Gordon v Allied Meridian Pty Ltd (No 2)

HIS HONOUR : This morning I made orders in accordance with short minutes, after discussion, to dispose of these proceedings in which I had given judgment on 28 May 1999.

One of the unusual aspects of the case is that because of certain of my findings of fact the loser, if cards fall out in a particular way, may end up the eventual winner. For this reason Mr Webb, who appears for the main defendants, has asked for leave to file a cross-claim so that the findings in the present proceedings can be used in the next round, without running the risk of any problems of issue estoppel. This has been resisted by the plaintiff.

The Supreme Court Rules do have a bias towards having all the matters decided at the one time and dealing with any legitimate cross-claims at the same time as the claim.

However, the cases on the current Rules and the corresponding old Rules and the English Rules are that essentially whether a cross-claim should be allowed or the claimant left to pursue a separate action is one of general convenience: Gray v Webb (1882) 21 Ch D 802.

I cannot see how it is convenient after the whole claim has been decided, following a three day hearing and orders made, for a cross-claim to be then filed and determined, as opposed to a new action, forensic advantages put to one side. I can understand how this could possibly be so where the cross-claim was for indemnity, but even then there may be questions of fairness and convenience. In the present case, there are no countervailing factors.

Accordingly, I am not of the view it would be convenient for the cross-claim to be dealt with in these proceedings and I decline to give the leave.

The costs of the application for leave to file a cross-claim are to be paid by the defendants for whom Mr Webb appears. o0o