Proude v Visic (No 2)

Case [2012] SASC 233

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

PROUDE v VISIC (NO 2)

[2012] SASC 233

Judgment of The Honourable Justice Blue

19 December 2012

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - JOINDER OF PARTIES

The plaintiff brought proceedings against the first and second defendants for losses allegedly caused by a bushfire as a result of their negligence. In his original statement of claim, the plaintiff pleaded that:

1.      he brought the action on his own behalf; and

2.      he proposed to apply for authorisation to bring the action as a representative party for those who sustained property loss and damage caused by bushfire.

The plaintiff subsequently filed a further statement of claim in which he provided particulars of the property and consequential loss and damages suffered by him. In that statement of claim he provided particulars of damage to his own land, damage to land jointly owned with his wife, and loss of personal property and profits of a farming business conducted on the land by him as trustee of a trust.

The first defendant contends that the plaintiff’s claim as originally instituted was confined to a claim for damage to the plaintiff’s own land and did not extend either to a claim for damage to the jointly owned land or to a claim for loss as trustee of the Trust.  The first defendant contends that the plaintiff is now out of time to add those additional claims.

Held:

Per Blue J:

Loss of personal property and loss of profits

1.      A plaintiff who suffers property loss and damage caused by the negligence of a defendant has a single indivisible cause of action for the entire loss and damage suffered (at [15]).

2.      A plaintiff is entitled to recover loss and damage caused by the commission of a tort to property of which the plaintiff is the legal owner. The fact that the property is held on trust is irrelevant (at [16]).

3.      The plaintiff has a single indivisible cause of action against the first defendant for losses suffered by him as a result of the first defendant’s alleged negligence. In his original statement of claim, the plaintiff claimed (without further particularisation) all of the losses, both direct and consequential, which he suffered as a result of the alleged negligence. He thereby claimed not only losses suffered by him as owner of the real property but also losses suffered by him as owner of personal property and the farming business, which he held on trust (at [17]-[35]).

Damage to land owned jointly

4.      On the proper construction of the original summons and statement of claim, the plaintiff was claiming for damage to all land owned by him, whether solely or jointly with his wife (at [57]-[65]).

5.      The plaintiff’s wife does not consent to be joined as a co-plaintiff. In all of the circumstances,…

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Proude v Visic (No 2) [2012] SASC 233
Case
[2012] SASC 233
Decision Date

CaseChat Overview and Summary

In the matter of Proude v Visic (No 2), the primary dispute revolves around the claim by Mr Proude for damages suffered due to a bushfire that allegedly originated from the actions of Mr Visic. Mr Proude, as the trustee of the Moni Carbi Trust, sought compensation for extensive damage to the farming land and personal property, which was used in the farming business, and for loss of profits. Mr Visic contested the claim, asserting that Mr Proude's action was time-barred regarding damages to land owned jointly with Mrs Proude and that the claim did not properly include damages to the trustee’s personal property.

The primary legal issues before the court included whether Mr Proude's action, as trustee of the Trust, properly included claims for damage to personal property and loss of profits, and whether the claim for damages to jointly owned land was statute-barred. The court also had to consider whether Mr Proude had a single indivisible cause of action for all losses and damages suffered due to the bushfire and whether the statutory limitation period applied to the claim for jointly owned land.

The court determined that Mr Proude's action indeed included claims for damages to personal property and loss of profits as trustee of the Trust. The annexure to the statement of claim was construed to incorporate both Mr Proude’s personal claims and those he sought to bring as a representative party under rule 81. The court held that despite the lack of strict separation between these claims, the statement of claim should be interpreted in a manner that reflects the reality of the situation rather than technical perfection. Additionally, the court found that the claim for damages to jointly owned land was not statute-barred, as Mr Proude had the right to proceed with the action in a non-representative capacity for the jointly owned property. This interpretation aligned with the common law principle that co-owners holding as joint tenants have joint rights against persons committing torts causing damage to the land.

Orders

Orders of the court

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Background

Background to the litigation

These reasons for judgment address those issues.[1] [1] Mr Proude also claims to sue pursuant to rule 81 of the Supreme Court Civil Rules 2006 (SA) as representative of all persons who sustained property loss or damage due to the fire. That aspect is not directly relevant to the matters the subject of these reasons for judgment. It is addressed in my reasons for judgment in Proude v Visic (No 3) [2012] SASC 228. It does, however, arise indirectly as potentially impacting the construction of Mr Proude’s summons and statement of claim, as appears below.Background facts At material times, Mr and Mrs Proude between them owned approximately 1,400 hectares of farming land situated at Charlton Gully, north of Port Lincoln on Lower Eyre Peninsula (collectively “the Proude land”). Mr Proude owned approximately 1,065 hectares.[2] Mr and Mrs Proude jointly owned approximately 335 hectares.[3][2] Certificate of Title Register Book volume 5292 folios 915 and 962; volume 5626 folio 71; volume 5656 folio 540; and volume 5733 folios 811 and 812.[3] Certificate of Title Register Book volume 5355 folio 16; and volume 5973 folio 693. At material times, Mr Proude was the trustee of the Moni Carbi Trust (“the Trust”). Mr Proude, as trustee of the Trust, carried on a farming business on the whole of the Proude land and owned personal property used by that business, including plant and equipment, poly pipe irrigation, farm contents, hay, livestock and fencing, which was situated on the Proude land.[4][4] It is possible that the fencing was a fixture, but for present purposes I assume that it comprised personal property as claimed by Mr Proude. On 10 January 2005 at about 3.00 pm, a fire broke out on the eastern side of Lady Franklin Drive, Lower Eyre Peninsula, approximately 45 kilometres north-west of Port Lincoln.[5] Some time before 3.00 pm, Mr Visic drove and parked his land cruiser in the general vicinity in which the fire broke out.[6] The fire burnt a relatively small area of land up to a swamp known as paperbark swamp during the afternoon and night of 10 January 2005.[7][5] Third Statement of Claim [7], first defendant’s Defence [7], second defendant’s Second Defence [7].[6] Third Statement of Claim [6], first defendant’s Defence [6], second defendant’s Second Defence [6].[7] Third Statement of Claim [13-16], first defendant’s Defence [16], second defendant’s Second Defence [13], [15], [16]. On the morning of 11 January 2005, a fire or fires (it being in dispute in the action whether it was the same fire or a different fire or fires) broke out and burnt an extensive area of land comprising approximately 78,000 hectares.[8] The fire or fires (collectively “the bushfire”) allegedly caused extensive damage to land owned by at least 257 landholders, including the Proude land.[9][8] Third Statement of Claim [16-17], first defendant’s Defence [16], second defendant’s Second Defence [16]. This figure includes the relatively small area burnt on 10 January.[9] Affidavit of Peter Humphries sworn on 22 October 2012 (FDN 35).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Taking into account the above, together with the position at law that Mr Proude had a single indivisible cause of action for all loss and damage suffered by him as a result of the tort, I construe the annexure as including the plaintiff’s own claims as well as the claims which he was seeking to bring as a representative party pursuant to rule 81.[21][21] There ought to have been a strict separation between the claim brought by the plaintiff in his own right and as a representative under rule 81, but I am construing the statement of claim as a matter of reality rather than technical perfection.Conclusion The two matters relied upon by Mr Visic are not indicia that Mr Proude did not bring the action claiming loss and damage suffered by him as trustee of the Trust. I hold that Mr Proude brought the action claiming, amongst other things, loss and damage to personal property and loss of profits suffered by him as trustee of the Trust. Given my conclusion, it is unnecessary and inappropriate to make an order of the type sought by Mr Proude in paragraph 1 of FDN 46 in the alternative to his primary contention.Damage to land owned jointly Mr Visic contends that, when Mr Proude commenced the action in December 2010, he was not claiming for damage to the land owned by him jointly with Mrs Proude and he is now out of time to bring an action to recover that loss.[22][22] Limitation of Actions Act 1936 (SA) s 35(c). Mr Proude joins issue with Mr Visic and in any event, by paragraph 2 of his application dated 1 November 2012 (FDN 46), he seeks directions pursuant to rule 73(3) of the Rules. Specifically, he seeks an order that, insofar as the action relates to land owned by him as joint tenant with Mrs Proude, he be authorised to proceed with the action in a non-representative capacity pursuant to rule 73(3)(b) of the Rules. By interlocutory application dated 6 November 2012 (FDN 51), Mr Visic seeks an order staying the plaintiff’s claim in respect of any claim for damages to the property owned by Mr Proude jointly with Mrs Proude. Joint rights and obligations In certain circumstances, the substantive common law regards persons as having joint rights and/or liabilities. Examples include:1.partners contracting with third parties: the partners’ contractual rights and liabilities are joint;[23]2. persons committing a tort in concert: their liability is joint;[24]3.co-owners of land who hold as joint tenants: the co-owners have joint rights against persons committing torts causing damage to the land.[25][23] Re Clarke; Ex parte Buckley (1845) 14 M & W 469; 153 ER 559 per Parke B (Alderson B agreeing).[24] Brinsmead v Harrison (1872) LR 7 CP 547; Bell v Thompson (1934) 34 SR (NSW) 431 at 435 per Jordan CJ; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd [1985] HCA 12; (1985) 155 CLR 448 at 455-456 per Gibbs CJ (Murphy and Wilson JJ agreeing) and 466-467 per Brennan J.[25] Gardner v Northern Territory of Australia [2003] NTSC 113 at [63] per Riley J.

Ratio Decidendi

Legal Principle Established

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