Application to strike out defence pursuant to r 23.02(a) of the Supreme Court (General Civil Procedure) Rules 2025 (Vic)
Paragraphs of defence plead apportionment defence under Pt IVAA of the Wrongs Act 1958 (Vic)
Plaintiff asserts that defence is not available at law and so is futile
Quick Take
1Whether a person must be the subject of a pleaded apportionable claim (i.e. a claim arising from a failure to take reasonable care) in order to qualify as a 'concurrent wrongdoer' under s 24AH of the Wrongs Act 1958 (Vic) remains an unsettled question of statutory construction, with conflicting indications in High Court, Victorian and NSW authority.
2Where the availability of a proportionate liability defence turns on debatable questions of statutory construction whose resolution may depend on factual findings at trial, it is inappropriate to strike out the defence at an interlocutory stage; the defence need only be shown to be arguable, not correct.
3The role of pleadings versus trial findings in determining whether a claim is 'apportionable' under Pt IVAA of the Wrongs Act remains uncertain; the Victorian Court of Appeal's description of pleadings as 'a starting point' and 'an essential determinant' in Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436 does not preclude factual findings at trial from also playing a role.
