Proud Nominees Pty Ltd t/as Proud Machinery v CONSTRUCTIE Bruynooghe NV
[2008] WADC 91
•27 JUNE 2008
PROUD NOMINEES PTY LTD t/as PROUD MACHINERY -v- CONSTRUCTIE BRUYNOOGHE NV [2008] WADC 91
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 91 | |
| Case No: | CIV:2342/2005 | 13 JUNE 2008 | |
| Coram: | COMMISSIONER BUCKLEY | 27/06/08 | |
| PERTH | |||
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Order of Deputy Registrar Hewitt made 1 March 2007 is set aside | ||
| PDF Version |
| Parties: | PROUD NOMINEES PTY LTD t/as PROUD MACHINERY CONSTRUCTIE BRUYNOOGHE NV |
Catchwords: | Appeal against Registrar's decision to set aside Fourth Party notice Service out of jurisdiction Hearing de novo Turns on own facts |
Legislation: | Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947, s 7(1) Occupational Health, Safety and Welfare Act 1984 Rules of the Supreme Court 1971, O 10 r (1)(k), O 10 r (4)(2), O 12 r 6 |
Case References: | Agar v Hyde (2000) 201 CLR 552 Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109 Amin Rasheed Shipping Co v Kuwait Insurance Co [1984] AC 50 Attock Cement Co Ltd v Romanian Bank of Foreign Trade [1989] All ER 1189 Buttigeig v Universal Terminal & Stevedoring Corporation [1972] VR 626 Castree v ER Squibb & Sons Ltd [1980] 1 WLR 1248 Distillers Co (Bio-Chemicals) Ltd v Thompson [1971] AC 458 George Munro Ltd v American Cyanamid & Chemical Corp [1944] KB 432 Hart v Robinson Helicopter Co Inc & Ors, unreported; SCt of WA; 5 September 1988; Library No 7404 Hyde v Agar (1998) 45 NSWLR 487 Jackson v Spittall (1870) LR5CP 542 Lauren v Jolly [1996] 1 VR 189 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Vitkovice Horni A Hunti Tezirstvo v Korner [1951] AC 869 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant (Third Party)
AND
CONSTRUCTIE BRUYNOOGHE NV
Respondent (Fourth Party)
Catchwords:
Appeal against Registrar's decision to set aside Fourth Party notice - Service out of jurisdiction - Hearing de novo - Turns on own facts
Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947, s 7(1)
Occupational Health, Safety and Welfare Act 1984
Rules of the Supreme Court 1971, O 10 r (1)(k), O 10 r (4)(2), O 12 r 6
(Page 2)
Result:
Appeal allowed
Order of Deputy Registrar Hewitt made 1 March 2007 is set aside
Representation:
Counsel:
Appellant (Third Party) : Mr M Williams
Respondent (Fourth Party) : Mr J Fielding
Solicitors:
Appellant (Third Party) : DLA Phillips Fox
Respondent (Fourth Party) : Minter Ellison
Case(s) referred to in judgment(s):
Agar v Hyde (2000) 201 CLR 552
Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109
Amin Rasheed Shipping Co v Kuwait Insurance Co [1984] AC 50
Attock Cement Co Ltd v Romanian Bank of Foreign Trade [1989] All ER 1189
Buttigeig v Universal Terminal & Stevedoring Corporation [1972] VR 626
Castree v ER Squibb & Sons Ltd [1980] 1 WLR 1248
Distillers Co (Bio-Chemicals) Ltd v Thompson [1971] AC 458
George Munro Ltd v American Cyanamid & Chemical Corp [1944] KB 432
Hart v Robinson Helicopter Co Inc & Ors, unreported; SCt of WA; 5 September 1988; Library No 7404
Hyde v Agar (1998) 45 NSWLR 487
Jackson v Spittall (1870) LR5CP 542
Lauren v Jolly [1996] 1 VR 189
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Vitkovice Horni A Hunti Tezirstvo v Korner [1951] AC 869
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
(Page 3)
1 COMMISSIONER BUCKLEY: This is an appeal from the decision of Deputy Registrar Hewitt on 1 March 2007 setting aside the fourth party notice in this matter.
2 The fourth party notice in this matter was served out of the jurisdiction in Belgium pursuant to leave granted on 15 August 2006. The fourth party is a company based in Belgium.
3 Once served the fourth party had 60 days in which to file an appearance. The fourth party filed a conditional appearance and brought an application to set aside the fourth party notice or service of the fourth party notice pursuant to O 12 r 6 of the Supreme Court Rules (SCR).
4 A brief outline of the facts applicable to this matter is necessary before turning to the law.
Background
5 The plaintiff's action is for damages for an alleged personal injury arising out of a fall on 23 April 2004. The plaintiff asserts that she fell down a set of stairs that formed part of a carrot processing plant operated by the defendant. The defendant was the plaintiff's employer at the time.
6 The plaintiff sued the defendant for damages in negligence, breach of contract of employment and a breach of its statutory duties owed under the Occupational Health, Safety and Welfare Act 1984.
7 The plaintiff's particulars of negligence which have some relevance to this application are as follows:
"Particulars of Negligence
6.3 Failed to place or properly maintain warning signs at the top and bottom of the stairs to warn workers not to use the stairs or that they were dangerous;
6.6 Failed to highlight the nosing of the steps so the edges were clearly discernable;
6.7 Failed to place non-slip material on the steel steps to prevent slips and falls;
6.9 Failed to take any or proper steps to have an upturn on the back of the steps so that a person's foot cannot slip through the step;
(Page 4)
- 6.10 The steps were too steep for the rise of the steps provided in breach of AS 1647-1992, Fixed Platforms, Walkways, Stairways-Design, Construction and Installation as the going would have been 185 mm not the required minimum of 215 mm and the product of the going times the rise would have been 33,300 not the minimum 45,000; that is the treads would have had more overlap and the going would have been too short by 30 mm;
6.11 The handrails of the stairs were excessively high at 1,100 mm and did not conform the requirements of the standard that is 1,000 mm."
8 For the purposes of this application it was common ground that the defendant had contracted with the third party for the third party to construct and supply the carrot processing plant and that the third party had subcontracted the design, manufacture and installation of the plant, which included the stairs in question, to the fourth party.
9 There is, it appears, a factual dispute about the extent to which the third party contributed to the design of the plant but I am not called on to resolve that dispute for the purposes of this appeal.
10 The subcontract was entered into between the third and fourth parties on or about October 2002, the plant was manufactured between October and December 2002 and was assembled and installed in the period between January and April 2003.
11 It was about one year later that the alleged injury was suffered by the plaintiff and proceedings were instituted not long after.
12 The defendant joined the third party who in turn sought to join the fourth party on the basis that the fourth party should contribute to any damage the third party is obliged to pay pursuant to s 7(1) Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947.
13 The third party currently pleads against the fourth party by the third party statement of claim dated 12 September 2006 that:
"If [the plaintiff proves its case and the defendant, in turn succeeds against the third party] then the fourth party's negligence caused or contributed to the plaintiff's injuries, loss and damage.
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- PARTICULARS OF NEGLIGENCE
The fourth party, its servants or agents were negligent by:
11.5 failing to design and manufacture the stairs in accordance with the relevant Australian Standards when it knew or ought to have known that its failure to do so and its ultimate design and manufacture made the stairs dangerous to people using them and posed a risk of injury; and
11.6 installed the stairs at the premises when it knew or ought to have known that the design and manufacture of the stairs made them dangerous to people using them and posed a risk of injury."
14 After Registrar Hewitt made the order setting aside the fourth party notice in this matter and the appeal was instituted the third party filed a minute of proposed amended statement of claim dated 19 March 2007.
15 Since then a substituted minute of proposed amended statement of claim dated 9 April 2008 was filed ("the minute").
16 Each of the minute dated 19 March 2007 and the minute seek to address issues raised by the Registrar in his decision and concerns raised by Commissioner O'Neill when this matter came before him at an earlier stage.
17 Relevantly, what is intended to be pleaded against the fourth party by reference to the minute is that the fourth party was negligent because it, inter alia:
(a) failed to note the defects in the stairs;
(b) failed to advise the defendant or third party of the defects;
(c) failed to warn of the risks of use;
(d) failed to undertake remedial works to the stairs after installation of the plant at the premises or advise that remedial work should be undertaken.
(Page 6)
Matters raised by the parties
18 On the appeal the third party's submissions were essentially that:
(a) service out of the jurisdiction was permissible in this case as the third party's contribution action fell within O 10 r 1(1)(k) SCR because the action was founded on a tort committed within the jurisdiction and the third party have an arguable case for indemnity or alternatively contribution;
(b) the Court in Western Australia was the appropriate forum given that the majority of the lay witnesses and all medical witnesses reside in Western Australia or other parts of Australia and that there is no other forum in which justice could be done at less inconvenience and expense; and
(c) that in determining whether a case fell within O 10 r 1 SCR disputed issues of fact should be resolved in favour of the person seeking to serve;
(d) the third party is required to raise all causes of action relevant to the factual situation in the same action to ensure finality of litigation and prevent unnecessary costs and ensure consistent judgments and in that regard relied on Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589 at 609.
19 In response the fourth party submitted that:
(a) the third party's case is not a proper one for service out of the jurisdiction unless on all of the admissible material there was a strong argument for the view that the qualifying conditions relied on by the third party under O 10 r 1 SCR were met; Vitkovice Horni A Hunti Tezirstvo v Korner [1951] AC 869;
(b) service out of the jurisdiction should be approached by the courts with care as it was an exceptional measure and where doubt arose it should be resolved in favour of the person out of the jurisdiction; ICI Australia Operations Pty Ltd v Kidde-Graviner Ltd [1999] WASCA 65 ("ICI Australia");
(c) that any suggestion that disputed issues of fact should be resolved in favour of the third party was incorrect and that Attock Cement Co Ltd v Romanian Bank of Foreign
- Trade [1989] All ER 1189 was authority for the proposition that the third party had to establish a good arguable case for the Court to exercise its discretion. That meant the Court had to reach a tentative conclusion that the third party was probably right on disputed questions of fact;
- (d) where, as here, the third party was relying on the contribution legislation it was necessary for the third party to establish that there would be a concurrent liability for the same damage and not an alternative claim for damages; Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109 and Lauren v Jolly [1996] 1 VR 189; and
(e) that the third party had failed to establish a valid claim against the fourth party in the minute by reason that the fourth party owed no duty of care to the plaintiff, there was an insufficient pleading of the commission of a tort within the jurisdiction and that in any event the third party's allegation was really a claim relating to the design or manufacture of the stairs in Belgium rather than truly a claim that the tort had been committed in Western Australia. It was submitted that "adroit pleading" should be allowed to bring the matter within the Court's jurisdiction.
20 The fourth party did not lead evidence of particular difficulties it would suffer to show that Western Australia was not the appropriate forum. Instead, with respect to the convenience of the forum, it relied primarily on a submission that because the tort was not committed in the jurisdiction that Western Australia the Court would not be the appropriate forum to hear the third party's claim.
The law
21 The decision to grant leave to serve out of the jurisdiction is a discretionary one as O 10 r 4(2) SCR requires that leave should not be granted "unless it shall be made sufficiently to appear to the court that the case is a proper one for service out of the jurisdiction".
22 On an application to set aside service or to set aside the third party notice discretionary considerations also arise. Those discretionary considerations were considered by the High Court most recently in Agar v Hyde (2000) 201 CLR 552 in which the Court was considering the
(Page 8)
- provisions of the Supreme Court Rules 1970 (NSW) dealing with service out of the jurisdiction.
23 It was submitted by the respondent to the appeal, the fourth party, that the principles in Agar v Hyde should not be applied in Western Australia because of differences between the New South Wales rules and those in Western Australia. I will deal with this in more detail below.
24 Traditionally the power to order service out of the jurisdiction has been treated as an "exorbitant jurisdiction" with the Court exercising great care and restraint in its application: ICI Australia at [2] and [23] and Vitkovice at 882.
25 The expression "exorbitant jurisdiction" and whether restraint was justified in all cases was reviewed comprehensively by the Court of Appeal in New South Wales in Hyde v Agar (1998) 45 NSWLR 487.
26 The Court observed that the expression "exorbitant jurisdiction" was unhelpful and said that it was inappropriate to heap all categories of extended jurisdiction into the same basket requiring the general application of a principle of restraint in construing the rules or exercising the discretion conferred by them: see 509 at B and F.
27 The Court went on to say at 509F:
"Restraint may be appropriate where inadequate connections are lacking, as with the example stated above. But there seems no compelling basis why a doctrine of restraint should be invoked in the discretionary phase to dent the thrust of the rules, at least in those categories of case where a clear and objective link with the territory of the forum is present."
28 The Court quoted Lord Diplock in Amin Rasheed ShippingCov Kuwait Insurance Co [1984] AC 50 at 65 to 66:
"My lords, the jurisdiction exercised by an English court over a foreign corporation which has no place of business in this country, as a result of granting leave under [the relevant rule] for service out of the jurisdiction of a writ on that corporation, is an exorbitive jurisdiction, that is, it is one which, under general English conflict rules, an English court would not recognise as possessed by any foreign court in the absence of some treaty providing for such recognition. Comity thus dictates that the judicial discretion to grant leave under this paragraph [of the
(Page 9)
- Rules] should be exercised with circumspection in cases where there exists an alternative forum, vis the courts of a foreign country where the proposed defendant does carry on business, and whose jurisdiction would be recognised under English conflict rules."
29 The Court of Appeal went on to say:
"None of Lord Diplock's reasons justifying 'circumspection', or 'restraint' apply in the instant case. Nor does 'comity' dictate it. It is not the case that IRFB defendants carry on business in a foreign country and not in Australia. Nor can it be said that there is a clear alternative forum, namely, the courts of the country where it does carry on business, and where proceedings could plainly be instituted. And if, as we later conclude, the appellant's reliance on [the Rule which encompasses torts committed in the state] is justified, principles of comity would be readily satisfied."
30 The Court of Appeal also commented that there had been significant developments in communication and transport which made the degree of "inconvenience and annoyance" experienced by a litigant from out of the jurisdiction to be in a:
"… qualitatively different order to that which existed in 1885. It follows that a modern court applying the rules must be sensitive to the actual degree of 'inconvenience and annoyance' which would be imposed in the circumstances of a particular case, rather than assuming that any person or company must suffer such consequences in substantial degree: see Earthworks & Quarries Ltd v F T Eastment & Sons Pty Ltd [1966] VR 24 at 28, per Deane J."
31 The High Court in Agar v Hyde approved of the Court of Appeal's comments with respect to contemporary developments in communication and made reference to the fact that provisions for service out of the jurisdiction were now commonplace but said the starting point should be the requirements of the rules.
32 The High Court decided that, with respect to the New South Wales rules, the question of whether the cause of action fell within the equivalent of O 10 r 1(1)(k) was an enquiry that neither required or permitted an assessment of the strength of the case (in the sense of likelihood of success), although an assessment of the strength of the case was relevant
(Page 10)
- to the exercise of discretion to set aside service; 573 [51]. I will discuss below what degree of likelihood of success is required to be established.
33 As mentioned above, the fourth party submitted that the decision of the High Court in Agar v Hyde was not relevant to Western Australia because the rules in New South Wales allowed for service out of the jurisdiction without the necessity for leave if the case fell within one of the named categories but with an application for leave to proceed in the event that an appearance was not filed.
34 I do not agree. It is clear that in respect to the description of the categories in the NSW rules where service out of the jurisdiction is permitted very similar words are used as those in the Western Australian rules, for instance, that proceedings are "founded on" or "the subject matter of the proceedings". So, it is appropriate to apply the Court's reasoning that the issue of whether a case falls within an O 10 r 1 category is done without assessment of the relative strength of the case and that assessment is left to the discretionary phase.
35 In addition, the High Court confirmed that considerations of comity or restraint were still applicable to the discretionary phase when considering the appropriateness of the forum; 571 [43].
Is the third party claim founded on a tort committed in the state
36 It is clear from the authorities that a determination as to whether a tort was committed in the jurisdiction is not simply answered by damage having been sustained in the jurisdiction.
37 Instead the Court needs to focus on where "the act on the part of the defendant which gives the plaintiff his cause of complaint" occurs because this is in substance where the cause of action arises: Distillers Co(Bio-Chemicals) Ltd v Thompson [1971] AC 458 and Buttigeig v Universal Terminal & Stevedoring Corporation [1972] VR 626.
38 As is mentioned above it is said in this case that the negligence of the fourth party really lies in the negligent design and manufacture of the carrot processing plant and not in negligent installation or failure to warn with respect to the dangers of using the stairs.
39 Indeed it seems to be common ground that there was nothing about the installation per se that was undertaken carelessly.
40 The fourth party points to ICI Australia and authorities to say that in these circumstances the tort was complete in Belgium and so the
(Page 11)
- requirements of O 10 r 1(k) SCR are not met. This reasoning was accepted by the learned Registrar.
41 ICI Australia concerned a situation where an explosion suppression system installed in and used in a plant in Western Australia was poorly designed and manufactured overseas. The system failed causing damage.
42 ICI Australia is different to this case in that it was clear that the manufacturer of the explosion suppression system did not install it in the factory in Western Australia and that while the manufacturer was involved in the commissioning of the system in WA that commissioning involved only a "visual and electrical check of the system".
43 In both of their judgments Kennedy J and Pidgeon J (with whom Miller J agreed) pointed out that ICI Australia was specifically not a case concerned with the installation of a system by the respondents' engineers as the delivery of the system occurred in England and not in Western Australia.
44 Accordingly, ICI Australia is not authority for the proposition that the overseas' manufacturer and designer of faulty or dangerous goods who delivers the goods in Australia and installs them does not owe a duty of care to the foreseeable users of the goods to ensure that the goods once installed are safe to use.
45 In ICI Australia it was put to the Court by counsel for the appellant that there was also a duty of care to warn of defects in goods and that such a duty was a continuing one within the jurisdiction in which the goods were delivered.
46 Kennedy J disposed of that contention on the basis that there had been no delivery in Western Australia.
47 He did, however, refer with approval to Sykes and Pryles "Australian Private International Law", 3rd ed, 1991 at 40 where the authors say that the Court will not permit a plaintiff, by adroit pleading, to bring a tort within the jurisdiction by alleging as a particular of negligence the wrongful act or omission within the forum when the substance of the wrongful conduct occurred elsewhere. However, his Honour also recognised that the failure to warn cases cited by Sykes and Pryles in reference to that contention go both ways.
(Page 12)
48 Pidgeon J dealt with this issue in this way:
"29. It was argued during the appeal in this court that the evidence before the learned judge showed that there were acts of negligence committed within the jurisdiction, namely delivering defective goods and, in addition, doing so without a warning. The basis on which the appellant would seek to establish a tort within the jurisdiction is that the respondent delivered in Western Australia components which it could foresee would cause damage of the type which occurred. It was therefore a breach of its duty of care to the appellant.
30. The claim was not pleaded in this way and it was not submitted to either the Deputy Registrar or the District Court judge that this was the basis of the appellant's claim. It was not within the area of the proposed amendment put before the Deputy Registrar. It is not contained in the grounds of appeal. I do not consider it is in the circumstances open to ask this court to adjudicate on that matter. I do not consider that the submission as to warning would take the matter any further. The facts here are different from those considered in Distillers Co (Bio-Chemicals) Ltd v Thompson [1971] AC 458. In that case the goods did not appear to be defective or incorrectly manufactured. It was a product which could be used by some people, but which was dangerous to be used by pregnant women. By reason of that a warning was required and it was negligent not to give a warning. Normally a warning is to be expected where the goods are safe to use in some circumstances and unsafe in others. In the present case the result of the allegation in the pleading is it is alleged that goods were inherently defective by reason of their design and construction. If this was so, that would complete the tort. It would not make commercial sense to attach a warning. The person to whom the goods were delivered could not act on it other than to reject the goods and not install them in the plant. The respondents answer to the allegation is that it was a CIF contract and accordingly delivery in this country was not the act of the respondent, it was the act of the carrier to whom the respondent, under a CIF contract, was not liable. The matter must be resolved on
- the basis that this issue did not arise in the court below and is not brought to light by the grounds of appeal."
49 Pidgeon J's comments to the effect that he did not consider the additional duty of a failure to warn would take the matter much further are obiter, apply to a very different factual situation where there was no installation of the goods in Western Australia and are contrary to other authorities where an allegation of a failure to warn has supported service out of the jurisdiction.
50 One such case is Hart v Robinson Helicopter Co Inc & Ors, unreported; SCt of WA; 5 September 1988; Library No 7404, a decision where the defective helicopter in question in that case was designed, manufactured and sold in California to its Australian distributor who then brought it to New South Wales and assembled it in accordance with the manufacturer's instructions. The helicopter stalled while being used for mustering in Western Australia.
51 Master White (as he then was) decided if there was a defect in the design or manufacture of the helicopter such a defect arose outside of the jurisdiction of the Court and each of the complaints in the statement of claim that related to acts done or omissions made out of the jurisdiction would be insufficient to warrant service on that basis.
52 However, Master White went on to find that the use of the helicopter in particular ways, for instance, during cattle mustering conditions requiring the flying of the helicopter at low level and in dusty conditions and with rapid power changes, may give rise to a duty in the manufacturer to warn that in use of that kind that the sheaths and belts needed to be subject to frequent examination and in mustering conditions, inspection before each flight. In that situation he determined that the manufacturer arguably should have issued an appropriate warning to distributors, assemblers, repairers and prospective users of the helicopter of the need for frequent inspection of the belts and sheaths in those circumstances.
53 That obligation may be a continuing one, in Master White's view, so requiring a warning in WA to users of the helicopter – hence part of the claim was founded on a tort committed in the State.
54 Castree v ER Squibb & Sons Ltd [1980] 1 WLR 1248 concerned an action for damages by the plaintiff against her employer when she sustained injuries in the course of her employment as a consequence of a machine she was using disintegrating. A third party notice was sought to be issued by the defendants against the manufacturer and the Court of
(Page 14)
- Appeal, applying the Privy Council's decision in Distillers, decided that the plaintiff's cause of action arose, in substance, not from the defective manufacture of the machine but from putting that machine on the English market with no warning as to its defects and, accordingly, the action began by the plaintiff was founded on a tort committed by the manufacturers within the jurisdiction.
55 In Distillers itself the Privy Council was called to look at the application of these rules in respect to a drug, thalidomide, which is manufactured by German manufacturers but distributed in Australia. The Privy Council determined that the failure to warn the plaintiff's mother of the dangers of taking the drug occurred when she purchased the drug in New South Wales and therefore the plaintiff's cause of action arose within the jurisdiction.
56 Although in ICI Australia Pidgeon J distinguished Distillers by suggesting the warning was required because the goods were safe in some situations and not in others, the Privy Council in Distillers clearly did not rule out the possibility that negligent design or manufacture out of jurisdiction which might be one element of the negligence would not preclude a finding that there was further negligence at the point of delivery of the goods whether by reason of a failure to warn or by reason of the delivery within the jurisdiction; see pp 468-469.
57 Further, the High Court in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 discussed the distinction when a tort was founded on an act of omission and, by reference to Jackson v Spittall (1870) LR5CP 542 and George Munro Ltd v American Cyanamid & Chemical Corp [1944] KB 432 said that the place in which "the omission assumes significance" (at 567) can be the place of the "cause of complaint".
58 Here the place in which the omission to remedy the defects in the stairs or and to warn as to their alleged defects as are pleaded against the fourth party is the place of installation of the plant in Western Australia.
59 Further, as the High Court pointed out in Agar v Hyde it can be difficult for a court to say from the pleadings that a claim by a plaintiff that the defendant is liable in negligence is bound to fail because it is not arguable that the defendant owed the plaintiff a duty of care.
60 As the Court also pointed out a finding about a duty of care will often depend upon the evidence which is given at trial. Questions of knowledge of the risk may become important when determining if the defendant [or in this case fourth party] owed the plaintiff a duty of care.
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61 In this case where the fourth party was involved in the installation of the carrot processing plant which included the stairs in question it is difficult to say that it could not have foreseen the risk to the users of stairs (including the plaintiff) if the stairs were not able to be used safely and whether the fourth party knew that to be the case may be a question for evidence. The fact of installation of the plant by the fourth party, although designed and manufactured overseas, seems to me to constitute a sufficient basis to plead that a duty of care was owed to, among others, the plaintiff and it was breached in Western Australia. To the extent that the learned Registrar found to the contrary I do not agree with him.
62 I further conclude that it was arguable that a duty to make alterations to the stairs or to warn of the risk of using them could arise where the fourth party designed, manufactured and installed the stairs.
63 Further, I cannot conclude, as was submitted by the fourth party, that the minute is insufficient as it fails to plead that the fourth party knew about the defects in the stairs. The fourth party's breach of duty may arise notwithstanding its failure to recognise the defects if the circumstances were such that it ought to have known of the defects. I will, however, say a little more about the pleading below.
64 That is not the end of the matter. I agree with the fourth party that in order to establish a claim under the contribution legislation it is necessary for the third party to establish that there would be concurrent liability for the same damage and not an alternative claim for damages; Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109 and Lauren v Jolly [1996] 1 VR 189.
65 In Alexander, according to the majority the claim for contribution was based on different damage – arising out of breaches of different trusts. Minters (Alexander) could not have sued the respondents.
66 The Court, however accepting that the liability could arise on different bases, i.e. in contract or in tort.
67 Lauren v Jolly is a different case altogether. There the third party claim was against an insurer – on a contract of insurance. The Court found in that the insurer owed an alternative liability under the indemnity not a claim for contribution.
68 What must be established therefore is that the fourth party would have owed a duty to the plaintiff to take care which was breached in this
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- case giving rise to the damage the plaintiff alleges that she has suffered. In other words, could the plaintiff have sued the fourth party directly?
69 The reasons that I have set out above there is scope for argument that a case could be made out that duties to rectify the stairs and to warn were owed and those duties could extend to the plaintiff as one of a class of potential users of the stairs.
70 However, I am not convinced that the duty to warn the defendants or third party rather than the plaintiff (as it is sought to be pleaded in the minute) could be said to give rise to concurrent liability in the sense discussed in Alexander. For that reason part of the minute seems to me to be deficient.
71 In my view the case as is currently pleaded in the fourth party statement of claim dated 12 September 2006 which pleads negligence arising from the design, manufacture and installation (the "and" between par 11.5 and par 11.6 being used conjunctively) is sufficient to meet the Alexander requirements.
72 Further, the pleadings of:
(a) failure to undertake remedial work to the stairs or advice the defendant or third party to rectify at or after installation as is pleaded in par 11.7 and par 11.8 of the minute together with reference to those matters that required remedial work in par 11.6.5; and
(b) a failure to warn the plaintiff as is pleaded in par 11.5 of the minute of 19 March 2007;
- would also satisfy the requirements of Alexander and of O 10 r 1(k).
73 This means that the current filed pleading does, in my view, fall within O 10 r 1(k) but if the third party wants to further plead a failure to undertake remedial work and a failure to warn the plaintiff an amendment will be required.
Discretionary considerations
74 The High Court in Agar v Hyde did discuss the extent of the discretion where it considered the principles to be applied on applications for leave to proceed under the New South Wales system and applications to set aside service.
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75 The Court pointed out, on an application to set aside service or to have the Court decline to exercise jurisdiction, attention might be directed to any number of features relevant to the exercise of discretion including that the claims are not claims of a kind which are described in that part of the rules (as has been discussed above in detail); secondly, that the Court is an inappropriate forum; and, thirdly, that the claims made have insufficient prospects of success to warrant putting an overseas' defendant to the time, expense and trouble of defending a claim.
76 The High Court determined that in circumstances where service was authorised by the rules (or leave was properly given) and service has been properly effected if the Court is not persuaded that the place was an inappropriate forum for a trial of the proceedings only then do the prospects of success of claim made in the originating process fall for consideration.
77 As is mentioned above, here it is not suggested that there will be specific hardships experienced by the fourth party if the matter proceeds in Western Australia.
78 I was not addressed on whether a cause of action for contribution would be available by the third party against the fourth party in Belgium nor was any evidence of that matter tendered. As was pointed out in Agar by the High Court the availability or lack of availability of an appropriate alternative forum is central to the question of whether this forum is appropriate. Given that the right to contribution is a creature of statute enacted because the common law denied any right to contribution I am not inclined to assume that there must exist an alternative and appropriate forum for the third party to pursue its right to contribution.
79 Further, it is clear is that there are good reasons for this matter to be litigated in Western Australia.
80 The plaintiff and all of her witnesses, including all lay and medical witnesses, will be present in the jurisdiction as are the defendant and the third party and running the entire case in Western Australia will avoid inconsistent judgments..
81 For those reasons the Western Australian Court is not an inappropriate forum.
82 Turning now to the issue of chances of success, the High Court considered it was generally inappropriate for a Court to engage in a prediction as to the likely or probable outcome of the proceedings without
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- it having had the opportunity of hearing the evidence. The Court considered the authorities including Attock Cement Co Ltd v Romanian Bank of Foreign Trade [1989] 1 All ER 1189 as to what was meant by "a good arguable case" and said at 576, par 60:
"The same test should be applied in deciding whether originating processes served outside Australia makes claims which has such poor prospects of success that the proceedings should not go to trial as is applied in an application for summary judgment by a defendant served locally."
84 Accordingly, in my view there are sufficient prospects of success to dispose of that as a discretionary consideration.
85 It seems to me that whether this matter is approached on either the basis that restraint is always required (the ICI Australia approach) or on that basis that comity or restraint are applied at the point of determining the convenience of forum (the Agar approach) this matter has a sufficient nexus to Western Australia and a sufficiently good chance of success so that the third party notice should not be set aside.
86 In summary, I do not agree with the decision that was reached by the learned Deputy Registrar with respect to this matter and would allow the appeal and set aside the orders made.
87 I will hear the parties on appropriate orders to deal with any amendments to the pleading.
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