Moore v Landsdale Pty Ltd as Trustee for the Mount Barker TRUST [No 4] - [2013] WASC 210

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MOORE -v- LANDSDALE PTY LTD as Trustee for the MOUNT BARKER TRUST [No 4] [2013] WASC 210

CORAM: KENNETH MARTIN J

HEARD: 19 APRIL 2013

DELIVERED : 19 APRIL 2013

PUBLISHED : 30 MAY 2013

FILE NO/S: CIV 2588 of 2008

BETWEEN: NEIL WILLIAM MOORE
WARREN ROBERT MOORE
Plaintiffs
AND
LANDSDALE PTY LTD as Trustee for the MOUNT BARKER TRUST (ACN 009 382 969)
First Defendant
IAN PAUL CROCKETT as Trustee for the IPC TRUST
Second Defendant
ROBERT GRAHAM QUENBY and ADRIENNE QUENBY as Trustees for the QUENBY TRUST
Third Defendants
BRIAN STEPHEN BOWLEY as Trustee for the BOWLEY FAMILY TRUST
Fourth Defendant
ROBERT GRAHAM QUENBY
Fifth Defendant
QUENBY VITICULTURAL SERVICES PTY LTD (ACN 009 283 943)
Sixth Defendant

Catchwords:

Practice and procedure - Leave to intervene to be heard - Non-party application - Issues - Party seeking intervention to cross-examine - Defendants' part insurer - Quantum issues

Legislation:

Rules of the Supreme Court 1971 (WA), O 18 r 6

Result:

Application for leave to intervene refused

Category: B

Representation:

Counsel:

Plaintiffs:     Mr P G McGowan
First Defendant             :     Mr P D Quinlan SC
Second Defendant         :     Mr P D Quinlan SC
Third Defendants          :     Mr P D Quinlan SC
Fourth Defendant          :     Mr P D Quinlan SC
Fifth Defendant            :     Mr P D Quinlan SC
Sixth Defendant            :     Mr P D Quinlan SC
Non-party:     Mr P Mendelow

Solicitors:

Plaintiffs:     Metaxas & Hager
First Defendant             :     Norton Rose Australia
Second Defendant         :     Norton Rose Australia
Third Defendants          :     Norton Rose Australia
Fourth Defendant          :     Norton Rose Australia
Fifth Defendant            :     Norton Rose Australia
Sixth Defendant            :     Norton Rose Australia
Non-party:     Jarman McKenna

Case(s) referred to in judgment(s):

Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579
Smith v Commissioners of Rural and Industries Bank of Western Australia [2009] WASC 100

KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 19 April 2013 and has been edited from the transcript.)

On 10 April 2013 an application by non‑party chamber summons, was filed on behalf of Wesfarmers General Insurance Ltd (Wesfarmers), seeking leave to intervene in the proceedings pursuant to O 18 r 6 of the Rules of the Supreme Court 1971 (WA). Wesfarmers is an insurer of the defendants, but only in respect of risk associated with the second of two chemical spray events of which the plaintiffs complain. The extent of the intervention is reflected by par 2 of that chamber summons, expressed in the alternative by reference to seeking, at the looming six‑week trial commencing in May, either 'cross‑examination of the expert accounting witnesses relied upon in the action by the plaintiffs and defendants and written and oral submissions', or:
alternatively, either the cross‑examination of expert accounting witnesses or the making of submissions as detailed in (a) above on the issue of quantum.
The application is strongly opposed by the plaintiffs. The defendant has not indicated support or opposition to the application. There is on behalf of the defendant, an affidavit of Jane Maree Tiller filed last night (18 April 2013) which clarifies some matters, but indicates that position.
The non‑party intervention application is supported by the affidavit of Ms Marianne Rose Rivette, sworn 10 April 2013.
In terms of the principles underlying a potential intervention, the non‑party, Wesfarmers, relied on two authorities. First were the general observations by Brennan CJ in Levy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579, 600 ‑ 602. In that case, Brennan CJ made those general observations in relation to intervention in a High Court action. That matter involved a significant public interest issue associated with ascertaining whether the plaintiff had an implied right or freedom, to campaign against duck shooting, under the Australian Constitution.
The observations made by Brennan CJ in Levy v The State of Victoria (600 ‑ 602) are of some broad assistance, conceptually. They were referred to by his Honour the Chief Justice in Smith v Commissioners of Rural and Industries Bank of Western Australia [2009] WASC 100 where there was an application to seek dismissal of the plaintiffs' action made by the Rural and Industries Bank (the Bank). In other proceedings the plaintiffs had sued their Queen's Counsel, seeking to contend for damages arising from his advice. Queen's Counsel's legal representatives sought to intervene to make submissions in the Bank's dismissal application. Martin CJ allowed that intervention in the particular circumstances of that case. In the end, however, it did not inhibit the proceedings against the Bank being dismissed. A third party claim scenario whereby the Queen's Counsel sought contribution from the Bank was similarly dismissed, on the basis that the character of damage sought as between the two actions, was different.
In the present case the plaintiffs pursue common law damages arising out of two alleged events of loss to their marron and for consequential economic loss arising out of alleged negligent spraying incidents with chemicals. These spraying incidents are said to have occurred in 2002 ‑ 2003 and 2004 ‑ 2005. The chemicals are alleged to be sprayed on a neighbouring vineyard owned or operated on behalf of the defendants.
Wesfarmers as the insurer at risk on the second (2004 ‑ 2005) spraying incident only, seeks to intervene to contend that the first (2002 ‑ 2003) spraying incident (for which it is not on risk) is largely responsible for generating the significant damages the plaintiffs seek. The basis for intervention is late, with the trial due to commence, running for six weeks from Monday, 6 May 2013.
The position of an insurer seeking to intervene in a trial to cross‑examine and to run an evidentiary position, possibly contrary to that taken by a defendant is, in my experience with insurance law, without precedent. Certainly, no direct precedent concerning an insurer has been cited to me today, other than the general conceptual intervention principles referred to from the cases I mentioned earlier.
A dearth of direct case authority is, I believe, indicative of the misconceived basis of this application. This action is the plaintiffs' claim for damages against the defendants. Any exposures, potentially in the defendant's insurers, is a contractual matter emerging exclusively out of that relationship as between the defendant and its insurers from time to time. Contractual issues as between the defendant and its insurers do not concern the plaintiffs at all, in a legal sense. There may perhaps be a wider economic perspective for the plaintiffs going to the root question of how they might actually recoup any charges won (if they in fact succeed at trial), and seek to enforce that judgment against the defendants.
But it would be unprecedented, in my view, to countenance an insurer to intervening in a trial and adducing evidence by participating in the cross‑examination of experts at a trial, to advance purely its own commercial interests in terms of its exposures or quantification of the defendants' indemnifiable exposures. I assess this proposal as not only unprecedented, but unprincipled, since the interests of an insurer arise only through the contractual relationship with the defendants, in which the plaintiff is not privy.
From time to time, insured defendants in civil litigation may have problems with their insurers. These difficulties can be catered for in different ways. If an insurer does not take over the running of the action (as is the case here) these matters usually resolve longer term after the result of the trial. It seems to me that an intervention, to the objective of an insurer seeking to adduce evidence at trial from a different perspective to the defendants, as regards a quantification of damage or, indeed, upon temporal causation issues (in 2002 ‑ 2003) as to the time of the significant damage, by reference to the different causative outcomes of spraying incident one, in contrast to spraying incident two (in 2004 ‑ 2005), has some potential to derail the proper running of the trial. I will not allow it to happen.
Wesfarmers, no doubt, will closely follow the progression of this trial and the unfolding evidence from a distance, as is its right. There may even arise the question whether Wesfarmers be permitted to intervene, once the evidence in the case has closed, in order to make submissions, either orally or in writing, once all evidence, as to causation or quantification of damages has been received.
That prospect I would assess as a lot less capable of derailing the trial, minimalist and potentially, even helpful to the court. However, my decision as to whether leave should be granted to that limited end, is best left until all evidence is in, at a time when closing submissions for the trial are in prospect.
It may be, depending on how the evidence unfolds at trial, there is no basis at all for an insurer's intervention at that time. On the other hand, it may be there are some particular nuances in the financial evidence, or positions of the experts' reports upon which, with minimal disruption, a differing perspective from an insurer, such as for the ramifications of a second spraying incident, could be justified. Communication of such a perspective might be best limited to a bare written submission at that time.
I refuse the intervention application at this point as being unprincipled, late and presently inappropriate. However, I will leave open scope for Wesfarmers to reapply after the conclusion of the trial evidence to seek leave to make a limited submission, by reference to its own commercial interests, vis‑à‑vis the effects of the second spraying incident and implications as regards causation of damage and quantum.
Such further application, if made, will be evaluated on its merits, at that time. I preserve Wesfarmers' position in that future respect, but otherwise dismiss the present application.
(NOTE: The trial subsequently commenced in May 2013. It ended on day nine with a consensual dismissal of the plaintiffs' action. No further intervention application by an insurer arose for determination.)