Just GI Pty Ltd v Pig Improvement Company Australia Pty Ltd
[2001] QCA 48
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- Unreported Judgment
- Appeal Determined (QCA)
- Just GI Pty Ltd v Pig Improvement Company Australia Pty Ltd[2001] QCA 48
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Just GI Pty Ltd v Pig Improvement Company Australia Pty Ltd[2001] QCA 48
Just GI Pty Ltd v Pig Improvement Company Australia Pty Ltd[2001] QCA 48
SUPREME COURT OF QUEENSLAND
CITATION: | Just GI P/L & Ors v Pig Improvement Co Aust P/L [2001] QCA 48 |
PARTIES: | JUST GI PTY LTD ACN 010 645 708 (first plaintiff/first respondent) NOMOHEITH PTY LTD ACN 060 188 367 – as trustee of the Nimrod Discretionary Trust (second plaintiffs/second respondents) MARKEV PTY LTD ACN 078 666 476 – as trustee of the Evans Family Trust (third plaintiff/third respondent) v PIG IMPROVEMENT COMPANY AUSTRALIA PTY LTD ACN 058 819 328 (defendant/appellant) |
FILE NO/S: | Appeal No 5723 of 2000 SC No 5461 of 1998 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 27 February 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12 February 2001 |
JUDGES: | Davies JA, Williams JA, Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | Appeal dismissed with costs. |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PARTIES – OTHER MATTERS - refusal to join third parties – whether trial judge misapprehended the basis upon which the discretion was to be exercised – whether inconvenience to the plaintiffs of delay and additional cost outweighs the inconvenience to the defendant in commencing a separate action – whether joinder would render a simple matter complex – trial judge based decision on facts relevant to the issues – no proper basis for interfering with the exercise of that discretion Uniform Civil Procedure Rules(Qld), r 192 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, considered In the Will of F B Gilbert (1946) 46 SR (NSW) 318, considered |
COUNSEL: | PA Keane QC, with RA Myers for the appellant KA Barlow for the respondents |
SOLICITORS: | Carter Newell for the appellant Russell and Company for the respondents |
- DAVIES JA: I have read the reasons for judgment of Williams JA and agree with them. For those reasons I agree the appeal should be dismissed with costs.
- WILLIAMS JA: The appellant, who is the defendant in the principal action, applied to a judge in chambers for leave to commence third party proceedings against seven parties. For reasons given, and in the exercise of his discretion, the learned chamber judge refused to grant the leave sought; hence the appeal to this court. Among the factors which influenced the chamber judge were the “inconvenience to the plaintiffs of delay and the additional costs involved” in the trial, which “would be complex because of the variety of issues raised”. The appellant on appeal wished to rely on an affidavit dealing with the progress (or lack thereof) of the litigation since the order in question (8 June 2000) and sought to contend in the light of the new material that there was now no valid reason for not permitting the joinder of the third parties. Counsel for the respondents indicated that if the appellant was given leave to rely on that affidavit, then he wished to rely on two affidavits from his side disputing the appellant’s contentions. For reasons given at the time this court refused to accept the affidavits. Thus the appeal falls to be decided upon the material before the chamber judge.
- Essentially the respondents allege in the Statement of Claim that the appellant was responsible for introducing an infectious disease into the piggery operated by the respondents thereby causing them to incur significant loss. It seems not to be in dispute that the appellant, who was a breeder of and trader in pigs, supplied pigs to the respondents. The Statement of Claim alleges that the pigs in question came from the Pepperina facility maintained by Cameron Pastoral Company.
- Further, the Statement of Claim alleges that material representations relevant to the transaction were made by a Mr Hitchens who is said to have been acting on behalf of the appellant.
- The Statement of Claim then alleges that the decision to destroy all pigs in the respondents’ piggery was taken on advice “from the Defendant’s expert veterinarian, Professor Cutler”.
- After particularising the loss the Statement of Claim seeks damages for breach of contract, damages for negligence, and damages pursuant to the Trade Practices Act 1974 (Cth).
- The writ was filed on 18 June 1998. The Statement of Claim was initially filed on 27 July 1999 but was amended on 30 July 1999. The defence was delivered on 10 September 1999. Thereafter the appellant requested particulars of the Statement of Claim on 15 October 1999 and they were provided on 1 December 1999. The respondents changed solicitors on 7 February 2000. The application in question was filed 5 April 2000 and was returnable 12 April 2000.
- Essentially the defence denies that the appellant knew or ought to have known that the pigs supplied were in fact diseased. It denies that Hitchens was its agent; it further denies that any person on its behalf made any representation relevant to the claim. It can be inferred from the defence that the existence of the disease and its causation is not seriously in dispute.
- The parties sought to be added as third parties fall into four groups. Firstly, there are those associated with Cameron Pastoral Company, the actual supplier of the pigs. The second group comprised those engaged by Cameron Pastoral Company “to advise in relation to the health status of the pigs located at the Pepperina facility”. The third group comprised the interests associated with the Professor Cutler referred to in the Statement of Claim. The fourth was the company associated with the person named Hitchens.
- The Statement of Claim against the Third Parties which accompanied the application made claims against each of the proposed third parties in negligence, breach of warranty, and breach of the Trade Practices Act 1974 (Cth). That Statement of Claim sought “indemnity against the plaintiffs’ claim or contribution to such extent as the court shall think fit in respect of such claim” and consequential judgment for the amount of any judgment recovered by the respondents against the appellant.
- The respondents opposed the application before the chamber judge and relied on affidavits deposing to the potential impact on the litigation of the joinder of the third parties. The learned trial judge summarised the position in his reasons for judgment as follows:
“Resistance to the application to join the third parties is on the basis that inconvenience to the plaintiffs of delay and the additional costs involved outweigh the inconvenience to the defendant of having to make its claim in a separate action. Amongst specific factors identified as supporting the submission were the risk of further delay because of uncertainty and imprecision in the defendant’s case against at least some of the third parties, differences between the issues in the plaintiff’s action and the defendant’s claims and the absence of any explanation as to why the issue of the third party notices had not been pursued until so late.”
- As the learned judge recorded, there was no dispute that the case was one within Rule 192 of the UCPR; as it was put in his reasons: “The dispute concerned whether at this point leave should be given.” The learned judge referred to the delay in making the application but ultimately concluded that he was “not prepared to treat this as a matter of particular significance in resolving the matter”. He went on:
“However, if the third parties were joined the proceedings would be complex because of the variety of issues raised. The trial would be significantly lengthened and the hearing date significantly delayed. These are not decisive factors but where a balance has to be made the last matter particularly is one element to be considered, in a case where considerable financial stress has been placed upon a party, especially in a case where there seems to be little if any dispute that the pigs supplied were diseased.”
- His Honour then discussed the relief claimed in the third party proceedings, namely breach of warranty and implied conditions of merchantable quality, and misleading and deceptive conduct, as well as allegations of negligence. He concluded that what was a “simple case” on the respondents’ claim would “balloon into a case where the role of the first four third parties, with three potential separate interests, who may each wish to defend their own conduct inter se, will be examined in detail”. After some more discussion of such issues he concluded that “the case is one where because of the factors to which reference has been made, I should refuse leave”.
- This is an appeal from the exercise of discretion on a matter of practice and procedure. It has been recognised at the highest level (Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177) that appellate courts exercise particular caution in reviewing such decisions. Generally, in addition to error of principle, the order appealed from must work a substantial injustice to one of the parties before an appellate court would interfere. (See also the remarks of Jordan C J in In the Will of F. B. Gilbert (1946) 46 SR (NSW) 318 at 323). Notwithstanding such observations, as the High Court itself recognised, there is no absolute rule and each case must be considered in the light of its own particular circumstances.
- The principal submission of senior counsel for the appellant was that the error in the exercise of discretion emanated from the fact that the learned chamber judge “misapprehended the basis upon which his discretion was to be exercised in that the joinder would not render complex that which was simple”. Because the Statement of Claim itself specifically made allegations about the role played by three out of the four groups of proposed third parties, it was submitted that most, if not all, of the issues sought to be raised in the third party proceedings would have to be explored at the trial in any event. That argument is not without substance, but as counsel for the respondents submitted, given the pleadings, the respondents’ case could be simply presented. Looking at the matter from the limited perspective open to this court on the material currently available, the respondents’ claim against the appellant could probably be resolved speedily. The contentious issues would be whether or not, and if so to what extent, the appellant was able to obtain contribution or indemnity from others.
- In that regard it is also fair to comment, as the learned chamber judge did, that the Statement of Claim against the Third Parties as included in the material, has inherent within it some “uncertainty and imprecision in the defendant’s case against at least some of the third parties”.
- The question is one on which judicial minds might well differ. There are clearly advantages and disadvantages in joining or not joining the third parties. A balancing exercise is called for. It is difficult at a precise moment in time to give an immutable answer to such a question. Something that initially appears to be extremely complex, may well, when the pleadings are closed and interlocutory steps completed, become a very simple issue. It is partly because of such considerations that appellate courts are loathe to interfere with the exercise of a discretion on a procedural issue.
- I am not persuaded that the learned chamber judge misapprehended the basis upon which his discretion was to be exercised. The facts upon which he exercised his discretion were all relevant to the issues before him. After giving those factors careful consideration he decided to exercise his discretion in a particular way. I am not persuaded that the appellant has established a proper basis for this court to interfere with that exercise of discretion.
- The appeal should be dismissed with costs.
- MULLINS J: For the reasons given by Williams JA, I agree that the appeal should be dismissed with costs.