Chadwick v Bridge [1951] HCA 11; (1951) 83 CLR 314 (10 April 1951)

HIGH COURT OF AUSTRALIA

CHADWICK v. BRIDGE [1951] HCA 11; (1951) 83 CLR 314

Practice

High Court of Australia
Dixon(1), Williams(2), Webb(3), Fullagar(4) and Kitto(5) JJ.

CATCHWORDS

Practice - Pleading - Tort - Joinder of nominal defendant and other defendant in one action - Inconsistent claims - Alternative relief - Motor Vehicles (Third Party Insurance) Act 1942 (N.S.W.) (No. 15 of 1942), s. 30 (2) - Law Reform (Miscellaneous Provisions) Act 1946 (N.S.W.) (No. 33 of 1946), s. 2.

HEARING

Sydney, 1951, April 9, 10. 10:4:1951
APPEAL from the Supreme Court of New South Wales.

DECISION

The following judgments were delivered:-
DIXON J. This is an appeal by leave from an order of the Full Court of the from an order dealing with a summons. The summons was dismissed by the judge in chambers. The summons was issued in an action in which the plaintiff proceeded against an individual defendant by name and against a nominal defendant. The action proceeded to the stage of the pleading, a declaration was filed and pleas were filed. The declaration contains two counts. By the first of the two counts a cause of action for negligence in the management of a truck was framed against the named defendant. By the second of the two counts a cause of action was framed against the nominal defendant in purported pursuance of s. 30(2) of the Motor Vehicles (Third Party Insurance) Act 1942. The count against the named defendant, Chadwick, necessarily stated explicitly that he did carelessly, negligently and unskilfully drive and manage a motor vehicle by which the injury was done. The second count, that against the nominal defendant, necessarily stated that due inquiry and search had been made as s. 30(2) requires and that the identity of the motor vehicle could not after that inquiry be established. (at p318)

2. The summon which was issued challenged the propriety of proceedings in this form and sought an order that the action be stayed or that the defendant Chadwick be struck out of the proceedings or dismissed from the proceedings. The summons was issued by Chadwick. The summons was, of course, opposed by the plaintiff and it was also opposed by the nominal defendant. The justification for proceedings in this form which is put forward lies in the Law Reform (Miscellaneous Provisions) Act 1946. Section 2 of that Act deals with alternative defences, as well as with thirdparty proceedings. The provisions of s. 2 are founded upon rules contained in Order XVI. of the English Rules of the Supreme Court but it adopts by no means the whole of Order XVI. It deals with defendants only; and, unlike those rules, it is confined expressly to actions of tort. Section 2 is divided into five paragraphs, the first four of which state the substance of the English Rules 4, 5, 7 and 11, but some words which are to be found in Rule 1 of Order XVI. are introduced into these paragraphs which relate to the position of defendants. Their Honours in the Supreme Court were of opinion that these provisions justified the procedure. (at p318)

3. The appeal to this Court is instituted for the purpose of establishing that where there is a nominal defendant who is joined the case falls outside the scope of the procedure which these provisions enable. It is procedure which is of course familiar in jurisdictions where the Judicature Act has prevailed, but perhaps it is a little incongruous with principles maintained under the Common Law Procedure Act. The reasons why the appellant Chadwick says that the procedure falls outside the scope of s. 2 of the Law Reform (Miscellaneous Provisions) Act 1946 are to be found in the character or elements of the cause of action which is expressed in s. 30(2) in relation to a nominal defendant. The principle upon which that provision proceeds is that where a plaintiff is injured as a result of the use of a motor vehicle and he is unable after due inquiry to identify the motor vehicle he then may proceed against the nominal defendant and in effect recover damages from a public authority. It is said that the very hypothesis on which the cause of action is founded is the complete inability on the plaintiff's part at the time the writ was issued after due inquiry of ascertaining the indentity of the motor vehicle. Therefore to allow in one proceeding the introduction of two counts, one of which asserts that the identity of the motor vehicle is known to the plaintiff, and the other of which necessarily says that it is not, is to allow of quite inconsistent positions, the first of which necessarily destroys the cause of action which is founded on s. 30(2). The view which is put forward for the appellant does not concede the proposition that the proceeding under s. 30(2) may properly be described as an action of tort. Indeed, as I understood Mr. Bradley, he disputed it; although, if I correctly understood Mr. Wallace, he was inclined to concede it. But, be that as it may, I think that a proceeding under the provisions of s. 30(2) of the Motor Vehicles (Third Parties Insurance) Act 1942 should be considered an action of tort. The basis of the action is the commission of a tort by an undiscovered person. Upon that basis is established a liability in a public authority because of the inability of the plaintiff to ascertain the identity of the actual tortfeasor. It is no doubt correct that the nominal defendant himself has not committed a wrong, but in a classification of causes of action it seems right to describe the proceedings against him as an action of tort. (at p319)

4. The purpose of s. 2(1)(a)(b) and (c) of the Law Reform (Miscellaneous Provisions) Act 1946 is to make it possible to dispose in one action of claims against two or more persons when those claims arise out of one transaction and it is uncertain which of them, if not all of them, are responsible for the relief which the plaintiff claims. It is, I think, not a proper way of construing s. 2 to take every paragraph of the section separately and deal with it as if each paragraph was to cover a different case. The purpose of the paragraphs is to make plain how the general policy of the provision operates and to ensure as far as language may do that plaintiffs are not to be defeated because of their uncertainty at the commencement of the action as to the correct party against whom they ought to claim. Fundamentally the appellant Chadwick's objection depends on a conception that it is impossible to allege inconsistent matters in different counts based upon a cause of action arising out of the same transaction. There is no principle now existing under the Judicature Rules which prevents the allegation of inconsistent alternatives. In the case, which has been referred to, of Evans v. Buck (1876) 4 Ch D 432 the decision of the Master of Rolls, Sir George Jessel, relates to the joinder of a new party upon a counter claim and should be restricted to that situation. Instances are to be found almost in daily practice under the Judicature Act procedure of inconsistent allegations forming the foundation of causes of action against different persons who are joined as co-defendants. The situation here is one in which the plaintiff is aware of an injury done by a motor vehicle and alleges a cause of action based upon the assumption that there was negligence in the management of that motor vehicle, but is uncertain whether he has correctly identified the motor vehicle and therefore correctly identified the defendant who is responsible for its management. In those circumstances the case appears clearly enough to come within s. 2(1)(c) of the Law Reform (Miscellaneous Provisions) Act. Section 2(1)(c), however, is explanatory in a sense of s. 2(1)(a) and there does not appear any reason why these causes of action should not be treated as existing in the alternative against the unknown person and the known person, the nominal defendant being placed upon the record as the person responsible if it turns out that the unknown person is the person against whom redress would be sought. The case falls within the general principle to which s. 2 is addressed and presents no features which justify an argument excluding its application to a proceeding of this character where one defendant is sued under the Motor Vehicles (Third Party Insurance) Act 1942, s. 30(2). (at p320)

5. The appeal should be dismissed. (at p320)

WILLIAMS J. I am of the same opinion. I agree with my brother Dixon that the statement of Jessel M.R. in Evans v. Buck (1876) 4 Ch D, at p 434 that the words "in the alternative" do not include an inconsistent alternative, are only intended to apply to a counter claim and do not govern the construction of the same words in s. 2(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946. In this connection I should like to refer to the decision of the Court of Appeal in Child v. Stenning (1877) 5 Ch D 695 . There the alternative relief claimed in the amended statement of claim was plainly inconsistent, and on this ground Hall V.C. held on demurrer that the amended statement of claim was bad. But in the Court of Appeal, presided over by Jessel M.R., it was held to be good and that a plaintiff was not confined under the rules of court to cases in which the alternative relief claimed against one defendant was consistent with that claimed against the other. The rules were not the same rules as the present English rules, the meaning of which was discussed in Richardson v. Trautwein [1942] HCA 5; (1942) 65 CLR 585 , on which the provisions of s. 2(1) of the Law Reform (Miscellaneous Provisions) Act are based. The causes of action under the present declaration are separate actions of tort. The right to relief claimed against the defendants is inconsistent, but it is claimed against them either severally or in the alternative. It arises out of the same transaction and common questions of fact will arise. The joinder of these defendants is therefore justified by the section. I feel that the reasons why the joinder is justified are fully covered, not only by the judgment of my brother Dixon but also by the judgments of their Honours in the court below and to these reasons I have nothing to add. (at p321)

2. The appeal should be dismissed. (at p321)

WEBB J. I agree with the judgment of Dixon J., but I had some difficulty in coming to the conclusion that a proceeding against the nominal defendant is an action of tort. However, I think it does not lose the quality of an action of tort merely because of the substitution of the nominal defendant in the place of the actual wrongdoer. In a broad sense the cause of action remains the same. (at p321)

FULLAGAR J. I agree. I would only add this with reference to one argument put by Mr. Wallace yesterday. I can see no reason whatever why an allegation of facts necessary to bring a case within s. 30(2) of the Motor Vehicles (Third Party Insurance) Act should not appear in a declaration as alternative to other allegations disclosing a cause of action against an identified defendant such as Chadwick in the present case. (at p321)

2. The fact that both sets of allegations cannot be true appears to me to be immaterial for the purposes of s. 2 of the Law Reform (Miscellaneous Provisions) Act. (at p321)

KITTO J. I agree and have nothing to add. (at p321)

ORDER

Appeal dismissed with costs.