Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd [1974] HCA 32

High Court of Australia Barwick C.J. Menzies, Stephen, Mason and Jacobs JJ. Helicopter Sales (Australia) Pty Ltd v Rotor-Work Pty Ltd [1974] HCA 32

ORDER Appeals allowed. Judgment of the Supreme Court of Queensland for the first respondent Rotor-Work Pty. Ltd. against the second respondent R. W. Engineering Pty. Ltd. and for the second respondent against the appellant set aside, and in lieu thereof order that judgment be entered for the second respondent against the first respondent and for the appellant against the second respondent. Costs of the appeal and of the proceedings in the Supreme Court to be paid by the respondents.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 17 Barwick C.J.

I have had the advantage in this appeal of reading the reasons for judgment prepared by my brothers Menzies and Stephen. I agree with them that the circumstances of the case excluded the implication of a warranty of quality of the bolt the fracture of which due to latent defect caused the damage for which the first respondent sued. I agree with the reasons which my brothers offer for that conclusion and do not desire to add anything thereto on my own behalf.

I also agree that the appellant's appeal against the decision in favour of the plaintiff in the action against the defendant, the now second respondent R.W. Engineering Pty. Ltd., should be treated as competent.

I would wish to add on my own behalf that I do not share the doubts expressed by my brother Stephen as to that competence. It seems to me that a third party who is given leave to defend a plaintiff's action, and who does so, is bound by the result of the issues which that third party contests. That it seems to me is so, not only on principle but having regard to the case law on O. 16, r. 4 of the Supreme Court Rules Eng., see White Book, 1973 vol. 1, p. 229. In my opinion, the function of par. 4 of that rule, and of like words in O. 17, r. 4 (4) of the Rules of the Supreme Court Q., is to enable the court to limit the extent to which such a third party may be so bound. In my opinion, the result of the third party contesting issues in the action does not depend on the making of an order determining the extent to which the third party should be bound but upon the making of an order giving the third party leave to defend the plaintiff's action. Further, where a third party does contest that action without leave to defend having been given, it may well be proper to deal with the case as if an order giving leave had been made.