Case: Bialkower v Acohs Pty Ltd (1998) 83 FCR 1
Outcome: discussed
It was argued by the respondents that just as other provisions of the Wrongs Act could apply based upon the operation of s 79 , there was no reason to form a different view in relation to Pt IVAA , and reliance was placed upon the authority of Bialkower v Acohs Pty Ltd (1998) 83 FCR 1. That case concerned the applicability of Pt IV of the Wrongs Act . Under Pt IV , contribution between defendants and third parties does not detract from the ability of a plaintiff to seek full damages or compensation against a defendant. A plaintiff is entitled to his or her full entitlement even though the defendant seeks contribution from another person. On the other hand, Pt IVAA will impact upon the ability of a plaintiff to obtain relief against a particular defendant. The defendant has the benefit of the limitation on liability. The considerations affecting the operation of Pt IVAA in my view are therefore entirely different to the considerations affecting the operation of Pt IV of the Wrongs Act as considered in Bialkower 83 FCR 1. 25 It is therefore necessary to consider the specific provisions of Pt IVAA relied upon by the respondents. 26 The first matter to determine is whether Pt IVAA of the Wrongs Act is applicable in any event having regard to its own terms. 41 I need not delay considering this question any further, as the respondents can rely upon Pt IV of the Wrongs Act in seeking contribution from KPMG. Unlike Pt IVAA , Pt IV does apply to these proceedings by reason of the operation of s 79 of the Judiciary Act (see Bialkower 83 FCR 1). Of course, the respondents accepted that it is a requirement that KPMG owe a duty of care to the applicant to avoid the relevant economic loss if reliance is to be placed upon Pt IV of the Wrongs Act . 42 I now turn to the operation of O 15A r 6. It is convenient to deal with one preliminary matter, although it is unnecessary to do so in light of my conclusion that Pt IVAA has no application in these proceedings. KPMG submitted that O 15A r 6 had no application because there was no basis for the respondents to rely upon Pt IVAA of the Wrongs Act in support of the contention that they may have a right to obtain relief from KPMG. I do not accept that submission. If the respondents could rely upon Pt IVAA of the Wrongs Act so as to limit their liability to the applicant, the respondents must in the first instance be able to identify the existence of a concurrent wrongdoer within the meaning of s 24AH of the Wrongs Act . The alleged concurrent wrongdoer must then be joined as a party to the proceeding (see s 24AI(3)) , and will be a defendant within the meaning of s 24AE of the Wrongs Act . The respondents would then be able to rely upon any reduction in liability. The respondents before me would be able to seek, inter alia, declaratory relief against KPMG to the effect that KPMG is a concurrent wrongdoer within the meaning of s 24AH. It seems to me that any joinder of KPMG in these circumstances gives rise to the right to obtain relief by the respondents against the potential concurrent wrongdoer, namely KPMG, within the meaning of O 15A r 6. It does not matter that KPMG has no liability in monetary terms to the respondents, just that the respondents may have the right to obtain relief from KPMG, in the events postulated, by way of declaration. There would clearly be a controversy between the respondents and KPMG, as there would be between each of them and the applicant. 43 In any event, as I have already indicated, in relation to the claims brought by the applicant against the respondents, the respondents may have a right to obtain contribution from KPMG pursuant to Pt IV of the Wrongs Act . There would be no question that the right to recover contribution within the meaning of Pt IV of the Wrongs Act would constitute a right to obtain relief against KPMG, irrespective of what the position may be if reliance could only be placed upon Pt IVAA of the Wrongs Act .