Wasylkewycz v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Limited)
[2025] WASC 335
•19 AUGUST 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WASYLKEWYCZ -v- AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LIMITED) [2025] WASC 335
CORAM: STRK J
HEARD: ON THE PAPERS
DELIVERED : 19 AUGUST 2025
FILE NO/S: CIV 1189 of 2024
BETWEEN: BERNARD JOHN WASYLKEWYCZ
Plaintiff
AND
AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LIMITED)
First Defendant
AMABA PTY LIMITED (FORMERLY HARDIE FERODO PTY LTD)
Second Defendant
Catchwords:
Practice and procedure - Application for leave to issue third party notice - Exercise of discretion - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 19 r 1, r 2
Result:
Leave to issue third party notice granted
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Turner Freeman Lawyers (Perth) |
| First Defendant | : | Mills Oakley |
| Second Defendant | : | Mills Oakley |
Case(s) referred to in decision(s):
Balangarri Aboriginal Corporation (In Liq) v Cleanthous [2004] WASC 200
BB v Helena College Council Inc t/as Helena College (No 2) [2022] WADC 81
Commercial Developments Pty Ltd v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208
Fernandez v Villaneuva [2004] WADC 32
Foodland Associated Ltd v Maverick Pty Ltd (as trustee of the DHS Trust) (Unreported, WASC, Library No 930213, 23 April 1993)
Godfrey v Berresford [2012] WASC 77
McMurray v AIG Insurance Australia Ltd [No 2] [2018] WASC 391
Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651
Tipperary Developments Pty Ltd v The State of Western Australia [2005] WASC 75
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 5] [2016] WASC 58
STRK J:
Introduction
The second defendant has applied pursuant to the Rules of the Supreme Court 1971 (WA) O 19 r 2 for leave to issue a third party notice to the City of Stirling, and the defendants agree that the application should be determined on the papers.
The application was made by the filing of a minute of proposed orders on 6 August 2025, to which the second defendant attached a proposed third party notice addressed to the City of Stirling. The second defendant's application was supported by the affidavit of Emma Louise Clarence sworn on 5 August 2025, a supplementary affidavit sworn on 12 August 2025, and a further supplementary affidavit sworn on 15 August 2025. Ms Clarence is a legal practitioner employed by Mills Oakley, the solicitors for the first and second defendants in the action.
As to the plaintiff, the court understands that a compromise of the plaintiff's action has been agreed as between the plaintiff and the defendants.[1] While the plaintiff's attendance at future directions hearings was dispensed with by an order of the court made on 11 October 2024,[2] the action remains on foot. The action has been adjourned for directions only to 18 September 2025 at 9.30 am.
[1] As is recorded in the proposed third party notice attached to the second defendant’s minute of proposed orders filed on 6 August 2025.
[2] Order 1 of the orders made by the consent of the parties on 11 October 2024.
For these reasons, I consider that it is appropriate that the second defendant be granted leave to issue the third party notice to the City of Stirling in the form attached to the second defendant's minute of proposed orders filed on 6 August 2025.
The nature and status of the proceeding
As required by the Rules of the Supreme Court O 19 r 2(2)(a) and (b), the affidavits of Ms Clarence state the nature of the claim made by the plaintiff in the action, and the stage which proceedings within the action have reached.
By a writ of summons filed on 19 February 2024 the plaintiff commenced a claim against the first and second defendants for damages in respect of personal injuries, loss and damage alleged to have been suffered by the plaintiff as a result of contracting mesothelioma attributable to the inhalation of asbestos dust and fibre.
As was deposed by Ms Clarence, the plaintiff's statement of claim alleges exposure while as a mechanic in the late 1960s or early 1970s to on or about the late 1970s.
In the statement of claim that was filed on 18 April 2024 (among other things) the plaintiff pleads that during the course of his work, the plaintiff removed, installed, handled and ground asbestos brake linings manufactured and supplied by the second defendant; that at all material times the second defendant knew or ought to have known that it was likely that persons working with and in the vicinity of its asbestos brake linings products would be exposed to asbestos dust and fibre; and as a consequence the plaintiff was exposed to and inhaled asbestos dust and fibre, and has contracted mesothelioma and has suffered pain, injury, loss and damage.
As to the stage which proceedings within the action have reached, Ms Clarence deposed that the plaintiff's claim against the first and second defendant had resolved subject to the terms of their agreement on 6 September 2024, and that these terms were met by the plaintiff, and the first and second defendants on 8 October 2024.[3]
The nature of the claim made by the applicant or particulars of the question or issue required to be determined, as the case may be, and the facts on which the proposed third party notice is based
[3] Further supplementary affidavit of EL Clarence sworn 15 August 2025, par 5.
As required by the Rules of the Supreme Court O 19 r 2(2)(c), the first affidavit of Ms Clarence states the nature of the claim made by the applicant, and the facts on which the proposed third party notice is based. She deposed as follows:
5.Mesothelioma is an indivisible disease.
6.The Plaintiff was employed by the Shire of Perth in Stirling, now known as the City of Stirling in the exposure period as detailed in paragraph 4.
7.The Second Defendant verily believes that the City of Stirling as a former employer of the Plaintiff should be required to indemnify the Defendant in respect to the Plaintiff's claim in circumstances where any exposure to asbestos has contributed to the development of the Plaintiff's mesothelioma.
The reference to the 'exposure period as detailed in paragraph 4' in Ms Clarence's first affidavit was a reference to 'the late 1960s or early 1970s to on or about the late 1970s'.
As was recorded in the proposed third party notice attached to the second defendant's minute of proposed orders filed on 6 August 2025, the second defendant says that the City of Stirling is liable to contribute in respect of any liability the second defendant had to the plaintiff due to the alleged exposure while employed by the City of Stirling.[4]
[4] The proposed third party notice filed with the second defendant’s minute of proposed orders filed on 6 August 2025, par 4.
Identification of the proposed third party
As required by the Rules of the Supreme Court O 19 r 2(2)(d), Ms Clarence records in her first affidavit the name, and in her supplementary affidavits the name and address of the person against whom the third party notice is to be issued.
Disposition
The Rules of the Supreme Court O 19 r 1(1) relevantly provides that where in any action a defendant who has entered an appearance claims against any person not already a party to the action (in O 19 called the third party):
(a)that the defendant is entitled to contribution or indemnity; or
(b)that the defendant is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or
(c)that any question or issue relating to or connected with the original subject matter of the action is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party,
then, subject to subrule (2), the defendant may issue a third party notice containing a statement of the nature of the claim made against the defendant and, as the case may be, either of the nature and grounds of the claim made by the defendant or of the question or issue required to be determined.
As was observed by Le Miere J in Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 5] [2016] WASC 58 at [7]:
The purpose of the rules relating to third party proceedings is succinctly stated in Civil Procedure Western Australia:
Their purpose, … is firstly to bind the third party to the decision between the plaintiff and the defendant. Otherwise the defendant would be at the great disadvantage of having fought the case against the plaintiff and lost, of having to fight the case again against the third party on different materials with the risk of the same question being answered differently. Secondly, the procedure saves the expense of separate actions. Finally, it enables the question between the defendant and the third party to be decided promptly so that the defendant is able to enforce his or her judgment against the third party while the plaintiff is enforcing his or her judgment against the defendant [19.0.1].
As the second defendant did not issue a third party notice to the City of Stirling before it served its defence on the plaintiff, it may not now issue a third party notice without the leave of the court: Rules of the Supreme Court O 19 r 1(2).
The grant or refusal of leave involves the discretionary judgment of the court and much depends upon the convenience of having all related issues tried at the same time, as opposed to any inconvenience or prejudice which may be occasioned to the parties, having regard to the stage which the action has reached and having regard to other relevant matters: Tipperary Developments Pty Ltd v The State of Western Australia [2005] WASC 75 at [22].[5]
[5] As discussed in LexisNexis, Civil Procedure Western Australia (at 14 August 2025) [19.2.1].
Where issues concerning a third party are related to the issues between the parties, it has also been said that the interests of justice will ordinarily be served by joining third party proceedings to the trial of the principal litigation: Tipperary Developments Pty Ltd v The State of Western Australia at [23] ‑ [24]; Godfrey v Berresford [2012] WASC 77 at [23].
In the circumstances of this application, by reason of agreement as between the plaintiff and the defendants, there will be no trial of the principal action. There is no risk of the same question being answered differently. Despite this, in all of the circumstances I am satisfied that leave should be granted to the second defendant to issue a third party notice to the City of Stirling.
First, in this case, the claim falls within the bounds of the Rules of the Supreme Court O 19 r 1(1) in that the second defendant claims to be entitled to an indemnity from the City of Stirling. It does so in circumstances where it is asserted that the plaintiff was employed by the City of Stirling (then known as the Shire of Perth in Stirling) in the exposure period; and the second defendant claims that any exposure to asbestos has contributed to the development of the plaintiff's mesothelioma.[6]
[6] Affidavit of EL Clarence sworn 5 August 2025, par 7.
In determining whether a claim falls within the Rules of the Supreme Court O 19 r 1(1), the court is not required to consider in detail the merits of the case nor to weigh evidence. The appropriate forum for this to occur is at trial where a final determination can be made.[7] That said, for present purposes the nature of the second defendant's claim against the City of Stirling ('that the City of Stirling is liable to contribute in respect of any liability the second defendant had to the plaintiff due to the alleged exposure whilst employed by the City of Stirling'),[8] is a claim for indemnity/contribution for the purposes of O 19 r 1(1)(a).
[7] As discussed in LexisNexis, Civil Procedure Western Australia (at 14 August 2025) [19.1.2], citing Fernandez v Villaneuva [2004] WADC 32 [39].
[8] The proposed third party notice filed with the second defendant’s minute of proposed orders filed on 6 August 2025, par 4.
Secondly, given the agreement reached as between the plaintiff and defendants, there would appear to be no prospect of disruption or prejudice to the plaintiff if leave were granted.
Thirdly, the third party procedure saves the expense of separate actions.
Fourthly, there does not appear to be any matter of principle which would suggest that leave ought be refused if sought in circumstances where a compromise has been reached in the principal action but the proceeding remains on foot.
The effect of O 19 r 3 is that the third party becomes a party to the action and has the same rights as against the defendant as if the third party had been sued by the defendant in a separate action.[9] Where third party proceedings are commenced prior to judgment, the third party proceedings can proceed where the main action is settled.[10]
[9] McMurray v AIG Insurance Australia Ltd [No 2] [2018] WASC 391 [31], citing Commercial Developments Pty Ltd v Mercantile Mutual Insurance (Workers' Compensation) Ltd (1991) 5 WAR 208, 215; Balangarri Aboriginal Corporation (In Liq) v Cleanthous [2004] WASC 200 [8]; BB v Helena College Council Inc t/as Helena College (No 2) [2022] WADC 81 [17].
[10] Foodland Associated Ltd v Maverick Pty Ltd (as trustee of the DHS Trust) (Unreported, WASC, Library No 930213, 23 April 1993) at 6, citing Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651.
The principal action in this case was prosecuted expeditiously by a plaintiff diagnosed with mesothelioma. It was entered into the Commercial and Managed Cases List, and case managed to early mediation. Agreement was reached as between the plaintiff and the defendants shortly after the conclusion of the mediation conference. Reaching an agreement in the primary action of such matters ought not be discouraged, and the refusal of leave in such matters might create an unfortunate obstacle to an otherwise possible compromise of a principal action case managed to early mediation.
Finally, the court was made aware that the solicitors for the second defendant had been conferring with the City of Stirling, who had been informed of the second defendant's wish to formalise proceedings.[11] They will not be taken by surprise by the grant of leave. However, if the City of Stirling does take issue with the grant of leave, I am cognisant that (if appropriate) a conditional appearance may be filed and an order sought setting aside the third party notice by the procedure contemplated by the Rules of the Supreme Court O 12 r 6; the grant of leave does not bind the court at a later stage to give third party directions (where refusal to give such directions necessarily brings the third party proceedings to an end); and proceedings on a third party notice may, at any stage of the proceedings, be set aside by the court pursuant to the Rules of the Supreme Court O 19 r 6.
[11] Communication to the court on 6 August 2025 from the solicitors for the second defendant.
Orders
For these reasons, the following orders will be made:
1.The second defendant has leave to issue a third party notice in terms of the third party notice attached to the second defendant's minute of proposed orders filed on 6 August 2025 against the City of Stirling.
2.The costs of the application be in the cause of the action and in the third party proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KO
Associate to the Honourable Justice Strk
19 AUGUST 2025
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