A defendant sued for a loss caused by someone else — a subcontractor, an insurer, a supplier, another wrongdoer — does not have to pay and then sue separately. Order 8 Division 3 of the National Court Rules 1983 brings that person into the existing proceeding.
Rule 38 covers third parties
A party against whom a claim is made and who claims relief by way of counter-claim, cross-action, set-off, third party claim or otherwise, may make his claim by filing a pleading by way of cross-claim in those proceedings.
Practitioners familiar with other jurisdictions look for a “third party notice”. There is none. The words “third party claim” appear in Rule 38(1) and the answer is a cross-claim in Form 20 or 21.
The alternative — adding a party under Order 5 Rule 8 — serves a different purpose. Rule 8 adds someone to the plaintiff’s claim; a cross-claim asserts your own claim against them.
Typical situations
| Situation | Claim |
|---|---|
| You are sued for defective work done by a subcontractor | Indemnity or damages against the subcontractor |
| You are sued in tort and another party contributed to the harm | Contribution under Pt VIII of the Wrongs (Miscellaneous Provisions) Act |
| You sold goods supplied to you by another | Indemnity against the supplier |
| A guarantor is sued and wants recourse to the principal debtor | Indemnity against the debtor |
| A contract or policy gives you a right of indemnity | Contractual indemnity |
Rule 39(6) — the cross-claimant shall, in addition to pleading any other facts on which he relies, plead the facts showing that the claim is one which may be made in the proceedings.
Show the connection: that the third party’s liability arises out of the same subject matter, and that determining it in this proceeding avoids a second trial on the same facts. Rule 39(5) lets you plead the necessary facts by reference to the prior pleadings, which saves repetition — subject to Rule 27.
Rule 38(2) — and what to do if you are late
A cross-claimant may file a cross-claim within the time fixed for filing his defence.
Under Rule 4 that is 14 days after the time for the notice of intention to defend expires, or 14 days from service of a separate statement of claim.
The third party’s involvement often emerges only after discovery. Two routes then remain open:
An extension of time under Order 1 Rule 15, which the Court may grant after the time has expired.
Directions under Rule 41, on which the Court may make any order or direction which it considers necessary and such directions as it thinks fit for having the rights and liabilities of the parties determined and enforced.
Apply promptly. A cross-claim brought late enough to derail a trial date attracts the objection under Rule 41(e) that it should be dismissed, or that it be tried separately.
Rules 42 and 43
Rule 42(2) dispenses with personal service only where the cross-defendant has an address for service in the proceedings. A third party has none, so the ordinary rules apply — personal service under Order 6 Rule 3, or the statutory route for a company under section 431 of the Companies Act 1997, or section 7 of the Claims By and Against the State Act 1996 for the State.
Rule 42(3) — Order 6 Rule 14 (filing as service) does not apply to a cross-claim.
Someone made a party by the cross-claim may serve a notice in Form 22 requiring the cross-claimant to serve all or any of the pleadings filed before the cross-claim. The cross-claimant must comply within three days of service, or such longer time as the notice specifies.
That is sensible: a newcomer cannot plead sensibly without seeing the statement of claim and defence. The notice may be added to their notice of intention to defend.
Rules 44 to 47
Rule 44(1) and (6) — proceedings on a cross-claim follow as nearly as may be the course of proceedings on a writ, and the trial and all other steps shall as far as practicable be carried on together with those on the writ. That is the point: one trial, one set of findings.
Rule 45 — a third party who ignores the cross-claim is nonetheless bound, unless the Court orders otherwise, by a judgment or decision in the main proceedings so far as it is relevant to the cross-claim. Silence is expensive.
Rule 47 — the cross-claim may proceed notwithstanding that judgment is entered on the writ, or that the proceedings on the writ are stayed, dismissed or discontinued.
Rule 48(1) — judgment on a cross-claim for contribution or indemnity shall not be entered except by direction of the Court, and shall not, unless the Court otherwise orders, be enforced by execution until satisfaction of the judgment against the cross-claimant.
Rule 48(2) — where contribution is claimed under Part VIII of the Wrongs (Miscellaneous Provisions) Act against a party already in the proceedings, no defence to the cross-claim is to be filed unless the Court so directs. Under Rule 4(3), the ordinary defence timetable does not apply to such a cross-claim.
And Rule 49 keeps a without-prejudice offer of contribution out of the Court’s sight until all questions of liability and amount have been decided.
The listings mention considers joinder of necessary parties and causes of action and any cross-claim or set-off. Where you know a third party is involved, say so at the first directions hearing and seek directions under Rule 41 then, rather than months later.
Sources
- National Court Rules 1983 — O 1 r 15; O 5 r 8; O 6 rr 3, 14; O 8 rr 4, 27, 37–49; Forms 20–22
- Wrongs (Miscellaneous Provisions) Act (Chapter 297) — Pt VIII
- Companies Act 1997 s 431; Claims By and Against the State Act 1996 s 7
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.