Re Fleurie Pty Ltd (in liq) (No 1)
[2017] VSC 30
•3 February 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S CI 2015 03232
IN THE MATTER of FLEURIE PTY LTD (IN LIQUIDATION)
(ACN 060 643 156)
BETWEEN:
| FLEURIE PTY LTD (IN LIQUIDATION) (ACN 060 643 156) | Plaintiff |
| v | |
| AUSTRALIAN CONSTRUCTION AND MINING COMPANY PTY LTD (ACN 162 509 391) & ORS | Defendants |
| and | |
| DEPARTMENT OF ECONOMIC DEVELOPMENT, JOBS, TRANSPORT AND RESOURCES | Third Party |
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JUDGE: | ROBSON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 February 2017 |
DATE OF RULING: | 3 February 2017 |
CASE MAY BE CITED AS: | Re Fleurie Pty Ltd (in liq) (No 1) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 30 |
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CIVIL PROCEDURE – Supreme Court (General Civil Procedure) Rules 2015 (Vic) rr 11.01 and 11.06 – Application to add as a third party the secretary of the Department of Economic Development, Jobs, Transport and Resources (the Department) – Whether application is made against the Crown and is prohibited by the Crown Proceedings Act 1958 (Vic) – Alleged misrepresentation by officers of the Department – Whether such conduct alleged to be misleading and deceptive occurred in trade or commerce – Whether claims made in the proposed third party notice are unsubstantiated at law – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms T Rothwell | Rothwell Lawyers Pty Ltd |
| For the Defendants | Mr P R Miller | Noh Legal |
| For the Third Party | Dr T McEvoy SC with Ms B Hutchins | Legal Counsel, Department of Economic Development, Jobs, Transport and Resources |
HIS HONOUR:
I have before me an application by the third defendant, ACN 166 725 855 Pty Ltd, (ACN 166) to join the secretary to the Department of Economic Development, Jobs, Transport and Resources (the Department) as a third party.
The application is made under rr 11.01 and 11.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
The facts surrounding the application to join the secretary of the Department relate to alleged wrongful transfer, by way of assignment from Fleurie Pty Ltd (in liquidation) (Fleurie) to ACN 166, of Work Authority Number WA1516 (an Extractive Industry Work Authority applied for and granted to Fleurie pursuant to the Mineral Resources (Sustainable Development) Act 1990 (Vic)).
Rule 11.01 provides
Claim by third party notice
Where a defendant claims as against a person not already a party to the proceeding (in this Order called the third party)—
(a)any contribution or indemnity;
(b)any relief or remedy relating to or connected with the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or
(c)that any question relating to or connected with the original subject matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party—
the defendant may join the third party as a party to the proceeding and make the claim against that third party by filing and serving a third party notice.
Rule 11.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) says as follows:
Leave to file third party notice
An application for leave to file a third party notice shall be made on notice to the plaintiff but the Court may direct notice to be given to any other party who has appeared.
Of particular relevance to the application before me is r 11.01(c).
The Department has submitted that the proposed third party notice does not raise ‘any question’ as referred to within r 11.01(c) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) as both claims raised are unsustainable at law.
ACN 166 claims in the third party notice that the secretary to the Department engaged in misleading and deceptive conduct and negligence as follows:
Misleading and Deceptive Conduct
9.Between about December 2013, and March 2015, the Department (defined as the secretary of the Department) represented and continued to represent, to ACN 166 that:
(a)the Department would give effect to the Assignment of WA 1516 from Fleurie to ACN 166;
(b)the Department would accept a work plan from ACN 166 pursuant to s 77G of the Mineral Resources (Sustainable Development) Act 1990 (Vic) in relation to WA 1516;
(c)the Department would amend the mining register pursuant to the Mineral Resources (Sustainable Development) Act 1990 (Vic) to record that ACN 166 is the holder of WA 1516;
(d)ACN 166 was the holder of WA 1516.
…[sets out particulars]…
10.The Representations were made in trade and commerce.
11.In contravention of s 18 of the Australian Consumer Law, the representations were misleading or deceptive, or likely to mislead or deceive.
…
Negligence
14.Further or in the alternative, by reason of the matters pleaded in paragraphs 5 to 9 above, at all material times, the Department owed ACN 166 a duty of care to:
(a)process the Assignment and communicate and/or otherwise deal with ACN 166 in relation to the Assignment and/or WA 1516 to the standard of a reasonable public authority;
(b)do all things reasonably necessary to give effect to the Assignment of the Application and Work Authority 1516 from Fleurie to ACN 166;
(c)do all things reasonably necessary to record ACN 166 as the holder of the Application and Work Authority 1516 on the mining register.
15.In breach of its duty of care, the Department:
(a)made the representations;
(b)failed to give effect to the Assignment of WA 1516 from Fleurie to ACN 166
(c)failed to record ACN 166 as the holder of WA 1516 on the mining register.
The first ground put forward for rejecting the application to join the secretary to the Department is that the claim in negligence is made against the Crown and is not permitted under the Crown Proceedings Act 1958 (Vic), as the Crown has no personal liability in tort. Pursuant to s 23(1)(b) of the Crown Proceedings Act 1958 (Vic), the only liability that the Crown could have is vicarious liability for the torts of any servant or agent or independent contractor employed by it.[1]
[1]Section 23(1)(b) of the Crown Proceedings Act 1958 (Vic) provides: ‘the Crown shall be liable for the torts of any servant or agent of the Crown or independent contractor employed by the Crown as nearly as possible in the same manner as a subject is liable for the torts of his servant or agent or of an independent contractor employed by him.’ Dr McEvoy refers to Keogh J in Salt v The State of Victoria and the decision of Chief Justice Herring and Mr Justice Deane in Hall v Whatmore in support of this argument.
Dr McEvoy submits that the third party notice alleges that Department, representing the Crown, made certain representations.
On behalf of ACN 166, Mr Miller says that argument is not correct. Mr Miller submits that the proceedings, as identified in the notice, is to the secretary; the claim is against the servant of the Crown and is therefore not prohibited by the Crown Proceedings Act 1958 (Vic). Further, Mr Miller says that all s 23(1)(b) provides is that the Crown is only liable if its servants or employees are liable.
At this stage, I am only deciding whether the third party notice claim raises ‘any question’ as referred to in r 11.01. Dr McEvoy submits the notice does not as the claim is groundless and should not be allowed to proceed as it would be bound to fail. In my view, it is arguable that, on the pleadings, that the claim against the secretary will not fail on the ground that it is prohibited by the Crown Proceedings Act 1958 (Vic). I therefore reject that contention for not permitting the secretary of the Department from being joined as a third party.
The second argument for opposing the application to join the secretary of the Department is that the claim in misleading and deceptive conduct, alleged pursuant to s 18 of the Australian Consumer Law, by servants of the secretary of the Department raises allegations about representations made not ‘in trade or commerce’ and thus does not raise ‘any question’ as referred to in r 11.01.
Dr McEvoy, on behalf of the Department, refers to two authorities in support of this contention. The first case is the decision of Stevenson J in Gold & Copper Resources Pty Ltd v Newcrest Operations Ltd.[2] In that case, the relevant matters considered were representations made by Newcrest to the relevant Department (the Minerals Division of the NSW Department of Primary industries) in the course of the Department determining whether a licence held by Newcrest should be renewed. The relevant representations were made by Newcrest to the Department and arose out of communications Newcrest had with a third party that enabled Newcrest to predict whether and when certain works would commence.
[2][2013] NSWSC 281 (‘Newcrest Operations’).
His Honour said:[3]
Whether or not Newcrest and the Department would then be in a ‘potential or actual trading or commercial dealing or relationship’[4] (a matter about which I express no opinion), I think it clear that no such relationship existed between Newcrest and the Department at the time of the Second Statement. At that point, Newcrest’s relationship with the Department was that of licence holder and government authority responsible for determining whether that licence should be renewed. That was not, in my opinion, a commercial relationship.
[3]Newcrest Operations, [117].
[4]Referring to Street v Luna Park Sydney Pty Ltd (2009) 223 FLR 245, [218] (Brereton J).
Mr Miller submits that a point of distinction is that, in the Newcrest matter, the issue was whether a licence should be renewed. In the present case, the issue concerns representations about what the Department would do in relation to the Work Authority; whether the Department would give effect to an assignment; and whether the Department would amend the mining register.
The second case referred to in support of the Department’s contention is GlaxoSmithKline Australia Pty Ltd v Pharmacor Pty Ltd.[5] Dr McEvoy relies upon the following statement by Beach J:[6]
Generally, representations made to statutory authorities as required by legislation in order to satisfy a statutory condition or to ‘procure’ an exercise of statutory power are outside the scope of ‘in trade or commerce.’ They are not of themselves in the course of a trading or commercial relationship or bear a trading or commercial character. The relationship is rather ‘a relationship between a regulator and a regulated industry or business.’ (citations omitted)
[5][2014] FCA 1202 (‘GlaxoSmithKline’).
[6]GlaxoSmithKline, [77].
Again, Mr Miller draws a distinction with the present case as the relevant representations made in GlaxoSmithKline were not made to a statutory authority, but were representations made by the statutory authority.
Dr McEvoy submits that is only a distinction in form, not in substance. I do not find this is an appropriate occasion on which to make findings about that matter without hearing all the evidence and further submissions. Based on the evidence before me, as I said, I have to be satisfied that the claim raised in the third party notice is groundless, baseless and should not be allowed to proceed as it does not raise any question related to or connected with the original subject matter of the proceeding.
There is a distinction. It may, in the end, not be a sufficient claim at law. But, at this stage, I am prepared to allow the application to join the secretary to the Department as third party, and for the ACN 166 to deliver the proposed third party notice.
Dr McEvoy did not otherwise submit that r 11.01 was not enlivened to permit the secretary to be joined as a third party.
I will reserve the question of costs on the application.
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