In the space of a week, the Full Federal Court delivered two
conflicting judgments on a key issue in proportionate liability
regimes under Commonwealth legislation.
This decision comes at a time where, following the 2013 High
Court decision in Mitchell Morgan Nominees Pty Ltd & Anor v
Vella & Ors (see "
High Court gives guidance on proportionate liability") and
the release of the draft model legislation (see "
Proportionate liability: model legislation released"), it
was hoped that some of the uncertainty around proportionate
liability would be resolved. However, as these cases demonstrate,
there is a still a long way to go.
What is proportionate liability?
Proportionate liability was introduced to modify the common law
rule of joint and several liability, so that defendants were only
liable for the proportion of the damage that they had caused. The
proportionate liability legislation was intended to prevent one
wrongdoer being held responsible for the entire
