JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ROBINSON -v- KENTZ PTY LTD [2020] WADC 163
CORAM: STAUDE DCJ
HEARD: 25 SEPTEMBER 2020
DELIVERED : 22 DECEMBER 2020
FILE NO/S: CIV 2191 of 2017
BETWEEN: RAYMOND HUTCHING ROBINSON
Plaintiff
AND
KENTZ PTY LTD
First Defendant
CBI CONSTRUCTORS PTY LTD
Second Defendant
Catchwords:
Practice and procedure - Amendment of pleadings in contribution proceedings - Proposed addition of new grounds for contribution - Case management principles
Practice and procedure - Application by co-defendant to set aside consent order dismissing plaintiff's claim against another co-defendant - Legal effect of consent order dismissing plaintiff's claim on contribution proceedings - Whether court has power to set aside order - Whether discretion to set aside should be exercised
Legislation:
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA)
Occupiers Liability Act 1985 (WA)
Rules of the Supreme Court 1971 (WA)
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Application to set aside consent order for judgment refused
Application for leave to amend contribution notice refused
Application for leave to amend defence in contribution proceedings allowed in part
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | Ms B A Mangan |
| Second Defendant | : | Mr M J Feutrill SC |
Solicitors:
| Plaintiff | : | Not applicable |
| First Defendant | : | Jackson McDonald |
| Second Defendant | : | Wotton + Kearney Lawyers (Perth) |
Case(s) referred to in decision(s):
Ansons Pty Ltd v Merlex Corporation Pty Ltd [2001] WASC 204
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Brambles Constructions Pty Limited v Helmers (1966) 114 CLR 213
Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR (NSW) 159
George Wimpey & Co Ltd v British Overseas Airways Corporation (1955) AC 169
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53
Minister of Foreign Affairs, Trade & Industry v Vehicles & Supplies Ltd [1991] 4 All ER 65
Ryan Nominees Pty Ltd v Western Australian Planning Commission [2003] WASCA 134
Sebastian v Strongwall International Ltd (deregistered) [2011] FCA 1045
Wintle v Stevedoring Industry Finance Committee (No 3) [2002] VSC 369
STAUDE DCJ:
Introduction
This is an application by chamber summons by the first defendant Kentz Pty Ltd (Kentz) for leave to amend its notice of contribution against the second defendant CBI Constructors Pty Ltd (CBI) and its defence to CBI's contribution claim, and to set aside a consent order made between the plaintiff and CBI dismissing the plaintiff's claim against CBI in consequence of a settlement agreement.
Kentz submits that the relief it seeks will promote the just and efficient determination of the contribution proceedings without causing any significant prejudice to CBI. CBI opposes the orders sought mainly on the grounds of intolerable unexplained delay in the making of the application (invoking case management principles), and on the basis that Kentz has no grounds upon which to apply to set aside the consent order.
The litigation
The plaintiff Mr Robinson was injured…
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- AGLC
- Robinson v Kentz Pty Ltd [2020] WADC 163
- Case
- [2020] WADC 163
- Decision Date
CaseChat Overview and Summary
The court considered whether any power to grant the relief sought was found in the inherent jurisdiction of the court to prevent or rectify an injustice. The relevant principles applicable to an interlocutory order were set out by Master Sanderson in Ansons Pty Ltd v Merlex Corporation Pty Ltd [2001] WASC 204, and quoted with approval in Ryan Nominees Pty Ltd v Western Australian Planning Commission [2003] WASCA 134. The court noted that the power should be exercised with care and only in the most unusual circumstances. The court was not directed to any authorities dealing with the power to set aside a consent order constituting a final judgment, or the power to do so on the application of someone who was not a party to the making of the consent order.
The court found that the dismissal of the plaintiff's claim against CBI did not affect Kentz directly, as Kentz had not commenced any contribution proceedings against CBI when the consent order was entered. The court held that Kentz's contribution notice was not filed until 22 July 2019, some eight months after the plaintiff's claim against CBI was dismissed. The court also found that Kentz was on notice of CBI's intention to resolve the plaintiff's claim against it in that fashion. The court held that Kentz's application to set aside the consent order was an attempt to avoid the consequences of its own delay and that the discretion to do so should not be exercised. The court dismissed the application.
The court ordered that Kentz pay the plaintiff's costs of the application, to be taxed if not agreed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Any power to grant the relief sought is found in the inherent jurisdiction of the court to prevent or rectify an injustice. The relevant principles applicable to an interlocutory order were set out by Master Sanderson in Ansons Pty Ltd v Merlex Corporation Pty Ltd [2001] WASC 204, quoted with approval in Ryan Nominees Pty Ltd v Western Australian Planning Commission [2003] WASCA 134 [2] as follows:(1)There is power to vary or discharge a perfected or entered order.(2)The power should be exercised with care and only in the most unusual circumstances.(3)If the perfected order has continuing operation and there is a change in the underlying circumstances which applied when the order was made, then the order can be varied or discharged to take account of the changed circumstances.(4)In a circumstance where the substratum of fact or law underpinning the order has changed, the perfected order can be discharged or varied by a single judge.(5)The fact that the perfected order in question was made by consent and pursuant to an agreement between the parties does not in any way affect the power of the court to vary or discharge the order. The court was not directed to any authorities dealing with the power to set aside a consent order constituting a final judgment (in the absence of fraud or any other vitiating factor), or the power to do so on the application of someone who was not a party to the making of the consent order. CBI did not seek to persuade the court that it had no power, but submitted rather that its discretion should not be exercised. In the circumstances, but not without some misgiving, I consider that it is appropriate to deal with the application on the basis that it is conceded that the court can grant the relief sought. CBI's position is that there has been no procedural unfairness. Kentz was put on notice. By not opposing the making of the order Kentz effectively waived its right to apply to set it aside. In any event, there is no explanation for its delay in bringing the application. The starting point, it seems to me, is to ask: what is the effect of the consent order on Kentz? The dismissal of the plaintiff's claim against CBI did not affect Kentz directly, as Kentz had not commenced any contribution proceedings against CBI when the consent order was entered. Kentz's contribution notice was not filed until 22 July 2019, some eight months after the plaintiff's claim against CBI was dismissed. Yet, it is clear from the affidavit evidence of Mr Vijayakumar to which I have referred, and which is not disputed, that Kentz was on notice of CBI's intention to resolve the plaintiff's claim against it in that fashion. While the right to contribution under the Contribution Act only arises when liability has been established (see Brambles Constructions Pty Limited v Helmers (1966) 114 CLR 213), it is usual, as between co‑defendants, for notices of contribution to be served in accordance with RSC O 19 r 8 in anticipation of potential liability findings.