Meli v Ceva Logistics (Australia) Pty Ltd
[2017] VSC 603
•6 October 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 01279
| UGO RAOUL CONSTANTINO GIOVANNI MELI | Plaintiff |
| v | |
| CEVA LOGISTICS (AUSTRALIA) PTY LTD & HRX TPT PTY LTD | Defendants |
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JUDICIAL OFFICER: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 September 2017 |
DATE OF JUDGMENT: | 6 October 2017 |
CASE MAY BE CITED AS: | Meli v Ceva Logistics (Australia) Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 603 |
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PRACTICE AND PROCEDURE – Application for leave to file a Statement of Claim in contribution proceedings – whether Wrongs Act 1958 (Vic) Part IV contribution claims allow for pleadings – Civil Procedure Act 2010 (Vic) s 23 – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 1.14, 11.01, 11.15(1), 11.15(4)(a) and 11.15(5) – application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allan | Arnold Thomas & Becker |
| For the First Defendant | Ms F Spencer | Thomson Geer |
| For the Second Defendant | Mr J C Simpson | Mills Oakley |
JUDICIAL REGISTRAR CLAYTON:
Orders
The Second Defendant have leave to file and serve an Amended Defence and a Statement of Claim in its contribution proceedings against the First Defendant in substantially the forms exhibited to the Affidavit of Stuart John Eustice sworn 15 September 2017.
The First Defendant is to file and serve a Defence to the Second Defendant’s contribution proceedings by 20 October 2017.
Costs be in the proceeding.
Introduction
This is an application by the Second Defendant, HRX TPT Pty Ltd (“HRX”), for leave to file and serve an Amended Defence and a Statement of Claim in its contribution proceedings against the First Defendant, Ceva Logistics (Australia) Pty Ltd (“Ceva”).
The Plaintiff, Mr Meli, consents to the applications.
Ceva consents to the application for leave to file an Amended Defence but opposes the application for the service of a Statement of Claim in the contribution proceedings.
Background
Mr Meli was employed by Ceva and was injured in the course of his employment when a stack of metal gates on a transport trailer (“the trailer”) fell on him.
He sues his employer, Ceva, and the owner and operator of the trailer, HRX.
Mr Meli makes the following allegations:[1]
[1]Statement of Claim filed 8 April 2016.
(a) Ceva was his employer;
(b) HRX carried on an interstate transport business;
(c) a transport trailer owned or in the custody of HRX was left at Ceva to be loaded by Ceva’s servants or agents;
(d) at the time that the transport trailer was left at Ceva, it was stacked with an incorrectly positioned or fastened stack of metal gates;
(e) Mr Meli was injured when the incorrectly positioned or fastened gates fell on him (“the incident”);
(f) Ceva was negligent in failing to provide a safe system of work and a safe place of work; and
(g) HRX was negligent in, amongst other things, failing to instruct its employees as to the manner in which to leave the empty transport trailers at Ceva’s premises, failing to employ competent staff, and failing to ensure that the transport trailers were not left with Ceva in a dangerous condition.
On Mr Meli’s case, Ceva is liable as his employer for exposing him to the unsafe trailer which was rendered unsafe by the way in which the gates were stacked by HRX.
Ceva admits:[2]
[2]In its Defence filed 12 May 2016.
(a) that it was Mr Meli’s employer;
(b) that Mr Meli was acting in the course of his employment when the incident occurred; and
(c) that the trailer was owned or in the custody of HRX and was left at Ceva’s premises to be loaded by its servants or agents.
Ceva denies:
(a) that the metal gates on the trailer were incorrectly positioned or fastened; and
(b) that it was negligent.
Mr Meli pleads that HRX owed him a duty to exercise reasonable care to avoid exposing him to the unnecessary risk of injury.
In its Defence,[3] HRX denies that the trailer was left with an incorrectly positioned and fastened stack of metal gates and does not admit that it owed Mr Meli a duty to exercise reasonable care to avoid exposing him to the unnecessary risk of injury.
[3]Filed 6 June 2016.
HRX now seeks to amend its Defence[4] to plead that HRX was:
[4]Second Defendant Applicant’s Short Outline of Submissions dated 22 September 2017.
(a) excluded by Ceva from having its own HRX drivers participate in the set-up and loading of empty trailers at the SPT depot where the injury occurred;
(b) excluded by Ceva from having its own HRX drivers unfasten the gates (including any extension gates) secured by ropes within the empty trailer immediately before the injury occurred;
(c) compelled by Ceva to rely upon the Ceva loaders to exercise their own independent skill, judgment and competence to safely unfasten the gates secured by ropes;
(d) had no control over the manner by which Mr Meli was instructed or trained to unfasten the ropes securing the gates;
(e) had no control over the state or condition of the gates at the time Mr Meli started to unfasten them;
(f) was not responsible for the system of work Ceva implemented;
(g) was not responsible for the state or condition of work;
(h) was not responsible for the manner in which Mr Meli communicated or performed his duties with his co-worker;
(i) was not responsible for determining how, when, or in what circumstances it was safe or unsafe for Mr Meli to unfasten the gates; and
(j) for these reasons did not owe Mr Meli a duty to exercise reasonable care to avoid exposing him to the unnecessary risk of injury as alleged.
Ceva and HRX claim contribution from each other and also plead contributory negligence by Mr Meli.
At issue is whether HRX ought to be granted leave to file a Statement of Claim in its contribution proceeding against Ceva.
HRX served a Notice of Contribution dated 7 June 2016 on Ceva in the Form 11B pursuant to r 11.15(5) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (“the Rules”).
That Notice of Contribution states that HRX “claims to be entitled to contribution from you in respect of any sum which the plaintiff may recover herein against the second defendant to the extent of such amount as may be found by the Court to be just and equitable having regard to the extent of your responsibility for such damages on the ground that your negligence contributed to the happening of the incident.”
Rule 11.15(5) provides that ‘where a party claims against another party to the proceeding contribution pursuant to Part IV of the Wrongs Act 1958, a notice under paragraph (1) shall be in accordance with Form 11B.’
Rule 11.15(1) provides that ‘where a party claims as against another party to the proceeding any relief of the kind described in Rule 11.01, the party may make the claim against the other party by filing and serving a notice in accordance with the Rule’.
Relief of the kind described in r 11.01 is ‘any contribution or indemnity’ or 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.’
HRX now seeks to serve a Statement of Claim which sets out in detail the basis upon which that contribution claim against Ceva is made. By serving the Statement of Claim, HRX seeks to require Ceva to plead to the contribution claim.
HRX submits that Ceva’s Defence to Mr Meli’s claim is a “bare defence” containing admissions, denials and non-admissions without providing the parties or the Court with any information about the way in which it makes out its defence.
HRX wants to know, and submits that the Court is also entitled to know, what defence Ceva has to the allegations it makes about agreements and arrangements said to exist between HRX and Ceva.
Those allegations are essentially that, at the time of the incident, Ceva excluded HRX from any participation in the set-up and loading of empty trailers at the depot where the incident occurred.
Ceva says that the allegations that HRX makes against it are before the Court in HRX’s Amended Defence and therefore there is no need for the contribution claim to be “fleshed out” with a Statement of Claim. Requiring Ceva to put on a defence to the contribution claim, at this late stage, would be unnecessarily onerous and could trigger a ‘chain reaction’ of events that would potentially jeopardise the trial date.
Further, Ceva submits that the Rules establish a different regime for claims brought pursuant to Part IV of the Wrongs Act 1958 (Vic) (“Wrongs Act”), which do not require a Statement of Claim, and other claims for contribution. Claims for contribution other than pursuant to Part IV of the Wrongs Act must be filed in accordance with Form 11A and are required to be indorsed with Statement of Claim.[5] Ceva says that the distinction between Part IV contribution claims and other contribution claims is that Part IV claims are of a nature and type that ought not require Statements of Claim. The issues as between the parties ought to be fully set out in the pleadings in the primary claim and the parties ought not be put to additional work by essentially duplicating existing claims and defences.
[5]Rule 11.15(4)(a).
Decision
The regime imposed by Part IV entitles defendants to claim contribution as against each other prior to any finding by the Court that any defendant is liable to pay damages to the plaintiff.
Part IV seeks to ensure that all matters to be determined are before the Court and to reduce the burden on the Court and the parties from having to run additional litigation.
Ordinarily pleadings are not required. The plaintiff bears the burden of proving his or her case, and it is only if that case has been proven that the contribution claims are enlivened. Defendants ought not have to make out the plaintiff’s case.
The plaintiff’s pleadings ought to disclose the case against all defendants. The defences ought to fully set out how the claim will be defended. The contribution claim then merely requires defendants to notify each other and the Court that, if they are liable, they will be seeking that a co-defendant contributes to the award of damages.
The basis upon which the contribution is sought ought to be, and generally is, apparent from the plaintiff’s statement of claim, which sets out the plaintiff’s allegations of negligence against each defendant.
However the nature of the contribution issues as between defendants is not always apparent to the Court, particularly where, as in this case, they involve agreements between defendants that do not directly involve the plaintiff.
HRX says that prior to November 2006 it would set up and load its trailers with tyres, which involved unfastening stacks of metal gates from the ropes securing them. After November 2006 and at the time of the incident, Ceva designed, implemented and maintained a system of work which prevented HRX drivers from any set up or loading work and precluded HRX drivers from unfastening the stacks of metal gates. Instead, Ceva employees would undertake these tasks and HRX’s role was limited to providing the empty trailer and transporting it once loaded up.
HRX says that Ceva took exclusive possession and control of HRX trailers during the period of time between delivery of the empty trailer and the transporting of the loaded trailer, and as such became the “occupier” under s 14A(b) of the Wrongs Act.
HRX says that it was compelled by Ceva to rely on Ceva’s own servants and agents to “exercise their own independent skill, judgment and competence” in unfastening the metal gates. HRX was precluded from having any control over the manner in which Mr Meli was instructed or trained in unfastening the gates.
There is nothing in Ceva’s Defence, answers to interrogatories or Notice of Contribution to indicate to Mr Meli, HRX, or to the Court, what Ceva says about these allegations.
Ceva submitted that the most cost-effective way for those matters to be before the Court would be for the parties to provide an amended joint memorandum to the trial judge.
There is a considerable difference between pleadings and a joint memorandum which is designed to provide assistance to a trial judge but does not purport to be the formal exposition of a party’s case.
Ceva’s Counsel drew the Court’s attention to the case of Edingbay v Horwath.[6] The facts and circumstances of that case were vastly different to the present proceedings but Hansen J does include a useful summation of the way a claim for contribution is made pursuant to Part IV. His Honour explained that:
“Form 11B is a short form notice which claims contribution using the relevant language of s.24(2) of the Wrongs Act. It also provides for the claimant to state the grounds on which contribution is claimed. The notice is not indorsed with a statement of claim, in view of the fact that the respondents to it are already parties and having regard to the nature of the relief sought. Thus a party to whom it is directed does not plead to it.”[7]
[6][1999] VSC 397.
[7]Ibid [8].
His Honour went on to note that:
“Horwath’s notice was not indorsed with a statement of claim, it used the language of the Wrongs Act and in my view it was reasonably to be read as having incorporated the plaintiff’s statement of claim...by way of identifying the repository of the grounds on which that contribution was sought and not by way of pleading an alternative basis on which contribution or indemnity was sought.”[8]
[8]Ibid [17].
The point in this passage is that the basis of the claim of contribution was clear from the Notice and by incorporating the plaintiff’s Statement of Claim into the Notice.
The basis of the claim of contribution made by HRX in this case is not clear from the Notice of Contribution and, more importantly, the basis upon which Ceva might respond to that Notice of Contribution is unknown.
Ceva’s submission that HRX could have requested further and better particulars of Ceva’s Notice of Contribution does not deal with the primary problem that Ceva’s response to HRX’s allegations is unknown.
The Court is reluctant to impose any additional burden on parties and is mindful of the costs implications of requiring parties to take steps not contemplated by Order 11 of the Rules.
The Court is also mindful of the need to ensure that the overarching obligations imposed by the Civil Procedure Act 2010 (Vic) are met by both the Court and the parties, including the obligation in s 23 of that Act to narrow the issues in dispute.
In most cases, pleadings in Part IV claims would not be warranted. This is a particularly unusual case, in that HRX puts in issue matters that are otherwise not before the Court, and to which Ceva has not been required to respond.
In this unusual case, it is appropriate that, pursuant to r 1.14 the Court exercise its power to endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined.
The application for leave to file an Amended Defence and a Statement of Claim in the contribution proceedings is granted.
The application is unusual and it was not unreasonable for Ceva to oppose. In the circumstances, I will not make the usual order that costs follow the event but will order that costs be costs in the proceeding.
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