In the long running matter of Wheelahan v City of Casey & Ors, the Supreme Court of Victoria has recently upheld an application by the Victorian Environment Protection Authority. In the ruling, the Supreme Court has accepted submissions by the EPA, which is a defendant in the proceeding, that another defendant Peet should amend its counterclaim if it wishes to seek contribution from the EPA under the concept of proportionate liability. In summary, the Court has upheld the EPA’s submission that the EPA is entitled to know the case it must meet from an alleged concurrent wrongdoer through an amended pleading. The Court outlined the following principles with regards to proportionate liability pursuant to the Wrongs Act 1958:
“22 I accept that, from a procedural point of view, the effect of the pivotal provisions of pt IVAA are as follows:
- Section 24AH provides that, for the purposes of pt IVAA, a concurrent wrongdoer in relation to a claim is a person who is one of two or more persons whose acts or omissions caused, independently of each other or jointly, the loss or damage that is the subject of the claim.
- Section 24AI provides that the liability of a concurrent wrongdoer who is a defendant in a proceeding is limited to the proportion of the claim which the court determines to be just having regard to the extent of the concurrent wrongdoer’s responsibility for the loss and damage suffered.
- Section 24AJ provides that, despite anything to the contrary in pt IV of the Act, a defendant against whom judgment is given under pt IVAA as a concurrent wrongdoer in relation to an apportionable claim cannot be required to contribute to the damages recovered or recoverable from another concurrent wrongdoer in the same proceeding for the apportionable claim, and cannot be required to indemnify any such wrongdoer.”
A copy of the ruling can be read here.