FEDERAL COURT OF AUSTRALIA

Shrimp v Landmark Operations Limited [2007] FCA 1468

 PRACTICE AND PROCEDURE – Application for separate trials – where defendant on originating process filed cross-claim against third party – where third party filed several subsequent cross-claims – whether various cross-respondents are concurrent wrongdoers within the meaning of Part VIA Trade Practices Act 1974 (Cth) and Proportionate Liability Act 1990 (NT) irrespective of their legal liability to the applicant – whether common issues of fact between the claims weigh sufficiently against ordering separation of trials.

Held: Only cross-respondents legally liable to the applicant can be concurrent wrongdoers within the meaning of Part VIA Trade Practices Act 1974 (Cth) and Proportionate Liability Act 2005 (NT) – third cross-claimant’s proposed defence raises genuine issues under proportionate liability legislation – common issues weigh sufficiently against ordering separation of trials – application dismissed.

PRACTICE AND PROCEDURE – Applications for leave to defend – where applications by multiple cross-respondents for leave to defend application on originating process – whether proposed defences raise genuine issues not pleaded by defendant – whether appropriate to grant leave to more than one cross-respondent.

Held: Proposed defences raise genuine issues not apparently pleaded by defendant – not appropriate to grant leave to more than one cross-claimant because proposed defences raised substantially same grounds – leave to defend granted to application first in time and pleading arguable interpretation of proportionate liability legislation.

Consumer Affairs and Fair Trading Act 1990 (NT) s 91

Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth)

Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill 2003 (Cth)

Fair Trading Act 1989 (Qld) s 38, s 40

Federal Court of Australia Act 1976 (Cth) s 22

Federal Court Rules (Cth) O 5, r 12

Proportionate Liability Act 1990 (NT)

Proportionate Liability  Act 2005 (NT) ss 4, 6, 13,

Sale of Goods Act 1972 (NT)

Trade Practices Act 1974 (Cth) ss 52, 53, 82, 87CB, 87CD, 87CE, 87CG

Barclays Bank v Tom [1922] 1 KB 221 referred to

Barton v London and North Western Railway Company (1888) 38 ChD 144 referred to

Duncan v Commissioner of Taxation (2006) 58 ACSR 555 referred to

Hall v Commissioner of Taxation (2004) 51 ACSR 173 referred to

Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd (1974) 132 CLR 1 referred to

New World Oil and Developments Pty Limited v 163 Clarence Street Pty [1995] FCA 138 referred to 

ROBIN JAMES SHRIMP AND JUDITH ANN SHRIMP v LANDMARK OPERATIONS LIMITED ACN 008 743 217, MICHAEL ERNEST GARGAN, SIMON & KATE GARGAN, SELECTED SEEDS PTY LTD, AUSTRALIAN PREMIUM SEEDS PTY LTD, SEED TESTING LABORATORY OF AUSTRALIA PTY LTD, STATE OF QUEENSLAND, TOP END RURAL SUPPLIES PTY LTD  

SAD 55 OF 2006

BESANKO J

19 SEPTEMBER 2007

ADELAIDE

THE COURT ORDERS THAT:

            1.   The applicants’ notice of motion dated 24 November 2006 be dismissed.

            2.   The question of costs on that notice of motion be reserved.

            3.   The third cross-claimant/third cross-respondent, Selected Seeds, be given leave to defend the claim brought by the applicants on the originating process in terms of the draft defence dated 24 July 2007 but subject to all rights the applicants may have under the Federal Court Rules in relation to the sufficiency of the defence.

            4.   The question of costs on the notice of motion be reserved.

            5.   The defence of Selected Seeds be filed and served within seven days of the date hereof.

            6.   The first cross-respondent/second cross-claimant have leave to appear at the trial of the claim on the originating process.

            7.   The question of costs on the notice of motion be reserved.

            8.   The seventh cross-respondent be given leave to appear at the trial of the claim on the originating process.

            9.   The question of costs on the notice of motion be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 3 April 2006 Robin James Shrimp and Judith Ann Shrimp issued a proceeding in this Court against Landmark Operations Limited (“Landmark”). They claimed damages, either at common law, or under s 82 of the Trade Practices Act 1974 (Cth) (“the TPA”) or s 91 of the Consumer Affairs and Fair Trading Act 1990 (NT) (“the FTA”), interest and costs.

2                     The applicants are husband and wife and at all material times they have owned a farming property known as “Edith Springs Station”. Edith Springs is located 50 kms northwest of Katherine in the Northern Territory. Since December 1996 the applicants have carried on a farming business in partnership on Edith Springs.

3                     Landmark is a company and it carries on business as, among other things, a farming merchandise supplier and rural financier. It has a branch from which it conducts business in Katherine in the Northern Territory. The applicants allege that at all material times Landmark was engaged in trade or commerce.

4                     As part of their farming activities the applicants have grown and sold hay for fodder, grown and sold horticultural products, predominantly watermelons, bred cattle and engaged in contract hay baling and fencing.

5                     The applicants used Elders Ltd as their primary supplier of farming merchandise and used Elders Rural Bank Ltd as their bank.

6                     In early to mid-2004 Mr Shrimp had a conversation with a merchandising manager employed by Landmark in Katherine. There were further conversations between Mr Shrimp and employees of Landmark in Katherine after this conversation. As a result of the conversations, the applicants developed and decided upon a business plan. It is not necessary for me to set out the details of the plan other than to say that part of the plan involved sowing jarra grass seed. At the same time as the conversations previously referred to took place, Mr Shrimp was discussing a refinancing proposal with Landmark and eventually a refinancing proposal was agreed upon and the applicants paid out their debt to Elders Bank.

7                     In November 2004 there was a conversation between Mr Shrimp and an employee of Landmark in Katherine about the purchase of jarra seed by the applicant from Landmark for the season commencing December 2004. An order was placed by the applicants in late November 2004 or early December 2004 whereby the applicants agreed to purchase seed and other chemical products, including 400 kg of jarra grass seed, from Landmark. The seed was delivered to the applicants by Landmark. It was subsequently sown across an area of approximately 470 hectares of Edith Springs. The applicants allege that Landmark supplied them with summer grass seed rather than jarra seed and that they suffered substantial losses as a result. It is alleged that an employee of Landmark admitted to Mr Shrimp that Landmark had supplied summer grass seed to the applicants.

8                     In May 2005 Landmark sought the repayment of the finance facilities it had provided to the applicants. The applicants refinanced their obligations by obtaining a loan from the ANZ Banking Group Ltd and they used the loan to discharge their obligations to Landmark.

9                     The applicants allege that they have various causes of action against Landmark. First, they allege that Landmark has acted in breach of the contract between it and the applicants. They plead express and implied terms and under the latter they plead terms arising by reason of the Sale of Goods Act 1972 (NT). Secondly, the applicants allege that Landmark was guilty of misleading or deceptive conduct by making various representations to them and that it contravened s 52 and s 53(a) of the TPA and s 42 and s 44 of the FTA. The applicants also allege that Landmark owed them a duty of care and that it had acted in breach of that duty of care. The applicants claim that they have suffered very substantial losses as a result of Landmark’s conduct.

10                  On 19 June 2006 Landmark filed a defence which, for the most part, consisted of denials, admissions and non-admissions. On the same date, Landmark issued a cross-claim against Michael Ernest Gargan.

11                  Order 5, rule 1 of the Federal Court Rules relevantly provides:

“1.       Claim by Respondent

 …

(2)       A respondent may cross-claim against any person whether another party or a third party for any relief which is related to or connected with the subject of the proceedings.

(3)       Without prejudice to the generality of sub-rule (2), a cross-respondent may cross-claim for contribution or indemnity.”

12                  In its cross-claim, Landmark alleges that it purchased two tonnes of jarra grass seed from Michael Gargan and that Michael Gargan provided Landmark with documents representing that the seed that would be supplied was jarra grass seed. Landmark alleges that various terms were implied into the contract including terms referred to in the Sale of Goods Act 1972 (NT). Landmark alleges that Michael Gargan acted in breach of the contract in that he did not supply seed which was jarra grass seed. Landmark also alleges that there was a breach of the FTA in that Mr Gargan’s conduct was false and/or misleading or deceptive. It further alleges that Mr Gargan owed it a duty of care and was in breach of that duty of care.

13                  On 15 September 2006 Mr Gargan issued cross-claims against the following parties:

Simon Gargan and Kate Gargan

Selected Seeds Pty Ltd (“Selected Seeds”)

Australian Premium Seeds Pty Ltd (“Australian Premium Seeds”)

Seed Testing Laboratory of Australia Pty Ltd (“Seed Testing Laboratory”)

State of Queensland (Queensland Department of Primary Industries and Fisheries) (“State of Queensland”)

14                  As far as Simon Gargan and Kate Gargan are concerned, Michael Gargan alleges that they are partners. He alleges that in June 2003 he purchased from them approximately 120 kg of grass seed, which was represented by them to be jarra grass seed. He alleges that various terms were implied into the contract, including terms under the Sale of Goods Act 1896 (Qld). Mr Gargan alleges that in September 2003 the grass seed purchased from Simon Gargan and Kate Gargan was sown by him in a 12 hectare paddock and harvested in April 2004. Mr Michael Gargan obtained a letter from Mr John Hopkinson and a certificate of analysis from Seed Testing Laboratory to the effect that the grass seed was jarra grass seed. Mr Michael Gargan supplied the grass seed to Landmark. He alleges that if the grass seed supplied by him to Landmark and then in turn by Landmark to the applicants was not jarra grass seed, as alleged by the applicants, then Simon Gargan and Kate Gargan breached the terms of the contract. He claims damages for breach of contract and he alleges that there was a breach of the Fair Trading Act 1989 (Qld) and a breach of duty of care owed by Simon Gargan and Kate Gargan to him.

15                  As far as Selected Seeds is concerned, Mr Michael Gargan alleges that he purchased seed from Simon Gargan and Kate Gargan in June 2003 which was represented by them to be jarra grass seed. He alleges that the grass seed supplied by Simon Gargan and Kate Gargan to him was grown from seed supplied to them by Selected Seeds. He alleges that Selected Seeds represented to Simon Gargan and Kate Gargan that the seed it was supplying to them was jarra grass seed. He alleges that the representation by Selected Seeds was false and/or misleading or deceptive within s 52 and s 53 of the TPA and that he has suffered loss as a result. He also alleges that Selected Seeds owed a duty of care to ensure that the grass seed which was supplied to consumers was jarra grass seed.

16                  As far as Australian Premium Seeds is concerned, Mr Gargan alleges that in April 2004 he harvested and dried a crop of grass seed and then engaged the services of Australian Premium Seeds to clean, bag, store and test the grass seed. He alleges that Australian Premium Seeds, after he had arranged for the grass seed to be tested by Seed Testing Laboratory, provided to him a certificate of analysis which identified the grass seed as jarra grass seed. He alleges that it was an implied term of the contract that the certificate of analysis would be accurate and that the description of the grass seed named on the certificate of analysis would match the grass seed. Mr Gargan supplied the certificate of analysis to Landmark. He alleges that Australian Premium Seeds breached the terms of its contract with him, acted in contravention of the TPA and, in particular s 52 and s 53, and was in breach of a duty to take reasonable care that it owed to him that the certificate of analysis correctly identified the seed as being jarra grass seed.

17                  As far as Seed Testing Laboratory is concerned, Mr Gargan alleges that Australian Premium Seeds obtained from it a certificate of analysis which identified the grass seed as jarra grass seed. He alleges that Seed Testing Laboratory’s conduct in connection with the certificate of analysis was in breach of the TPA and, in particular, s 52 and s 53 thereof, and was in breach of a duty of care that it owed to him to take reasonable care that the certificate of analysis correctly identified the seed as being jarra grass seed.

18                  As far as the State of Queensland is concerned, Mr Gargan alleges that the crop which he had grown from the seed purchased from Simon Gargan and Kate Gargan was inspected by a servant or agent or both of the Department of Primary Industries and Fisheries on 5 April 2004. That inspection was carried out as part of a government-funded service to provide assistance to farmers such as Mr Gargan. The advice that Mr Gargan was given was that grass growing in his paddock was jarra grass. That advice was given both orally and in writing. Mr Gargan alleges that the Department acted in breach of the Fair Trading Act 1989 (Qld) and, in particular, s 38 and s 40 of that Act, and were in breach of a duty of care owed to him to ensure that the inspection and certification of his grass seed crop was accurate.

19                  On 16 November 2006 Selected Seeds filed a defence to the cross-claim of Mr Gargan and issued cross-claims against Simon Gargan and Kate Gargan and Seed Testing Laboratory. It also issued a cross-claim against Top End Rural Supplies Pty Ltd (“Top End Rural Supplies”) in which it alleged that Top End Rural Supplies had been guilty of a breach of contract, contraventions of s 52 and s 53(a) of the TPA and breaches of a duty of care which it owed.

20                  On 24 November 2006 the applicants filed a notice of motion in which they sought the following orders:

“1.       That the applicants’ claim against the respondent be tried separate from and prior to the cross-claims filed in this action.

2.         Such further or other orders as this honourable Court deems appropriate.”

21                  The notice of motion was supported by an affidavit sworn by a solicitor employed by the firm of solicitors acting for the applicants. That affidavit summarises the grounds upon which the applicants sought the orders in the notice of motion. It provides:

“3.       By way of summary, the grounds that the applicants contend support their application are:

3.1       The absence of common issues between the applicants’ claim against Landmark and the cross-claims;

3.2       The financial position of the applicants. They have been without income from fodder and seed production since December 2004 by virtue of the matters alleged in their statement of claim and, with each season that passes, the applicants’ losses increase;

3.3       The significant potential for a reduction in, or more efficient use of the parties’ and the Court’s time and expense required to resolve the issues arising in these proceedings. In particular, if the applicants were to lose against Landmark, the remaining 7 parties would be saved entirely the expense of a trial. Regardless of the outcome of the proceedings between the applicants and Landmark, the remaining 7 parties would be saved the time and expense associated with attending court for the resolution of the issues between the applicants and Landmark.”

22                  The affidavit filed by the applicants in support of their notice of motion disclosed a strong case for the principal order sought by the applicants. The factual issues between the applicants and Landmark appeared to be quite limited, whereas, there were a large number of apparently different factual issues as between Landmark and the various cross-respondents. The applicants appeared to be in a difficult financial position and, if they were correct in their allegations, they appeared to be in that position because of Landmark’s conduct. Finally, the claim between the applicants and Landmark appeared to be much closer to trial than any of the cross-claims.

23                  Landmark and various cross-respondents opposed the applicants’ notice of motion.

24                  On 11 January 2007, Australian Premium Seeds filed an affidavit sworn by a solicitor employed by the firm of solicitors representing it. The solicitor said that he was instructed that Australian Premium Seeds neither consented to nor actively opposed the orders sought in the applicants’ notice of motion. The solicitor stated that the allegations made by Australian Premium Seeds in its defence may be the subject of evidence given by two witnesses from Australian Premium Seeds and three to four other witnesses and that that was likely to take a period of three to four days. He also stated that Australian Premium Seeds was not intending to obtain its own expert evidence. Landmark opposed the applicants’ application. It referred to s 22 of the Federal Court of Australia Act 1976 (Cth) and to the reasons why it submitted third party proceedings are not ordinarily the subject of separate trials. Selected Seeds also opposed the making of the orders sought by the applicants. It submitted that it was only in exceptional circumstances that the power to order separate trials of a plaintiff’s claim against a defendant and a defendant’s claim against a third party should be exercised. It submitted that unless Landmark was wholly successful, it was likely that conducting separate trials would involve the determination of the same questions of fact in separate proceedings, potentially leading to inconsistent findings and additional cost and delay to Landmark and the parties other than the applicants. It also submitted that “the conduct of separate trials would conflict with the legislative intent, and undermine the operation of the ‘proportionate liability’ provisions to be found in the TPA in respect of Shrimp’s claim for damages under s 82 of the TPA for conduct in breach of s 52 of that Act”. It is appropriate to outline the nature of that last submission at this stage.

25                  The TPA was amended in the middle of 2004 to introduce a scheme of proportionate liability in respect of economic loss and damage to property by conduct in breach of s 52 of the TPA. Section 82(1B) (which deals with contributory negligence) and Part VIA of the TPA were inserted by the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004 (Cth). These provisions came into operation on 26 July 2004 and apply to causes of action covered by the provisions that arise on or after 26 July 2004. Selected Seeds referred to the provisions of Part VIA and submitted that whether a person was a concurrent wrongdoer for the purposes of Part VIA “depends on the concept of causation of, rather than liability for, damage or loss”. As I understood the submission, it was that one or more of the cross-respondents might be a concurrent wrongdoer with Landmark in relation to the loss or damage suffered by the applicants on the ground that they, or one of them, “caused” that loss and damage. It was submitted that it was at least arguable that each of the parties could be found to have caused the loss claimed by the applicants and that the liability of Landmark and each cross-respondent would need to be determined by the Court by comparing the extent of each party’s responsibility for the loss or damage suffered by the applicants. It was submitted that it was therefore inappropriate to order separate trials.

26                  In reply, the applicants submitted that the proportionate liability provisions in Part IVA of the TPA were irrelevant because Landmark had not pleaded those provisions against the applicants or filed any affidavit evidence deposing to an intention to plead them and no cross-respondent had sought leave to defend the applicants’ claim by pleading the concurrent wrongdoer provisions nor filed any affidavit evidence deposing to an intention to seek leave to defend on that ground. It was submitted that the Court should not have regard to “hypothetical possibilities that are not the subject of evidence in considering the concurrent wrongdoer provisions and that have been raised for the first time at this late stage”. The applicants also submitted that, in any event, the proportionate liability provisions should not be interpreted in the manner advanced by Selected Seeds.

27                  On 29 March 2007 Selected Seeds issued a notice of motion seeking the following order:

“That the Court directs pursuant to Order 5 Rule 12 that the third cross-claimant/third cross-respondent, Selected Seeds Pty Ltd, be given leave to defend the claim brought by the applicants on the originating process.”

28                  That notice of motion was supported by an affidavit from Selected Seeds’ solicitor and annexed to the affidavit was a defence which, subject to one qualification, Selected Seeds said it would file if given leave to defend. The solicitor said that he had identified a number of experts “in relation to the introduction, behaviour, planting, cultivation and harvesting of tropical grass seeds and grasses, including jarra grass and summer grass”. The solicitor deposed to the fact that he was in the process of obtaining reports or statements from those experts and that following completion of that process amendments could be made to the proposed defence.

29                  On 4 April 2007, Australian Premium Seeds issued a notice of motion seeking an order as follows:

“That the fourth cross-respondent be granted leave to appear at, and take part in, the trial of the proceedings between the applicants and the respondent, in accordance with the Court’s directions, pursuant to Order 5, Rule 12 of the Federal Court Rules.”

30                  Australian Premium Seeds also sought a series of directions regarding its participation in the trial of the proceedings between the applicants and Landmark including a direction that it be given leave to defend the applicants’ claim. The notice of motion was supported by an affidavit from the solicitor for Australian Premium Seeds and annexed to that affidavit was a proposed defence.

31                  On 3 April 2007, Top End Rural Supplies issued a notice of motion seeking the following order:

“That the seventh cross-respondent be granted leave to appear at, and take part in, the trial of the proceedings between the applicants and the respondent in accordance with the Court’s directions, pursuant to Order 5, Rule 12 of the Federal Court Rules.”

32                  Top End Rural Supplies also sought directions regarding its participation in the trial of the proceedings between the applicants and Landmark including a direction that it be given leave to defend the applicants’ claim. The notice of motion was supported by an affidavit from a solicitor for Top End Rural Supplies and annexed to the affidavit was a proposed defence to the amended statement of claim of the applicants.

33                  On 24 April 2007, Landmark filed an amended defence which, like its original defence, consists substantially of denials, admissions and non-admissions.

34                  On 24 April 2007, Australian Premium Seeds put forward a proposed amended defence to the amended statement of claim of the applicants and, on 26 April 2007, Top End Rural Supplies did the same. On 3 May 2007, Selected Seeds put forward a proposed amended defence to the applicants’ amended statement of claim.

35                  On 23 May 2007, Mr Michael Gargan issued a notice of motion seeking the following order:

“That the first cross-respondent/second cross-claimant be given leave to appear at, and take part in, the trial of the proceedings between the applicants and the respondent, in accordance with the Court’s directions, pursuant to Order 5, Rule 12 of the Federal Court Rules.”

36                  Mr Michael Gargan also sought a series of directions regarding his participation in the trial of the proceedings between the applicants and Landmark including a direction that he be given leave to defend the applicants’ claim.

37                  On 10 July 2008, Mr Michael Gargan put forward a proposed defence to the applicants’ amended statement of claim.

38                  In or about May or June 2007, the parties took part in a mediation, which in the event was not successful.

39                  On 13 July 2007 the motions seeking orders for leave to defend by Mr Michael Gargan, Selected Seeds, Australian Premium Seeds and Top End Rural Supplies came on for hearing before me. By that time, the claim between Mr Michael Gargan and Australian Premium Seeds had been resolved and Australian Premium Seeds did not press its notice of motion. At the conclusion of the hearing on the day, I made the following orders on each notice of motion:

“1.       The moving party have leave to file and serve any amended pleading to that contained in paragraph 43D of the proposed amended defence of Selected Seeds and the corresponding pleadings of Top End Rural Supplies and Michael Ernest Gargan within 7 days of the date hereof.

2.         There be leave to the applicants to file and serve written submissions in relation to the proposed amended pleading referred to in the previous order within 14 days of the date hereof.

3.         There be leave to the moving party to file and serve written submissions in response to any submissions filed by the applicant within 18 days of the date hereof.

4.         Judgment be reserved.

5.         A directions hearing be fixed for not before 9.15 am on 10 August 2007.”

40                  On 25 July 2007, Selected Seeds forwarded to the Court a proposed defence and, on 3 August 2007, the applicants filed further written submissions in relation to that proposed defence.

41                  On 10 August 2007 I made orders on the various notices of motion. On the notice of motion brought by the applicants on 24 November 2006, I made the following orders:

“1.       The applicants’ notice of motion dated 24 November 2006 be dismissed.

  2.       The question of costs on that notice of motion be reserved.

  3.       The matter be listed for directions at 9.00 am on Friday 31 August 2007.”

42                  On the notice of motion brought by Selected Seeds on 29 March 2007 I made the following orders:

“1.        The third cross-claimant/third cross-respondent, Selected Seeds, be given leave to defend the claim brought by the applicants on the originating process in terms of the draft defence stated 24 July 2007 but subject to all rights the applicants may have under the Federal Court Rules in relation to the sufficiency of the defence.

  2.       The question of costs on the notice of motion be reserved.

  3.       The defence of Selected Seeds be filed and served within 7 days of the date hereof.”

43                  On the respective notices of motion of Mr Michael Gargan and Top End Rural Supplies, I made orders in each case that the cross-respondent have leave to appear at the trial of the claim on the originating process and that the question of costs on the notice of motion be reserved. In the case of Mr Michael Gargan I indicated that insofar as he sought leave to defend the claim by the applicants against Landmark the application was refused. Top End Rural Supplies did not press its application for leave to defend.

44                  I said at the time I made the orders I did on 10 August 2007 that I would deliver reasons and these are my reasons.

Separate trials

45                  It is convenient to start with the applicants’ notice of motion dated 24 November 2006. I heard submissions on this notice of motion on 18 and 19 January 2007. I did not rule on the notice of motion until after I had heard the various applications for leave to defend the applicants’ claim against Landmark.

46                  Order 5, rule 12 of the Federal Court Rules sets out the directions a Court may give on a directions hearing or on the trial or hearing of a cross-claim. It provides (relevantly):

“(2)    On any directions hearing, or on the trial or hearing of the cross‑claim, the Court may:

(a)        make any order or direction it may make under Order 10 (which relates to directions hearings);

(b)       order that any claim, question or issue in or arising on the cross‑claim be tried in such manner as the Court may direct;

(c)        give to a respondent to the cross‑claim leave to defend the claim on the originating process or any other cross‑claim in the proceeding, either alone or in addition to any other party;

(d)       give to a respondent to the cross‑claim leave to appear at the trial or hearing of the claim on the originating process or on any other cross‑claim in the proceeding and to take such part in the trial or hearing as the Court thinks fit;

(e)        dismiss the cross‑claim;

(f)        determine the extent to which the cross‑claimant and a respondent to the cross‑claim shall be bound as between themselves by a judgment (including a judgment by consent or by default) or decision (including a decision by consent) on the claim on the originating process or any other cross‑claim in the proceeding;

(g)        pronounce such judgment as the nature of the case may require;

(h)        give such directions as the Court thinks fit for having the rights and liabilities of the parties determined and enforced, including any order or direction which may be made or given under this Order.”

47                  In the course of the submissions the applicants indicated that in addition to the order that their claim against Landmark be heard separately and before the other claims in the proceeding, they sought an order that the cross-claimants and respondents to those cross-claims be bound as between themselves by the judgment and findings of law and material fact on the applicants’ claim against Landmark.

48                  It is appropriate to make the following observations on the state of the proceeding at the time of the submissions in January 2007 on the applicants’ notice of motion.

49                  At that time Landmark had not pleaded that its liability to the applicants should be reduced by reason of the proportionate liability provisions in the TPA or the Proportionate Liability Act 1990 (NT) (“the PLA”). It does not raise that matter now. It was a number of the cross-respondents who raised in argument the proportionate liability provisions and submitted that they were a powerful reason not to make the orders sought by the applicants. At that point none of them had sought leave to defend the applicants’ claim on the ground of the proportionate liability provisions. One of the cross-respondents suggested that the proportionate liability provisions went to the jurisdiction of the Court and needed to be considered irrespective of whether the provisions were pleaded.

50                  The proper construction of the proportionate liability  provisions in the TPA and the PLA loomed large in the submissions on the applicants’ notice of motion and the various applications for leave to defend the applicants’ claim. Some of the cross-respondents advanced a construction of the proportionate liability provisions, which I do not think is arguable. The details are set out below. That construction formed the basis of their submissions on the applicants’ notice of motion, although it was suggested the case may fall within the proportionate liability provisions on what I have found is their proper construction. However, that was a subsidiary argument and at that time there was no real evidence to suggest that the case might fall within the proportionate liability provisions as properly construed.

51                  It is appropriate that I now consider the rival contentions which were made as to the proper construction of the proportionate liability provisions.

52                  Section 87CB of the TPA is in Part VIA and it provides as follows:

“(1)      This Part applies to a claim (an ‘apportionable claim’) if the claim is a claim for damages made under section 82 for:

(a)        economic loss; or

(b)        damage to property;

caused by conduct that was done in a contravention of section 52.

(2)       For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).

(3)       In this Part, a ‘concurrent wrongdoer’, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.

(4)       For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).

(5)       For the purposes of this Part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.”

53                  The applicants make a claim against Landmark for damages under s 82 for economic loss caused by conduct that they allege was done in contravention of s 52. They also make claims for the same loss and damage based on other causes of action. Subsection (3) of s 87CB defines “a concurrent wrongdoer” for the purposes of Part VIA. The applicants contend that a concurrent wrongdoer includes other persons whose acts or omissions caused, either independently or jointly, the damage or loss that is the subject of the claim and who are liable to the claimant for that loss or damage. The cross-respondents agree that such persons are concurrent wrongdoers for the purposes of the Part. However, Selected Seeds and other cross-respondents contend that concurrent wrongdoers also include another category of persons, namely, persons who are wrongdoers although, importantly, not necessarily wrongdoers liable to the claimant who have caused, independently of each other or jointly, the damage or loss that is the subject of the claim. A simple example illustrates this submission. A is the claimant and he suffers loss and damage as a result of B’s conduct. If C’s conduct is wrongful such that B, but not A, has a cause of action against him and if it can be said that C’s conduct has “caused” A’s loss and damage then on this submission C would be a concurrent wrongdoer for the purposes of Part VIA. According to the submission that would be so, even though A has no cause of action against C.

54                  Section 87CC deals with wrongdoers who act in such a manner as to cause intentionally economic loss or damage to property or who act fraudulently. This section is not relevant here and need be noticed no further.

55                  Section 87CD is a key section in Part VIA. It provides:

“(1)      In any proceedings involving an apportionable claim:

(a)        the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant’s responsibility for the damage or loss; and

(b)       the court may give judgment against the defendant for not more than that amount.

(2)       If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim:

(a)        liability for the apportionable claim is to be determined in accordance with the provisions of this Part; and

(b)       liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.

(3)       In apportioning responsibility between defendants in the proceedings:

(a)        the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law; and

(b)       the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.

(4)       This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.

(5)       A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as plaintiff) whether joined under this Part, under rules of court or otherwise.”

56                  Section 87CE deals with a procedural requirement. Section 87CF deals with potential claims for contribution and indemnity by concurrent wrongdoers. It provides:

“A defendant against whom judgment is given under this Part as a concurrent wrongdoer in relation to an apportionable claim:

(a)        cannot be required to contribute to any damages or contribution recovered from another concurrent wrongdoer in respect of the apportionable claim (whether or not the damages or contribution are recovered in the same proceedings in which judgment is given against the defendant); and

(b)        cannot be required to indemnify any such wrongdoer.”

57                  Section 87CG deals with subsequent actions, s 87CH deals with joining defendants in proceedings involving an apportionable claim and s 87CI deals with vicarious liability, the several liability of partners and other cases of several liability.

58                  There is no doubt that Part VIA effects a significant change in the law in those cases to which it applies. A claimant can no longer recover all of his damages from one of a number of wrongdoers who were previously jointly and severally liable to the plaintiff. The claimant can recover from each wrongdoer only that proportion of the loss and damage claimed that the court considers just having regard to the particular wrongdoer’s responsibility for the damage or loss.

59                  In my opinion, the Part was not intended to go any further than this and the construction of the proportionate liability provisions advanced by Selected Seeds must be rejected. As initially put and applying it to the circumstances of this case, it was submitted that providing it could be said that one or more of the cross-respondents had caused the loss or damage claimed by the applicants within s 87CB(3), and providing they were liable to another party, albeit not the applicants, then their responsibility for the loss and damage was to be taken into account in assessing the extent of Landmark’s responsibility for the damage or loss. Without more, such a construction of the proportionate liability provisions of the TPA would result in a very significant erosion of a plaintiff’s rights as they were before the introduction of the provisions. As the submissions were developed it became clear that Selected Seeds was contending that although the cross-respondents or one or more of them could be concurrent wrongdoers under s 87CB(3) even though they were not liable to the applicants under the substantive law, the effect of the proportionate liability provisions was that the applicants were given a right of recovery against such cross-respondents as fell within s 87CB(3). That construction would involve a significant alteration of the substantive law. In my opinion, however the argument is put it must be rejected because clear words would be required before one would accept a construction involving such a substantial erosion of a plaintiff’s rights or a change in the substantive law as to the circumstances in which one party is liable to another. There are no such clear words in the provisions and there is no other indication that Parliament intended to change the law so radically or why it would be considered appropriate to do so.  

60                  The extrinsic material supports the conclusion I have reached.

61                  The explanatory memorandum for the Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Bill 2003 was put before me. The following passages are relevant:

“4.97   The CLERP 9 paper discussed the accounting profession’s ongoing concerns about the present unlimited liability regime to which auditors are exposed for professional default. The accounting profession, and other professional groups, have proposed that the current rules of joint and several liability should be replaced with proportionate liability as one of the possible remedial measures to address their concerns about the consequences of unlimited liability.

…

4.100   The objective of the proposed action is to:

(a)        Prevent the ‘deep-pocket’ syndrome which is synonymous with professionals. The ‘deep-pocket’ syndrome occurs when professionals are the targets of negligence actions not because of culpability but because they are insured and have the capacity to pay large damages awards.

(b)       Allow insurers to more accurately price risk. Currently under joint and several liability insurers have to price for the negligent actions of third parties. Proportionate liability enables insurers to insure only against the negligent conduct of the insured.

(c)        Assist professionals to obtain suitable cover at more reasonable premiums.

(d)       To limit the liability of defendants for the loss suffered by a plaintiff to the extent to which each defendant is responsible for the plaintiff’s loss.

…

4.111   Proportionate liability will overcome the ‘deep pocket’ syndrome inherent in a joint and several liability regime which often sees one party bearing full responsibility for loss or damage despite the fact that a number of parties may have contributed to the loss. Proportionate liability means that liability rests with all defendants in proportion to their contribution to the plaintiff’s loss. This is contrasted against joint and several liability where a defendant can be held liable for the total loss sustained, even if they contributed to the loss in a small way.

…

4.124   Proportionate liability has been under consideration by SCAG and MINCO since 1994. One of the threshold issues that was required to be addressed was whether proportionate liability could be confined either to the auditing profession or to the professions generally.

…

4.130  

…

§         Second, procedural rules associated with proportionate liability for economic loss are designed to provide the appropriate balance between the interests of plaintiffs and defendants.

§         It operates so that, in applying proportionate liability to a claim, a court should have regard to the responsibility of any potential defendant who is not a party to the proceedings. Further, it requires defendants to notify a plaintiff in writing of the identity and alleged role of any other potential defendants of whom they are aware would also provide protection to plaintiffs. Defendants who fail to co-operate would risk being ordered to pay costs.

…

4.131   Given these procedural protections, it is highly unlikely that consumers will be materially disadvantaged by these reforms. Fundamentally, they are intended to ensure that professional indemnity insurance can be purchased at reasonable prices and that consumers therefore can have greater confidence that the professionals with whom they deal are in fact covered by such insurance.

…

5.346   The Bill will amend the ASIC Act, the Corporations Act and the Trade Practices Act 1974 (Trade Practices Act) to ensure that proportionate liability applies to claims for damages for economic loss or property damage arising from misleading or deceptive conduct.

…

5.352  

…

§         in applying proportionate liability to a claim, a Court will be able to have regard to the comparative responsibility of any wrongdoer who is not a party to the proceedings;

§         a defendant to a claim to which proportionate liability can apply, will be obliged to notify the plaintiff in writing, at the earliest possible time, of the identity and alleged role of any other person(s) of whom the defendant is aware, who could be held liable for the plaintiff’s loss or any part of it.”

62                  The above references suggest that the mischief to which the amendments were directed was a plaintiff being able to recover 100 per cent of his damages from any one of several wrongdoers when that wrongdoer’s “fault”, when compared with the other wrongdoers, was less or far less than that. In other words, the amendment was directed to what were considered to be the undesirable consequences of the joint and several liability rule. There is no suggestion that the mischief the amendments were designed to remedy was any wider than that. The definition of concurrent wrongdoer seems to be the critical subsection and, in my opinion, the word “caused” in s 87CB(3) should be read as meaning such as to give rise to a liability in the concurrent wrongdoer to the plaintiff or applicant.

63                  In my opinion, the PLA should be interpreted in the same way. An “apportionable claim” is defined in s 4(2) of that Act as follows:

“(2)      An apportionable claim is –

(a)        a claim for damages (whether    in tort, in contract, under a statute or otherwise) arising from a failure to take reasonable care; or

(b)       a claim under the Consumer Affairs and Fair Trading Act in respect of loss or damage arising from a contravention of section 42 of that Act.

  (3)     However, none of the following is an apportionable claim:

(a)        a claim arising from a personal injury;

(b)       a claim under the Consumer Affairs and Fair Trading Act arising from a contravention of Part 4 of that Act;

(c)        a claim specified by the Regulations not to be an apportionable claim.”

64                  A “concurrent wrongdoer” is defined in similar, although not identical, terms to the definition in the TPA. Section 6 provides as follows:

“6.       Concurrent wrongdoers

(1)       A concurrent wrongdoer is one of 2 or more persons whose acts or omissions caused (either jointly or independently) the loss or damage that is the subject of a claim for damages.

(2)       In applying this Part to an apportionable claim, it is immaterial that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died.”

65                  Sections 8 and 9 deal with cases in which there are two or more apportionable claims and cases in which there is an apportionable claim and a claim which is not an apportionable claim. Section 13 is in similar, although not identical terms, to s 87CD. It provides as follows:

“13.     Determination of liability of concurrent wrongdoers

(1)       In a proceeding –

(a)        the liability of a defendant who is a concurrent wrongdoer is limited to an amount reflecting the proportion of the loss or damage claimed that the court considers just having regard to the extent of the defendant’s responsibility for the loss or damage; and

(b)       the court may give judgment against the defendant for not more than that amount.

(2)       In apportioning responsibility for loss or damage between the defendants –

(a)        the court must exclude any proportion of the loss or damage in relation to which the plaintiff is contributorily negligent under any relevant law; and

(b)       the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceeding.”

66                  The Attorney-General said in the course of the Second Reading Speech on the Proportionate Liability Bill the following:

“This bill deals with issues arising where a court finds that more than one respondent has contributed to a claimant’s loss. In such a case at common law, the law of negligence operates so that the principle of joint and several liability determines what damages are paid for the loss and damage caused.

The effect of this general principle is that the claimant only needs to identify one respondent against whom a case can be proved. That respondent is then potentially liable for all the damages payable to the claimant. Where all contributing respondents have sufficient assets or are insured and can be found, damages are apportioned according to each respondent’s contribution to the loss. However, this usually only occurs when these respondents bring actions against each other. Problems arise where only one respondent can be located or where only one respondent is financially viable or insured. That one respondent can be held liable for all the claimant’s loss regardless of how much he or she contributed to that loss. This common law principle protects claimants by allowing them to recover the total damage suffered from at least one of the respondents.”

67                  The PLA should be construed in the same way as Part VIA of the TPA.

68                  Before the various cross-respondents made their applications for leave to defend the applicants’ claim against Landmark there was a good deal to be said in favour of the applicants’ application. I acknowledge that even at that time there were reasons not to order separate trials. They were the matters often present in cases involving third party proceedings such as the desirability of having all parties bound by the decision between the plaintiff and the defendant so as to avoid the possibility of inconsistent findings, the additional cost and expense of two trials and the disadvantages to a defendant in two trials including possibly having to satisfy a judgment in favour of the plaintiff well before his claim against the third party is determined: Barclays Bank v Tom [1922] 1 KB 221; New World Oil and Developments Pty Limited v 163 Clarence Street Pty Limited [1995] FCA 138. However, in this case there were a number of weighty considerations on the other side. First, there was a large number of factual issues raised on the various cross-claims all of which at that point appeared to be of no relevance to the applicants’ claim against Landmark. That was so because the proportionate liability provisions as properly construed appeared to be irrelevant because there was little to indicate at that time to suggest that any of the cross-respondents were directly liable to the applicants. Secondly, the applicants’ claim against Landmark was a good deal more advanced in terms of being ready for trial than were any of the cross-claims. Thirdly, the applicants’ difficult financial situation was relevant as was the fact that, if liability was established, that had been brought about by Landmark’s conduct.

69                  However, before I ruled on the applicants’ notice of motion the circumstances changed because I heard and determined in Selected Seeds’ favour its application for leave to defend the applicants’ claim against Landmark. My reasons for doing so are set out in the next section of these reasons. It is sufficient to say at this point that the defence of proportionate liability now raised by Selected Seeds is in fact one that involves an allegation that a number of cross-respondents are directly liable to the applicants, and although the applicants submit that ultimately the allegations supporting that contention will not be made out, they accept that the defence now pleaded is arguable. It follows that many of the factual issues raised on the cross-claims are potentially relevant on the applicants’ claim against Landmark. That means that the balance is now firmly in favour of refusing the orders sought by the applicants in its notice of motion dated 24 November 2006.

Leave to defend

70                  Selected Seeds, Mr Michael Gargan and Top End Rural Supplies each sought leave to defend the applicants’ claim against Landmark and each filed a draft defence in respect of which they sought leave.

71                  At no time have the applicants opposed cross-respondents being given leave to appear at the hearing of the applicants’ claim against Landmark.

72                  Landmark has filed an amended defence but like its original defence is quite brief and consists mainly of denials, admissions and non-admissions.

73                  The proposed defence put forward by Selected Seeds at the time of the argument on 13 July 2007 raised a number of factual issues apparently not raised by Landmark and those issues are identified in [75] below. In addition to the proposed defence it raised two allegations under the proportionate liability provisions of the TPA and the PLA. First, it pleaded that Australian Premium Seeds and Seed Testing Laboratory were each liable to the applicants and were concurrent wrongdoers within the relevant provisions. However, no particulars were provided such that it could be concluded that either of them was even arguably liable to the applicants. Secondly, it pleaded that Mr Michael Gargan, Simon and Kate Gargan, Australian Premium Seeds, Seed Testing Laboratory, State of Queensland, and Top End Rural Supplies were concurrent wrongdoers within the construction of the relevant provisions previously advanced by Selected Seeds and which I have rejected as not being arguable.

74                  After submissions on 13 July 2007, Selected Seeds put forward a different proposed defence. This proposed defence raised proportionate liability as part of a plea only that the cross-respondents were directly liable to the applicants and it contained particulars in support of that allegation. I granted leave to defend in terms of that document. Mr Michael Gargan maintained his application as originally made which I refused as far as leave to defend was concerned. I made that decision for two reasons. First, for the reasons I have given, the broader construction of the proportionate liability provisions is not arguable and, secondly, Mr Michael Gargan’s proposed defence raises nothing more than what is contained in Selected Seeds’ proposed defence and I do not consider it appropriate to grant leave to defend to more than one cross-respondent. Selected Seeds’ application should be granted in preference to that of Mr Michael Gargan because its application was the first in time and, more importantly, its proposed defence does not contain a plea as to the proportionate liability provisions which I have concluded is not arguable. On hearing that Selected Seeds had been given leave to defend, Top End Rural Supplies withdrew its application for leave to defend and was content with an order that it have leave to appear at the hearing of the applicants’ claim against Landmark.

75                  The proposed defence of Selected Seeds raises the following matters:

   

     

1.         The seed delivered to the applicants by Landmark was in fact jarra grass seed.

     

2.         It is of no consequence that the seed was not “pure seed or certified as such”.

     

3.         The applicants adopted inappropriate farming practices and this caused the failure to achieve a commercially viable crop of jarra seed and hay in the first and subsequent germinations.

     

4.         Contributory negligence by the applicants.

     

5.         A failure to mitigate by the applicants and issues as to the loss and damage claimed by the applicants.

     

6.         The effect of the proportionate liability provisions on Landmark’s liability to the applicants on the basis Michael Gargan, State of Queensland, Simon Gargan and Kate Gargan, Selected Seeds, Seed Testing Laboratory and Top End Rural Supplies and each of them is liable to the applicants.

   

 

76                  Some of these matters are not raised in Landmark’s defence and in other cases it is unclear whether they are raised in a way which will enable Landmark to bring forward a positive case at trial.

77                  I gave leave to defend in this case because Selected Seeds is a cross-respondent which will be affected by the outcome of the applicants’ claim against Landmark and it seeks to raise apparently genuine issues in defence of the applicants’ claim in circumstances where Landmark either had not raised the issues or it is not clear whether it has raised the issues.  I would not have granted leave to defend, as distinct from leave to appear at the trial or hearing, had I concluded that Selected Seeds wished to raise no more than what was raised by Landmark in its defence. It was for similar reasons that once I granted Selected Seeds’ application for leave to defend it was not appropriate to grant leave to defend to Mr Michael Gargan. He sought to raise no more than what was raised by Selected Seeds.

78                  It is not a necessary element of my reasoning that it be concluded that Landmark is not genuinely pursuing a defence. It no doubt has its own reasons for pleading as it has but there is no suggestion that it is acting pursuant to some understanding or arrangement with the applicants or that its defence is a sham. It seems to me that the issues raised by Selected Seeds are genuine matters of defence and it should be permitted to raise them. They, or some of them, may prove at trial to be without substance and Selected Seeds may face an adverse costs order, but at this stage I can do no more than decide that they are apparently genuine.

79                  The authorities support the approach I have taken. If anything, there are authorities which suggest that a less stringent approach to the granting of leave to defend to the one I have taken is appropriate.

80                  In Barton v London and North Western Railway Company (1888) 38 ChD 144 (“Barton”), third parties, who had been given liberty to appear at the trial and take such part as the Judge should direct, appealed against the order claiming that they should have been given liberty to deliver a defence, appear at the trial, and put in evidence, and cross-examine the plaintiffs’ witnesses. The appeal was dismissed. Cotton LJ said (at 150):

“In my opinion the order under appeal gives the Appellants all that they can reasonably ask, for where all material grounds of defence are fairly raised by the defendant, a plaintiff ought not, in my opinion, to be embarrassed by the third party coming in and saying, ‘I wish to deliver a defence; I wish to administer interrogatories; I wish to take the same course as if I were a defendant.’

…

There is considerable difficulty in dealing with cases like the present, because the practice is new; we must take care to prevent persons who have been summoned as third parties being subjected to injustice, but we must also prevent the plaintiff from being subjected to injustice, and in my opinion he would be so subjected if all persons served as third parties were at liberty to deliver defences just as if they were defendants, when the plaintiff has not made them so, and has only asked for relief which can be obtained without making them defendants.”

Lindley LJ said (at 152):

“What opportunity have they of seeing that those questions are fairly and properly investigated? The learned Judge has given them liberty to appear at the trial of the action, and take such part as the Judge shall direct, and the Judge has made that order having satisfied himself that the real Defendants, the railway company, who are not nominal Defendants, but have a very substantial interest, have raised in their defence the questions to which I have adverted, and that they will bona fide contest those questions.”

(Original emphasis.)

Bowen LJ said (at 154-155):

“What other protection do Mr Hawkins’ clients want? He was really unable to make out any case for any further protection. The London and North Western Railway Company are effectively defending this action against the Plaintiffs. If Mr Hawkins could have made out that it was a sham defence, then he might, of course, have applied to the Judge, and applied to us on appeal to let his clients do what was not being effectively done, as appears to have been done on the application in Witham v Vane. But no suggestion is made that the company are not effectively defending, and the third parties have no right to dress the defence in some particular way which pleases their eye, if their interests are being substantially maintained by the railway company.

…

It seems to me that the third parties are adequately protected, and it would not be reasonable for the Plaintiffs to be hampered and embarrassed by a fresh defence delivered on behalf of a third party who really is outside the action so far as the Plaintiffs are concerned, or to be interrogated and vexed with discovery at the instance of such a person. If necessary to the purpose of justice it will be done, but at the present moment there does not appear to me to be any such necessity.”

(Original emphasis. Footnote references omitted.)

81                  In addition, I refer to, without setting out, the observation of Scrutton LJ in Barclays Bank v Tom [1922] 1 KB 221 at 224.

82                  Selected Seeds submitted that it is a generally accepted incident of third party proceedings that a third party is able to defend the plaintiff’s claim against the defendant. It referred to Helicopter Sales (Australia) Pty Limited v Rotor-Work Pty Ltd (1974) 132 CLR 1 (“Helicopter Sales”). In that case, a third party’s right to appeal against the plaintiff’s judgment against the defendant was in issue. The trial judge had given the third party leave to defend the plaintiff’s claim, but had not made an order that the third party be bound by the decision on the plaintiff’s claim against the defendant. Stephen J said that omission would ordinarily be fatal to the third party’s right of appeal, but his Honour said that such an order should be taken to have been made in circumstances where the parties have proceeded in that way (at 14). Barwick CJ and Mason J went further and said that in circumstances where the third party had in fact contested the plaintiff’s claim against the defendant the third party has a right of appeal even in circumstances where no leave to defend has been given (Barwick CJ at 4-5; Mason J at 15). It has been said that Helicopter Sales is authority for the proposition that leave to defend is a generally accepted incident of third party proceedings: Hall v Commissioner of Taxation (2004) 51 ACSR 173 at 178 [16] per Barrett J. In Duncan v Commissioner of Taxation (2006) 58 ACSR 555, Young J said that Helicopter Sales was authority for the proposition that it was a generally accepted incident of third proceedings that a third party could contest the plaintiff’s claim (at 561 [22]). It is not apparent to me that Helicopter Sales is authority for such broad propositions but I do not need to pursue the point because Selected Seeds has satisfied the test in Barton.

83                  Finally, it should be noted that there will be a need for further orders under O 5, r 12.

Conclusions

84                  It was for these reasons that I made the orders I did on ­­­­­10 August 2007.

Associate:

Dated:         19 September 2007