Smith v McCusker QC [No 4]

[2009] WASC 101

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SMITH -v- McCUSKER QC [No 4] [2009] WASC 101

CORAM:   MARTIN CJ

HEARD:   26 AUGUST & 25 NOVEMBER 2008, 14 JANUARY & 12 FEBRUARY 2009, ON THE PAPERS (26 FEBRUARY 2009)

DELIVERED          :   22 APRIL 2009

FILE NO/S:   CIV 1230 of 1995

BETWEEN:   JAMES GARNETT SMITH

ELIZABETH ANNE SMITH
Plaintiffs

AND

MALCOLM JAMES McCUSKER QC
Defendant

BANK OF WESTERN AUSTRALIA LTD
Third Party

Catchwords:

Practice and procedure - Application to dismiss third party proceedings - Defendants' concession

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O1 r 4B, O 19 r 1

Result:

Third party's application to dismiss third party proceedings granted

Category:    A

Representation:

Counsel:

Plaintiffs:     In person (Mrs E A Smith)

Defendant:     Mr M N Solomon (26 August 2008 & 12 February 2009), Mr S C R Sudweeks (14 January 2009) & Mr S M Lurie (25 November 2008 & 14 January 2009)

Third Party  :     Mr K J Martin QC (26 August 2008), Ms R J Lee (25 November 2008, 14 January & 12 February 2009) & Mr A Chai (26 August 2008)

Solicitors:

Plaintiffs:     In person

Defendant:     Jackson McDonald

Third Party  :     Blake Dawson

Case(s) referred to in judgment(s):

Smith v Commissioners of the Rural & Industries Bank of Western Australia [2009] WASC 100

1. MARTIN CJ:  The Bank of Western Australia Ltd (the Bank) applies for an order dismissing third party proceedings which have been commenced against the Bank by Mr McCusker QC, who is the defendant in proceedings brought against him by Mr and Mrs Smith (the Smiths) claiming damages for breach of a contract of retainer and negligence.  These proceedings have a relationship to proceedings brought by the Smiths against the Commissioners of the Rural and Industries Bank of Western Australia in 1982.  I have considered an application by the defendant in those proceedings for orders that they be dismissed at the same time as I have given consideration to the Bank's application in these proceedings.  My reasons in that application provide a history of the relationship between the two sets of proceedings and provide the context for my determination of the Bank's application to dismiss the third party proceedings.  These reasons should therefore be read in conjunction with my reasons for decision in the 1982 proceedings (Smith v Commissioners of the Rural & Industries Bank of Western Australia [2009] WASC 100).

The third party proceedings

1. As I have observed in my reasons for concluding that the 1982 proceedings should be dismissed, Mr McCusker QC accepts that the third party notice which was issued in these proceedings in August 2006 is flawed in that he has no claim for contribution and indemnity against the Bank.  However, pending determination of the application to dismiss the 1982 proceedings, Mr McCusker QC sought to maintain the third party proceedings on the basis that, as between him and the Bank, there is a question or issue relating to or connected with the subject matter of the action between the Smiths and Mr McCusker QC that is substantially the same as a question or issue which arises between the Smiths and the Bank, and should properly be determined not only as between the Smiths and Mr McCusker QC, but also as between the Smiths and the Bank (see Rules of the Supreme Court 1971 (WA), O 19 r 1(1)(c)). However, in written and oral submissions presented on behalf of Mr McCusker QC, it was conceded that if the 1982 proceedings were dismissed, it could not be asserted that there was a continuing issue as between the Smiths and the Bank which was properly determined in the 1995 proceedings.

2. Argument on this issue gave rise to interesting questions of whether, as the Bank asserts, third party proceedings are only available where the defendant seeks to assert some right or claim against the third party - such as a claim for contribution or indemnity, or whether, as Mr McCusker QC asserted, O 19 r 1(1) permits the third party procedure to be used where some common question or issue arose which was appropriately determined in the proceedings. The latter proposition appears more consistent with the natural and ordinary meaning of O 19 r 1, and more consistent with the principles enunciated in O 1 r 4A and r 4B, relating to the efficient disposition of the business of the court.

3. However, in light of the concession properly made on behalf of Mr McCusker QC, because I have concluded that the 1982 proceedings should be dismissed, it is neither necessary nor appropriate to resolve these interesting questions in order to dispose of the Bank's application to dismiss the third party proceedings.  Rather, that disposition follows from the concession made on behalf of Mr McCusker QC that there is no continuing issue between the Smiths and the Bank which requires determination in these proceedings, if the 1982 proceedings are dismissed.  I will therefore grant the Bank's application to dismiss the third party proceedings.