Martin Richardson (a pseudonym) v State of Victoria
[2021] VSC 403
•12 July 2021
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
S ECI 2020 00319
| MARTIN RICHARDSON (a pseudonym) | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 June 2021 (further submissions 23 and 24 June 2021) |
DATE OF RULING: | 12 July 2021 |
CASE MAY BE CITED AS: | Martin Richardson (a pseudonym) v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2021] VSC 403 |
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PRACTICE AND PROCEDURE – Application by defendant to join third party out of time – Whether application was made promptly – Consideration of competing rights of parties – Finding that if leave is granted that the plaintiff will suffer irreparable prejudice – Civil Procedure Act 2010 (Vic) – Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 11 – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr B House | Victorian Government Solicitor |
TABLE OF CONTENTS
Claim and defence............................................................................................................................. 1
Affidavits............................................................................................................................................. 2
Submissions........................................................................................................................................ 3
Defendant’s submissions............................................................................................................. 3
Plaintiff’s submissions.................................................................................................................. 8
Analysis.............................................................................................................................................. 10
Conclusion......................................................................................................................................... 20
HER HONOUR:
By summons filed on 18 May 2021, the defendant seeks leave to issue a third party notice to Terence (aka Terrence) Ward (‘Ward’) over one year out of time. There is an impending trial date of 19 October 2021. The plaintiff is anxious to retain the existing trial date and is concerned the proposed third party proceeding will cause it to be vacated. Accordingly, the plaintiff says leave should not be given. Alternatively, the plaintiff says that if leave is given to issue the third party notice, then orders should be made dispensing with the procedural rule that has the effect of the third party proceeding being listed for hearing at the same time as the existing proceeding.
For reasons that follow, I will dismiss the defendant’s application to issue the third party notice.
Claim and defence
In this proceeding, the plaintiff says he was a pupil at Warrnambool North Technical College (‘the school’). The plaintiff says he was enrolled at the school from 1983 to 1985, undertaking years 7 to 9 at the school.[1] The defendant does not admit the plaintiff was a pupil at the school.[2]
[1]Amended statement of claim filed 16 July 2020 [2]-[3].
[2]Amended defence filed 3 August 2020 [2]-[3].
It is common ground that the proposed third party, namely Ward, was a teacher at the school. The defendant employed Ward as a teacher at the school between 1976 and 1986.[3]
[3]Ibid [3].
The plaintiff alleges that Ward sexually abused him at the school.[4] The defendant does not admit the allegations of abuse.[5]
[4]Amended statement of claim filed 16 July 2020 [7].
[5]Amended defence filed 3 August 2020 [7].
The plaintiff makes the following allegations. The principal and other teachers at the school knew, or ought to have known, that Mr Ward was a paedophile.[6] The defendant’s agents and employees breached their duty of care to him.[7] The defendant is vicariously liable for the abuse.[8] The defendant denies it is vicariously liable.[9]
[6]Amended statement of claim filed 16 July 2020 [9]- [10].
[7]Ibid [12].
[8]Ibid [11]-[12].
[9]Amended defence filed 3 August 2020 [11]-[12].
The plaintiff claims the defendant’s breach of duty caused him to suffer injuries, namely, chronic adjustment disorder, psychiatric injury, and a loss of earning capacity.[10] The defendant does not admit this.[11] The defendant denies the plaintiff’s claim for exemplary damages.[12]
[10]Amended statement of claim filed 16 July 2020 [13].
[11]Amended defence filed 3 August 2020 [13].
[12]Amended statement of claim filed 16 July 2020 [14]; amended defence filed 3 August 2020 [14].
Affidavits
The defendant relies on the affidavits of:
(a) Kate Wright, the defendant’s solicitor, affirmed on 17 June 2021 (‘the second Wright affidavit’) and 22 June 2021 (‘the third Wright affidavit’); and
(b) Stephanie Alicia Young, solicitor, affirmed on 18 May 2021 (‘the Young affidavit’).
I read too an earlier affidavit of Ms Wright affirmed on 27 April 2021 that was filed in support of the defendant’s application to vacate the trial date (‘the first Wright affidavit’).
The plaintiff relies on the affidavit of Georgia Sneddon, the plaintiff’s solicitor, affirmed on 15 June 2021 (‘the Sneddon affidavit’). I read too an earlier affidavit of Lee Flanagan, solicitor, affirmed on 29 April 2021, that was filed on behalf of the plaintiff opposing the defendant’s application to vacate the first trial date (‘the Flanagan affidavit’).
Submissions
The parties made oral submissions at the hearing. Afterwards, each filed written submissions.[13] Key submissions are discussed below.
[13]Plaintiff’s written submissions filed 24 June 2021; defendant’s written submissions filed 23 June 2021.
Defendant’s submissions
The defendant’s delay in making the application can be explained. The defendant has not sat on its hands. It made pertinent and quick attempts to ascertain the name of the third party.
On 23 January 2020, the defendant was served with the written statement of claim. On 12 February 2020, the defendant’s solicitors were instructed to act. On 14 February 2020, they served a notice of appearance. On 26 February 2020, they sought further and better particulars of the claim from the plaintiff. In particular, details of teachers and students who allegedly had knowledge of the allegations. On 4 March 2020, the defendant provided its solicitors with the personnel file for the third party, which was then reviewed. It did not contain any recent contact details for the third party. On 14 February 2020, the defendant’s solicitors were provided with further and better particulars of the claim, including the names of various teachers and students. On 14 April 2020, the defendant provided their solicitors with the teacher’s card for Ward and noted the information available from the human resources team that he had ceased employment with the Department of Education and Training on 7 July 1986 and his address was unknown. On 15 April 2020, the defence was filed and served. By correspondence to the plaintiff’s solicitors on that date, the defendant noted that the plaintiff’s further and better particulars were served on 14 April 2020, and as the plaintiff had identified further individuals relevant to the claim, they would need time to undertake searches and review records relating to those individuals.[14]
[14]Exhibit ‘KEW-1’, letter from VSGO to Arnold Thomas & Becker dated 15 April 2021 to the Affidavit of Kate Elise Wright affirmed 22 June 2021 (‘third Wright affidavit’).
On 19 May 2020, the defendant provided its solicitors with statements of service in relation to some of the teachers named in the plaintiff’s further and better particulars. On 22 May 2020, the defendant provided its solicitors with statements of service in relation to the formal principal of the school.
On 3 June 2020, timetabling orders were made including fixing the proceeding for trial on 25 May 2021. Those orders were subsequently extended by consent several times. In early June 2020, the defendant’s solicitors commenced title and electoral roll searches for Ward. On 11 September 2020, they received results of the electoral roll searches. The results were reviewed on 23 September 2020 and were inconclusive as to the identity or proper address of Ward. On 15 October 2020, the defendant’s solicitors engaged a private investigator. On or around 28 October 2020, the defendant contacted various teachers who were employed at the school to enquire as to Ward’s location and contact details. None were able to provide any. On 17 November 2020, the defendant’s solicitors were informed by the investigator that he could not confirm whether any of the persons named Ward was the correct person. On 16 December 2020 the defendant’s solicitors spoke to someone with the same surname Ward. He refused to confirm his identity but said his solicitor may contact them. The defendant’s solicitors did not receive any contact.
On 16 February 2021, the defendant’s solicitors wrote to Ward at an address which appeared to be associated with him. On the following day, the plaintiff’s solicitors provided consent to the defendant’s solicitors to issue subpoenas to Victoria Police and the Office of Public Prosecutions. On 26 February 2021, the subpoenas were issued. On 2 March 2021, the defendant‘s solicitors were informed that the letter sent to Ward was returned to the sender. On 5 March 2021, the defendant’s solicitors were contacted by an employee of the Office of Public Prosecutions and received confirmation that Ward was facing criminal charges and had an upcoming preliminary court date.
On 25 March 2021, the defendant’s solicitors wrote to the plaintiff’s solicitors setting out the steps that the defendant had taken to locate and contact the third party (‘the defendant’s 25 March 21 letter’). The defendant’s solicitors invited the plaintiff to join Ward as a defendant to the proceeding and requested a response by 1 April 2021.
On 29 April 2021, the defendant’s solicitors accessed Victoria Police’s subpoenaed material. Upon receipt of that material, the defendant was able to confirm Ward’s address.
On 30 April 2021, orders were made requiring any application to join Ward be made by 21 May 2021. Prior to that, the defendant’s counsel prepared the proposed third party notice. It was served on the plaintiff with the application on 18 May 2021.
The delay therefore has been occasioned due to difficulties associated with the historical nature of this matter and that the third party name is a relatively common name.
The defendant wishes to issue the third party notice to avoid multiplicity of proceedings. It will enable the evidence of all parties to be heard together and result in a single judgement. It will be a more efficient use of the Court’s time.
The trial date is four months away. A psychiatrist, Dr Gregor Schutz, has examined the plaintiff on behalf of the defendant. On 6 November 2020, the defendant served his report. Expert evidence has been obtained. On 4 February and 5 March 2021, the defendant served a report and supplementary report of a vocational assessor, Rebekah Raftopoulos. There are no huge steps that Ward needs to take. It is conceivable that the trial date can be maintained.
At this stage, there has been no attempt to confer with Ward as a witness because the defendant wishes to add him as a third party. If his defence is a denial, then he would conceivably become a witness for the defendant.
In reply to the plaintiff, the non-admission of the defendant as to the allegations in the defence is entirely proper. The defendant intended on adding Ward and therefore could not confer with him. If the defendant confers with Ward, and his evidence is that he denies the allegations, then it would be proper to amend the defence from a non-admission to a denial.
The defendant’s application is a separate issue to that of vacation of the first trial date. The reason for the vacation of the first trial date was the unavailability of subpoenaed records. There was a subpoena dispute that was resolved on 23 March 2021 by way of negotiation between the parties.[15] The negotiated position required the defendant to reissue four subpoenas. On 6 April 2021, the defendant’s solicitors wrote to the plaintiff’s solicitors stating that in their view, the matter would not be ready for hearing by the present trial date.[16] The production dates for the subpoenas were variously 9 and 16 April 2021.
[15]Affidavit of Kate Elise Wright sworn 27 April 2021 (‘first Wright affidavit’) [32].
[16]Ibid, Exhibit ‘KEW-8’ to the first Wright affidavit.
On 13 April 2021, the plaintiff’s solicitors emailed the Court stating that “the proceeding is not yet ready for trial” and “the parties are in the process of finalising consent orders to adjourn the proceedings (as a result of the subpoenaed issues and delays as a result)”.[17]
[17]Ibid, Exhibit ‘KEW-10’.
Pausing the defendant’s submissions there, the evidence is that the plaintiff did not intend to consent to the adjournment of the trial. The plaintiff’s solicitor deposes that he was on leave at the time and that his assistant erred in notifying the Court that proceeding would be adjourned, misunderstanding instructions to agree to an adjournment of any directions hearing not the [trial of the] proceeding itself.[18] When the solicitor returned to the office, he caused an email to be sent stating that the plaintiff would not consent to any adjournment.[19]
[18]Affidavit of Lee Flanagan affirmed 29 April 2021 (‘the Flanagan affidavit’) [10].
[19]Exhibit ‘KEW-14’ to the first Wright affidavit.
Returning now to the defendant’s submissions.
On 30 April 2021, the date on which orders were made vacating the first trial date, the defendant sought and was given leave to make the application to join Ward as a third party. As described already above, the defendant’s application to join Ward is made consistently with the time required by those orders.
The plaintiff asserts that his health may deteriorate if there is a delay. However there is no current evidence of that. The report of Dr Justin Lewis dated 28 October 2019 says that may occur. The plaintiff has continued to work during the period of the proceeding. There is a diagnosis of adjustment disorder but no evidence that it has deteriorated at this time
It is premature to consider any issue regarding stay of proceedings. Ward has been charged with criminal proceedings. They do not relate to the matters in issue here.[20] They relate to alleged historical sexual abuse incurring in around 1988 to 1990 against two girls, aged between 9 and 15 years old at the time of offending. They were not known to the party in the context of his employment as a teacher but rather through a relationship he had at that time.[21] On 23 April 2021, the principal solicitor at the Office of Public Prosecutions wrote to the Prothonotary stating that they did “not identify the plaintiff as a complainant or witness in any of our material”.[22] There is presently no evidence as to whether the plaintiff has, or intends to, report the subject of abuse to the police, and no evidence as to whether criminal proceedings are pending or likely. The defendant does not know whether Ward accepts the allegations or disputes them. The plaintiff is not mentioned in the subpoenaed materials from the Office of Public Prosecutions and Victoria Police.[23] These issues are fundamental to whether Ward will seek to stay the proceeding, and significantly, whether a stay would be granted in such circumstances. In the absence of knowledge of these matters, the prospect of a stay is at best speculative and should be given little or no weight.
[20]Cf Villan v State of Victoria 2021 VSC 354 and Lucciano v The Queen [2021] VSCA 12.
[21]Third Wright affidavit [10].
[22]Ibid, Exhibit ‘KEW-2’, letter from Christine Michaleas to the Prothonotary dated 23 April 2021.
[23]Third Wright affidavit [8].
Ward’s own evidence as to the allegations made by the plaintiff will also significantly impact upon the manner in which the defendant will prepare and defend the proceeding, irrespective of whether leave is granted to add Ward as third party. In order to properly defend the proceeding, it is likely the defendant will require Ward to attend to give evidence. Accordingly, the plaintiff’s concern that Ward may make an application to stay the proceeding is not answered by dispensing with r 11.12(b) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) or alternatively disallowing the defendant’s application in its entirety.
As to r 11.05(2)(b),[24] this requires a weighing up of matters in the Civil Procedure Act 2010 (‘the CPA’), including the just and efficient use of the Court’s time versus the defendant’s entitlement to pursue indemnity from a tortfeasor.
[24]Supreme Court (General Civil Procedure) Rules 2015.
Plaintiff’s submissions
The defendant failed to undertake the necessary steps to locate Ward and make its application in a timely fashion. The claim was issued in January 2020. The defendant filed an appearance and then a defence on 15 April 2020. The second Wright affidavit indicates that investigations in relation to Ward did not seem to start until June 2020, being six months after the defendant received the writ. This is well outside the time allowed under the Rules for issuing a third party notice, being 23 March 2020. Any suggestion made by the defendant that it was silently hoping the plaintiff would join Ward, and so the defendant took no steps to try and locate him during that time, is entirely inadequate.
The third Wright affidavit refers to the defendant attempting to ascertain details of teachers other than Ward. They have no relevance to the defendant’s attempts to locate Ward himself. None of the Wright affidavits depose to the date that the defendant provided its solicitors with instructions to join Ward - as opposed to the date they were instructed to locate him. It may be fairly inferred that the answer would not assist the defendant’s application.
There is no explanation provided by the defendant as to why it took five months to commence investigations. The delay between January and June 2020 is not explained.
As to the next period, on 11 September 2020, the defendant’s solicitors received the results of searches for the third party. It is apparent from the second Wright affidavit that the defendant has been in possession of Ward’s telephone number and address since approximately 16 December 2020. The defendant could have, and should have, made its application at that time. Instead, it later made an application to adjourn the previous trial date on a different basis and the application was granted. The plaintiff expressed concern at the time about the defendant’s request to adjourn, and this being for the ulterior motive of joining Ward as a third party .[25]
[25]The Flanagan affidavit [2], [16], [17] and [18].
One trial date has already been lost. If the application is granted, the plaintiff will lose a second trial date. It is not likely Ward will be ready for trial. It is simply unrealistic to expect an unsophisticated litigant like Ward to be ready for a hearing in less than four months’ time. The highest that was put by the defendant was that it was conceivable that the trial date could be maintained. That assumes that Ward has no discovery. However, he will want to review voluminous documents. It is unrealistic in the extreme that the trial date in October will be maintained in respect of the third party proceeding.
Moreover, Ward may make an application to stay the third party proceeding until the criminal proceedings against him have resolved. A criminal proceeding against him was listed for initial/directions hearing on 30 June 2021.[26]
[26]Exhibit ‘GS-1’, County Court record of Criminal/Appeal Listing Results, to the affidavit of Georgia Sneddon affirmed 15 June 2021(‘Sneddon affidavit’).
Alternatively, the defendant will probably make a stay application on the basis it cannot compel Ward to give evidence as a witness. Yet the defendant has not denied the allegations. The defendant currently pleads a “do not admit” defence. So, the plaintiff cannot see how the defendant could call Ward to deny allegations. It would require changes to the defendant’s pleadings.
The plaintiff recognises the defendant’s genuine claim against Ward. The orders proposed by the plaintiff do justice. If those orders are not made, then it is almost inevitable that the plaintiff will lose a second trial date, with no likelihood that the proceeding would be heard in a timely fashion thereafter. There is a real risk that a delay in the trial date would negatively impact upon the plaintiff’s mental health. The plaintiff is concerned about the deterioration of his injuries (that arise from the subject matter of the proceeding), should the matter be furthered delayed. The report of Dr Justin Lewis dated 28 October 2019 states that the plaintiff’s “psychological state will be at risk of deterioration during the litigation process”.[27]
[27]Ibid, Exhibit ‘GS-2’, report of Dr Justin Lewis dated 28 October 2019 [8].
The defendant’s application should principally be refused on the basis of the unexplained delay and the likelihood that the trial date will be lost with no timely relisting given current listing timetables. The plaintiff relies on the case management principles in Aon Risk Services Australia v Australian National University (‘Aon’)[28] and the CPA. The defendant’s application to issue the third party notice should either be refused, or allowed with the qualification that the requirements of r 11.12(b) be dispensed with in relation to the third party proceeding.
[28](2009) 258 ALR 14.
Analysis
The first question here is whether leave should be given for the defendant to issue the third party notice. It is not disputed that Ward is properly named as a third party. Nor is it disputed that the claim in the third party notice is properly made. Indeed, the third party notice is consistent with r 11.01.
Rule 11.01 provides for the following:
11.01 Claim by third party notice
Where a defendant claims as against a person not already a party to the proceeding (in this Order called the third party)—
(a) any contribution or indemnity;
(b) any relief or remedy relating to or connected with the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or
(c) that any question relating to or connected with the original subject matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party—
the defendant may join the third party as a party to the proceeding and make the claim against that third party by filing and serving a third party notice.[29]
[29] Supreme Court (General Civil Procedure) Rules 2015.
The draft third party notice against Ward claims:[30]
A.Indemnity in respect of any liability the defendant has to interest and costs.
B.A declaration that the defendant is entitled to contribution from the third party in such proportion as the Court deems just and equitable.
C. Further or alternatively, damages.[31]
[30]Exhibit ‘SAY-2’, draft third party notice, to the Affidavit of Stephanie Alicia Young affirmed 18 May 2021 (‘the Young Affidavit’).
[31]Ibid [5].
The plaintiff refers to delays by the defendant in issuing the third party notice. I agree there has been delay. It has not been adequately explained.
There is no evidence as to the date the defendant decided to join Ward. However, reasonable and timely steps should have been taken to locate Ward while investigating the statement of claim for the purpose of preparing the defence. Ward had been named in the statement of claim as the alleged abuser of the plaintiff. The defendant admits Ward was its employee at the time of the alleged abuse. It should have been evident that he was a potential third party. I will refer now to the chronology of relevant procedural steps.
On 23 January 2020, the defendant was served with the writ and statement of claim.[32] On 13 February 2020, the defendant filed an appearance. On 26 February 2020, its solicitors sought further and better particulars of the claim.[33] On 4 March 2020, the defendant provided its solicitors with the personnel file for Ward.[34] It did not contain his contact details.[35] On 14 April 2020, the plaintiff provided further and better particulars of claim.[36] On the same date, the defendant provided its solicitors with the teacher’s card for Ward.[37] It did not contain contact details either.[38] On the following day, namely, 15 April 2020, the defendant filed and served its defence.[39]
[32]Third Wright affidavit [4.1].
[33]Ibid [4.3].
[34]Ibid [4.4].
[35]Ibid.
[36]Ibid [4.5].
[37]Ibid.[4.6].
[38]Ibid.
[39]Ibid [4.7].
Rule 11.05(1) provides that in a proceeding commenced by writ, as is the case here, the defendant “may not file a third party notice until the defendant has first served a defence”.[40] Accordingly, the third party notice could not be served before 15 April 2020.
[40]Supreme Court (General Civil Procedure) Rules 2015.
Rule 11.05(2)(a) provides that a defendant may file a third party notice within 30 days after the time limited for the service of a defence or at any time with the leave of the Court or by consent.[41] On 13 May 2020, the parties provided minutes of consent. The consent orders were made on 3 June 2020. The defendant was to file and serve any third party notices by 29 May 2020. It did not. There was a delay of approximately one year before it filed this application for leave to file the third party notice.
[41]Ibid.
It was not until 4 June 2020, that the title and electoral roll searches for Ward commenced.[42] There is no adequate explanation as to why those steps were not commenced at least three months earlier, after Ward’s personnel file with the defendant had been located. The defendant certainly ought to have accelerated efforts to locate Ward after having consented to orders that third party notices should be filed and served by 29 May 2020.
[42]Third Wright affidavit [4.10(a)].
The defendant did not act in a timely manner to locate Ward in the period between receiving the results of the electoral roll searches and writing the 25 March 21 letter to the plaintiff’s solicitors inviting the plaintiff to join Ward as a defendant.
By 11 September 2020 the defendant had received the title and electoral roll searches, and reviewed property searches in relation to Ward.[43] The electoral roll searches were inconclusive.[44] There is no evidence as to the outcome of the property searches. A further month elapsed before a private investigator was engaged to locate Mr Ward.[45] After yet another month elapsing, on 17 November 2020, the investigator informed the defendant’s solicitors that he could not confirm whether any of the persons with the surname ‘Ward’ were the correct person.[46] A further month elapsed before the defendant’s solicitors had a telephone conversation with someone named Ward.[47] He refused to confirm his identity but said that his solicitor may contact the defendant’s solicitors.[48] No such contact was received.[49] Another two months elapsed before the defendant caused correspondence to be sent to the address of a person with Ward’s surname.[50] A week or so later, the defendant caused subpoenas to be issued to Victoria Police and the Office of Public Prosecutions in relation to the proposed third party.[51] Approximately one fortnight later, namely on 5 March 2021, the Office of Public Prosecutions informed the defendant’s solicitors that Ward was facing criminal charges.[52]
[43]Affidavit of Kate Elise Wright affirmed 17 June 2021 (‘second Wright affidavit’) [5.2].
[44]Ibid.
[45]Ibid [5.3].
[46]Ibid [5.5].
[47]Ibid [5.6].
[48]Ibid.
[49]Ibid.
[50]Ibid [5.7].
[51]Ibid [5.8].
[52]Ibid [5.10].
By the defendant’s 25 March 21 letter, the plaintiff was invited to join Ward as a party. The plaintiff was requested to respond by 1 April 2021. The letter states:
In the alternative, we seek your client’s consent to extend the time in which the third party may be joined to the proceeding. In the event your client does not wish to join Ward as the defendant, then we intend to join him by way of third party proceedings.[53]
[53]Exhibit ‘KEW-1’ to the second Wright affidavit [6].
The letter stated that “investigations have been difficult, owing partially to the historical nature of this matter partially towards common name, and potentially the spelling of his name. Our client did not hold any recent contact details for Ward.”[54] It set out the steps, described in the defendant’s submissions above, that the defendant had taken to locate and contact Ward.[55]
[54]Ibid [2].
[55]Ibid [3.1]-[3.11].
The defendant’s 25 March 21 letter also foreshadowed orders adjusting the procedural timetable and that the defendant’s solicitors would write to the plaintiff’s solicitors “regarding whether or not the trial date can be maintained given the delays to this matter.”[56]
[56]Ibid [8].
By the earlier consent orders made on 3 June 2020, the proceeding had been fixed for trial on 25 May 2021.
On 23 April 2021, the defendant filed an application to vacate the trial date.
On 29 April 2021, the defendant’s solicitors accessed the Victoria Police subpoena material and confirmed Ward’s address.[57]
[57]Third Wright affidavit [6].
On 30 April 2021, there was a hearing in respect of the defendant’s application to vacate the trial date. The application was opposed by the plaintiff. Orders were made vacating the trial date.
On 30 April 2021, orders were also made that the defendant file and serve any application to join Ward as a third party by 21 May 2021. The defendant complied with the time in that order by its application filed on 18 May 2021.
The defendant did not file the third party notice in accordance with the Rules or consent orders of 3 June 2020. Should leave be given to issue the third party notice now?
The substance of the claim and content of the proposed third party notice favour giving leave. Had the notice been filed on time, it would have been convenient for the third party proceeding to be heard concurrently with the proceeding as between the plaintiff and defendant. It would have been efficient and avoided a multiplicity of proceedings. I accept the defendant’s submission that Ward’s evidence will impact on how it prepares and defends the proceeding. It is however confounding that the defendant says it requires Ward to give evidence yet did not act in a timely manner to locate him. Moreover, as the plaintiff says, the defence currently pleaded is not that the allegations are denied, but that they are not admitted. The trial can proceed without the third party proceeding.
The countervailing factors to granting leave to issue the third party notice are delay and the prejudice that occasions to the plaintiff. I accept the evidence that prolongation of the litigation may negatively impact the plaintiff’s mental health. Dr Lewis, psychiatrist, diagnoses the plaintiff with Chronic Adjustment Disorder.[58] Dr Lewis’ opinion is that the plaintiff’s “psychological state would be at risk of deterioration during the litigation process”.[59]
[58]Exhibit ‘GS-2’, report of Dr Justin Lewis, to the Sneddon affidavit, 7.
[59]Ibid, 8.
In Aon,[60] the High Court held that “there is an irreparable element of unfair prejudice is unnecessarily delaying proceedings. Moreover, the time of the Court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.”[61]
[60]Aon Risk Services Australia v Australian National University (2009) 248 ALR 14.
[61]Ibid [5].
I adopt the following principles given by Dixon J in Fenridge Pty Ltd v Retirement Care Australia Preston Pty Ltd & Ors (‘Fenridge’):[62]
[62][2012] VSC 439.
The cornerstone of the Civil Procedure Act 2010 is that in relation to civil proceedings the overarching purpose is to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute in the proceeding. There is an evident tension in the statement of the overarching purpose. The court cannot lose sight of the fundamental requirement that a trial must be conducted fairly and in accordance with the principles of natural justice and procedural fairness. That tension is also evident in the s 9 considerations to which the court has regard when furthering the overarching purpose. Under s 9(2) of the Act, I may have regard to the following matters relevantly for this application:
...
(c)the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;
(d)the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;
(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;
(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court.
... There is substantial correlation between the matters identified in s 9 of the Civil Procedure Act 2010 and the considerations identified in the cases prior to its enactment that concern the exercise of procedural discretions under civil procedure rules.
...
In Aon Risk Services Australia Ltd v Australian National University the High Court had occasion to consider r 21 of the Australian Capital Territory court procedure rules, which states the purpose of those rules in terms similar to Part 2.1 of the Civil Procedure Act 2010. Bearing in mind that the court was concerned with a pleading amendment, the observations of the plurality are pertinent on this application:
The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 152. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.[63]
[citations omitted]
[63]Ibid [25]-[26] and[28].
In Fenridge, J Dixon J upheld the decision of an associate judge who refused an application for leave to file and serve a third party notice. Similarly to here, the proceeding had been set down for a second occasion, and the plaintiff did not wish to lose the trial date. In that proceeding, there was a three year delay. The delay was unexplained.
In Michael Jack (By his Litigation Guardian Daniel Jack) v Koutsioulis & Ors,[64] Clayton JR (as Her Honour then was) dismissed an application by the third defendant to join third parties some ten months out of time. The plaintiff opposed the application on the basis that the trial date would no longer be tenable, and that any vacation of it would prolong his financial stress and deny him adequate medical support.[65] Clayton JR stated:
On the one hand a defendant has an entitlement to pursue a party against whom it reasonably considers it could seek a contribution. To have third party proceedings heard at the same time as the trial of the primary proceeding may be the most efficient and cost effective means of disposing of a matter. On the other hand, a plaintiff has an entitlement not to have the proceedings unduly complicated or delayed by the addition of a third party, particularly in circumstances where a delay would be substantial and likely to cause real prejudice. [66]
[64][2018] VSC 72.
[65]Ibid [3].
[66]Ibid [38].
Clayton JR held that there would be a substantial delay if the application were granted and a degree of irreparable prejudice that would be caused to the plaintiff if his trial was vacated.[67] Her Honour was “not satisfied that the third party claims could not have been brought within time, or within a time that could have avoided the inevitable vacation of the trial date”.[68]
[67]Ibid [42].
[68]Ibid [60].
In Ramadge v Northern Health,[69] Clayton JR dismissed an application by the second defendant to join third parties brought just over two weeks prior to trial in circumstances where, if it were allowed, the trial date would likely be vacated. Her Honour stated, referring to Aon: “Losing a trial date carries with it a degree of irreparable prejudice which must be weighed along with all the other factors in determining the exercise of the discretion.”[70]
[69][2017] VSC 281.
[70]Ibid [29].
Here, the delay is approximately one year. The defendant has already caused one trial date to be vacated. If the third party notice is issued, it is likely to lead to a vacation of the second trial date. The application was filed five months’ prior to trial. In order for the third party proceeding to be ready for trial, it would have required that Ward agree and comply with an expedited timetable. The defendant elected not to serve Ward with notice of this application. I do not have the benefit of any submissions with from him regarding these matters. I do not infer that Ward would agree to an expedited timetable.
The trial is now approximately three and a half months away. If the defendant filed the third party notice and served Ward within the next 10 days, then Ward would have 10 days to file an appearance and then another 30 days to file a defence. By that time it would be late August, about one and a half months before trial. In that time, Ward would need to complete all necessary pre-trial steps including discovery, exchange of any expert reports and mediation (currently due to occur by 31 August 2021). Although Ward is not incarcerated,[71] it is likely that he will be distracted by the criminal charges given that criminal proceedings have commenced against him. It is more likely than not, he would not be ready to proceed on the listed trial date. That, in turn, would likely result in vacation of the trial date.
[71]Third Wright affidavit [16].
Vacation of the second trial date would cause an irreparable element of unfair prejudice to the plaintiff. It would almost certainly cause the trial to be delayed until mid-late 2022.
The just outcome is to dismiss the defendant’s application to issue the third party notice.
For completeness, and although unnecessary given the finding above, I will address the plaintiff’s submission on whether orders ought be made dispensing with r 11.12(b). Rule 11.12 states:
Discovery and trial
Where the third party files an appearance-
(a)the third party and the defendant by whom the third party was joined may have discovery of one another; and
(b)unless the Court otherwise orders-
(i)the third party may attend and take part at the trial of the proceeding;
(ii)at the trial the questions between the defendant and the third party shall be tried concurrently with the questions between the plaintiff and the defendant; and
(iii)the third party shall be bound by the result of the trial. [72]
[72]Supreme Court (General Civil Procedure) Rules 2015 r 11.12.
The plaintiff seeks that r 11.12(b) be dispensed with. Rule 2.04(1) provides that the Court ‘may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises’. (underline added) As is evident, r 11.12(b) does not require compliance by the parties. Accordingly, it is not proper to dispense with the rule. It is a rule clarifying the procedure for trial of the third party proceeding ‘unless the Court otherwise orders’.
Moreover, as r 11.12 only applies where the third party files an appearance, it is premature to consider whether or not the Court should exercise its discretion to ‘otherwise order’. There is good reason for this timing. If the third party files an appearance, they should be given the opportunity to be heard on the issue.[73] Further, as a matter of policy, the Court will not decide hypothetical questions or give advisory opinions.[74] The question as to whether r 11.12 should be dispensed with is both premature and hypothetical.
[73]See generally, Consolidated Exploration Ltd v Ord Minnett Ltd (VSC Folio 3783, 15 April 1993, unreported BC9300765, per Ormiston J).
[74]AMP Fire and General Insurance Co Ltd v Dixon [1982] VR 833, referring to Swift Australia Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368.
For completeness, I will also address the plaintiff’s concerns about a potential stay application from the defendant or Ward. The evidence is that the criminal proceedings do not relate to the allegations made in this proceeding.[75] There is no evidence here that the plaintiff has made a complaint to the police regarding the subject-matter of the allegations or that he intends to do so.[76] Accordingly, the prospect of a stay is not a relevant factor to consider at this time.
[75]Exhibit ‘KEW-2’ and ‘KEW-3’ to the third Wright affidavit.
[76]Cf Villan v State of Victoria 2021 VSC 354 and Lucciano v The Queen [2021] VSCA 12.
Conclusion
I will make orders dismissing the defendant’s application to issue the third party notice. I will give the parties an opportunity to confer on the question of costs.
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