State of New South Wales v Howard Smith Limited (Re Neil Murphy) [2019] NSWDDT 3

State of New South Wales v Howard Smith Limited (Re Neil Murphy) [2019] NSWDDT 3

Howard Smith Limited and Svitzer were distinct legal entities, so the case was not one of misnomer. Svitzer should be joined as seventh cross-defendant because its joinder was necessary, but substitution was refused because Svitzer had not participated in the Contributions Assessment Determination or mediation and substitution could unjustly give prior steps the same effect against it. Leave to discontinue against Howard Smith Limited was appropriate because the cross-claim against it was doomed to fail. Although Howard Smith Limited was wrongly joined because of the cross-claimant's omission, both the cross-claimant and Howard Smith Limited failed to read and understand the Statement of...

Jurisdiction
Australia
Judgment Date
25 March 2019
Procedural Posture
Contribution Cross Claim in Dust Diseases Tribunal Proceedings / Notice of Motion for Substitution or Joinder of Cross Defendant, Leave to Discontinue, and Costs
Outcome
Motion allowed in part: Svitzer Towage Holdings Pty Limited added as seventh cross-defendant, leave granted to discontinue against Howard Smith Limited, substitution refused, and costs ordered against the cross-claimant in part.
Legal Topics
['misjoinder and Non Joinder' 'joinder of Parties' 'substitution of Parties' 'discontinuance' 'costs Following Discontinuance' 'claims Resolution Process']
['civil Procedure' 'dust Diseases' 'contribution' 'costs'] ['misjoinder and Non Joinder' 'joinder of Parties' 'substitution of Parties' 'discontinuance' 'costs Following Discontinuance' 'claims Resolution Process']

Case Brief

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Procedural Posture

Contribution Cross Claim in Dust Diseases Tribunal Proceedings / Notice of Motion for Substitution or Joinder of Cross Defendant, Leave to Discontinue, and Costs

Legal Issues

  1. 1 ['Whether Svitzer Towage Holdings Pty Limited should be substituted for Howard Smith Limited as fifth cross-defendant or added as a seventh cross-defendant.' 'Whether the cross-claimant should have leave to discontinue its claim against Howard Smith Limited.' 'Who should pay the costs of the Notice of Motion and the costs thrown away by the first cross-claim against Howard Smith Limited.']

Ratio Decidendi

Howard Smith Limited and Svitzer were distinct legal entities, so the case was not one of misnomer. Svitzer should be joined as seventh cross-defendant because its joinder was necessary, but substitution was refused because Svitzer had not participated in the Contributions Assessment Determination or mediation and substitution could unjustly give prior steps the same effect against it. Leave to discontinue against Howard Smith Limited was appropriate because the cross-claim against it was doomed to fail. Although Howard Smith Limited was wrongly joined because of the cross-claimant's omission, both the cross-claimant and Howard Smith Limited failed to read and understand the Statement of...

Court Disposition

Motion allowed in part: Svitzer Towage Holdings Pty Limited added as seventh cross-defendant, leave granted to discontinue against Howard Smith Limited, substitution refused, and costs ordered against the cross-claimant in part.

Orders

  • ['Order that Svitzer Towage Holdings Pty Limited be added as a seventh cross-defendant to the first cross-claim.' 'Order that the cross-claimant file and serve an amended first cross-claim by 1 April 2019.' 'Grant leave to the cross-claimant to file by 1 April 2019 a Notice of Discontinuance in relation to its claim...