First defendant pleaded proportionate liability defences against fourth to sixth defendants
Requirement for joinder of concurrent wrongdoers
Proceeding settled between plaintiffs and first defendant without adjudication on merits
Quick Take
1Rule 63.15 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) does not apply where a defendant's proportionate liability defence falls away because the plaintiff withdrew the underlying claim or the proceeding settled; the defendant has not 'discontinued or withdrawn' its defence within the meaning of the rule.
2Where a proceeding involving proportionate liability defences under Part IVAA of the Wrongs Act 1958 (Vic) settles without adjudication on the merits, it is not appropriate to award the costs of a joined concurrent wrongdoer's active participation against the defendant who pleaded the proportionate liability defence, particularly where no claim was made against the joined party, the defence was reasonably pleaded, and the defendant took steps to narrow issues.
3Victoria's unique requirement under s 24AI(3) of the Wrongs Act that a court must not have regard to the comparative responsibility of non-parties is a significant factor in assessing the reasonableness of joinder; a defendant who must join alleged concurrent wrongdoers to preserve a proportionate liability defence should not be penalised in costs for doing so where the defence was reasonably maintained.
