Foster v Woolworths Limited & Ors [2004] ACTSC 11 (26 March 2004)

Last Updated: 23 April 2004

JACQUELINE FOSTER v WOOLWORTHS LIMITED AND JONG IM YOO AND KYUNG IK YOO T/AS KEN'S TROLLEY AND CLEANING SERVICES

AND WESTFIELD SHOPPING CENTRE MANAGEMENT CO (ACT) PTY LIMITED

[2003] ACTSC 11 (26 March 2004)

PRACTICE AND PROCEDURE - contribution between defendants - dismissal of plaintiff's claim against one defendant - subsequent claim against that defendant by another defendant for indemnity or contribution - whether defendant against which proceedings dismissed remains a party

PRACTICE AND PROCEDURE - parties - whether defendant ceases to be a party on dismissal of plaintiff's claim against it - whether defendant after such dismissal amenable to claim by another defendant for indemnity or contribution

Supreme Court Rules, O 19 r 12, O 33A r 1, O 42, r 11

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

James Hardie and Coy Pty Limited v Seltsam Pty Limited [1998] HCA 78; (1998) 196 CLR 53

Harper v Gray and Walker [1985] 2 All ER 507

Orbell v Bundaleer Lodge Nursing Home Pty Limited [1988] 1 Qd R 152

No SC 266 of 1999

Coram: Master Harper

Supreme Court of the ACT

Date: 26 March 2004

IN THE SUPREME COURT OF THE )

) No SC 266 of 1999

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JACQUELINE FOSTER

Plaintiff

AND: WOOLWORTHS LIMITED

1^st Defendant

AND: JONG IM YOO AND KYUNG IK YOO T/AS KEN'S TROLLEY AND CLEANING SERVICES

2^nd Defendant

AND: WESTFIELD SHOPPING CENTRE MANAGEMENT CO (ACT) PTY LIMITED

3^rd Defendant

ORDER

Coram: Master Harper

Date: 26 March 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The third defendant's costs of the application be paid by the first defendant.

1. This application raises the issue of whether or not one of a number of defendants remains a party to an action following the making of an order that proceedings by the plaintiff against that defendant be dismissed.

2. The plaintiff commenced the action in April 1999 against the first defendant, claiming damages for personal injury arising from an incident in which she was struck by a shopping trolley in a shopping centre carpark. The plaintiff subsequently added the second and third defendants.

3. On 4 November 2002, a consent order was signed and sealed by a Deputy Registrar, presumably pursuant to O 42, r 11, which provides as follows:

(1) Subject to subrule (5), where-

(a) the solicitor for a party to a cause or matter has lodged with the registrar a draft order in accordance with form 1.52 or draft judgment in accordance with form 1.53.

(b) there is endorsed on the draft the consent for the purposes of this rule of the solicitor for each party to the cause or matter who would be affected by the proposed order or judgment;

the registrar shall sign and seal the order or judgment.

(2) A draft lodged with the registrar for the purpose of subrule (1) shall include a statement that the order or judgment is made or given by consent of specified parties.

(3) An order sealed in accordance with subrule (1) has effect as if the order had been made by the court on the day on which the order was so sealed.

(4) Where a judgment has been sealed in accordance with subrule (1) the judgment has effect and rules 1 to 10 apply, as if the judgment had been pronounced by the court on the day on which the judgment was so sealed.

(5) The registrar shall not sign or seal an order or judgment under subrule (1) if he or she is of the opinion that the order or judgment is not such as the court would make or pronounce by consent.

4. The form of consent order provided spaces for consent to be endorsed by the solicitors for the plaintiff and the first defendant, but not by the solicitor for the third defendant. The second defendant has never appeared and interlocutory judgment was entered against it during 1999. The consent order was expressed to have been obtained `by consent of parties'. The solicitors for the third defendant were informed by the solicitors for the first defendant shortly prior to the making of the consent order that the plaintiff was about to file a consent order dismissing her claim against the first defendant. They were not provided with a copy of the document and their client's consent was not sought.

5. The consent order was in the following terms:

1. Proceedings against the first defendant be dismissed.

2. The first defendant pay the plaintiff's costs agreed at $23,919.17 such sum having been delivered up.

6. On 1 October 2003 the solicitors for the third defendant filed and served a notice claiming indemnity or contribution from the first defendant. The solicitors for the first defendant immediately wrote to the solicitors for the third defendant, arguing that their client had ceased to be a party to the action on the making of the consent order, bringing to an end any entitlement which might previously have existed for such a claim to be made by another defendant. They sought the withdrawal of the notice. The solicitors for the third defendant took issue with this in correspondence, and at the same time attempted to file a third party claim joining the first defendant as a third party to the proceedings. This was rejected by the registry, apparently on the basis that the proposed third party was already a party to the action. The first defendant now seeks an order that the notice claiming contribution be struck out.

7. If the argument of the first defendant is soundly based, it follows that the third defendant was, at the time the draft consent order was lodged in the registry, a party who might be affected by the proposed order, although this may not have been realised at the time by the solicitors for the plaintiff or the first defendant or by the Deputy Registrar.

8. The dismissal of proceedings is permitted under the Rules in certain circumstances. For example, O 33A r 1 empowers the Court to stay or dismiss proceedings where a claimant for relief fails to comply with an order or direction, or delays prosecution of the proceedings without due cause. Whereas a stay does not conclude the proceedings, and may subsequently be removed by the Court, an order dismissing the proceedings is conclusive. It does not, however, give rise to a res judicata, as would a judgment in favour of a defendant. Following dismissal, a plaintiff may bring another action on the same cause, subject to any applicable limitation period. Dismissal appears to have an equivalent effect to discontinuance. The Rules do not provide in terms that the effect of dismissal against a defendant is that the defendant ceases to be a party to the action.

9. The Rules contemplate that in some circumstances, a party may cease to be a party. For example, under O 19 r 12, the Court may order that a person who is a party be struck out if the person has been improperly joined. No order was sought as part of the consent orders made on 4 November 2002 that the first defendant be struck out as a party.

10. I was referred in argument to the decision of the High Court in James Hardie and Coy Pty Limited v Seltsam Pty Limited [1998] HCA 78; (1998) 196 CLR 53, where the Court held by majority that the entry of consent judgment in favour of a defendant precluded another defendant from claiming contribution as a concurrent tortfeasor. The decision turned on the wording of the Law Reform (Miscellaneous Provisions) Act 1946 of New South Wales, which is in somewhat different terms to the equivalent legislation in the Territory; and the proceedings involved a consent judgment rather than a dismissal. The reasoning accordingly is of no direct assistance in determining the present issue.

11. In Harper v Gray and Walker [1985] 2 All ER 507, a decision of an official referee in the Queen's Bench Division, it was held that two defendants with whom the plaintiff had earlier settled remained parties to the action so as to be amenable to a claim for contribution by another defendant. The notice had been given following agreement to settle but prior to the implementation of the settlement, which in that case was effected by the filing of notices of discontinuance. The official referee held that the contribution notice, having being served, remained effective notwithstanding the subsequent discontinuance. The present case can be distinguished on its facts: the notice claiming contribution was not filed and served until after the consent orders had been entered.

12. A similar issue came before Master Weld in Orbell v Bundaleer Lodge Nursing Home Pty Limited [1988] 1 Qd R 152, in which the learned Master held a notice of discontinuance ineffective for non-compliance with the rules but held in the alternative that if the notice was effective, it did not have the effect of rendering a party to whom it was given no longer a party to the action. That decision is of persuasive authority.

13. In the present case, it might be argued that the form of the costs order meant that following the entry of the consent orders, there was no possibility of any further issue arising between the plaintiff and the first defendant which the Court might be called upon to determine. This will not necessarily always be the case where proceedings are dismissed between a plaintiff and one of a number of defendants. Often there will be outstanding issues, for example as to the quantification and recovery of costs. It would be absurd to suggest that the Court had lost its jurisdiction to determine such issues by reason of the fact that on dismissal, the defendant concerned had ceased to be a party. It seems to me that either a dismissal results in the defendant concerned ceasing to be a party, or it does not. That issue cannot depend upon the terms of any agreement reached between the plaintiff and the defendant as to costs.

14. For these reasons I am of the view that notwithstanding the orders made by consent on 4 November 2002, the first defendant remained a party to the action at the time when it was served with the notice claiming contribution, and remains a party still.

15. I should say that were it otherwise, I would nevertheless have disposed of this application in such a way as to achieve the same outcome. The first defendant remains represented by solicitors. It would be artificial in the extreme to require personal service of a third party claim, followed by the entry of a further appearance. I would have directed that the first defendant be joined as a third party but that the proceedings, for the sake of practicality, retain their existing title, and I would have directed that the notice claiming contribution stand as the third party claim, and that any further requirement for service of it be dispensed with. Having regard to the conclusions I have reached, those orders are unnecessary.

16. The application will be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 26 March 2004

Counsel for the applicant (first defendant) Mr M R W Roser

Solicitor for the plaintiff Blake Dawson & Waldron

Counsel for the respondent (third defendant) Mr C J Maclachlan

Solicitor for the defendant Dibbs Barker Gosling

Date of hearing 19 March 2004

Date of decision 26 March 2004