Allen v Lloyd-Jones (No. 4) - [2010] NSWDC 93

CITATION: Allen v Lloyd-Jones (No. 4) [2010] NSWDC 93
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 27 May 2010

JUDGMENT DATE:
27 May 2010

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Plaintiff’s application to join Elm Grove Sanctuary Limited as trustee of the Elm Grove Sanctuary Trust dismissed.
(2) Plaintiff to pay the costs of the defendant and Elm Grove Sanctuary Limited of this application.
(3) Matter stood on to Friday 11 June 2010 at 9:00am for argument on contextual imputations (1 hour argument).

CATCHWORDS: PRACTICE AND PROCEDURE - application for joinder of party to proceedings after expiration of limitation period - Civil Procedure Act 2005 (NSW), ss 64 and 65 - type of mistake to be corrected - existence of discretion even if relevant type of mistake found to exist

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64 and 65
Limitation Act 1969 (NSW), s 56A
Uniform Civil Procedure Rules 2005 (NSW), Part 6 r 6.24(1)

CASES CITED: Allen v Lloyd-Jones (No 3) [2010] NSWDC 53
AON Risk Services Australia Limited v Australian National University [2009] HCA 27
Greenwood v Papademetri [2007] NSWCA 221
Preston v Nikolaidis [2010] NSWSC 427
The Owners of Strata Plan 62658 v Black No Sugar Pty Ltd [2010] NSWSC 408
Webb v Bloch (1928) 41 CLR 331

PARTIES: Plaintiff: Anthony James Allen
Defendant: Laurel Lloyd-Jones

FILE NUMBER(S): 1549 of 2009; 2009/00334582

COUNSEL: Plaintiff: Ms S Chrysanthou
First Defendant: Mr C D Longman (Solicitor)
Elm Grove Sanctuary Limited: Mr C Dibb

SOLICITORS: Plaintiff: Andrew Warren & Associates
First Defendant: Levitt Robinson Solicitors
Elm Grove Sanctuary Limited: Foley Lawyers

JUDGMENT

[1] The plaintiff on 13 April 2010 brought an application to join Elm Grove Sanctuary Limited (“Elm Grove Sanctuary”) as trustee of the Elm Grove Sanctuary Trust (“the Trust”) as the second defendant in these proceedings, as these proceedings were initially set down for hearing on 27 April 2010 as a 2-week plus jury trial. As the hearing date was imminent, and no notification had been given to Elm Grove Sanctuary, I made orders for the vacating of the hearing date and, in addition, acceded to the plaintiff’s request to strike out the Notice of Intention to Elect Trial by Jury so that the matter will be heard as a judge alone trial: Allen v Lloyd-Jones (No 3) [2010] NSWDC 53.

[2] The matter is now fixed for hearing with an estimate of one week commencing 19 July 2010. The parties knew, when they accepted this adjourned date, that there was a possibility that this adjourned date could cause problems for the proposed new defendant.

[3] The applications before me today are applications to join the proposed new defendant and to strike out the defence of contextual truth pleaded by the existing defendant. By agreement of the parties, the application to strike out the defence of contextual truth has been stood over for argument to the Defamation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWDC 93
Decision Date: 27 May 2010

CaseChat Overview and Summary

The matter of Allen v Lloyd-Jones (No. 4) arose from a dispute between the plaintiff and the defendant, with the plaintiff seeking to join a third party, Elm Grove Sanctuary Limited, as trustee of the Elm Grove Sanctuary Trust, to the proceedings after the expiration of the limitation period. The application was made in the Supreme Court of New South Wales. The plaintiff argued that the joinder should be permitted due to a mistake under the Civil Procedure Act 2005 (NSW), sections 64 and 65. The defendant opposed the application, arguing that the court did not have the discretion to permit the joinder after the limitation period had expired, even if a relevant type of mistake was found to exist.

The court was required to determine whether the existence of a relevant type of mistake was sufficient to permit the joinder of a party after the limitation period, or if the court had the discretion to refuse the application even if a relevant type of mistake was found to exist. The court considered the relevant provisions of the Civil Procedure Act 2005 (NSW) and the common law principles regarding the joinder of parties after the limitation period. The court held that the existence of a relevant type of mistake was not the sole determining factor in deciding whether to permit the joinder of a party after the limitation period. The court had the discretion to refuse the application even if a relevant type of mistake was found to exist.

The court found that the plaintiff had not demonstrated sufficient grounds to warrant the exercise of the court's discretion to permit the joinder of Elm Grove Sanctuary Limited after the limitation period had expired. The application was dismissed, and the plaintiff was ordered to pay the costs of the defendant and Elm Grove Sanctuary Limited of the application. The matter was stood over for argument on contextual imputations.

Orders

Orders of the court

(1) Plaintiff’s application to join Elm Grove Sanctuary Limited as trustee of the Elm Grove Sanctuary Trust dismissed.

(2) Plaintiff to pay the costs of the defendant and Elm Grove Sanctuary Limited of this application.

(3) Matter stood on to Friday 11 June 2010 at 9:00am for argument on contextual imputations (1 hour argument).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Allen v Lloyd-Jones (No. 4) [2010] NSWDC 93 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27 May 2010
JUDGMENT DATE:	27 May 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Plaintiff’s application to join Elm Grove Sanctuary Limited as trustee of the Elm Grove Sanctuary Trust dismissed. (2) Plaintiff to pay the costs of the defendant and Elm Grove Sanctuary Limited of this application. (3) Matter stood on to Friday 11 June 2010 at 9:00am for argument on contextual imputations (1 hour argument).
CATCHWORDS:	PRACTICE AND PROCEDURE - application for joinder of party to proceedings after expiration of limitation period - Civil Procedure Act 2005 (NSW), ss 64 and 65 - type of mistake to be corrected - existence of discretion even if relevant type of mistake found to exist
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64 and 65 Limitation Act 1969 (NSW), s 56A Uniform Civil Procedure Rules 2005 (NSW), Part 6 r 6.24(1)
CASES CITED:	Allen v Lloyd-Jones (No 3) [2010] NSWDC 53 AON Risk Services Australia Limited v Australian National University [2009] HCA 27 Greenwood v Papademetri [2007] NSWCA 221 Preston v Nikolaidis [2010] NSWSC 427 The Owners of Strata Plan 62658 v Black No Sugar Pty Ltd [2010] NSWSC 408 Webb v Bloch (1928) 41 CLR 331
PARTIES:	Plaintiff: Anthony James Allen Defendant: Laurel Lloyd-Jones
FILE NUMBER(S):	1549 of 2009; 2009/00334582
COUNSEL:	Plaintiff: Ms S Chrysanthou First Defendant: Mr C D Longman (Solicitor) Elm Grove Sanctuary Limited: Mr C Dibb
SOLICITORS:	Plaintiff: Andrew Warren & Associates First Defendant: Levitt Robinson Solicitors Elm Grove Sanctuary Limited: Foley Lawyers