Charlton v Moore

[2009] NSWLEC 61

Land and Environment Court

of New South Wales

CITATION:

Charlton v Moore [2009] NSWLEC 61

PARTIES:

APPLICANT:
Belinda Lee Charlton

FIRST RESPONDENT:
Susan Rosalie Moore

SECOND RESPONDENT:
Alison Gay Howlett

THIRD RESPONDENT:
Singleton Council

FILE NUMBER(S):

40130 of 2009

CORAM:

Biscoe J

KEY ISSUES:

PRACTICE AND PROCEDURE :- test for joinder of a party.

LEGISLATION CITED:

Uniform Civil Procedure Rules 2005, r 6.24(1)

CASES CITED:

News Limited v Australian Rugby Football League Limited [1996] 64 FCR 410

DATES OF HEARING:

16 March 2009

EX TEMPORE JUDGMENT DATE:

16 March 2009

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Larkin
SOLICITORS
Thompson Norrie

FIRST - THIRD RESPONDENTS:
Ms C Adamson SC
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

16 March 2009

40130 of 2009

CHARLTON v MOORE & ORS

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a notice of motion by the applicant to join Mr Gary Woodman as fourth respondent. The motion is not contested by Mr Woodman or any other party. The Uniform Civil Procedure Rules 2005 r 6.24(1) provides:

“If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.”

2 In my opinion, the appropriate test for joinder is that adopted in News Limited v Australian Rugby Football League Limited [1996] 64 FCR 410 at 524. There the Full Court of the Federal Court, in the context of an equivalent rule of the Federal Court, adopted the following test for joinder proposed by Lord Diplock in Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ 52 (at 55-56):

“'A better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?'

An order which directly affects a third person’s rights against or liabilities to a party should not be made unless the person is also joined as a party. If made, the order will be set aside.”

3 In my opinion, this test is satisfied because the applicant is challenging the validity of a resolution by Singleton Council under which Mr Woodman would be its acting general manager for the period from 23 March to 30 June 2009. Consequently, Mr Woodman is a person whose legal interests will be directly affected if the relief sought by the applicant is granted.

4 Accordingly, I order that Gary Woodman be joined as fourth respondent. The exhibits may be returned.