Minproc Ltd v Killinger

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.