Chadwick v Bridge [1951] HCA 11

High Court of Australia Dixon, Williams, Webb, Fullagar and Kitto JJ. Chadwick v Bridge [1951] HCA 11

ORDER Appeal dismissed with costs.

The following judgments were delivered:—

Dixon J.

This is an appeal by leave from an order of the Full Court of the Supreme Court of New South Wales. The order under appeal dismissed an appeal from an order dealing with a summons. The summons was dismissed by the judge in chambers. The summons was issued in an action in which the plaintiff proceeded against an individual defendant by name and against a nominal defendant. The action proceeded to the stage of pleading, a declaration was filed and pleas were filed. The declaration contains two counts. By the first of the two counts a cause of action for negligence in the management of a truck was framed against the named defendant. By the second of the two counts a cause of action was framed against the nominal defendant in purported pursuance of s. 30 (2) of the Motor Vehicles (Third Party Insurance) Act 1942. The count against the named defendant, Chadwick, necessarily stated explicitly that he did carelessly, negligently and unskilfully drive and manage a motor vehicle by which the injury was done. The second count, that against the nominal defendant, necessarily stated that due inquiry and search had been made as s. 30 (2) requires and that the identity of the motor vehicle could not after that inquiry be established.

The summons which was issued challenged the propriety of proceedings in this form and sought an order that the action be stayed or that the defendant Chadwick be struck out of the proceedings or dismissed from the proceedings. The summons was issued by Chadwick. The summons was, of course, opposed by the plaintiff and it was also opposed by the nominal defendant. The justification for proceedings in this form which is put forward lies in the Law Reform (Miscellaneous Provisions) Act 1946. Section 2 of that Act deals with alternative defences, as well as with thirdparty proceedings. The provisions of s. 2 are founded upon rules contained in Order XVI. of the English Rules of the Supreme Court but it adopts by no means the whole of Order XVI. It deals with defendants only; and, unlike those rules, it is confined expressly to actions of tort. Section 2 is divided into five paragraphs, the first four of which state the substance of the English Rules 4, 5, 7 and 11, but some words which are to be found in Rule 1 of Order XVI. are introduced into these paragraphs which relate to the position of defendants. Their Honours in the Supreme Court were of opinion that these provisions justified the procedure.