Order 11 - Third Party Procedure Flashcards
11.01 Claim by third party notice (C&I; any relief/remedy sub same; any Q determined also between TP)
Where D claims as against a person not already a party to the proceeding (the TP):
● (a) Any contribution or indemnity
● (b) Any relief or remedy relating to or connected with the original subject matter and substantially the same as some relief or remedy claimed by the P; or
● (c) That any question relating to or connected with the original subject matter of the proceeding should be determined not only as between P and D but also between either or both of them and the TP
D can join them to proceeding and make a claim against that TP by filing a TPN.
11.02 SoC on TPN (11A)
TPN shall be in (a) Form 11A and (b) include a SoC
11.03 Time for appearance (at least 10 days)
(1) TPN shall state a time within which TP may file appearance.
(2) (a) Where TPN served within Vic, not less than 10 days after service (b)(i) Out of vic – time limited by 8.04(b), (c), (d), (e) (ii) court-specified period
11.04 filing and service of TPN
(1) Claim by TPN is commenced by filing a TPN in the Court and then the TP becomes a party (2) shall be filed and served on TP in same manner as OP served on defendant
11.05 Time for TPN (only file after service defence, within 30 days after defence time limit or w/leave)
(1) Where proceeding commenced by writ/continued by writ, defendant may not file TPN until defendant has served defence. (2) Can then file TPN (a) within 30 days after time limited for the service of defence or (b) at any time with leave of the court or consent in writing of P and any other party that’s appeared
11.06 Leave to file TPN (on notice to P, court can direct further notice)
Application for leave to file TPN shall be made on notice to P but the Court may direct notice to be given to any other party who has appeared.
11.07 Other requirements for service (TPN 60 days after filing)
(1) Serve on TP within 60 days after it is filed (2) unless court fixes another period. (3) Can extend period for service from time to time, (4) before or after the period is to expire.
(5) Serve also copy of (a) any order/consent under 11.05(2), (b) any order fixing different service period, (c) any extension order, (d) writ or other OP, and (e) pleadings/affidavits filed and served in the proceeding.
(6) (a)(b) within TP service period, copy of notice shall also be served on plaintiff and any other party who’s appeared
(7) If a copy of the TPN is not served in accordance with paragraph (6), the Court, on application by the plaintiff or the third party, may order that the questions between the plaintiff and the defendant be tried before and separately from the questions between the defendant and the third party.
11.08 appearance by Third Party
(1) File appearance within (a) time indicated on TPN or (b) such time as court orders. (2) Serve appearance copy also on the P.
(3) Rules 8.05 and 8.06 apply with any necessary modification.
11.09 Defence of TP (30 days after filing appearance)
(1) TP who files appearance shall serve a defence to the SOC indorsed on the TPN within 30 days after filing appearance.
(2) May serve a defence to SOC of the P by which they dispute the liability to the P of the D on any ground not raised by that D in the D’s defence
(3) Rules 14.05 and 14.10 apply mutatis mutandis as if claim by TPN were proceeding commenced by writ.
(4) Where a TP files an appearance, the D by whom the TP was joined shall serve on the TP a copy of any pleading that may from time to time thereafter be served between the P and that D.
11.10 Counterclaim by TP (TP can assert CC like 10.02, and join per 9.02)
(1) Can assert a counterclaim against D. Rule 10.02 applies as if that claim were proceeding commenced by writ.
(2) A TP who CCs may join the P as D to the counterclaim along with the D if the P and D could be joined properly as defendants in accordance with rule 9.02 (permissive joinder) in a separate proceeding brought against them by the third party
11.11 Default by TP (if not filed appearance/served defence by expiry time, and judgment is entered or has been given for the P against the D)
(1) Where at the time any judgment is entered or given for the P against the D by whom the TP was joined the TP has not filed an appearance or after appearance has not served defence, and the time limited for filing appearance or serving defence has expired
(a) the TP (i) Shall be taken to admit any claim stated in the TPN
(ii) and Shall be bound by the judgment between P/D insofar as it is relevant to any claim or question stated in the notice.
(b) D can then, after satisfaction of that judgment or with leave of the court, enter judgment against the TP:
(i) For any contribution/indemnity claimed in the notice; and
(ii) With leave, for any other relief or remedy claimed therein
(2) If a TP or the D by whom TP was joined fails to serve any pleadings within the time limited, court may give such judgment for the party not in default or make any order as it thinks fit.
(3) Court can set aside/vary (1)(b), (2) judgments.
11.12 Discovery and trial (TP/D can discover, TP attends/participates trial; TP bound by result; Qs determined concurrently)
Where the TP files an appearance:
(a) TP and D by whom TP joined can discovery one another.
(b) Unless court otherwise orders:
● (i) TP may attend and take part at trial;
● (ii) Qs between D/TP and P/D shall be tried concurrently
● (iii) TP shall be bound by the result of the trial.
11.13 TP directions
(1) Where TP files an appearance, the court may make any order or give any direction as follows:
● (a) Where liability of the TP to D is established, give judgment for D against TP
● (b) Order that any claim or question stated in the TPN be tried in such a manner as it directs
● (c) Give the TP leave —
○ (i) To defend the proceeding either alone or jointly with any other D; or
○ (ii) To attend and take part at the trial
● (d) Generally make such orders and directions —
○ (i) As are necessary to ensure all qs in proceeding are effectually and completely determined and adjudicated upon; and
○ (ii) As to the extent to which the TP is to be bound by any judgment/ decision in the proceeding
(2)(a) Can make these orders/directions before/after judgment has been given for P against D. (b) may at any time vary/rescind such orders/directions.
11.14 Judgment between defendant and TP
(1) Crt may give judgment for defendant as against third party or vice versa
(2) Unless court otherwise orders, where judgment given for P against D and judgment given for D against TP, judgment for D shall not be enforced until judgment for P has been satisfied
11.15 Claim against another party
(1) Where a party claims as against another party to proceeding relief described in 11.01 (indemnity, contribution etc), the party may make the claim against the other party by filing and serving a notice in accordance with this rule:
● (a) Within 60 days after service on the party of the doc in the proceeding by which the claim in respect of which the notice is served was made or
● (b) If when the doc was served, the party making claim was not a party, within 60 days of party becoming a party.
(2) DOES NOT APPLY where it could be made as a counterclaim.
(3) No appearance shall be necessary if party on whom it’s served is P or has already filed appearance, but otherwise this order applies with necessary modifications as if (a) the D had filed and served a TPN; and (b) the party on whom the notice is served were a TP under the rules
(4)(a) notice shall be Form 11A (b) indorsed with SOC.
(5) where contribution claimed per part IV wrongs Act, Form 11B.
