Case: Barton v London and North Western Railway Company (1888) 38 ChD 144
Outcome: referred to
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.) 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] HCA 32 ; (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] NSWSC 985 ; (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 .