Dispute Resolution Associates Pty Ltd v Selth

In the case of Dispute Resolution Associates Pty Ltd v Selth, the applicants sought to have Mr Tolhurst substituted as the first respondent following the death of the original first respondent, Mr Selth. The Federal Circuit Court was required to determine the standing of Mr Tolhurst to replace Mr Selth and whether the proceedings were commenced under Part IVA of the Federal Court of Australia Act 1976 (Cth). The applicants argued that the proceedings were initiated under Part IVA, thereby requiring the appointment of a new representative. The respondents, however, contended that the proceedings were commenced under rule 9.23 of the Federal Court Rules 2011 (Cth), and thus, no substitution was necessary.

The court found that it was common ground that Mr Tolhurst was not a member of the unincorporated association and therefore not a person with the "same interest in the proceeding" who could be a representative in the litigation for the purposes of rule 9.21. The court further noted that the respondents did not argue that Mr Tolhurst was a barrister or a member of the association, and they did not rely on rule 9.21 for the present proceedings. As such, there was no general principle supporting the appointment of Mr Tolhurst by reference to rule 9.21. The court also found that the respondents had not provided adequate evidence to substantiate that Mr Tolhurst should replace Mr Selth as the representative of the first respondent.

The court dismissed the respondents' interlocutory application and noted that the applicants' application was listed for hearing. The court found that all parties should bear their own costs of and incidental to the interlocutory application filed on 23 May 2020. The court also granted liberty to apply for substitution of a new representative for the first respondent. The interlocutory application filed on 23 May 2020 was dismissed, and the parties were ordered to bear their own costs of and incidental to the application. The court also noted that there would be liberty to apply for substitution of a new representative for the first respondent.