(Re: Mowbray) Brambles Australia Limited v British & American Tobacco Australia Services Limited [2005] NSWDDT 8

(Re: Mowbray) Brambles Australia Limited v British & American Tobacco Australia Services Limited [2005] NSWDDT 8

A cross-claimant may rely on a consent judgment against it to establish liability as a tortfeasor for purposes of s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 and need not independently prove it was a tortfeasor liable for the plaintiff’s damage apart from the judgment. However, in circumstances where a judgment is entered in the absence of a potentially affected party (here, BATAS), and without their knowledge or opportunity to be heard, such a judgment may be set aside to preserve procedural fairness.

Jurisdiction
Australia
Judgment Date
30 March 2005
Procedural Posture
Notice of Motion (contribution Among Tortfeasors) / Interlocutory Ruling and Orders Before Trial of Cross Claim
Outcome
Notice of motion allowed in part: questions determined, consent judgment set aside, consequential amendments ordered.
Legal Topics
['contribution Among Tortfeasors' 'effect of Consent Judgments' 'law Reform (miscellaneous Provisions) Act 1946 S5(1)(c)' 'res Judicata']
['tort Law' 'civil Procedure'] ['contribution Among Tortfeasors' 'effect of Consent Judgments' 'law Reform (miscellaneous Provisions) Act 1946 S5(1)(c)' 'res Judicata']

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Procedural Posture

Notice of Motion (contribution Among Tortfeasors) / Interlocutory Ruling and Orders Before Trial of Cross Claim

Legal Issues

  1. 1 ['Whether a cross-claimant can rely on a consent judgment to establish liability for contribution under s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.' "Whether a cross-claimant must independently prove it was a tortfeasor liable for the plaintiff's damage in order to seek contribution."]

Ratio Decidendi

A cross-claimant may rely on a consent judgment against it to establish liability as a tortfeasor for purposes of s5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 and need not independently prove it was a tortfeasor liable for the plaintiff’s damage apart from the judgment. However, in circumstances where a judgment is entered in the absence of a potentially affected party (here, BATAS), and without their knowledge or opportunity to be heard, such a judgment may be set aside to preserve procedural fairness.

Court Disposition

Notice of motion allowed in part: questions determined, consent judgment set aside, consequential amendments ordered.

Orders

  • ['Questions in the notice of motion answered: (a) yes; (b) no.' 'Consent judgment entered against Brambles (27 February 2002) in favour of the plaintiff is set aside.' 'Paragraph 3.2 of the fourth amended cross-claim is struck out.' 'Leave granted to cross-claimant to make consequential amendments to the fourth...