Professional Liability Guide

PROFESSIONAL LIABILITY GUIDE

In that case, a party that otherwise might have been a ‘concurrent wrongdoer’ settled the apportionable claim before judgment, then sought contribution from another concurrent wrongdoer in respect of the settlement sum. The issue for determination was whether the concurrent wrongdoer who settled the claim before judgment was prevented, by the operation of the Victorian scheme, from seeking contribution from the other concurrent wrongdoer toward the settlement sum it had paid. The Court held it could not be so prevented because no judgment had been given against the party that had settled. Central to the Godfrey Spowers decision was that a key element of the provision prohibited concurrent wrongdoers ‘against whom judgment is given’ from seeking contribution. As a party who has settled has generally not had a judgment entered against it, there was no prohibition on seeking contribution. The Court observed: ‘The determination that a defendant is a concurrent wrongdoer in an apportionable claim triggers the limitation upon the amount of the judgment which can be entered against that defendant, and in turn protects the defendant against claims for contribution or indemnity by other concurrent wrongdoers.’ 231 The ability of a defendant to invoke the proportionate liability regime in defence of a claim wholly depends on a judgment being entered against that defendant. There was no such judgment in the Godfrey Spowers case, and so a contribution could be sought by the party who had settled. Similarly, in considering the Queensland scheme relating to ‘subsequent actions’, 232 Ann Lyons J dispensed with the issue in three brief paragraphs in Geldard v Mobbs. 233 Her Honour found that the provision: ‘only relates to a situation where a plaintiff has previously recovered judgment against a concurrent wrongdoer … [that is not the present case] … as the proceedings against the other defendants were settled prior to trial … Section 32B does not therefore apply.’ In this way, her Honour answered in the negative her own question of whether ‘the settlement figure [reached pre-trial with some of the defendants] should be taken into account in the calculation of damages which the sixth and eighth defendants should be ordered to pay’ . 234 This reasoning was not disturbed on appeal. 235 More recently, however, the Court highlighted in Owners of Strata Plan No 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) (No 2) 236 that in circumstances where a plaintiff should not be ‘over compensated’, defendants should consider the necessity of bringing the nature of a settlement between one or more concurrent wrongdoers before the court if a defendant wishes to argue that the fact of the settlement should reduce their potential exposure to the plaintiff. Extension beyond the courts Aquagenic Pty Ltd v Break O’Day Council (No 2) 237 considered the extent to which a proportionate liability regime may extend beyond determinations in court. The case held that commercial arbitrations are subject to the proportionate liability regime if the terms of the arbitration agreement contain an implied term granting the arbitrator authority to give the parties the same relief they could have obtained in court. 231 Ibid 102. 232 CLA (Qld) s 32B. 233 [2012] 1 Qd R 120, [25]–[28]. 234 Ibid [24]. 235 Meandarra Aerial Spraying Pty Ltd & Anor v GEJ Geldard Pty Ltd [2013] 1 Qd R 319. 236 [2021] NSWCA 35. 237 [2009] TASSC 89; affirmed in Aquagenics Pty Ltd v Break O’Day Council (2010) 20 Tas R 239.

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