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Minproc Ltd v Killinger

Minproc Ltd v Killinger

Case [2001] WASC 347 14 December 2001

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MINPROC LTD -v- KILLINGER & ORS [2001] WASC 347

Link to Appeal :

[2002] WASCA 174

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 347
Case No:	CIV:2279/1997	Heard:	14 SEPTEMBER 2001
Coram:	WALLWORK J	Delivered:	14/12/01
No of pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	MINPROC LTD (ACN 008 992 694) WILLIAM FREDERICK KILLINGER JOHN ROBERT CAVILL ROBERT JOHN WILDE JESSE KAVANAUGH TAYLOR NEVILLE THOMAS CLEARY PETER ANDERTON PHILLIP CHARLES EARLEY BRETTNEY THOMAS FOGARTY
Catchwords:	Torts Third Party Notices Whether plaintiff would succeed against defendants if its directors (the third parties) acted negligently Whether the third parties could be held liable to defendants for contribution if the third parties acted negligently
Legislation:	Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, s 7(1)(c) Supreme Court Rules (WA), O 19 r 6
Case References:	Chapman v Hearse (1961) 106 CLR 112 Jones v Watney & Anor [1912] Vol XXVIII The Times LR 399 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 Minproc v Killinger & Ors [2001] WASCA 213 Thomas Borthwick and Sons (Australasia) Ltd & Anor v Samco Meats Pty Ltd [1995] VLR 474 Barisic v Davenport & Ors [1978] 2 NSWLR 111 Daniels v AWA (1995) 37 NSWLR 439 Esso Petroleum Co v Mardon (1976) 2 All ER 5 General Steel Industries Inc v Commissioners for Railways (NSW) (1964) 112 CLR 125 March v Stramare (1991) 171 CLR 506 Medlin v SGIO (1994-1995) 182 CLR 1 Metelmann & Co v NBR (London) (1984) 1 Lloyd's Rep 614 The World Beauty [1970] P144 CA Unity Insurance Brokers Pty Ltd v Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603 Wilson v United Countries Bank [1920] AC 102

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MINPROC LTD -v- KILLINGER & ORS [2001] WASC 347 CORAM : WALLWORK J HEARD : 14 SEPTEMBER 2001 DELIVERED : 14 DECEMBER 2001 FILE NO/S : CIV 2279 of 1997 BETWEEN : MINPROC LTD (ACN 008 992 694)

Plaintiff

AND

WILLIAM FREDERICK KILLINGER

First Defendant

JOHN ROBERT CAVILL

Second Defendant

ROBERT JOHN WILDE

Third Defendant

JESSE KAVANAUGH TAYLOR

Fourth Defendant

NEVILLE THOMAS CLEARY

Fifth Defendant

PETER ANDERTON

First Third Party

PHILLIP CHARLES EARLEY

Second Third Party

BRETTNEY THOMAS FOGARTY

Third Third Party

(Page 2)

Catchwords:

Torts - Third Party Notices - Whether plaintiff would succeed against defendants if its directors (the third parties) acted negligently - Whether the third parties could be held liable to defendants for contribution if the third parties acted negligently

Legislation:

Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947, s 7(1)(c)

Supreme Court Rules (WA), O 19 r 6

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Mr R L Le Miere QC

Second Defendant : Mr P D Robinson

Third Defendant : Mr J Gilmour QC

Fourth Defendant : Mr J Gilmour QC

Fifth Defendant : Mr J Gilmour QC

First Third…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Minproc Ltd v Killinger

Details

AGLC: Minproc Ltd v Killinger [2001] WASC 347
Case: [2001] WASC 347
Decision Date

CaseChat Overview and Summary

In the matter of Minproc Ltd v Killinger & Ors, the Supreme Court of Western Australia was called upon to determine the validity of third party notices filed by the defendants, William Frederick Killinger, John Robert Cavill, Robert John Wilde, Jesse Kavanaugh Taylor, and Neville Thomas Cleary. The defendants sought to hold the third parties, Phillip Charles Earley and Brettney Thomas Fogarty, liable for any damages resulting from their alleged negligence in managing the nitrate plant project. The court examined whether the third parties could be held liable for damages if they were found to have acted negligently, and if the defendants could claim contribution from the third parties under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947.

The court found that it was not necessary or possible to determine at that stage of the proceedings whether any aspect of the plaintiff's damage could be regarded as a foreseeable consequence of both the defendants' and the third parties' negligence, if such negligence were proved. The reasoning from Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 and Thomas Borthwick and Sons (Australasia) Ltd & Anor v Samco Meats Pty Ltd [1995] VLR 474 was applied, and it was held that if the defendants were held liable in damages to the plaintiff, they might be able to prove in the third party proceedings that if the third parties had been sued by the plaintiff, they would have been liable for some of the damages recovered by the plaintiff, entitling the defendants to an order for contribution from the third parties. As the application had not demonstrated that the third party notices could not succeed, the application was dismissed.

Orders