has no real prospects of success.
AWA says that ANL’s booking confirmations dated 20 May 2017 mistakenly included the carriage temperature as minus 10 degrees Celsius.[47] AWA does not adduce any evidence as to what it did upon receipt of the booking confirmations containing this asserted mistake. No material facts are pleaded or evidence adduced by AWA that explains why the bills of lading recorded the incorrect temperature, or AWA’s role (if any) in respect of the preparation, drafting, verification, or agreement to the terms of the bills of lading.
[47]Carmody 1, [9].
On AWA’s case, the carriage temperature for the first cargo was set on 28 June 2017, and that the cargo would have been packed into the container within 24 hours of the temperature having been set.[48] Further, AWA says that the first cargo was shipped on 2 July 2017.[49] Accordingly, AWA says that by the time it sent the email dated 6 July 2017 confirming the incorrect temperature of negative 10 degrees Celsius, the salad dressing would have already been spoiled.[50]
[48]Ibid [12].
[49]Ibid [13].
[50]Ibid [12]–[14].
Other than asserting that the 6 July 2017 email had no causative effect, AWA does not address or explain why this email confirms the incorrect carriage temperature. Manassen and Seaway argued that this evidence gives rise to an inference that AWA had a consistent belief throughout the relevant period that the correct carriage temperature was minus 10 degrees Celsius. AWA has not adduced evidence which seeks to address this inference.
I do not consider that AWA’s failure to explain the 6 July 2017 email and the inference which might be drawn from it leads to the conclusion that AWA’s proportionate liability defence has no real prospects of success. Having regard to the pleading and the evidence adduced, AWA has identified the facts on which it may establish (if proved) that it provided the correct temperature instructions to ANL for the first and third cargos. In my view, subject to the pleading deficiency raised by Seaway and addressed below, AWA’s case is arguable and cannot be said to have no real prospects of success. The pleaded facts are supported by contemporaneous documents adduced in support of this application. The events that occurred subsequently, including with respect to ANL’s booking confirmations and the bills of lading, and the parties’ respective responsibility for these documents and their influence on the carriage temperature, are matters which ought to be addressed on their merits at trial.
In relation to the second cargo, AWA alleges in the proposed amended defence that the temperature instructions were contained in an email dated 1 June 2017, which requested a booking ‘just like’ the first cargo booking.[51] AWA says that this meant that the temperature was to be set at positive 10 degrees Celsius as per the 19 May 2017 email sent in respect of the first and third cargos.[52] ANL responds to AWA by email dated 1 June 2017, which states ‘[p]lease see the booking screenshot below for [the second cargo] OCE0115413 and confirm in good order or advise if changes are needed’.[53] The booking screenshot shows the carriage temperature to be negative 10 degrees Celsius. AWA’s Ms Prestwood responds by email dated 2 June 2017 saying ‘[y]es that is fine’.[54]
[51]Proposed amended defence, [34(b)(2)(b)(i)], in Exhibit MC-1 to Carmody 1, 10. See Exhibit MC-1 to Carmody 1, 45 for a copy of the email.
[52]Carmody 1, [18].
[53]Exhibit MC-1 to Carmody 1, 44-45.
[54]Ibid 44.
AWA’s solicitor has given evidence on information provided to him by Ms Prestwood that:
It was not apparent on the face of either the ANL 1 June Email, or the screenshot attached to it, that the confirmation sought from ANL pertained to the setting of the Second Container at a temperature of minus 10 degrees Celsius.[55]
[55]Carmody 1, [19(b)].
It is difficult to reconcile this explanation with the terms of the emails. In response to AWA’s request for the second booking to be ‘just like’ the first cargo, ANL’s email seeks confirmation that the booking information as set out in the screenshot is correct and asks whether changes are required. On its face, this request for confirmation extended to the terms of the second cargo booking as set out in the screenshot, which includes the temperature setting for the container. It is not apparent why ANL’s request for confirmation did not pertain to the temperature setting in the manner asserted by AWA. The evidence of Ms Prestwood, as relayed in Mr Carmody’s affidavit, does not provide any explanation or context which explains why ‘this was not apparent on the face’ of these documents.[56]
[56]Ibid.
Further or in the alternative, AWA pleads that its ‘shipping instructions document with reference No. OCE0115413, which AWA provided to [ANL], recorded that the temperature of the Second Container was to be set at positive 10 degrees Celsius’.[57] AWA has adduced a copy of a document entitled ‘shipping instruction’ which appears to relate to the second cargo by inclusion of the carrier booking reference OCE0115413. It notes a carriage temperature of 10 degrees Celsius. The document is undated, but refers to a requested date of issue of 16 July 2017.[58]
[57]Proposed amended defence, [34(b)(2)(b)(ii)], in Exhibit MC-1 to Carmody 1, 11.
[58]Exhibit MC-1 to Carmody 1, 49.
On 13 July 2017, ANL sent an email requesting confirmation with respect to the temperature for the second cargo. The email has the subject line ‘OCE0115413 reefer mismatch’ which states:
Dear customer,
Please be informed that there is a mismatch in reefer information between shipping instruction (SI) and the booking.
Reefer information as per booking: -10 degrees Celsius
Reefer information as per SI: TMP: Temperature: 10.000 C
Please confirm the correct information as soon as possible in order to avoid delays with your shipment or documentation.[59]
[59]Ibid 105.
On 14 July 2017, AWA responds to this email stating:
Good day,
It should be -10C.[60]
[60]Ibid.
ANL’s bill of lading for the second cargo signed on 16 July 2017 identifies a carriage temperature of minus 10 degrees Celsius.[61] The AWA bill of lading does not appear to identify a carriage temperature.[62]
[61]ANL Bill of Lading Document No. OCE0115413, in Exhibit PS1 to Singh 1, 7-8.
[62]AWA Bill of Lading Document No. S00082174, in Exhibit MC-1 to Carmody 1, 48.
On AWA’s case, the carriage temperature for the second cargo was set on 11 July 2017, and the second cargo was packed into the refrigerated container within 24 hours of the temperature being set. AWA says that given this, the second cargo would have been spoiled prior to the time that AWA sent the 14 July 2017 email confirming the incorrect temperature, and certainly would have been spoiled by the time the second cargo was shipped on 16 July 2017.[63]
[63]See Carmody 1, [22]–[23].
In my view, even if AWA can establish that the request for the second cargo booking to be ‘just like’ the first cargo is an instruction for the temperature to be set at 10 degrees Celsius, this email pre-dates AWA’s email to ANL on 2 June 2017 where AWA confirms ANL’s booking screenshot, including the minus 10 degree Celsius temperature setting, by saying ‘yes that is fine’. The 2 June 2017 email pre-dates the bills of lading prepared for the second cargo by some six weeks. In light of this email, I consider that AWA’s claim based on the 1 June 2017 email being instructions for the second cargo to be carried at positive 10 degrees Celsius to have no real prospects of success.
However, AWA’s alternative plea with respect to the undated shipping instructions appear on their face to provide instructions for the correct carriage temperature for the second cargo. AWA does not plead how or when they were provided to ANL, but based upon the material facts pleaded, AWA’s contentions as to the instructions are not fanciful. The 13 July 2017 email from ANL to AWA evidences that shipping instructions for minus 10 degrees Celsius were received by ANL in respect of the second cargo. Subject to the pleading deficiency raised by Seaway and addressed below, AWA has pleaded an arguable claim. The impact (if any) of the bills of lading and the 14 July 2017 email confirming the incorrect carriage temperature are matters which ought to be determined on their merits at trial.
Lastly, Manassen argued that the proportionate liability defence has no reasonable prospects of success because it is time barred by reason of Article 3, rule 6 of the Hague Visby Rules. This rule provides that the carrier and the ship are discharged of all liability in respect of goods unless suit is brought within one year of delivery of the goods.
In relation to this argument, I agree with AWA’s submissions that Article 3, rule 6 only operates to discharge ANL from liability for claims that may be brought by ‘suit’, and does not affect the ability to bring a proportionate liability defence. By raising this defence, AWA does not seek any judgment or other relief against ANL, and accordingly, Article 3, rule 6 does not apply.
I will now address the pleading deficiencies raised by Seaway.
Seaway argued that the pleading was defective, in that:
(a)it is pleaded that the duty of care arose from the contract comprising the bills of lading, which specify the carriage temperature of minus 10 degrees Celsius; and
(b)whilst there is a pleading as to the alleged instructions and the failure to set the container at positive 10 degrees Celsius, there is no pleading of material facts as to mistake or negligent misrepresentation or similar, which explains why the terms of the written contract do not represent the bargain struck by the parties to it.
More simply, it was argued that it is futile to join ANL, as it will simply respond to the claim by alleging that it did what the contract required of it.

I agree with Seaway’s submission that the pleading is deficient insofar as it fails to plead why the carriage contract between AWA and ANL does not reflect AWA’s instructions. If I were minded to grant AWA’s application for joinder, I would give it leave to address this deficiency.
In my view, subject to addressing the pleading deficiency referred to in paragraph 74 above, I am satisfied that AWA has pleaded an arguable proportionate liability defence. Manassen and Seaway have not established that AWA’s proportionate liability defence has no real prospects of success.

F Discretionary Factors

My determination that AWA’s proposed amendments plead an arguable defence ought not to be confused with the need for AWA to persuade the Court to exercise its discretion to join ANL and allow the pleading amendment. In the exercise of a discretionary power such as joinder, matters such as delay, explanation for delay, and prejudice are relevant.
AWA claims that there has been no delay in seeking joinder, and that the need for the amendment arose from the Wrongs Act claim first brought by Seaway against AWA in the FATPC which was filed pursuant to leave granted on 21 December 2021.[64] In particular, AWA points to this being the first time that Seaway has alleged that AWA owed Manassen a duty of care. Further, AWA submitted that as the trial date has not yet been set, joinder of ANL and the associated pleading amendment would not affect the timetabling of this proceeding.[65]
[64]AWA, ‘Written Submissions of the Third Party in support of its Summons filed on 8 March 2022’, 26 April 2022, [17]–[20].
[65]Transcript, 22-23.
AWA’s explanation for the delay is addressed in Carmody 1. AWA’s solicitor deposes that the need to amend its defence to the FATPC ‘was not appreciated until Counsel turned his mind to AWA’s application for leave to join ANL as a defendant to the third party proceeding’.[66]This evidence does not explain why the proportionate liability defence was not pleaded, and joinder of ANL considered, until February 2022. Mr Carmody’s reply affidavit, Carmody 2, does not provide any other reason or explanation for the delay, other than to refer to the fact that Seaway’s claims in respect of the freight forwarding agreement and Wrongs Act contribution had not been pleaded or raised prior to the FATPC being filed on 18 February 2022.[67]
[66]Carmody 1, [29].
[67]Carmody 2, [5].
AWA’s counsel conceded that whilst a proportionate liability defence could have been raised earlier, this was not done because AWA did not perceive a risk of being held liable under the previous formulations of Seaway’s third party claim. Counsel submitted that until the freight forwarding agreement was pleaded in the FATPC, AWA ‘didn’t feel the need’ to raise the proportionate liability defence and seek to join ANL.[68] AWA’s perception of risk was submitted to be justified by reference to the fact that in its latest pleading, Seaway abandoned its earlier claims in subcontract and agency.[69] Counsel submitted that given the alleged freight forwarding agreement, ‘we feel, at this point, we need to – in case we are found liable under that agreement, plead the proportionate liability defence.’[70]
[68]Transcript, 15.
[69]Ibid 15-17.
[70]Ibid 15.
Manassen and Seaway say that there has been significant delay, and submit that AWA’s delay gives rise to prejudice.
It was submitted that the prompt joinder of ANL may have affected the terms of settlement reached as between Manassen and Seaway, including the quantum of the settlement sum paid.
Manassen and Seaway also submit that due to AWA’s delay, they have been denied the opportunity to investigate and bring any claims they may have against ANL in a timely manner, and that should ANL be joined, they will likely be time-barred from bringing a separate claim against ANL. This could lead to the possibility that AWA’s liability is reduced by reason of ANL’s conduct, but Seaway (and Manassen) are prevented from separately pursuing ANL.
The parties are in agreement that the Hague Visby Rules apply to the carriage of the goods. Article 3, rule 6 provides that the carrier and the ship are discharged from all liability in respect of the goods unless suit is brought within 12 months of the delivery of the goods. Accordingly, any claim against ANL by Seaway or Manassen in respect of the goods appears to have been extinguished by August 2018. ANL’s terms of carriage (‘ANL’s Terms’) also provide for a 12 month time limitation.[71]
[71]Clause 24 of ANL’s Terms, in Exhibit PS1 to Singh 1, 24. Seaway also submitted that the United States of America Carriage of Goods by Sea Act 1936 contains a similar provision. The Court was not taken to this Act.
Seaway points to emails exchanged at the time the incident was investigated in August and September 2017, where Seaway informed AWA that it holds AWA responsible for the incorrect temperature setting.[72] Seaway says that following this, AWA has not taken any steps that would be consistent with AWA denying liability on the basis that ANL was to blame. For example, AWA could have notified ANL of an intention to claim, and issued proceedings against ANL. Seaway invites the Court to infer that AWA did not notify ANL of its claims in 2017 (or in the intervening years until February 2022), because it did not consider ANL to have any responsibility for the incorrect temperature setting.
[72]Emails exchanged between 22 August 2017 and 6 September 2017, in Exhibit PS1 to Singh 1, 28-33.
Seaway argues that had AWA raised this defence following Seaway’s notification in August and September 2017 that it held AWA responsible for the damage, Seaway could have investigated ANL’s responsibility for the damage and brought a claim against ANL within time, if it were appropriate to do so.
In response to this argument, AWA identifies that any claim by Seaway against ANL was extinguished by August 2018, well before AWA was joined to the proceedings in March 2020. That is, even if AWA had acted promptly to bring its proportionate liability defence in response to the Third Party Notice, any claim by Seaway against ANL would have already been extinguished. Thus, any delay on the part of AWA to seek to join ANL is unconnected to any prejudice to Seaway (or Manassen) arising from the operation of Article 3, rule 6 of the Hague Visby Rules.
Manassen is in a different position to Seaway, in that it did commence proceedings against ANL within time, but discontinued those proceedings on 7 February 2020, a month before AWA was joined to the proceeding.
AWA argues that Manassen does not have any interest in whether ANL ought to be joined, as it has settled its claim against Seaway, and thus, cannot suffer any prejudice should ANL be joined to the proceeding. Further, AWA submitted that if any claim by Manassen against ANL is extinguished under the Hague Visby Rules, it was extinguished well before AWA was joined to the proceeding.
Manassen submits that it could suffer prejudice in the event that ANL is joined to the proceeding, as ANL may seek an indemnity or contribution from Manassen in respect of loss suffered by reason of its joinder.
Manassen submits that it is a ‘Merchant’ as defined in ANL’s Terms, and is thereby bound by those terms.[73] Manassen submits that pursuant to ANL’s Terms, as a Merchant, it has agreed to indemnify ANL against all expenses, loss, damage, or liability whatsoever sustained or incurred or levied upon ANL in connection with the Goods. The indemnity extends to legal fees and other expenses which ANL ‘may incur in connection with … claims or legal proceedings of any description …’.[74]
[73]ANL’s Terms, in Exhibit PS1 to Singh 1, 11-25, Clause 2.
[74]Ibid, Clause 20.
Manassen says that if ANL is re-joined to the proceedings, it will suffer prejudice as:
(a)ANL may seek to enforce the indemnity contained in ANL’s Terms as against Manassen in respect of any liability, including legal costs, arising from its joinder to the proceedings; and
(b)Manassen may be prevented from counterclaiming against ANL in respect of its role in the temperature setting, whether by reason of the 12 month time bar contained in Article 3, rule 6 of the Hague Visby Rules, or by reason of Anshun estoppel, having regard to the proceedings previously brought by Manassen against ANL and later discontinued.
The parties dispute whether Article 3, rule 6 of the Hague Visby Rules applies to prevent Manassen from bringing a claim against ANL. AWA submitted that despite the definition of ‘Merchant’, Manassen was not a party to the bill of lading, and that therefore it was not prevented from bringing a claim against ANL by reason of the operation of Article 3, rule 6 of the Hague Visby Rules.[75]
[75]Transcript, 103–104.
For the purpose of this application it is not necessary for me to determine whether Manassen is bound by ANL’s Terms as a ‘Merchant’. I am however satisfied that it is arguable that Manassen is bound, such that the prejudice identified by it may arise should ANL be joined.
As addressed in Part E above, AWA has not adduced evidence which:
(a)explains what it did when it received the 20 May 2017 booking confirmations with the minus 10 degrees Celsius carriage temperature for the first and third cargos;
(b)explains why AWA confirmed the carriage temperature for the first cargo to be minus 10 degrees Celsius on 6 July 2017, or seeks to negate the inference that might be drawn from that as to AWA’s understanding of the correct carriage temperature;
(c)explains why AWA confirmed the carriage temperature for the second cargo to be minus 10 degrees Celsius on 14 July 2017, or seeks to negate the inference that might be drawn from that as to AWA’s understanding of the correct carriage temperature;
(d)explains the nature of the shipping instruction document for the second cargo, its purpose, and how it interrelated with the instructions by email dated 2 June 2017 that ANL’s booking screenshot was ‘fine’; or
(e)explains the preparation and agreement between the parties with respect to the bills of lading, which are said to be the relevant contractual documents as between ANL and AWA.
Whilst I do not consider the failure to adduce this evidence to be fatal to the form of the pleading proposed by AWA, in my view, this failure is relevant to the exercise of the discretion. In light of AWA’s long delay in seeking to attribute any blame to ANL in the setting of the temperature at negative 10 degrees Celsius, I consider that it was incumbent upon AWA to adduce evidence which explains the apparent inconsistencies between its new case as to ANL’s responsibility and the contemporaneous documents.
If joinder is not granted, AWA will suffer prejudice. By reason of the operation of s 24AI(3) of the Wrongs Act, if ANL is not joined to the proceeding, the court will not have regard to ANL’s conduct when considering AWA’s liability for the damage to the cargos. Thus, AWA will not be able to raise its proportionate liability defence, and seek reduction it its liability (if any) by reason of ANL’s comparative responsibility for the damage.

G Conclusion

I do not accept that there has been no delay on the part of AWA. In my assessment, there has been significant delay by AWA in bringing this application.
As stated by Digby J, the crux of this proceeding is the question of who is responsible for the instructions for the carriage temperatures.[76] AWA has been legally represented and has made conscious decisions as to the manner in which it would plead its case since it was joined to the proceeding in March 2020. AWA’s defence has been amended on numerous occasions, but it was not until two years, and four amended defences later, that in February 2022, AWA pleaded its case as to who it says was responsible for the incorrect carriage temperature setting. By this application, AWA seeks to further amend its case with respect to ANL’s responsibility as set out in its proposed amended defence.
[76]See paragraph [3] above.
The documents relied upon by AWA in drawing its proportionate liability defence are sourced from its own records. This is not a case where new information has come to light which led to the need to raise a new defence.
AWA’s proportionate liability defence is not purely responsive to Seaway’s Wrongs Act claim. It is a matter that goes to the heart of the issue of responsibility for setting the carriage temperature, and could and should have been pleaded by AWA from the outset.
AWA made a tactical decision not to raise the proportionate liability defence until it considered it was at risk of an adverse judgment. This conduct fails to recognise that over two years earlier, in December 2020, Digby J dismissed AWA’s application for summary judgment, finding that Seaway’s claim against AWA had reasonable prospects of success. Further, this tactical decision is inconsistent with Civil Procedure Act obligations upon AWA, its solicitors, and counsel to further the just, efficient, timely, and cost‑effective resolution of the real issues in dispute, and to act promptly and to minimise delay.[77] A real issue in this dispute is who is responsible for the incorrect temperature setting instructions. AWA has only engaged with this issue by its most recent pleading filed in February 2022.
[77]See the Civil Procedure Act 2010 (Vic), ss 10(1)(b), 25.
Having regard to the tactical decision made by AWA to wait until February 2022 to bring a proportionate liability defence, AWA bears a heavy burden to show why leave should be granted.[78] It has not provided a satisfactory explanation for why it did not act promptly.
[78]Aon Risk Services Australia Limited v Australian National University (n 30), 182 [4] (French CJ).
In my view, the delay has given rise to relevant prejudice. Unnecessary delay of proceedings gives rise to unfair prejudice to the litigants which cannot be remedied.[79] It also reduces public confidence in our justice system.[80] The proceeding was commenced four years ago, and whilst a trial date had not yet been set, this application was made eight months after comprehensive pre-trial directions were made on 29 July 2021.[81] Since then, lay evidence has been exchanged. If leave were granted to join ANL at this late stage in the proceeding, further delay and expense will be occasioned through additional pleadings, discovery and lay evidence. Further, the delay will lead to further distance between the time the events occurred in 2017 and the ultimate trial.
[79]Ibid 182, [5].
[80]Ibid.
[81]Order of Connock J, 29 July 2021.
But for this delayed application for leave to amend and joinder, the proceeding is ready for trial. In my view, it would not facilitate the just, quick and cheap resolution of the real issues in this proceeding if joinder and leave to amend were granted at this late stage.
Further, AWA’s delay gives rise to specific prejudice to Manassen and Seaway. I accept that prompt joinder of ANL may have affected the ultimate settlement agreement reached as between Manassen and Seaway. It is common sense that the introduction of a new party who is allegedly responsible to some extent for the damage suffered, would affect the terms on which parties might agree to resolve proceedings. I also accept that Manassen may suffer prejudice should ANL seek to enforce the indemnity provided for in ANL’s Terms.
In the event that ANL is joined, it is likely Seaway would be prevented by the Hague Visby Rules from making a claim against ANL. Thus leading to the possibility of AWA’s liability to Seaway being reduced by reference to ANL’s conduct, but Seaway not being able to recoup any of that loss from ANL or Seaway. Given Manassen’s settlement of the claim with Seaway, I agree with AWA’s submission that Manassen will not suffer prejudice in the same manner as Seaway might. I also agree with AWA’s submission that any delay on the part of AWA to seek to join ANL is unconnected to any prejudice to Seaway arising from the 12 month time limitation provided for in Article 3, rule 6 of the Hague Visby Rules. AWA was joined to the proceedings well after the 12 months had expired, and thus, even if it had acted promptly, the asserted prejudice would have arisen.
However, this argument does not address prejudice arising from AWA’s delay in raising the defence following discovery of the damaged cargos in 2017 and the insurance claims pursued at that time. AWA has not explained why it did not seek to attribute blame to ANL at any time in the period from August 2017 when the damage was discovered until it filed its Defence to the FATPC on 18 February 2022. Whilst it may not have been under any duty to disclose its position to Seaway in 2017, its failure to do so at that time, or immediately following its joinder to these proceedings, calls into question whether the proportionate liability defence relating to ANL’s conduct is a real issue in the proceeding. My concern as to the genuineness of the defence is augmented by AWA’s failure to satisfactorily explain the delay or its new defence in light of the contemporaneous records which contradict it.
I am highly conscious that by refusing joinder, AWA will be prevented from running its proportionate liability defence as articulated in its Defence to the FATPC (or its proposed amended defence). I accept that AWA will be prejudiced if leave is not granted, as s 24AI of the Wrongs Act will prevent AWA from seeking reduction in any liability it has for the damaged cargos by reference to ANL’s comparative responsibility for the damage.
However, the factors weighing against the exercise of discretion to join ANL, such as the significant delay, failure to satisfactorily explain that delay, and the prejudice that arises or may arise from that delay, are matters of significant weight. For the reasons I have given, it would not be in the interests of justice or consistent with the obligation upon the Court pursuant to ss 8 and 9 of the Civil Procedure Act to further the overarching purpose, to grant leave to AWA to join ANL to the proceedings. It follows that leave should not be granted to AWA to amend its proportionate liability defence.

H Costs and Orders

The general rule is that costs follow the event, and I am not aware of any reason to depart from this, such that AWA ought to pay Manassen and Seaway’s costs of AWA’s Summons.
Accordingly, I make orders that:
(a)AWA’s Summons filed on 8 March 2022 is dismissed; and
(b)AWA pay Manassen and Seaway’s costs of the Summons.
If any party disagrees with the costs order that I have made, they are to confer with the other parties, and within seven days, notify my Chambers that a variation of the costs order is sought, and thereafter provide written submissions of no more than two pages in length so that the issue of costs may be determined on the papers.

[2022] VSC 659

3 November 2022