Pullagar and Kitto JJ. CHADWICK ah ts : cE y . APPELLA Derenpant, AND BRIDGE AND ANOTHER § F 4 . Responpe . Practice —Pleading—Tort—Joinder of nominal defendant and other defenda HIGH COURT iat {HIGH COURT OF AUSTRALIA.) Praintivr anD Nomivat Derenpanr, ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. one action—Inconsistent claims—Alternative relief—Motor Vehicles (Third Insurance) Act 1942 (N.S.W.) (No. 15 of 1942), 8. 30 (2)—Law Reform (M laneous Provisions) Act 1946 (N.S.W.) (No. 33 of 1946), s. 2. 'The Motor Vehicles (Third Party Insurance) Act 1942 (N.8.W.), 8. 30 (2) provides that " Where the death of or bodily injury to any person is cau: by or arises out of the use of a motor vehicle but the identity of the mo could have enforced a claim for damages against the owner or driver of t motor vehicle in respect of the death or bodily injury may enforce agi the nominal defendant the claim which he could have enforced against owner or driver of the motor vehicle." The Law Reform (Miscella "'(a) All persons may be joined as defendants against whom the ri any relief in respect of or arising out of the same transaction or seri transactions is alleged to exist, whether jointly or severally or in the native where if separate actions were brought against such persons common question of law or fact would arise..." Held that a proceeding instituted under s. 30 (2) (a) of the Motor V can be sued in one action with an identified and named defendant all to be a tortfeasor "in the alternative" within the meaning of s. 2 of the Law Reform (Miscellaneous Provisions) Act. Decision of the Supreme Court of New South Wales (Full Court) af LR.) OF AUSTRALIA. gat from the Supreme Court of New South Wales. 'Whilst driving a motor car along the Pacific Highway between dney and Gosford at night time, George Edwin Bridge sustained injury from a vehicle proceeding in the opposite direction. The iven by Bridge. The other vehicle did not stop. The evidence sted that the driver involved in the accident in the sense wick was interviewed by the police. Partly from statements de by him that he was on the Pacific Highway on the day in timber on the vehicle (a lorry) a prosecution of Chadwick followed and he was convicted of two offences, namely, a failure to keep his motor vehicle as near as practicable to the left-hand side of the road, and of having a loading of timber projecting more than six inches beyond the extreme outer portion of the vehicle on the driver's right-hand side. Chadwick appealed to the Court Quarter Sessions against the conviction and the appeal was upheld on 27th October 1948. An affidavit filed in connection th a chamber summons referred to below revealed that the airman of Quarter Sessions held that there was not any case It appeared that the Chairman was at least not satisfied that the injury sustained by Bridge was caused by Chadwick On 12th May 1949 a writ of summons was issued out of the preme Court of New South Wales on behalf of Bridge claiming by virtue of the provisions of the Motor Vehicles (Third Insurance) Act 1942 (N.S.W.). On 8th June 1949 a declaration was filed containing two counts. The first was framed in negligence averring that the defendant dwick so negligently drove a motor vehicle upon a highway the vehicle and certain timber loaded thereon were forced driven against the plaintiff, who was then driving a vehicle ipon the highway. The second count was restricted to the ominal defendant and set forth that " bodily injury to the plaintiff caused by or arose out of the use of a motor vehicle but the ntity of the said motor vehicle could not be and was not after inquiry and search established and the plaintiff is a person could have enforced a claim for damages against the owner driver of the said motor vehicle in respect of the said bodily y". Then followed the necessary allegations of negligence s from Chadwick and also from the nominal defendant, the, H. C. or A. 1951. ase Cuapwick v Brivce. H. C. or A. 1951. oy: CHADWICK v. Brice, HIGH COURT against the driver of the unidentified motor vehicle and a st: of damage. An application in chambers was made on behalf of Chadwick in effect to be struck out of the proceedings. It was opposed both the plaintiff and the nominal defendant, and was dismisse and that decision was upheld on appeal by the Full Court of ti t) Supreme Court (Maxwell, Owen and Herron JJ.). The grounds of that appeal were that the defendants could both be sued by virtue of the provisions of s. 2 (1) of the Law Refo (Miscellaneous Provisions) Act 1946 ; that the plaintiff could no invoke the aid of s. 2 (1) (a) and proceed against the two defend "in the alternative'; and that the plaintiff could not claim to be in doubt as to the pee from whom he was entitled to re 2 within the meaning of s. 2 (1) (¢). L By s. 2 (1) in an action of tort " (a) All persons may be joined a defendants against whom the right to any relief in respect of arising out of the same transaction or series of transactions i alleged to exist, whether jointly or severally or in the alternati where if separate actions were brought against such persons an common question of law or fact would arise. . . .". par. (c) " Where the plaintiff is in doubt as to the person whom he is entitled to redress, he may join two or more defend to the intent that the question as to which, if any, of the defe is liable, and to what extent, may be determined as between parties ". The presence of a nominal defendant in this action was du far as relevant—to the provisions of s. 30 (2) (a) of the Vehicles (Third Party Insurance) Act 1942, which are in terms :—'' Where the death of or bodily injury to any p is caused by or arises out of the use of a motor vehicle but identity of the motor vehicle cannot after due inquiry and se be established, any person who could have enforced a clai damages against the owner or driver of the motor vehicle i respect of the death or bodily injury may enforce against th nominal defendant the claim which he could have enforced again the owner or driver of the motor vehicle ". Chadwick appealed, by leave, to the High Court. The grounds of the appeal were, inter alia, that the Sw Court was in error in holding :—(a) that Bridge as plaintiff in th action was entitled under s. 2 of the Law Reform (Miscellaneou Provisions) Act 1946, to join the appellant with the n defendant as a defendant in the action; (b) that s. 2 of entitled a plaintiff to join an identified and named 33 C.L.R.] OF AUSTRALIA. ninal defendant could be sued in the one action with an identified named defendant alleged to be a tortfeasor " in the alternative " rithin the meaning of s. 2 (1) (a) of the Act; (d) that there was inconsistent in a plaintiff suing in one action an identified named defendant alleged to be a tortfeasor and the nominal fendant in respect of the same injury; (e) that in this action e plaintiff was entitled to proceed in one action against the ellant and the nominal defendant "in the alternative " within meaning of s. 2 (1) (a); (f) that in the action a "common juestion of law or fact'? within the meaning of s. 2 (1) (a) would (g) that s. 2 (1) (c) of the Act entitled Bridge as plaintiff jin the appellant and the nominal defendant as appellants i of s. 2 (1) (c); and (i) that the doubt of the plaintiff as to whom of the two defendants was liable might be resolved only 'the trial of the action. A further ground of appeal was that Supreme Court should have held that the words "to what ent" in s. 2 (1) (c) did not involve a division of the amount of 'ion and contribution between defendants who had been J. Bradley K.C., G. Wallace K.C. and A. Bridge, for the it. . B. Barwick K.C. and M. D. Healy, for the respondent Bridge. McLelland K.C. and M. E. Warburton, for the respondent nal defendant. following judgments were delivered :— xo J. This is an appeal by leave from an order of thé Full rt of the Supreme Court of New South Wales. The order er appeal dismissed an appeal from an order dealing with a unons. The summons was dismissed by the judge in chambers. summons was issued in an action in which the plaintiff pro- against an individual defendant by name and against a al defendant. The action proceeded to the stage of pleading, ration was filed and pleas were filed. The declaration con- two counts. By the first of the two counts a cause of action ligence in the management of a truck was framed against B17 with the nominal defendant in an action of tort; (c) that the H- ©. or A. 1951. = Caapwick v Bripes. H. C. or A. 1951. ee CHADWICK v, Brice. Dixon J. HIGH COURT the named defendant. By the second of the two counts a of action was framed against the nominal defendant in purpo pursuance of s. 30 (2) of the Motor Vehicles (Third Party Ins Act 1942. The count against the named defendant, Chady necessarily stated explicitly that he did carelessly, negligently unskilfully drive and manage a motor vehicle by which the injur was done. The second count, that against the nominal defendant necessarily stated that due inquiry and search had been made s, 30 (2) requires and that the identity of the motor vehicle coul not after that inquiry be established. ; The summons which was issued challenged the propriety o proceedings in this form and sought an order that the action bi stayed or that the defendant Chadwick be struck out of the pro ceedings or dismissed from the proceedings. The summons issued by Chadwick. The summons was, of course, opposed hy plaintiff and it was also opposed by the nominal defendant. justification for proceedings in this form which is put forward lie in the Law Reform (Miscellaneous Provisions) Act 1946. Secti of that Act deals with alternative defences, as well as with th party proceedings. The provisions of s. 2 are founded upon contained in Order XVI. of the English Rules of the Supreme but it adopts by no means the whole of Order XVI. It deals defendants only ; and, unlike those rules, it is confined ex] to actions of tort. Section 2 is divided into five paragraphs, first four of which state the substance of the English Rules 4, and 11, but some words which are to be found in Rule 1 of Orde XVI. are introduced into these paragraphs which relate to th position of defendants. Their Honours in the Supreme Court of opinion that these provisions justified the procedure. : The appeal to this Court is instituted for the purpose of estab ing that where there is a nominal defendant who is joined tl case falls outside the scope of the procedure which these pro i eet It is procedure which is of course familiar in j i that the procedure falls outside the Scope of s. 2 of the Law Ref (Miscellaneous Provisions) Act 1946 are to be found in the charac or elements of the cause of action which is expressed in s. 30 in relation to a nominal defendant. The principle upon that provision proceeds is that where a plaintiff is injured as a res of the use of a motor vehicle and he is unable after due i to identify the motor vehicle he then may proceed ag OF AUSTRALIA. uthority. It is said that the very hypothesis on which the cause of m is founded is the complete inability on the plaintiff's part at time the writ was issued after due inquiry of ascertaining the tity of the motor vehicle. Therefore to allow in one proceeding introduction of two counts, one of which asserts that the ntity of the motor vehicle is known to the plaintiff, and the other of which necessarily says that it is not, is to allow of quite inconsistent positions, the first of which necessarily destroys the naction of tort. Indeed, as I understood Mr. Bradley, he disputed i although, if I correctly understood Mr. Wallace, he was inclined }concede it. But, be that as it may, I think that a proceeding the provisions of s. 30(2) of the Motor Vehicles (Third ies Insurance) Act 1942 should be considered an action of tort. the basis of the action is the commission of a tort by an undis- covered person. Upon that basis is established a liability in a ic authority because of the inability of the plaintiff to ascertain e identity of the actual tortfeasor. It is no doubt correct that nominal defendant himself has not committed a wrong, but a classification of causes of action it seems right to describe the proceedings against him as an action of tort. Che purpose of s. 2 (1) (a) (b) and (c) of the Law Reform (Miscel- s Provisions) Act 1946 is to make it possible to dispose in e action of claims against two or more persons when those ims arise out of one transaction and it is uncertain which of , if not all of them, are responsible for the relief which the intiff claims. It is, I think, not 'a proper way of construing 2 to take every paragraph of the section separately and deal pose of the paragraphs is to make plain how the general policy the provision operates and to ensure as far as language may do Plaintiffs are not to be defeated because of their uncertainty at the commencement of the action as to the correct party against: vhom they ought to claim. Fundamentally the appellant adwick's objection depends on a conception that it is impossible allege inconsistent matters in different counts based upon a of action arising out of the same transaction. There is no neiple now existing under the Judicature Rules which prevents i¢ allegation of inconsistent alternatives. In the case, which has referred to, of Hvans v. Buck (1) the decision of the Master of (1) (1876) 4 Ch. D, 432. Ww Cuapwick Brive. Dixon J. H. C. or A. Cnapwick v, Brier. Dixon J. HIGH COURT Rolls, Sir George Jessel, relates to the joinder of a new party joined as co-defendants. The situation here is one in which plaintiff is aware of an injury done by a motor vehicle and al a cause of action based upon the assumption that there negligence in the management of that motor vehicle, but is unce) whether he has correctly identified the motor vehicle and therefore correctly identified the defendant who is responsible for its mai ment. In those circumstances the case appears clearly eno to come within s. 2 (1) (c) of the Law Reform (Miscellaneous visions) Act. Section 2 (1) (c), however, is explanatory in a of s. 2 (1) (a) and there does not appear any reason why causes of action should not be treated as existing in the alternat against the unknown person and the known person, the no defendant being placed upon the record as the person responsi! if it turns out that the unknown person is the person aga whom redress would be sought. The case falls within the ge principle to which s. 2 is addressed and presents no features whiel justify an argument excluding its application to a proceeding this character where one defendant is sued under the Motor Vehit (Third Party Insurance) Act 1942, s. 30 (2). The appeal should be dismissed. Wituams J. I am of the same opinion. I agree with 1 brother Dizon that the statement of Jessel M.R. in Evans Buck (1) that the words " in the alternative" do not include inconsistent alternative, are only intended to apply to a cot claim and do not govern the construction of the same words in s. 2 (1) (a) of the Law Reform (Miscellaneous Provisions) Act In this connection I should like to refer to the decision of Court of Appeal in Child v. Stenning (2). There the alternati relief claimed in the amended statement of claim was pla inconsistent, and on this ground Hall V.C. held on demurrer thi the amended statement of claim was bad. But in the Court Appeal, presided over by Jessel M.R., it was held to be good ani that a plaintiff was not confined under the rules of court to case in which the alternative relief claimed against one defe was consistent with that claimed against the other. The were not the same rules as the present English rules, the me (1) (1876) 4 Ch. D., at p. 434. (2) (1877) 5 Ch. D. 695. R.] OF AUSTRALIA. provisions of s. 2 (1) of the Law Reform (Miscellaneous Pro- s) Act are based. The causes of action under the present ion are separate actions of tort. The right to relief claimed nst the defendants is inconsistent, but it is claimed against n either severally or in the alternative. It arises out of the e transaction and common questions of fact will arise. The I agree with the judgment of Dixon J., but I had e difficulty in coming to the conclusion that a proceeding the nominal defendant is an action of tort. However, I it does not lose the quality of an action of tort merely because f the substitution of the nominal defendant in the place of the al wrongdoer. In a broad sense the cause of action remains the uLtaGaR J. I agree. I would only add this with reference to argument put by Mr. Wallace yesterday. I can see no reason whatever why an allegation of facts necessary to bring a case in s. 30(2) of the Motor Vehicles (Third Party Insurance) Act d not appear in a declaration as alternative to other allega- s diselosing a cause of action against an identified defendant +h as Chadwick in the present case. e fact that both sets of allegations cannot be true appears Appeal dismissed with costs. olicitors for the appellant, Abbott, Tout, Creer & Wilkinson. citor for the respondent Bridge, Adrian C. R. Twigg. citors for the respondent nominal defendant, J. W. Maund J.B. (1) (1942) 65 C.L.R. 585. ich was discussed in Richardson v. Trautwein (1), on which 4H. ©. oF A. 1951. ees CHapwick v Baiver.