In GEJ & MA Geldard Pty Ltd v Mobbs (No
2)1, the plaintiff claimed that its cotton crop had
been damaged by the aerial spraying of various herbicides on nearby
cattle properties. The plaintiff sued eight defendants (the first
five being the owners and managers of the cattle properties, the
sixth being the aerial spraying company, the seventh being the
chemical supplier and the eighth being the director of the sixth
defendant and the pilot who flew on the day that the spraying took
Prior to the trial, the plaintiff settled the proceedings
against all defendants except for the sixth and eighth defendants.
The trial proceeded against the sixth and eighth defendants with
the trial judge finding in favour of the plaintiff against them
both. A further hearing was had in relation to the apportionment of
responsibility between all defendants and a second pilot (who was
not a party to the proceedings).
Ann Lyons J found that it was for the sixth and eighth
defendants (not the plaintiff) to prove that the other defendants
and the second pilot were concurrent wrongdoers. This finding
accords with the decision of Middleton J in Dartberg Pty Ltd v
Wealthcare Financial Planning Pty Ltd2 in which his
"If a respondent calls in
aid the benefit of the limitation on liability provided for in Pt
IVAA of the Wrongs Act then the respondent has the onus of pleading
and proving the required elements".
The difficulty for the sixth and eighth defendants was that the
other defendants had not taken part in the trial. The sixth and
eighth defendants sought to rely on the pleadings. However, her
Honour followed the Reinhold case3 in which
Barrett J held that a person will be a concurrent wrongdoer only if
the court makes findings about the existence of loss or damage and
about which acts or omissions caused the loss or damage. His Honour
also said that the nature of a "claim" for the purposes
of the apportionment provisions is determined by what the court has
decided in the case, not by what might be pleaded in an initiating
Her Honour had not made any findings in respect of the first to
fifth or the seventh defendants such that the findings would
identify any of them as persons whose acts or omissions caused the
plaintiff's loss. Her Honour said that even if she accepted the
submission that the pleadings could be relied upon, "I do not
consider that the pleadings in this case establish the matters I
need to be satisfied about".
The critical issue was that there was no evidence to enable Ann
Lyons J to find that the other defendants or the second pilot were
The case illustrates the difficulties faced by a defendant in
proving that a person is a concurrent wrongdoer where that person
is either a defendant with whom the plaintiff has compromised the
claim or the person is not a party to the proceedings.
A defendant faced with such a scenario will need to determine
what evidence it can lead to satisfy its onus of proof and limit
its liability to the plaintiff under the apportionment
  QSC 33.
 (2007) 164 FCR 450.
 Reinhold v New South Wales Lotteries Corporation
(No 2)  NSWSC 187.
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The ACCC report: "Unfair Contract Terms: Industry review outcomes" provides examples of clauses considered to be unfair.
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