Here is a link to a presentation by Ross Macaw QC on proportionate liability. It is produced by benchTV, an enhancement to the long-excellent new case notification service, Benchmark, provided by AR Connoly & Co in Sydney. Mr Macaw considers Justice John Dixon’s beautifully written judgment in Fabfloor (Vic) Pty Ltd v BNY Trust Company of Australia Limited  VSC 99.
In that case, there was a fire in a warehouse and the plaintiffs’ goods and nearby land were damaged. They sued the occupier of the warehouse and others. The occupier said that if it was liable, then it was also the fire inspector’s, the builder’s, and others’ fault as well. The question was what a defendant needed to do in order to have alleged concurrent wrongdoers not sued as defendants by the plaintiffs joined. Was a mere pleading assertion sufficient, as in the case of a third party notice? Or was it necessary to produce some evidence sufficient to allow the Court to see a prima facie case against the alleged concurrent wrongdoers, and exercise a discretion to join? Even though those seeking to join are not usually forced to establish by evidence a prima facie case, is that just because it is often waived by the person resisting joinder?
The answer is: you need a pleading which is not hopeless; you generally don’t need to put on evidence; the power to join is in s. 24AL of the Wrongs Act 1958 and the Rules of the Supreme Court are not really to the point; the power is discretionary and evidence might be necessary if some point which goes to the discretion (e.g. prejudice by virtue of delay, or abuse of process) is enlivened, but that evidence would not generally be as to the merits of the claim sought to be brought). Continue reading “A defendant seeking in Victoria to join a concurrent wrongdoer need not establish a prima facie case by evidence”