Oliver v ACN 007 870 484 P/L (No 2) - [2016] SADC 150

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
OLIVER v ACN 007 870 484 P/L & ORS (NO 2)
[2016] SADC 150
Judgment of His Honour Judge Gilchrist
15 November 2016
PROCEDURE
Application by Third Party to sever from the primary action – Principles guiding such applications considered and discussed – Held: that as the Third Party had not identified actual prejudice the Third Party Action should proceed with the primary action with liberty to renew the application should actual prejudice exist.
District Court Rules 2006 r 3, 19, 210(1), referred to.
Aon Risk Services Australia Ltd v Aust National University (2009) 239 CLR 175, considered.

OLIVER v ACN 007 870 484 P/L & ORS (NO 2)
[2016] SADC 150

This is an application by BI (Contracting) Pty Ltd (BI) for the third party action that has be made against it by the defendants, ACN 007 870 484 Pty Ltd and the Myer Emporium Ltd, (Myer) to be severed from the primary action taken by the plaintiff, Mr Kenneth Oliver, and stayed pending the outcome of that case.
Mr Oliver has issued proceedings against Myer alleging that he was at all relevant times employed by Myer; that in the course of that employment he was as a result of Myer’s negligence, breach of statutory duties and contractual obligations, exposed to asbestos; and that as a result of that exposure, he has contracted mesothelioma and has suffered injury, loss and damage.
Mr Oliver is 88 years old. Medical evidence was placed before the Court that indicated that he is suffering from terminal mesothelioma and that he has a shortened life expectancy. Following an application made by his solicitors, an order was made on 30 June 2016 classifying the proceedings as urgent for the purposes of Rule 19 of the District Court Rules 2006, resulting in a suite of orders being made to facilitate the timely disposition of the proceedings.
By letter dated 19 September 2016, Myer’s solicitors informed BI of a potential claim being made against it.
On 21 October 2016, Myer’s solicitors sought and the Court granted Myer leave to issue third party proceedings against BI.
On the same day Mr Oliver’s solicitors applied for an urgent hearing. The Court acceded to that request and listed the primary action for hearing on 29 November 2016 and several days thereafter.
An oral application made at that time by BI to sever the third party proceedings was adjourned for further consideration.
The third party proceedings were filed and served on 25 October 2016.
BI now renews its application to sever the third party proceedings. It seeks the severance on the basis that it has not yet seen a medical report following an examination of Mr Oliver by Dr Antic, which Myer arranged to take place on 9 November 2016. It also contends some potential embarrassment in connection with the recent receipt of an expert report of Mr Kotteck that was commissioned by Mr Oliver’s solicitors and in relation to discovered documents generally.
Evidence was placed before the Court indicating that Mr Oliver supports the application to sever.
The application of the Rules of Court involves a balancing of what at times can be competing interests. Whilst the Court always endeavours to be fair and to do justice between the parties according to law, it is also mindful of the need to maintain its integrity and the public’s confidence in it as an institution. As such it is mindful of the need to protect its integrity. It will strive to ensure that it and its resources are used effectively and efficiently. It will be concerned that there is an appropriate sense of proportionality in terms of the time, cost and resources and the importance, complexity and value of the issues in contest. These sentiments reflect the approach taken by the High Court in Aon Risk Services Australia Ltd v Australian National University.[1] They also reflect the specified objects of the Rules as enshrined in Rule 3 which amongst other things provides that they are designed:
to avoid all unnecessary delay in the resolution of civil disputes; to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice; and to minimise the cost of civil litigation to the litigants and to the State.
[1] [2009] HCA 27; (2009) 239 CLR 175.
Parties, on the other hand, can be expected to wish to conduct litigation in a way that best serves their interests. On occasions those interests might best be served by delay or by conducting the litigation in a way that from the Court’s perspective is inefficient or involves what it would regard as a disproportionate allocation of time, cost and resources.
Third party proceedings can often test these competing interests.
Generally it would be a more efficient use of the Court’s time and resources to conduct the primary and secondary actions concurrently. This will assist in avoiding the potentially disproportionate allocation of time, cost and resources to the litigation.
On the other hand, plaintiffs will have little or no interest in the third party proceedings and might be concerned that to participate in them will add to their stress and to the costs and delays associated with the litigation.
Third parties will on occasions think it is in their best interests to keep the primary and secondary actions separate. Severance and delay may make it more difficult for the defendant to prove its case. More time may enable the third party to be better advised and to be able to better conduct its defence, especially if the joinder was late.
The District Court Rules reflect these competing interests. Rule 210(1) provides that “Unless the Court otherwise directs, all issues in both primary and secondary actions are to be tried together.”
In other words, there is an expectation that the actions will be heard concurrently but the rule recognises that sometimes, in the interests of justice, the proceedings should be conducted separately.
Mr Oliver says that he supports the application to sever. But he offers no reasons for doing so. As presently advised if both actions are tried together the trial will be completed within four or five days. Whilst it would undoubtedly occupy less time if it was confined to the primary action, there is no basis to infer that Mr Oliver will be unfairly disadvantaged by his participation in both proceedings being conducted concurrently.
BI points to potential embarrassment, but that is all. There is no evidence of actual embarrassment in connection with the advice that it requires or in the conduct of its defence.
For now, it is reasonable to infer that it would be a more efficient use of the Court’s time and resources to conduct the proceedings concurrently, rather than separately.
Having weighed up the parties’ interests, I am not satisfied that the Court should depart from the expectation that the primary action and the secondary action will be tried together.
If over the course of its preparation for trial or during the hearing, BI experiences actual prejudice that would unfairly compromise its ability to properly defend the action against it, it can renew its application.
If the adjudication of the issue of contribution begins to unfairly impact upon Mr Oliver or upon the timely determination of his claim, again the issue of severance can be revisited.
For now, I refuse the application.